Gerald W. Greer v. State of La., Dotd

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-417

GERALD W. GREER

VERSUS

STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT, ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. 2002-291
HONORABLE PATRICIA C. COLE, DISTRICT COURT JUDGE

************

JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

REVERSED IN PART; AFFIRMED IN PART;
AND AMENDED IN PART.

A. Bruce Rozas
Rozas & Rozas
Post Office Drawer 280
Mamou, Louisiana 70554-0280
(337) 468-5271
COUNSEL FOR PLAINTIFF/APPELLEE:
Gerald W. Greer

Kenneth Pitre
Pitre Law Office
P.O. Drawer 1260
Eunice, Louisiana 70535-1260
(337) 457-9048
COUNSEL FOR PLAINTIFF/APPELLEE:
Gerald W. Greer

Sylvia M. Fordice
Assistant Attorney General
Louisiana Department of Justice
Division of Risk Litigation
556 Jefferson Street, 4th Floor
Lafayette, Louisiana 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Department of Transportation
and Development

GENOVESE, Judge.

Following a single vehicle motorcycle accident, Plaintiff, Gerald W. Greer

(Greer), filed suit against the State of Louisiana, through the Department of

Transportation and Development (DOTD), a private landowner, James Wade Willis

(Willis), Willis’ homeowner’s insurer, Patterson Insurance Company (Patterson), and

following Patterson being placed into receivership, Louisiana Insurance Guaranty

Association (LIGA). A jury allocated fault between Greer (forty percent), DOTD

(forty percent), and Willis (twenty percent), and awarded damages totaling

$40,200.00. Greer filed a motion for additur, which was denied by the trial court, and

a motion for judgment notwithstanding the verdict (JNOV), which was granted in

part, and denied in part. DOTD appealed, and Greer answered the appeal. For the

following reasons, we reverse in part, affirm in part, and amend in part.

FACTS

On June 11, 2001, at approximately 2:00 a.m., Greer was riding his motorcycle

northbound on Louisiana Highway 1153, in Allen Parish, Louisiana, when he

encountered a tree which had fallen across the roadway. Greer collided with the tree,

was thrown from his motorcycle, and sustained personal injury.

Greer filed suit against DOTD, Willis, Patterson, and subsequently, LIGA. The

matter was tried before a jury which allocated forty percent fault to Greer, forty

percent fault to DOTD, and twenty percent fault to Willis. The jury also awarded

damages as follows:

A. Property Damage $ 700.00
B. Past Pain and Suffering $ 2,000.00
C. Future Pain and Suffering $ 1,000.00
D. Past Medical Expenses $ 11,500.00
E. Future Medical Expenses $ 25,000.00
F. Past Lost Wages $ 0.00

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G. Loss of Earning Capacity $ 0.00
H. Loss of Enjoyment of Life $ 0.00

On September 26, 2005, Greer filed a motion for additur and a motion for

JNOV. The trial court: (1) denied Greer’s motion for additur; (2) denied Greer’s

motion for JNOV relative to liability; and (3) granted Greer’s motion for JNOV, in

part, relative to damages and increased the jury award as follows:

JURY AWARD JNOV

A. Property Damage $ 700.00 $ 3,500.00
B. Past Pain and Suffering $ 2,000.00 $ 50,000.00
C. Future Pain and Suffering $ 1,000.00 $ 25,000.00
D. Past Medical Expenses $ 11,500.00 $ 11,558.07
E. Past Lost Wages $ 0.00 $ 10,500.00
F. Loss of Earning Capacity $ 0.00 $ 7,000.00
G. Loss of Enjoyment of Life $ 0.00 $ 5,000.00

The trial court also assessed court costs one-half to DOTD and one-half to Greer.

The JNOV was signed by the trial court November 17, 2005. It is from this judgment

that DOTD has appealed, and Greer has answered the appeal.

ISSUES

The issues presented for our review include liability, allocation of fault,

damages, and the assessment of court costs.

LAW AND ARGUMENT

LIABILITY OF DOTD

An appellate court may not set aside a jury’s finding of fact absent manifest

error or unless it is clearly wrong. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106

(La.1990). In order to reverse a fact finder’s determination of fact, an appellate court

must review the record in its entirety and meet the following two-part test: (1) find

that a reasonable factual basis does not exist for the finding; and (2) further determine

that the record establishes that the fact finder is clearly wrong or manifestly

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erroneous. Stobart v. State, Through Dep't of Transp. & Dev., 617 So.2d 880

(La.1993).

In order to establish liability on the part of DOTD, Greer had the burden of

proving that: (1) the tree was in the care, custody, and control of DOTD; (2) the tree

was defective, i.e., it posed an unreasonable risk of harm; (3) DOTD had actual or

constructive notice of the defect; (4) DOTD had an opportunity to remedy the defect

and failed to do so; and (5) Greer was damaged as a result of the defect. Vallien v.

State, Dep’t Transp. & Dev., 01-566 (La.App. 3 Cir. 3/27/02), 812 So.2d 894, writs

denied, 02-1184, 02-1198 (La. 6/14/02), 818 So.2d 785 (quoting Cormier v.

Comeaux, 98-2378 (La. 7/7/99), 748 So.2d 1123; Netecke v. State, Dep’t Transp. &

Dev., 98-1182, 98-1197 (La. 10/19/99), 747 So.2d 489).

DOTD asserts on appeal that Greer failed in meeting his burden of proof on the

first three enumerated elements of liability. Thus, our initial inquiry is whether the

tree was in the care, custody and control, of DOTD. We conclude that it was.

Much effort was undertaken by the parties to establish whether the tree which

fell was located totally on DOTD’s right of way, totally on Willis’ property, or

partially on DOTD’s right of way and partially on Willis’ property. However, this

factual finding is not determinative of the duty owed by DOTD.

With respect to DOTD’s duty, the trial court gave the following instruction to

the jury without objection:

Although the [DOTD] is not the guarantor of the safety of
travelers, it does owe a duty to keep the highways and its shoulders
reasonably safe for non-negligent motorists. Furthermore, it has a duty
to remove a tree from property adjacent to its right-of way when it has
actual or constructive knowledge the tree is in a condition where it may
fall upon the road and create imminent danger for the users of the road.
The [DOTD] also has a duty to provide adequate warning of such
perilous condition.

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The duty of the [DOTD] is to observe trees that [are] dead or
leaning or otherwise appear defective by general observation and
remove them within a reasonable time. This applies to trees on property
adjacent to the [DOTD]’s right-of-way.

This instruction is an accurate statement of the law. The duty of DOTD “includes the

duty to look for situations where a condition off of the right of way may endanger the

safety of motorists.” Grant v. Allstate Ins. Co., 96-1028, p. 3 (La. App. 3 Cir. 6/4/97),

696 So.2d 275, 277, writs denied, 97-1717, 97-1579 (La. 10/10/97), 703 So.2d 606

(citing Wilson v. State, Through Dept. of Highways, 364 So.2d 1313 (La.App. 3

Cir.1978), writ denied, 366 So.2d 563 (La.1979). Quoting from Wilson, this court

expounded on the duty of DOTD as follows:

[T]he duty of the [DOTD] to maintain its highways in a reasonably safe
condition for the safety of the traveling public is so great that where a
situation of imminent danger is posed to the users of the highway
because of a tree or other hazardous instrumentality situated on private
property along the highway right-of-way, the Department cannot sit
back and ignore the dangers posed because the danger-causing object is
situated on private property.
Id. at 1316.

Grant, 696 So.2d at 277-78.

We also recognize that the duty of DOTD is an affirmative duty to inspect. As

explained by the supreme court, when addressing the risk associated with a tree

falling onto a highway, “the [DOTD]’s duty with respect to the limbs was to inspect

them, as they inspect roadside trees, by looking for dead limbs or those which

manifest some other indication that they are likely to fall into the roadway and to

remove such limbs within a reasonable time.” Thompson v. State, 97-0293, p. 4 (La.

10/31/97), 701 So.2d 952, 956.

In the instant matter, the experts testifying at trial about the location of the

fallen tree differed as to whether it was located on DOTD’s right-of-way, on Willis’

property, or whether the tree and its “sister tree” straddled same. However, despite

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the significant amount of time and effort which both parties devoted to establishing

the exact location of the fallen tree, even if it were the factual finding of the jury that

the tree was located solely on Willis’ property, such a finding would not exonerate

DOTD from all liability. Therefore, the issues remaining are whether the tree was

defective, and whether DOTD had actual or constructive notice of the defect.

The fact that the fallen tree was defective due to its rotten condition is not

seriously disputed by the parties. DOTD, in brief, asserts that “[w]hile the tree in this

case certainly presented a risk of harm, the court should find the risk of harm was not

unreasonable.” We disagree. All experts agreed that the tree was rotten and that it

had been in that condition for a significant amount of time. Therefore, we find that

the record contains a reasonable factual basis for the finding that the tree was

defective due to its rotten condition and the immediate danger which it presented to

the motoring public.

The remaining question, therefore, is that of notice. DOTD asserts that it did

not have actual or constructive notice for the imposition of liability. To the contrary,

we find that the record contains ample evidence to establish the requisite notice and

knowledge on the part of DOTD.

The fallen tree struck by Greer was located along Louisiana Highway 1153,

just north of Oakdale, Louisiana, in Allen Parish. The fallen tree was one of “twin

trees” which broke apart from its “sister tree” and fell across the roadway, blocking

the entire roadway. Several photographs of the tree and its location were introduced

into evidence. These photographs clearly depict a large hole in the trunk of the sister

tree, as well as a hole between the sister tree and the fallen tree.

The record is replete with evidence establishing the degree of deterioration of

the fallen tree. Steve Ardoin, an expert arborist, testified that when he visited the

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location of the accident, he saw the sister tree with a large hole in the bottom of it.

He described the tree as having a large cavity and being all decayed inside. In his

opinion, the tree had been in that condition for three to five years. Mr. Ardoin also

testified that the remnants from the fallen tree indicated to him that the fork was

totally dead. He stated that the tree had been in danger of falling for five years or

more. In his estimation, ninety percent of it, or better, was rotten. Mr. Ardoin

testified that the dead condition of the fork, the hole in the sister tree, and the cavity

between the two, were all visible and “would have been exposed.” He testified that

DOTD should have been able to see the condition of the tree from the highway.

Warren Peters, a consultant forester who performed an inspection of the

accident scene, was also called to testify. Notably, at the time of his inspection, the

sister tree had been cut down and all that remained was its stump. Therefore, unlike

Mr. Ardoin, he was not able to see the sister tree as it was before it was removed. Mr.

Peters agreed with Mr. Ardoin that the tree was dead and that it had been dead for a

long time. Although Mr. Peters testified that he was uncertain whether the condition

would have been visible to an individual driving on the highway, he did agree that the

rotten limb and the hole in the sister tree would have caused him to stop and examine

it. Mr. Peters admitted that this condition would cause concern to him that the tree

was defective and would indicate the need for inspection.

Wilbert LeBlue is the parish superintendent for Allen Parish. He testified that,

as parish superintendent, he inspects not only the state highways in the parish, but

that he looks for anything which may be of danger to the motoring public. In

conducting his inspection, he looks for leaning trees, trees that are dying, and trees

that might fall onto the roadway. Mr. LeBleu’s job requires that he drive the

highways in the parish at least twice a month to inspect their condition. Mr. LeBleu

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testified that he did not observe a dead or leaning tree, or any other indication that the

tree was in danger of falling. However, this witness did testify about the continuous

work done over the years in and around this location. He explained the documentary

evidence which showed that other state employees were on this roadway with work

crews cleaning ditches, removing trees, and even hand spraying herbicide at the exact

location where the tree fell. Moreover, Mr. LeBleu testified that logs, which are

maintained by DOTD, document that approximately seventeen days before Greer’s

accident, hand spraying of herbicide was performed by DOTD at the location of the

fallen tree.

Dan Daniels, a herbicide development operator with DOTD, was identified as

the employee who had conducted the herbicide spraying. Mr. Daniels testified that

he was physically at the location where the tree later fell, and that he was applying

herbicide by hand on May 24, 2001, approximately seventeen days before Greer’s

accident on June 11, 2001.

When considering all of the evidence presented, this court cannot say that the

jury’s determination that DOTD knew or should have known of the rotten condition

of the tree was unreasonable. Rather, we find that the record amply provides a

reasonable factual basis for the jury’s determination that DOTD had actual or

constructive notice of the defective condition of the fallen tree, and that despite the

opportunity to do so, it failed to remedy the situation. For the foregoing reasons, we

agree with the jury’s finding of liability on the part of DOTD.

LIABILITY OF LANDOWNER

Implicit in the jury’s allocation of twenty percent fault to Willis is an

underlying determination that he had “custody” of the defective tree. As set forth

above, the expert testimony on the exact location of the tree was inconclusive;

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however, said testimony did place the fallen tree at, on, or very near the state right of

way for Louisiana Highway 1153. However, we pretermit further discussion of the

issue of custody since we find that the record is void of any evidence of notice to or

by Willis of the defective condition of the fallen tree.

Willis was deceased at the time of trial. In lieu of his live testimony, his

deposition was read to the jury. Willis testified that he owned approximately thirty-

three acres along Louisiana Highway 1153, where he resided for most of his life. He

was familiar with the particular tree that fell. While farming his property, Willis and

his farm workers often parked in the shade under this particular tree. However, Willis

never noticed a problem with the tree before Greer’s accident. To his knowledge, it

was healthy and in good condition. Therefore, even if the tree in question was

located solely on Willis’ property, it was not proven that Willis had actual or

constructive notice of the rotten tree sufficient for the imposition of liability.

Additionally, we are mindful that Willis, as a landowner, did not have a duty

to inspect the trees. Rather, his duty was merely a duty to act as a reasonable person

would act. The condition of the tree in question was arguably obscured, at least

partially, by vegetation. This resulted in a condition where Willis, through the

exercise of reasonable care, would not necessarily be put on notice of the defective

nature of the tree. Notably, unlike DOTD, Willis did not have an affirmative duty to

inspect.

As stated previously, there was insufficient proof establishing that the tree was

even situated on Willis’ property to even trigger liability on his part. For the

foregoing reasons, we find the jury’s determination of liability on the part of the

landowner, Willis, to be manifestly erroneous.

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ALLOCATION OF FAULT

Both parties have appealed the allocation of fault. DOTD appeals the

allocation of forty percent fault which was assigned to it by the jury. 1 In his answer

to appeal, Greer contends that neither he nor the landowner are at fault and that

DOTD is one hundred percent at fault.

Standard of Review

Having reversed the trial court’s imposition of liability on the part of Willis,

we must reapportion fault. Consequently, our apportionment of fault between Greer

and DOTD is determined by conducting a de novo review. Turner v. D’Amico, 97-

214 (La. 3/21/97), 691 So.2d 70 (citing Boudreaux v. Farmer, 604 So.2d 641

(La.App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La.1992)).

Reallocation of Fault

In assigning percentages of fault, we are to consider both the nature of each

party’s conduct and the extent of the relation between that conduct and the damages

suffered. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985). In

conducting a de novo review of the evidence, we will first address the amount of fault

which we find is attributable to Greer.

It is noted that the record of these proceedings contains correspondence dated

June 19, 2001, from Dr. Gerald W. Mouton (Dr. Mouton) to Greer’s former attorney.

Therein, Dr. Mouton documents that Greer “reported that he was the single driver of

a motor cycle [sic] traveling approximately 55 to 60 miles per hour when he ran into

a tree that was laying across the road.” (Emphasis added.) It is undisputed that the

speed limit on highway 1153, where this accident occurred, was fifty miles per hour.

1
DOTD asserts on appeal that “[t]he court’s allocation of fault to the DOTD is contrary to
the law and to the evidence;” However, its brief addresses the issues of custody, duty, and notice.
We note that these issues are determinative of liability, not of an allocation of fault.

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Therefore, we find that there is evidence in the record that Greer was exceeding the

speed limit. Consequently, after conducting a de novo review, we agree with the

jury’s finding of forty percent fault on the part of Greer for the subject accident.

Having previously determined that Willis is not liable, we hereby assign the

remaining percentage of fault to DOTD. Accordingly, we reallocate fault in the

amount of sixty percent to DOTD and maintain Greer’s fault at forty percent.

DAMAGES

Following the jury’s verdict, Greer filed a motion for additur and motion for

JNOV. On the elements of damages, the trial court granted the JNOV and increased

each element of the damage award, with the exception of the award for future medical

expenses. Greer contends on appeal that the increase in these awards was

insufficient. DOTD asserts on appeal that the increase by the trial court in the

damage awards for past and future pain and suffering and the award for past lost

wages was in error. For the following reasons, we affirm in part, and amend in part.

Standard of Review

The standard governing our review of the trial court’s grant of Greer’s motion

for JNOV on the issue of damages was set forth by the supreme court as follows:

The use of JNOV is provided for by La.[Code Civ.P.] art. 1811. A
JNOV may be granted on the issue of liability or on the issue of
damages or on both issues. La.[Code Civ.P.] art. 1811(F). Article 1811
does not specify the grounds upon which the district court may grant a
JNOV; however this court has set forth the criteria to be used in
determining when a JNOV is proper as follows:

[A] JNOV is warranted when the facts and inferences point
so strongly and overwhelmingly in favor of one party that
the trial court believes that reasonable persons could not
arrive at a contrary verdict. The motion should be granted
only when the evidence points so strongly in favor of the
moving party that reasonable persons could not reach
different conclusions, not merely when there is a
preponderance of evidence for the mover. The motion
should be denied if there is evidence opposed to the motion

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which is of such quality and weight that reasonable and
fair-minded persons in the exercise of impartial judgment
might reach different conclusions. In making this
determination, the trial court should not evaluate the
credibility of the witnesses, and all reasonable inferences
or factual questions should be resolved in favor of the
non-moving party.

Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La. 10/30/00),
772 So.2d 94, 99 (internal citations omitted). See also VaSalle v.
Wal-Mart Stores, Inc., 01-0462, p. 11 (La. 11/28/01), 801 So.2d 331,
338-39. The rigorous standard of JNOV is based upon the principle that
“when there is a jury, the jury is the trier of fact.” Joseph, 00-0628 at p.
5, 772 So.2d at 99 (quoting Scott v. Hospital Serv. Dist. No. 1, 496
So.2d 270, 273 (La.1986)).

In reviewing a JNOV, an appellate court must first determine
whether the district judge erred in granting the JNOV by using the
above-mentioned criteria in the same way as the district judge in
deciding whether to grant the motion. VaSalle, 01-0462 at pp. 11-12,
801 So.2d at 339. Thus, the appellate court must determine whether the
“facts and inferences point so strongly and overwhelmingly in favor of
the moving party that reasonable persons could not arrive at a contrary
verdict.” Id. at p. 12, 801 So.2d at 339 (quoting Joseph, 00-0628 at p.
5, 772 So.2d at 99). If the appellate court determines that reasonable
persons might reach a different conclusion, then the district judge erred
in granting the motion and the jury verdict should be reinstated. Id.

Trunk v. Med. Ctr. of La. at New Orleans, 04-181, pp. 4-5 (La. 10/19/04), 885 So.2d

534, 537; Duchamp v. State Farm Mut. Auto Ins. Co. 05-339 (La.App. 3 Cir.

11/2/05), 916 So.2d 498, writ denied, 05-2505 (La. 3/31/06), 925 So.2d 1260. “Once

a trial court has granted a JNOV on the issue of damages, and has conducted its own

independent assessment of the damages as trier of fact, that decision becomes the

judgment of the court and it is reviewed on appeal for an abuse of discretion under

the standard set forth in Coco v. Winston [Indus., Inc., 341 So.2d 332 (La.1976)].”

Love v. Lewis, 00-6, p. 7 (La.App. 3 Cir. 10/11/00), 771 So.2d 220, 224, writ denied,

00-3506 (La. 2/16/01), 786 So.2d 102; Joseph v. Broussard Rice Mill, Inc., 00-628

(La. 10/30/00), 772 So.2d 94.

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Past Lost Wages

DOTD contends that the jury properly failed to award Greer any damages for

past lost wages and that the award should not have been subject to an upward

adjustment to $10,500.00. We disagree. After reviewing the record in this case, we

do not find that reasonable minds could differ on Greer’s entitlement to damages for

past lost wages. We, therefore, conclude that the trial court did not err in granting

Greer’ s motion for JNOV on this element of damages.

Greer was out of work for three months following the accident. It was proven

that his average monthly wage was approximately $3,500.00. Thus, having reviewed

the evidence introduced at trial on the wages which were lost by Greer as a result of

the subject accident, we find no abuse of the trial court’s discretion in the award of

$10,500.00 in past lost wages.

Future Lost Wages and Loss of Earning Capacity

The jury also did not award Greer any damages for loss of earning capacity.

The trial court increased the award to $7,000.00. DOTD contends that the jury

properly failed to award Greer damages for future loss of earning capacity and that

the award should not have been subject to an upward adjustment by the trial court.

We find that the trial court did not err in granting the JNOV on this element of

damages as reasonable minds could not differ on Greer’s entitlement to same.

The record showed that following the recommended shoulder surgery, he

would not be employable for eight weeks. Given his average monthly earnings of

$3,500.00, we find no abuse in this element of damages of the trial court’s award.

Past and Future Pain and Suffering

The jury’s award of $2,000.00 for past pain and suffering was increased by the

trial court to $50,000.00. The trial court also increased the jury’s award for future

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pain and suffering from $1,000.00 to $25,000.00. DOTD asserts that these awards

by the jury were adequate and should not have been increased by the trial court. On

the other hand, Greer contends on appeal that these awards are still woefully

inadequate. We agree with the trial court that the jury’s awards for past and future

pain and suffering were unreasonable. We also do not find that the trial court’s

awards of $50,000.00 and $25,000.00, respectively, to be an abuse of discretion.

Following the accident, Greer was transported to Oakdale Community Hospital

where he was treated for a laceration above his right eye, contusions to his hip and

low back, and abrasions to his arms, right elbow, and left thigh. He was subsequently

brought to Shreveport Medical Center for a neurological and orthopedic evaluation.

He was seen by Dr. Steven James Flood with complaints of pain in his right shoulder,

low back, legs, heals and right knee. Greer also attended physical therapy. Dr. Flood

testified that Greer had internal derangement with impingement in the shoulder, as

well as internal derangement in the knee, and a tear of the lateral meniscus.

Additionally, Greer testified that he continued to suffer with pain in his shoulder, hip,

and knee as of the date of trial.

Dr. Flood was also of the opinion that Greer would have to undergo surgery on

his shoulder in the future, at which time he would be out of work for a week to ten

days. Dr. Flood estimated the recovery period for the shoulder surgery to be four to

six months.

Considering Greer’s injuries, past medical treatment, and future medicals, we

do not find the awards for past and future pain and suffering to be abusively low or

high. Given the trial court’s vast discretion, we will not disturb these awards on

appeal.

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Loss of Enjoyment of Life

The jury did not award Greer any damages for loss of enjoyment of life. The

trial court increased this award to $5,000.00. We do not find that reasonable minds

could differ on Greer’s entitlement to damages for loss of enjoyment of life and

conclude that the trial court did not err in granting Greer’s motion for JNOV on this

element of damages. Greer testified that there were activities which he is unable to

do because of his injuries, such as playing tennis and dancing. Considering the

evidence in the record, we do not find this award to be an abuse of the trial court’s

discretion.

Future Medical Expenses

The jury awarded Greer $25,000.00 in future medical expenses. Greer argues

on appeal that the trial court erred in failing to increase this award pursuant to his

JNOV. We disagree.

When Dr. Flood was asked about the costs associated with the anticipated

shoulder, he did not give an exact figure. He qualified what his surgical fee would

be by stating it would depend upon what he found, and what he was required to do

during the surgery, and then testified that his fee would range between $3,000.00 and

$5,000.00. Dr. Flood also provided an amount for the associated surgical expenses

of $25,000.00, which he stated was accurate withing a range of “a couple of thousand

dollars more or less.” Considering the estimation of future medicals provided by Dr.

Flood, we cannot say that reasonable persons could not reach a different conclusion

on the amount of future medical expenses which Greer would incur as a result of this

accident. Therefore, we find that the trial court did not err in denying Greer’s motion

for JNOV relative to future medical expenses.

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Property Damages

The jury awarded Greer $700.00 for the property damage sustained to his

motorcycle. The trial court increased the jury award to $3,500.00. Greer asserts on

appeal that he is entitled to a further increase in the property damage award. We

agree.

Other than Greer’s own testimony, the only witness who testified on the subject

of property damage was Nina Doherty. Ms. Doherty is the owner of a Harley-

Davidson store in Lake Charles, Louisiana, who has been selling motorcycles since

1971. She engages in the buying and selling of parts, and the repair of motorcycles.

She is also knowledgeable about the retail prices for new and used motorcycles and

their accessories.

Ms. Doherty saw Greer’s Harley-Davidson motorcycle after the accident and

prepared a written estimate. She testified that the motorcycle was “a total loss

because there [was] nothing repairable on it.” In her opinion, the value of this

motorcycle was between $7,000.00 and $7,500.00, and that its accessories were

valued at $2,000.00. Doherty also testified that the motorcycle had a salvage value

of $100.00 to $150.00. This evidence was uncontradicted. Based on the foregoing,

we find that $3,500.00 for property damage to be abusively low and the amount

reasonably within the discretion of the trial court to be $7,000.00. Accordingly, we

amend the award for property damage by increasing said award from $3,500.00 to

$7,000.00.

COURT COSTS

Greer also assigns as error his assessment of one-half of the costs of the trial

court. While we do not find that the assessment of court costs was an abuse of the

trial court’s discretion considering the judgment rendered therein, we find that

15

assessment to be inequitable given the reallocation of fault set forth above.

Louisiana Code of Civil Procedure Article 2164 provides the authority for this

court to “render any judgment which is just, legal, and proper upon the record on

appeal.” Additionally, this article allows us to tax the costs of the trial court against

any party to the suit, as we consider equitable. Pursuant to the authority granted by

this article, we reverse the trial court’s assessment of costs of court. In accordance

with our reallocation of fault, we cast DOTD with sixty percent of the costs of the

trial court, and Greer with forty percent of same.

DECREE

For the foregoing reasons, we reverse the trial court’s allocation of fault

between the parties, and cast the State of Louisiana, through the Department of

Transportation and Development, with sixty percent fault, and Gerald W. Greer with

forty percent fault for the subject accident. We amend the property damage award to

$7,000.00. Further, we reverse the trial court’s assessment of costs of court, and cast

Greer with forty percent of the costs of court, and the State of Louisiana, through the

Department of Transportation and Development, with sixty percent of the costs of

court in accordance with La.R.S. 13:5112, said sixty percent amounting to $ 4,955.33.

In all other respects, the JNOV is affirmed.

Costs of this appeal are likewise assessed forty percent to Greer and sixty

percent to the State of Louisiana, through the Department of Transportation and

Development, in accordance with La.R.S. 13:5112, said appellate costs amounting to

$1,561.92.

REVERSED IN PART; AFFIRMED IN PART; AND AMENDED IN

PART.

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