Jackie Ray Bennet v. City of New Iberia

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 08-1369

JACKIE RAY BENNET

VERSUS

CITY OF NEW IBERIA

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 106114-C
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Shannon J. Gremillion, Judges.

AFFIRMED.

David W. Groner
Attorney at Law
230 Main St.
New Iberia, La 70560
(337) 364-3629
Counsel for Plaintiff /Appellant:
Jackie Ray Bennet

Rene Sylvain Paysse, Jr.
Neal John Favret
Thomas Paul Anzelmo, Jr.
Johnson, Johnson, Barrios, & Yacoubian
701 Poydras St., #4700
New Orleans, LA 70139-7708
(504) 528-3001
Counsel for Defendant /Appellant:
City of New Iberia

Marcus A. Bryant
Attorney at Law
1408 W. Pinhook Rd., Ste. A
Lafayette, LA 70508
(337) 504-4106
Counsel for Plaintiff/Appellant:
Jackie Ray Bennet

GREMILLION, Judge.

The defendant, the City of New Iberia, appeals the judgment in favor of

the plaintiffs, Jackie Ray Bennet, individually and as natural tutor over the estate of

his minor child, Joshua Bennet, awarding Joshua $197,601.48, plus court costs and

judicial interest from the date of judicial demand. For the following reasons, we

affirm.

PROCEDURAL AND FACTUAL BACKGROUND

In late July 2005, Joshua, who was ten years old at the time, attended the

“Softball Fun Day” at City Park in New Iberia, Louisiana. The property is owned and

administered by the City. Included at the festivities was a child’s motorized train

driven by an employee of the City’s recreation department. Joshua’s foot was

seriously injured after the driver of the train hit a bump, causing Joshua’s foot to get

entangled in the wheel, which thereafter rolled over his foot. Jackie filed suit against

the City. Following a two-day bench trial in February 2006, the trial court awarded

Joshua $197,601.48 (comprising past medical expenses in the amount of $19,531.48,

future medical expenses in the amount of $70,570, $7,500 for permanent scarring,

and $100,000 for past and future physical and mental pain and suffering and loss of

enjoyment of life), plus court costs and judicial interest from the date of judicial

demand. The trial court declined to award an amount for loss of future earning

capacity. Both the City and Jackie now appeal.

ISSUES

The City assigns as error:

1. The trial court’s finding that it was 100% at fault for
Joshua’s injuries when his mother, Paula Bennet, testified
that she left her ten-year-old son unsupervised at the park.

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2. The trial court’s finding that the City was 100% at fault
despite expert testimony that the manufacturer of the train
failed to install seat belts or construct fenders or running
boards to protect occupants from moving parts, including
the tires.

3. The trial court’s award of $100,000 in general damages for
a broken toe.

Jackie assigns as error:

1. The trial court’s failure to find a loss of earning capacity
for Joshua when he suffered a 12% permanent disability of
his lower extremity and would likely have followed in
father’s footsteps and sought employment offshore.

LIABILITY

The City argues that it was error for the trial court not to apportion fault

to Paula or to Stephen Thebedeaux, the maker of the train.

In Layssard v. State, Dep’t of Public Safety and Corrections, 07-78, p.

3 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1057, writ denied, 07-1821 (La. 11/9/07),

967 So.2d 511, the standard of review for a trier of fact’s apportionment of fault was

set forth as follows:

The Louisiana Supreme Court, in Duncan v. Kansas City
Southern Railway Co., 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 670,
680-81, set forth the standard for reviewing comparative fault
determinations as follows:

This Court has previously addressed the allocation of fault
and the standard of review to be applied by appellate courts
reviewing such determinations. Finding the same
considerations applicable to the fault allocation process as
are applied in quantum assessments, we concluded “the
trier of fact is owed some deference in allocating fault”
since the finding of percentages of fault is also a factual
determination. Clement v. Frey, 95-1119 (La.1/16/96), 666
So.2d 607, 609, 610. As with other factual determinations,
the trier of fact is vested with much discretion in its
allocation of fault.

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Therefore, a trier of fact’s allocation of fault is subject to the
manifestly erroneous or clearly wrong standard of review. A trial judge’s
findings of fact will not be disturbed unless they are manifestly erroneous
or cleary wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617
So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly
wrong,’ the jury or trial court’s finding of fact may not be disturbed on
appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111
(La.1990). “If the trial court or jury’s findings are reasonable in light of
the record reviewed in its entirety, the court of appeal may not reverse,
even though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” Id. at 1112.

The testimony at trial regarding how the train came into use at the Fun

Day was as follows: Hayward Migues, Jr. testified that he is the Superintendent of

Parks and Recreation and that he organized the Fun Day event. He became aware of

the train because he saw it traveling around the park. He said that Thebedeaux asked

if he could ride his grandchildren in the train in the park. Migues stated that he

thought it would be a good idea to have the train for Fun Day. According to Migues,

Thebedeaux did not charge the City for using the train and City employees went to

Thebedeaux’s house to pick up the train. Migues stated that another city employee,

Howard Rogers, drove the train on Fun Day. Migues testified that he asked Rogers

to inspect the train overall, but did not require that he sign any paperwork. Further,

he stated that he did not ask Thebedeaux for any paperwork relating to the train.

Migues and Thebedeaux did have a conversation in which they discussed the

construction of the train, but Migues did not ask for specifications or building

standards Thebedeaux may have used when he built the train. Migues further testified

that he visually inspected the train.

Migues admitted that he was unfamiliar with La.R.S. 40:1484.4, which

provides regulations for the inspection of amusement attractions and rides and states,

in pertinent part:

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A. Except for the purpose of testing, training, and inspection, no air-
supported structure, amusement attraction or ride shall be operated in this
state without an inspection having been conducted by an inspector and
a certificate of inspection having been issued by the assistant secretary
to an operator of such equipment.

B. (1) Every air-supported structure, amusement ride or attraction shall
be inspected by an inspector for safety and subjected to nondestructive
testing in accordance with ASTM-F-24 at least annually.

The statute requires certification of the results of the inspection and notification to the

assistant secretary of the office of the State Fire Marshall by the operator of the

amusement ride of his intent to commence operation at least thirty days prior to

operation of any amusement ride or attraction. La.R.S. 40:1484.4(B)(2) and (C)(1).

After reviewing La.R.S. 40:1484.4, Migues admitted that its requirements were not

met. He went on to state that he was unfamiliar with La.R.S. 40:1484.2(3), but that

after reviewing it he agreed that the train was an amusement ride within the definition

of the statute. La.R.S. 40:1484.2(3) states:

“Amusement ride” means any mechanized device or combination of
devices which carries passengers along, around, or over a fixed or
restricted course for the purpose of giving its passengers amusement,
pleasure, thrills, or excitement. “Amusement ride” also includes any
mechanized device or combination of devices of a permanent nature even
though such device or combination of devices is subject to building
regulations issued by cities or parishes and existing applicable safety
orders.

Migues testified that he instructed Rogers to drive the train at a speed of

less than fifteen miles per hour, to have the kids dry off before getting on the train if

they were coming from the pool, and to instruct the kids to keep their hands and feet

inside the train. He further stated that parents were not required to ride with their

children. Migues testified that he was not at the park at the time of the accident.

Rogers testified that he has been a park ranger for eleven years and that

his duties included safety and security. He said that he drove the train at Fun Day.

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Rogers testified that he did not have any discussions with Thebedeaux about the train.

He said that he, Migues, and Brian Romero, the maintenance supervisor, visually

inspected the train. After a trial run, Rogers said that he felt the train was “safe

enough” to pull. He stated that he drove the train at less than fifteen miles per hour.

Rogers said that on the day of the accident he picked the kids up in front

of the pool. He stated that he used his judgment with regard to how wet the children

were after getting out of the pool. He said that as the train went through a dip in the

street, he heard people shouting to stop the train. He said the next thing that he saw

was Joshua running from the train. Rogers said that the train had no guards covering

the wheels, no running boards next to the wheels, no foot rails, or any kind of

protective covering over the tires.

Thebedeaux testified that the train was built for his personal use. He said

that he came up with the idea after seeing things on TV. He said that he did not

purchase anything for the design of the train, nor did he purchase any regulations. He

further testified that he did not write the design of the train down nor did he receive

any training for building trains. Thebedeaux testified that he and Migues did not

discuss any specifications, regulations, or inspections. He said that he told Migues

that he did not have insurance on the train, but that Migues said it would be covered

while it was on the City’s property. Thebedeaux said that prior to the accident in

question the City borrowed the train eight to ten times on weekends. Thebedeaux said

that, following the accident, he made some modifications to the train.

George Fred Liebkemann, IV, an expert in mechanical and safety

engineering, testified that he inspected the train following the accident. Liebkemann

testified that had the train been inspected, pursuant to La.R.S. 40:1484.4, it would not

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have passed because the unguarded wheels violated safety regulations.

Joshua testified that he boarded the train and was not given any safety

instruction by the driver. He said that the train hit a dip in the road causing him to

bump up and his foot to slip off of the floor of the train. He said his foot got caught

in between the tire and axle.

The trial court, in its well-reasoned written reasons for judgment, found

that the City was negligent in:

failing to inspect the cart and take appropriate action to make certain that
the wheels were covered or protected before allowing young riders to be
on the cart. The Court also finds the City was negligent in that its
employee driving the car drove at an excessive rate of speed under the
circumstances and didn’t slow for a bump in the road, or a dip in the
road, causing Joshua, who was seated on his seat at the time of the
incident properly and in the right location, to bump from his seat. The
Court finds it caused Joshua to bump from his seat, causing his foot to
come into contact with the unguarded tire, proximately causing the
injuries and damages in this litigation.

Regardless of whether or not strict liability applies under
40:1484.3 and 40:1484.4, the Court finds that the City is responsible
based on negligence. As to the strict liability argument, the Court finds
that the City is also strictly liable having guard over a defective product
over which it knew, or should have known, of the defect. 40:1484.3
compels certificates of inspection. Had that been done in this case, then
the cart could not have been used in service at the time of this particular
injury. That is not to say that the employees of the City were callous or
in complete disregard of the safety of their young charges on the day of
the accident. They took what they felt at the time to be reasonable
precautions; but reasonable people could and should have been aware of
the inspection requirements and could and should have been aware of the
dangerous condition of the cart, having an unguarded tire in close
proximity to young feet as they were pulled through the City Park over
speed bumps and uneven surfaces. It certainly was easily foreseeable
that something like this could and would happen if unbuckled children,
whose feet were 2-5/16" from an unguarded wheel, were riding in a cart
and that cart hit a bump or a dip causing their to come into contact with
that wheel, as happened in this particular case.

Regarding fault allocation to Thebedeaux, the trial court found:

[T]here is no comparative fault on the part of Stephen Thebedeaux.

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This man didn’t build the train to lease it out or lend it out to the City of
New Iberia. They (the City of New Iberia) took the responsibility when
they got it for the condition of the train, and the City (of New Iberia) was
the one that had the duty to inspect before allowing anyone to ride. The
owner never represented anything to the City (of New Iberia) anything
about the train, other than, “You can use if you want to.” He built the
train for his grandchildren and wasn’t expected to build it up to specs.
Though he did allow the City (of New Iberia) to use it, they assumed all
of the responsibility for it when took it into their guard or possession.

We cannot say that the trial court manifestly erred in apportioning 100%

fault to the city. We note that the City failed in its duty to not only have the train

inspected to be sure it met safety regulations, but also to inform the assistant secretary

in writing thirty days ahead of time that it intended to use the train at the Fun Day. We

additionally find that the presence or absence of Paula had no bearing on the

occurrence of this accident. The City specifically allowed children to ride the train

without parental supervision; moreover, there is nothing to suggest that a parent’s

presence on the train would have eliminated the safety issues surrounding a

completely unguarded tire in close proximity to passengers’ feet. There is no manifest

error in the trial court’s finding that the train was negligently operated by the driver.

Finally, we cannot say the trial court erred in not apportioning fault to Thebedeaux.

It is clear that he built the train for personal use and the City approached him about

using it for Fun Day, which he generously agreed to provide free of charge.

Accordingly, there was no error in the trial court’s finding that the City assumed the

responsibility for using the train at a public event. For all of these reasons,

apportioning fault 100% to the City was not erroneous and this assignment of error is

without merit.

GENERAL DAMAGES

General damages are speculative in nature and, thus, are incapable of

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being fixed with any mathematical certainty. Wainwright v. Fontenot, 00-492

(La.10/17/00), 774 So.2d 70. They include pain and suffering, physical impairment

and disability, and loss of enjoyment of life. Id. As they are speculative, a trial court’s

award of such damages is reviewed in light of the standard set forth in Youn v.

Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114

S.Ct. 1059 (1994). First, we determine if the trial court's award for the particular

injury and its effect under the particular circumstances on this plaintiff is a clear abuse

of the trial court’s “much discretion.” Id. at 1260. “It is only when the award is, in

either direction, beyond that which a reasonable trier of fact could assess for the

effects of the particular injury to the particular plaintiff under the particular

circumstances that the appellate court should increase or reduce the award.” Id. at

1261.

Again, the trial court provided extensive, well-thought out, reasons for

awarding Joshua $100,000 in general damages as follows:

As to the award for pain and suffering, there is no doubt that this
was an extremely painful injury for young Joshua. The evidence was
clear that he was screaming in pain at the time his mother picked him up
and brought him to Dauterive Hospital. The city workers apparently did
an exceptional job in cleaning that wound, as did Dauterive (Hospital),
as did the Lafayette General Hospital because no infection took place and
that wound was able to heal without infection; but not without some
considerable pain on the part of Joshua.

In addition to the pain he experienced required morphine, a very
strong pain medication at the hospital, he continued to suffer excruciating
pain when that wound was changed by the home health care people, so
much so that his mother and father had to help hold him down,
depending on who was available, as that dressing was changed, and so
much so that he fought those home health care workers and did not want
his dressing changed. Fortunately, they prevailed, as did his parents, and
that vacu-pack that was put on him did help prevent future infection that
may have resulted in the loss of his foot had those dressings not been
changed.

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So he did achieve an excellent result from the surgery that was
performed at Lafayette General Hospital by Dr. Hebert, as well as the
after-care from the nurses, and especially by his mother, and to some
extent his father, who sat on him and made sure that his wound was
cleaned and made sure that he was not allowed to play in the yard or do
anything that might get that wound infected. They took a lot of love and
care and attention with him to make certain that that wound healed, and
they are to be commended for that. He did, however, suffer a
considerable amount while those home health care workers were working
with him and while that would was being dressed and re-dressed, and to
some extent through October the 17th of `05 continued to suffer some
fairly substantial pain.

At about that time he was released to go back to a regular school
setting and to wear a regular shoe. He did wear an open-toe boot for
some time after he regained his ability to walk at school, and he suffered
some embarrassment because of that. And then finally, was able to wear
the regular shoe.

He continued to suffer with pain at school through at least through
October of `06 when things seemed to have stabilized to some extent;
and though he continued to have some pain and discomfort upon
excessive motion, for the most part he has had an excellent result and has
made an extremely good recovery.

The testimony was that in February of `07 when he attended a
Cajun Fun Fest during Mardi Gras in Lafayette, he had to stand and walk
for two (2) to three (hours) at a time, resulting in some swelling and some
additional pain, for which he was seen by Dr. Hebert and treated, with the
caution that: If swelling occurred, or if fever occurred, or anything of the
like occurred, he was to return immediately. Apparently he either
modified his activities or did not suffer any additional bouts that required
him to be brought to the hospital.

There was some testimony that from time to time his foot did swell
on extremes of activity and his mother had to get him to sit down and get
off of his feet. There was some testimony that from time to time in P.E.,
or in other activities, he had some pain on extremes of activity, basketball
practice, etc., all of which has been considered by the Court and is being
considered.

There was some additional testimony that in 2006 in September he
started the After School Program and was extremely active during the
program with no complaints. Indeed there were no medical records to
corroborate or substantiate that he had to see the doctor, or suffered any
pain or swelling as a result of those activities.

The last young lady who testified made a very credible witness,

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and the Court accepts her testimony as credible and believable (Crystal
Boyance), [that] she was in daily contact with Joshua in the `06 school
year; and if not daily, significant contact in the `07 school year, and she
was not even aware that he had a foot injury. Certainly he exhibited no
real problems, which indicates that he was not having any significant
pain or swelling in `06 or `07, except for the incident reported by his
mother, and that was reported to Dr. Hebert.

That is not to say he was not having problems. It is not to say that
he didn’t suffer; but it wasn’t to the extent that it required medical
treatment and it wasn’t to the extent that it was an unusual amount of
suffering. Certainly the Court accepts his testimony, as well as that of his
mother, that on extremes of motion and activity he did have some
swelling and pain that continues to this day. But fortunately for him, it
wasn’t to the extent that disables him from any of his regular activities.

The testimony was clear that he is not playing basketball, not
because of his inability to do so because of his injury, but because of his
mother’s wise decision to try to keep him from sports until he can focus
on a much more important aspect of his youthful upbringing, and that is
his education. . . .

Certainly he is not medically limited from performing any activity.
He is limited on self-limited by pain, and the Court finds that that pain is
not so significant as would impair his ability to do normal sports
activities and normal activities. If it does get to that point, which the
Court feels the doctors have said it eventually will, that is when the
fusion will take place, the future surgery, for which he will also
experience pain and suffering and some significant pain during post-op
treatment and recovery. But after that, according to both doctors, he
should be good to go for just about anything.

He will have a permanent impairment and a permanent disability
as a result of this lower extremity injury: 12% of the lower extremity and
5% of the foot, I believe, according to the doctors; so there is some
permanent disability.

Considering all of the evidence that the Court has heard and the
law, the Court feels a general damage award in the amount of one
Hundred Thousand ($100,000.00) Dollars would be fair, just, and
reasonable for Joshua under the circumstances of this case.

Certainly Mr. Favret has cited cases to the Court that would, in his
view and in the Defense’s view, would warrant an award substantially
less than that, a $30,000.00-range. Mr. Bryant has cited cases to the
Court in the $175,000.00 to the $200,000.00-plus range, and the Court
has considered those awards.

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The bottom line in this case however, is that the young man has
achieved what the doctors feel is an excellent result; and even though he
has suffered considerably and will continue to suffer in the future, and
will have a permanent loss of enjoyment of life to some extent based on
that disability in the future, an award of One Hundred Thousand
($100,000.00) Dollars in this Court’s view adequately compensates
Joshua for his general pain and suffering, past and future, and loss of
enjoyment of life.

Having reviewed all of the testimony and evidence, we find that the trial

court did not abuse its discretion in awarding Joshua $100,000 in general damages.

It was clear from reading Joshua, Paula, and Jackie’s testimony that Joshua’s injury

was painful, required surgery and an extended period of recovery at home, the use of

orthodics and a boot at school, alteration of his normal levels of activity and play, and

ongoing pain, depending on activity. Accordingly, this assignment of error is without

merit.

FUTURE LOSS OF EARNING CAPACITY

Joshua argues the trial court erred in failing to award him an amount for

future loss of earning capacity. We disagree. In Batiste v. New Hampshire Ins. Co.,

94-1467, pp. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413

(La. 9/22/95), 660 So.2d 472 (citations omitted), we stated:

Loss of earning capacity is not the same as lost wages. Rather,
earning capacity refers to a person's potential. Earning capacity is not
necessarily determined by actual loss. While the plaintiff's earnings at the
time of the accident may be relevant, such figures are not necessarily
indicative of his past or future lost earning capacity. The plaintiff need
not be working or even in a certain profession to recover this type of
award. What is being compensated is the plaintiff's lost ability to earn a
certain amount, and he may recover such damages even though he may
never have seen fit to take advantage of that capacity.

In determining whether a personal injury plaintiff is entitled to
recover for the loss of earning capacity, the trial court should consider
whether and how much plaintiff's current condition disadvantages him
in the work force. The trial court should thus ask itself what plaintiff
might be able to have earned but for his injuries and what he may now

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earn given his resulting condition.

The very nature of lost earning capacity makes it impossible to
measure the loss with any kind of mathematical certainty. The facts of
each case must take into account a variety of factors, including the
plaintiff's condition prior to the accident, his work record prior to and
after the accident, his previous earnings, the likelihood of his ability to
earn a certain amount but for the accident, the amount of work life
remaining, inflation, and the plaintiff's employment opportunities before
and after the accident.

An award of damages for future loss of earnings and loss of earning

capacity is reviewed on appeal for manifest error. Fruge v. Hebert Oilfield Constr.,

Inc., 03-349 (La.App. 3 Cir. 10/1/03), 856 So.2d 100, writ denied, 03-2997 (La.

1/30/04), 865 So.2d 77.

Glenn Hebert, a licensed rehabilitation counselor, testified that he works

with individuals that are disabled, conducting vocational assessments, loss of earning

capacity assessments, and helping them go back to work if feasible. He was qualified

as an expert in vocational rehabilitation. Hebert discussed all of the factors that go

into making an assessment, particularly in a child who has no work background, such

as his educational achievements and his parents’ occupations. Hebert determined that

it was unlikely that Joshua would attend college since his parents do not have college

degrees. He determined that it was most likely that Joshua would be a general laborer

either offshore or on land. He further opined that with a 12% impairment in his foot

he would be unable to engage in jobs that require a lot of climbing up and down stairs,

squatting, picking up heavy weights and walking with them. These restrictions were

also based on testimony that Joshua would develop arthritis and probably have to have

toe fusion surgery in the future.

Hebert testified that he looked at the average weekly wage paid to

laborers. Finding that “children normally follow in their father’s footsteps,” Hebert

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said that as a laborer in the Gulf of Mexico he would make $8.00 to $8.50 per hour.

Hebert then essentially stated than any anatomical loss would incur a loss of future

earning capacity. This subject was debated and Hebert admitted that he was not sure

if a loss would be incurred if the patient is not restricted from performing any activity

that is required of the job. However, he opined that any potential loss of earning

capacity is a loss even if one does not actually lose money. Hebert admitted that

Joshua’s physician did not say that Joshua would have a problem working in the

future.

R. Douglas Womack, an expert in economics, testified that he looked at

Joshua’s earning potential before and after the accident. According to Hebert’s

calculations that Joshua could have earned $9.00 per hour, but due to his disability he

would probably earn $6.50 an hour, he would lose $139,838 over his work-life

expectancy, and $186,298 if he worked until age 67. If he were to follow in the his

father’s footsteps, Womack stated that he would lose $667,133 or $888,783 if he

worked until he was 67. Womack discussed in detail various factors that were used

in making those determinations.

Again, after providing extensive written reasons for judgment the trial

court found:

After an extensive review of the jurisprudence and full consideration of
all of the evidence, briefs, and argument of counsel, in this case, this
Court is not persuaded that more likely than not, Joshua has proved a loss
of earning capacity. Dr. Hebert’s testimony is clear that a fusion will
actually help Joshua in the future, and though he will have a permanent
physical impairment and anatomical disability rating, for which he has
been generously compensated, the Court finds that an award for loss of
earning capacity in this case is too speculative and has not been proven
by a preponderance of the evidence.

The trial court found that Hebert’s testimony was not supported by

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medical evidence or from studies. It further found that it was speculative whether

Joshua’s disability would cause any functional loss of ability to do anything. We find

no manifest error in these findings. This assignment of error is without merit.

CONCLUSION

The judgment in favor of the plaintiffs, Jackie Ray Bennet, individually

and as natural tutor over the estate of his minor child, Joshua Bennet, awarding them

$197,601.48, plus court costs and judicial interest from the date of judicial demand,

and against the defendant, the City of New Iberia, is affirmed. All costs of this appeal

are assessed against the City of New Iberia.

AFFIRMED.

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