Thalia Renfro v. Burlington Northern Santa Fe Rr

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-372

THALIA RENFRO

VERSUS

BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2002-0506
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
James T. Genovese, Shannon J. Gremillion, and David Kent Savoie, Judges.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons.

SAUNDERS, J., dissents in part for the reasons assigned by Chief Judge
Thibodeaux.

AFFIRMED.

John F. Wilkes, III
Ray Lucus, III
Borne & Wilkes, LLC
P. O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
COUNSEL FOR DEFENDANT/APPELLEE:
Town of Vinton

Lawrence N. Curtis
Lawrence N. Curtis, Ltd.
P. O. Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
COUNSEL FOR PLAINTIFF/APPELLEE:
Thalia Renfro

Adam L. Ortego, Jr.
Assistant Attorney General
One Lakeshore Dr., Suite 1200
Lake Charles, LA 70629
(337) 491-2880
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, Department of Transportation and Development

SAVOIE, J.

This suit arises out of an accident in which a train struck a vehicle

attempting to cross the railroad tracks. The seventeen-year-old driver and sole

occupant of the vehicle was killed in the crash. The jury returned a verdict in favor

of the decedent’s mother, Thalia Renfro (“Ms. Renfro”), and against the State of

Louisiana, through the Department of Transportation and Development (“DOTD”).

Both DOTD and Ms. Renfro have appealed. For the following reasons, we affirm

the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On November 4, 2001, a tragic vehicle/train accident took place at the Eddy

Street railroad crossing in Vinton, Louisiana. A train was headed eastbound, and

seventeen-year-old Mallory Young (“Mallory”) was driving her mother’s 2000

Mercury Mountaineer southbound on Eddy Street. The train collided with

Mallory’s vehicle as she attempted to cross over the railroad tracks, and Mallory

did not survive the accident.

Eddy Street is a municipal street owned by the Town of Vinton (“The

Town”). The Eddy Street crossing where the accident occurred is an off-system

crossing in that it is not part of the state highway system.

Prior to 1996, the Eddy Street crossing was controlled by an active warning

device1 called a “wig wag,” which was a flashing light signal that warned motorists

when a train was approaching the intersection. In 1996, the Eddy Street crossing

was closed in connection with an upgrade to another nearby crossing. According

to DOTD, the closing was the result of a miscommunication between DOTD and

the Town wherein DOTD erroneously concluded that the Town had agreed to the

closing. The crossing was subsequently reopened in 1997; however, only passive

1
An active warning device employs flashing lights, bells, and/or closing gates.

warning devices2 were put into place, including an advanced warning sign, an X-

shaped sign known as “crossbucks,” pavement markings, and a stop sign.

Mallory’s mother, Ms. Renfro, filed suit against multiple defendants,

including DOTD, the Town, Burlington Northern Santa Fe Railroad

Company/Union Pacific Railroad Company (“Railroad”), and Calcasieu Parish. At

the time of trial, only DOTD and the Town remained as Defendants.

A trial on the merits was held on January 27, 2014. Primarily at issue was

whether, and to what extent, DOTD and/or the Town were negligent in connection

with the installation of passive, rather than active, warning signals when the

crossing was reopened in 1997. The case against the DOTD was tried before a

jury, and the case against the Town was simultaneously tried before the trial court

judge based on evidence submitted in connection with the jury trial. Even though

the trial judge was to determine the case against the Town, the parties agreed to

conduct the jury trial as if liability of both the Town and DOTD were at issue.

The jury assessed fault as follows: Mallory (32%); the Railroad (31%);

DOTD (29%); and the Town (8%). The jury also found that general damages in

the following amounts would compensate Ms. Renfro: $1,320,000 for “grief and

sorrow;” $1,320,000 for “mental anguish;” and $3,960,000 for “loss of love,

affection, and companionship.” The jury also awarded Mallory’s medical and

funeral expenses, as well as Ms. Renfro’s medical expenses.

In connection with the bench trial against the Town, the trial judge found no

fault on the part of the Town and dismissed Ms. Renfro’s claims against it. In its

written reasons for ruling, the trial judge noted that it had previously granted

partial summary judgment in favor of the Town, finding that the Town had

2
Passive warning devices are signs that warn motorists that they are approaching a
railroad crossing, but do not warn motorists that a train is approaching.
2

discretionary immunity for asking that the crossing be reopened after it was closed

by DOTD. The trial judge found that the Town “had no control over what

signalization was placed at the Eddy Street crossing,” and that “the Town of

Vinton’s placement of the stop sign at the crossing was performed in accordance

with guidelines and instructions from the DOTD.”

Ultimately, the trial judge rendered judgment in favor of Ms. Renfro and

against DOTD, assessing DOTD with twenty-nine percent of the damages awarded,

but reducing DOTD’s liability for general damages to $500,000 pursuant to the

statutory cap provided by La.R.S. 13:5106. The trial judge also assessed DOTD

with all court costs in the amount of $46,600.11. Both DOTD and Ms. Renfro

appeal.

ASSIGNMENTS OF ERROR

On appeal, DOTD asserts the following as assignments of error:

1. The trial jury erred in apportioning twenty-nine percent (29%)
fault to the DOTD and failing to apportion more fault to Ms.
Mallory Young and the Railroad.

2. The trial judge erred in providing the jury with a verdict form
which duplicated damages.

3. The trial jury erred in awarding $6,600,000 in general damages.

4. The trial judge erred in refusing to admit evidence of federal
preemption and in not finding that federal preemption applied
in this case.

5. The trial judge erred in failing to determine whether the DOTD
assumed a duty in this case.

6. The trial judge erred in his instructions to the jury.

7. The trial judge erred in permitting the unlimited introduction of
23 U.S.C. Section 409 materials.

8. The trial judge erred in assessing all costs to DOTD.

3

In her answer to the appeal, Ms. Renfro asserts that the trial court erred in

limiting the general damages awarded against the DOTD to one statutory cap,

rather than allowing two separate $500,000 statutory caps–one for a wrongful

death claim under La.Civ.Code. art. 2315.2, and one for a bystander claim under

La.Civ.Code art. 2315.6.

ANALYSIS

Federal Preemption:

DOTD contends that the trial court erred in not finding that Ms. Renfro’s

negligence claims were preempted by federal law. In support of its argument,

DOTD suggests that the testimony of William Shrewsberry, as well as two

proffered affidavits not admitted into evidence by the trial court, established that

federal funds were used in connection with reopening the Eddy Street crossing.

DOTD cites to CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct.

1732 (1993), “that states where ‘federal aid funds participated in the installation of

the [warning] devices’ at the crossing, federal law preempts state law[.]” Duncan,

773 So.2d at 678 (citation omitted). Mere demonstration that federal funds were

used at a particular crossing is insufficient to establish federal preemption of state

tort law. Ducote v. Union Pac. R.R. Co., 08-1208 (La.App. 3 Cir. 2/4/09), 4 So.3d

240, writ denied, 09-940 (La. 6/5/09), 9 So.3d 877. “Rather, the railway company

must present evidence that would lead to an ‘unequivocal conclusion that the

signage’ at a particular crossing was installed or replaced with federal moneys.” Id.

at 245 (citation omitted). The trial court’s factual findings are subject to the

manifest error standard of review. See Duncan v. Kan. City S. Ry. Co., 00-66, (La.

10/30/00), 773 So.2d 670.

We first address the proffered affidavits, which the trial court refused to

admit on the basis that they were inadmissible hearsay. As this court explained in
4

Young v. Joy, 09-756, p. 2 (La.App. 3 Cir. 2/3/10), 30 So.3d 1116, 1119 (citation

omitted), “[t]he district court is awarded vast discretion in its decisions on

evidentiary rulings, and its decision to admit or exclude evidence will not be

reversed on appeal absent a clear showing of abuse of that discretion.”

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the truth of

the matter asserted.” La.Code Evid. art. 801(C). Generally, hearsay is not

admissible at trial. La.Code Evid. art. 802. However, several exceptions to this

general rule exist, including an exception provided by La.Code Evid. art. 803(6),

for:

Records of regularly conducted business activity. A
memorandum, report, record, or data compilation, . . . if made and
kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make and to keep
the memorandum, report, record, or data compilation . . . . This
exception is inapplicable unless the recorded information was
furnished to the business either by a person who was routinely acting
for the business in reporting the information or in circumstances under
which the statement would not be excluded by the hearsay rule.

When questioned by the trial judge concerning the affidavits, counsel for

DOTD stated that he “got [the affidavits] from the attorneys for the railroad[,]”

and that “it was done for the purpose of this case[,] and they are the originals[,] and

the witnesses say that they are in the business records of the railroad.” Therefore,

the affidavits at issue were not “made and kept in the course of a regularly

conducted business activity[,]” and it was not “the regular practice of that business

activity to make and to keep” such affidavits. Instead, the affidavits were prepared

specifically for trial. The trial judge did not abuse his discretion in refusing to

admit them into evidence.

DOTD also suggests that William Shrewsberry’s testimony requires a

finding that Ms. Renfro’s claims are preempted. DOTD does not refer to any
5

specific testimony in support of its argument, and it does not mention in its brief,

or otherwise raise as an issue on appeal, that the trial judge “order[ed] that the

answers given by. . . [Shrewsberry] related to federal funding be stricken from the

record.” The trial court’s ruling was based on the fact that Mr. Shrewsberry’s

testimony is “an opinion from a lay witness based on a review of hearsay.”

Because this ruling was not challenged on appeal, we are not inclined to review it.

We find no evidence in the record regarding federal preemption besides the

purported affidavits, which were not admitted, and the testimony of Mr.

Shrewsberry, which was stricken. Therefore, the trial court’s decision rejecting

DOTD’s federal preemption claim is supported by the record and was not

manifestly erroneous.

Jury Determination of Assumption of Duty:

DOTD contends that the trial judge, and not the jury, should have decided

the issue of whether the DOTD had assumed a duty over the off-system Eddy

Street crossing. DOTD asserts that “whether [it] assumed a duty or not is a legal

question[,]” and, therefore, the issue is subject to a de novo standard of review.

For the following reasons, we find this assignment of error lacks merit.

“[W]hether a duty is owed is a question of law for the court to decide based

upon the facts and circumstances of the case as established in the evidence of

record.” Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164, p. 8 (La.

4/11/07), 974 So.2d 635, 643 (citation omitted). A governing authority has a duty

to keep roads in its custody in a reasonably safe condition, including a duty to use

appropriate signage and traffic signals. Lee v. State, Through Dep’t of Transp. &

Dev., 97-350 (La. 10/21/97), 701 So.2d 676. “Generally, the state does not have a

duty to provide protection devices at railroad crossings on non-state, or off-system,

6

roads.” Bader v. Kan. City S. Ry. Co., 36,536, p. 3 (La.App. 2 Cir. 12/20/02), 834

So.2d 1, 3 (citation omitted).

[However,] [u]nder Louisiana law, one who does not owe a
duty to act may assume such a duty by acting. Frank L. Maraist &
Thomas C. Galligan, Louisiana Tort Law 5.07[6], 5-27 (Supp.2006).
In Bujol v. Entergy Services, Inc., 03-0492, p. 16 (La. 5/25/04), 922
So.2d 1113, 1129, this Court explained this concept of assumption of
duty and stated an assumption of duty arises when the defendant (1)
undertakes to render services, (2) to another, (3) which the defendant
should recognize as necessary for the protection of a third person. . . .

The Bujol court described the action required by the defendant
in such instances as an affirmative undertaking and further explained
that the determination of whether such an action was taken involves
an examination of the scope of the defendant’s involvement, the
extent of the defendant’s authority, and the underlying intent of the
defendant. 03-0492 at p. 18, 922 So.2d at 1131. As in other civil
cases, the burden is on the plaintiff to prove by a preponderance of the
evidence facts sufficient to establish the action undertaken by the
defendant.

Hebert, 974 So.2d at 643-644 (emphasis added).

In a previous opinion involving this matter, we reversed the trial court’s

summary judgment in favor of DOTD on the issue of whether it owed a duty with

respect to the Eddy Street crossing, finding an issue of material fact existed, and

we remanded the matter for a factual determination. Renfro v. Burlington N. &

Santa Fe R.R., 06-952 (La.App. 3 Cir. 12/6/06), 945 So.2d 857, writ denied, 07-

303 (La. 4/27/07), 955 So.2d 684. In that case, we stated:

DOTD was more involved with the Eddy Street crossing than merely
selecting it for an upgrade. Correspondence between the parties
indicates that the DOTD was involved in many decisions regarding
the closure and subsequent reopening of the Eddy Street crossing.

We find that there is a question of material fact as to whether
the DOTD had a duty regarding the Eddy Street crossing.

Id. at 861.

As made clear by the above-cited jurisprudence and our previous opinion in

this matter, the question concerning whether DOTD assumed a duty to keep the

7

Eddy Street crossing in a reasonably safe condition and install proper signalization

required a factual determination by the jury and not a legal conclusion by the trial

court judge. Therefore, we find that the issue of whether the DOTD assumed a

duty in the instant case was properly submitted to the jury, and we decline to

conduct a de novo review of the issue. We further note that the DOTD does not

contend that the jury’s finding was manifestly erroneous, therefore, that issue is not

before us for review.

Jury Instructions:

DOTD also takes issue with two of the trial court’s jury instructions

regarding the applicable duties in this case. As to the issue of DOTD’s assumption

of duty, the trial court instructed the jury as follows (emphasis added):

[A] duty to maintain a road or highway in a reasonably safe
condition may be imposed on a public entity, even though it does not
own the road or highway if it is found to be the custodian. This duty
includes a duty of providing proper safeguards or adequate warning of
dangerous conditions on a road or highway. This duty is owed to
prudent, as well as momentarily inattentive drivers.

DOTD argues that the last sentence regarding momentarily inattentive

drivers is erroneous because it “borrows from the duty applicable in defective

shoulder cases” and cannot apply to railroad cases because railroads are inherently

dangerous.

DOTD also argues that the following jury instruction erroneously uses the

word “could” instead of “should” (emphasis added):

If a motorist fails to see what she could have seen, then the law
charges her with having seen what she could have seen, and the court
examines her subsequent conduct on the premise that she did see what
she could have seen.

A trial court has broad discretion in formulating jury instructions. Adams v.

Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So.2d 798. The adequacy of any one jury

instruction is determined in the light of the instructions as a whole. Id. As this
8

court has explained in Mathews v. Dousay, 96-858, p. 8 (La.App. 3 Cir. 1/15/97),

689 So.2d 503, 509-10:

The trial court must give jury instructions that properly reflect
the law applicable to the facts of the particular case. Brown v.
Diamond Shamrock, Inc., 95-1172 (La.App. 3 Cir. 3/20/96); 671
So.2d 1049. To fulfill this duty, the trial court must both insure that
the jury considers the correct law and, in giving the instructions, avoid
confusing the jury. Id. In Iorio v. Grossie, 94-846, pp. 2-3 (La.App. 3
Cir. 10/4/95); 663 So.2d 366, 368–69, this court stated:

A trial court should give all requested instructions
that correctly state the law, provided that they are
material and relevant to the litigation. . . . A court has
fulfilled its duty if its instructions fairly and reasonably
point out the issues presented by the pleadings and
evidence and provide the principles of law necessary to
resolve those issues.

An appellate court must exercise great restraint
before overturning a jury verdict on the basis of
erroneous instructions. Consequently, we will overturn
the jury’s verdict in the case sub judice on the basis of
such an error only if the instructions, taken as a whole,
were so incorrect or inadequate as to preclude the jury
from reaching a verdict based on the relevant law and
facts. Ultimately, the pertinent inquiry is whether the
jury was misled to such an extent as to be prevented from
doing justice.

The trial court’s instruction that a public entity’s duty to maintain a road or

highway in a reasonably safe condition is owed to “prudent, as well as

momentarily inattentive drivers” is a correct statement of the law. Contrary to the

assertion of DOTD, the duty to “momentarily inattentive drivers” applies outside

the context of defective shoulder cases. See Ferrouillet v. State ex rel. Dep’t of

Transp. & Dev., 02-576 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, writs denied, 03-

751, 03-756 (La. 5/9/03), 843 So.2d 402, 403. Additionally, the duty has been

applied in the context of conditions considered to be “extremely dangerous,” much

like a railroad crossing. Trahan v. State, Dep’t. of Transp. & Dev., 536 So.2d 1269,

1273 (La. App. 3 Cir. 1988), writ denied, 541 So.2d 854 (La.1989).

9

We also find ample support in the jurisprudence for use of the word “could,”

instead of “should,” in connection with the second jury instruction at issue on

appeal. See Wilkerson v. Kan. City S. Ry., 33,922 (La.App. 2 Cir. 11/1/00), 772

So.2d 268, writ denied, 00-3526 (La. 2/16/01), 786 So.2d 105; Glisson v. Mo. Pac.

R.R. Co., 158 So.2d 875 (La. App. 3 Cir. 1963), aff’d, 165 So.2d 289 (La.1964).

Therefore, upon review of the jury instructions as a whole and in light of the

facts and pleadings in this case, we find that the instructions given by the trial court

“fairly and reasonably point out the issues presented by the pleadings and

evidence” and allowed the jury to reach a verdict based on the relevant law and

facts. Iorio, 663 So.2d at 368. Thus, we conclude the trial court did not err in its

instructions.

Admission of Materials Subject to 23 U.S.C. § 409 Privilege

DOTD also suggests on appeal that it was improper for the trial court to

allow the unlimited introduction of documentation protected from discovery under

23 U.S.C. § 409 as evidence pertaining to DOTD’s assumed duty over the Eddy

Street crossing. DOTD asks us to reconsider our prior ruling in Renfro, 945 So.2d

857, wherein we held that DOTD had waived any privilege afforded by 23 U.S.C.

§409 by attaching otherwise privileged documents to a motion for summary

judgment claiming federal law preempted Ms. Renfro’s claims. Ms. Renfro

attached those same documents to her motion for summary judgment on the issue

of the DOTD’s duty. DOTD thereafter moved to withdraw its motion and the

documents attached to it and sought to preclude Ms. Renfro from relying on the

documents.

In resolving the issue, we explained:

We see no compelling reason that the State cannot waive the
privilege afforded it by Section 409. Section 409 merely affords the
State a disclosure and evidentiary privilege regarding certain materials.
10

The United States Supreme Court has recognized that Section 409
establishes a privilege. As stated in Pierce County, Washington v.
Guillen, 537 U.S. 129, 130, 123 S.Ct. 720, 723, 154 L.Ed.2d 610
(2003), “[e]videntiary privileges, such as § 409, must be construed
narrowly because they impede the search for truth.” In United States
v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995),
the Supreme Court recognized that statutory provisions are subject to
waiver absent an affirmative indication in the statute of Congress’
intent to preclude waiver. There is nothing in Section 409 that
prevents the State from waiving the statutory privilege it has been
granted. As noted by the court in Powers v. CSX Transportation, Inc.,
177 F.Supp.2d 1276, 1281 (S.D.Ala.7/16/01): “A primary attribute of
a privilege is that it may be waived by the party for whose benefit it
exists, and waiver is often found when that party has voluntarily
disclosed protected information.”

Therefore, we find that the discovery and evidentiary privilege
established by Section 409 can be waived by the party entitled to
assert the privilege. In the present case, the DOTD chose to admit
documents which it claims are privileged into evidence with its
motion for summary judgment. Once the DOTD put the documents in
evidence, it waived the privilege regarding those documents. Once it
waived the privilege, the information in the documents was no longer
privileged.

Renfro, 945 So.2d at 860 (emphasis added).

We find no reason to reconsider our prior ruling in this matter. Therefore,

we find that the trial court did not err in permitting the introduction of materials

previously protected by the privilege of 23 U.S.C. § 409.

Allocation of Fault:

We next consider DOTD’s argument that the jury erred in assessing it with

twenty-nine percent of the fault. DOTD contends that the jury erred by assigning it

any fault at all, arguing that the warning devices were in compliance with the then-

applicable version of the Federal Highway Administration’s Manual on Uniform

Traffic Control Devices for Streets and Highways (MUTCD).

Alternatively, DOTD argues that more fault should have been assessed to

Mallory because the accident was primarily caused by her failure to yield the right-

of-way to the train in breach of her duty under La.R.S. 32:171. DOTD suggests

11

that Mallory failed to compensate for a sun glare that may have prevented her from

seeing the train while she was stopped at the railroad crossing and she negligently

proceeded into the path of the oncoming train. In addition, DOTD argues that the

Railroad should have been assigned with a higher percentage of fault as it failed to

sound its horn.

The Louisiana Supreme Court set forth the applicable standard of review in

Duncan, 773 So.2d at 680 (citations omitted) as follows:

As with other factual determinations, the trier of fact is vested with
much discretion in its allocation of fault. Therefore, an appellate
court should only disturb the trier of fact’s allocation of fault when it
is clearly wrong or manifestly erroneous. Only after making a
determination that the trier of fact’s apportionment of fault is clearly
wrong can an appellate court disturb the award, and then only to the
extent of lowering it or raising it to the highest or lowest point
respectively which is reasonably within the trial court’s discretion.

The appellate courts[’] determination of whether the trial court
was clearly wrong in its allocation of fault is guided by the factors set
forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967,
974 (La.1985). In Watson, we said “various factors may influence the
degree of fault assigned, including:

(1) [W]hether the conduct resulted from inadvertence or
involved an awareness of the danger, (2) how great a risk
was created by the conduct, (3) the significance of what
was sought by the conduct, (4) the capacities of the actor,
whether superior or inferior, and (5) any extenuating
circumstances which might require the actor to proceed
in haste, without proper thought. And, of course, as
evidenced by concepts such as last clear chance, the
relationship between the fault/negligent conduct and the
harm to the plaintiff are considerations in determining the
relative fault of the parties.[”]

Where there is a duty, a public entity will be liable for accidents occurring

on railroad crossings when: “(1) the crossing was unreasonably dangerous; (2) the

governing authority had knowledge of the condition yet failed to exercise a

reasonable chance to remedy that condition; and (3) that the unreasonably

12

dangerous condition caused the accident.” Plank v. Town of Rayville, 33,476, pp.

10-11 (La.App. 2 Cir. 6/21/00), 764 So.2d 1194, 1201 (citation omitted).

The hallmark for determining whether a crossing is
unreasonably dangerous is whether it is maintained in a reasonably
safe condition for persons exercising ordinary care and prudence.
Highlands Ins. Co. v. Missouri Pacific Railroad Co., 532 So.2d 317
(La.App. 3d Cir.1988); Hebert v. Missouri Railroad Co., 366 So.2d
608 (La.App. 3d Cir.1978), writ denied, 369 So.2d 153 (La.1979).
There are a myriad of conditions which may contribute to the
unreasonably dangerous condition of a railroad crossing including, but
certainly not limited to, sight obstructions such as vegetation and
buildings, parallel roadways and inadequate warning devices or
signalization. Every railroad crossing has its own particular dynamics
which may include one or more hazards. The presence of such
hazards does not, however, automatically mean, in the legal sense,
that a certain crossing is unreasonably dangerous to motorists
exercising ordinary care and prudence.

Id. at 1201-02.

As our brethren in the fourth circuit explained in Clarkston v. La. Farm

Bureau Cas. Ins. Co., 07-158, 07-1282, p. 27 (La.App. 4 Cir. 7/2/08), 989 So.2d

164, 184, writ denied, 08-1768 (La. 10/31/08), 994 So.2d 539 (emphasis added):

To properly execute its duties, the DOTD is guided by the
Manual on Uniform Traffic Control Devices (“MUTCD”), which sets
forth the minimum standards of the DOTD in the construction and
maintenance of its roads and highways. Compliance with the
provisions of the MUTCD, which is mandated by law, is prima facie
proof of the DOTD’s absence of fault when an injured motorist or
pedestrian attempts to predicate the DOTD’s liability on improper
maintenance. [Huddleston v. Ronald Adams Contractor, Inc., 95-987
(La. 2/23/96), 671 So.2d 533.] When there is evidence of
noncompliance, it is not in and of itself indicative of liability. Rather,
it is a relevant factor in determining the ultimate issue of whether the
roadway was unreasonably dangerous.

The DOTD’s duty must be considered in light of the duty of motorists

approaching a crossing. Louisiana Revised Statutes 32:171(A) imposes a duty on

motorists to stop at railroad crossings in certain circumstances, and after stopping,

the driver “shall not proceed until he can do so safely.” As explained in LeJeune v.

Union Pac. R.R., 97-1843, p. 6 (La. 4/14/98), 712 So.2d 491, 494:

13

As a general rule, motorists approaching a railroad crossing must look
and listen for possible oncoming trains before traversing the crossing.
Glisson v. Missouri Pac. R.R. Co., 246 La. 470, 476, 165 So.2d 289,
291 (1964). The law does not require motorists to stop at every
railroad crossing, but “a driver cannot expect to drive with impunity
through a railroad crossing where his view is obstructed.” Rivere v.
Union Pac. R.R. Co., 93-1132, p. 9 (La.App. 1st Cir. 10/07/94), 647
So.2d 1140, 1147. Instead, motorists must keep their vehicles “under
such control as to be able to stop immediately” upon spotting an
oncoming train. Hebert v. Missouri Pac. R.R. Co., 366 So.2d 608,
614 (La.App. 3d Cir.1978) (quoting Bertrand v. Missouri Pac. R.R.
Co., 160 So.2d 19, 23 (La.App. 3d Cir.1964)). Moreover, if a
motorist’s view is obstructed, he must exercise a higher degree of
caution. Glisson, 246 La. at 477, 165 So.2d at 291.

After reviewing the record, we find ample evidence to support the jury’s

finding of fault on the part of the DOTD, as well as its allocation of fault among

DOTD, Mallory, and the Railroad.

The accident at issue was witnessed by occupants of a truck that had crossed

the tracks immediately before Mallory attempted to cross. Willie Ray Patin was

driving the truck, and his wife, Paula Cart Patin, was a passenger in the truck. In

addition, Daniel McGrath and Judy McGrath were riding in the bed of Mr. Patin’s

truck at the time. These witnesses each testified that they did not see the train

coming until they were crossing over the tracks because of a glare from the sun,

that the train was travelling at a high rate of speed, and that they did not hear the

train sound a horn until after it hit Mallory’s vehicle. The McGraths also testified

that they saw Mallory stop and look both ways before proceeding into the path of

the train. There was no evidence suggesting that Mallory attempted to block the

sun with her hand or visor to contend with the blinding sun glare or conditions at

the crossing.

Therefore, the evidence does support a conclusion that Mallory breached her

duty and that the breach bore a causative relationship to the accident at issue.

14

Moreover, there was evidence to support a breach of duty on the part of the

Railroad by failing to sound its horn.

However, this conclusion does not preclude a finding that DOTD’s conduct

was also in breach of its duty or a proximate cause of the accident. Mr. Archie

Burnham, a traffic engineer and expert in railroad crossing design and safety,

testified that the Eddy Street crossing was unreasonably dangerous for several

different reasons, summarizing his opinions as follows:

Well I mentioned to you I had one opinion that [the railroad
crossing] was an extra hazardous crossing. I have five supports for
that and I think we’ve covered the supports. Just to be brief, they
were number one, that the federal law 646.214(b)(3) required bells,
lights, and gates for these conditions that existed here. Two, that the
crossing should never have been reopened with passive signs unless
they were properly placed. My concern was not so much with the
signs, but with where they were, and secondly - - or thirdly, that the
physical properties of the crossing made it more difficult for the
motorist. They had more to look for than is a train coming. They had
to deal with an odd angle. Most crossings are 90 degrees, this one is
58. Most of them have surface crossings that are smooth, this one was
rough and humped. This one had protection devices that were
ineffective, inoperative. Passive signs were located too far from the
near rail and the position of the sun produced glare. Those were extra
factors that the motorist had to deal with. Fourthly, that the train
speeds had been increased significantly the year of this accident and
made it harder for the motorist to make a judgment with respect to
when the train was going to be at the crossing, and fifthly, that the
crossing when it was reopened in 1997 to the public was downgraded
with undesirable construction, removal of electric signals and
operational factors, including the effect in the operation at the
crossing. Those were my five supports for the fact this is an ultra[-
]hazardous crossing.

DOTD suggests that it bears no fault in this accident because the passive

warning signals were in compliance with the then-applicable version of the

MUTCD, and that Mr. Burnham’s testimony to the contrary was based on a later

version. However, even assuming the DOTD was in fact in compliance with the

then-applicable version of the MUTCD, such compliance is merely prima facie

evidence that DOTD was not negligent in the instant matter. Clarkston, 989 So.2d

15

164. “Prima facie proof is sufficient only if not rebutted or contradicted.” Skulich

v. Fuller, 46,733, p. 5 (La.App. 2 Cir. 12/14/11), 82 So.3d 467, 471 (citation

omitted).

Mr. Burnham testified that multiple out-of-the-ordinary conditions at the

crossing such as the unusual angle of the track, the surface conditions of the

crossing, the blinding sun glare, and the increased speed of trains, were difficulties

with which motorists had to contend at this particular crossing and made this

crossing extremely dangerous. This testimony reasonably supports a finding that

mere compliance with the MUTCD was insufficient to discharge the DOTD’s duty

in connection with this particular crossing. Therefore, the jury was not manifestly

erroneous in assessing fault to the DOTD.

The jury allocated the highest percentage of fault in this case to Mallory

(32%), and it allocated the next highest percentage of fault to the Railroad (31%).

With the exception of the Town, who was allocated no fault by the trial judge, the

DOTD was assigned with the lowest percentage of fault in this case (29%). Given

the applicable legal principles and discretion given to the jury in connection with

the testimony and evidence presented, we cannot say that the percentages of fault

the jury assigned are manifestly erroneous.

Bystander Claim and Statutory Cap on Damages

We next consider Ms. Renfro’s answer to the appeal wherein she asserts that

the trial court erred “in holding that . . . [her] jury award of general damages . . .

should be reduced -- to the general damage statutory cap -- $500,000 -- imposed by

La. R.S. 13:5106[.]” Relying on Lockett v. State, Dept. of Transp. & Dev., 03-

1767 (La. 2/25/04), 869 So.2d 87, Ms. Renfro argues that the version of La.R.S.

13:5106 applicable to the instant case had been deemed ambiguous, and therefore

two separate $500,000 general damage caps are permitted; “namely, one general
16

damage cap in the wrongful death claim under [La.Civ.Code] [a]rt[.] 2315.[2] and

the second general damage cap in the . . . [bystander] claim under [La.Civ.Code]

[a]rt[.] 2315.[6.]” However, Ms. Renfro’s argument incorrectly assumes that a

bystander claim was properly submitted to the jury or otherwise awarded by the

trial court.

Louisiana Civil Code Article 2315.6(A) provides, inter alia, that the mother

of an injured person, “who view[s] an event causing injury to [the injured] person,

or who come[s] upon the scene of the event soon thereafter, may recover damages

for mental anguish or emotional distress that they suffer as a result of the other

person’s injury[.]”

To recover for mental anguish or emotional distress under this
Article, the injured person must suffer such harm that one can
reasonably expect a person in the claimant’s position to suffer serious
mental anguish or emotional distress from the experience, and the
claimant’s mental anguish or emotional distress must be severe,
debilitating, and foreseeable. Damages suffered as a result of mental
anguish or emotional distress for injury to another shall be recovered
only in accordance with this Article.

La.Civ.Code art. 2315.6(B).

Ms. Renfro’s petition in this matter lacks any factual allegations sufficient to

establish a bystander claim under La.Civ.Code art. 2315.6. Moreover, a thorough

review of the jury instructions, opening and closing statements, and jury verdict

form makes clear that Ms. Renfro failed to ask the jury to determine any facts

necessary for a bystander claim under La.Civ.Code. art. 2315.6. Ms. Renfro did

not object to the jury verdict form or jury instructions, or otherwise specifically ask

the trial court to award damages for a bystander claim.

We do note, however, that there was testimony presented regarding Ms.

Renfro coming upon the scene. Ms. Renfro testified that she received a phone call

from Mallory’s friend informing her of the accident, and then she later went to the

17

scene. She testified that, once she arrived at the scene, she did not remember

seeing the vehicle and that she was not permitted to see Mallory. Ms. Renfro

stated that she did not see Mallory’s body until she was at the funeral home. In

addition, Raven Gradnigo, who is Mallory’s sister and Ms. Renfro’s daughter,

testified that she, along with her aunt and Ms. Renfro, went to the scene of the

accident and that when they got there, Ms. Renfro “passed out.”

Moreover, Ms. Renfro’s counselor, Lee Franks, testified as to the emotional

distress Ms. Renfro suffered from having learned of Mallory’s death, rushing to the

scene, and then being prevented from hugging Mallory at the scene.

While this testimony may be relevant to a bystander claim, or a defense

thereto, La.Code Civ.P. art. 1812(A) states (emphasis added):

The court may require a jury to return only a special verdict in the
form of a special written finding upon each issue of fact. . . . If the
court omits any issue of fact raised by the pleadings or by the
evidence, each party waives his right to a trial by jury of the issue
omitted unless, before the jury retires, he demands its submission to
the jury. As to an issue omitted without such demand the court may
make a finding, or if it fails to do so, it shall be presumed to have
made a finding in accord with the judgment on the special verdict.

Therefore, under La.Code Civ.P. art. 1812, Ms. Renfro is deemed to have

waived a jury trial on facts necessary for a bystander claim, since the jury verdict

form is silent on the issue. Therefore, we are required to assume that the trial court

denied the bystander claim on the evidence presented as there is no indication to

the contrary in the trial court’s judgment.

While there are three separate categories of general damages on the jury

verdict form,3 we are not inclined to assume that any of the specific categories

3
The jury verdict form contained separate categories of general damages for “grief and
sorrow”, “mental anguish,” and “loss of love and affection.” DOTD suggests on appeal that it
was improper to separate “grief and sorrow” and “mental anguish” into two items of general
damages. It is noteworthy that in response, Ms. Renfro does not argue that either of these
categories were meant to compensate her for a separate bystander claim.

18

were meant to compensate Ms. Renfro solely for damages related to a bystander

claim, which this court has recognized are separate and distinct from those

awardable for a wrongful death claim. Castille v. La. Med. Mut. Ins. Co., 14-519

(La.App. 3 Cir. 11/5/14), 150 So.3d 614.4

The jury instructions discuss only a claim for damages resulting from

Mallory’s death, and there is no indication that any of the specific categories of

general damages were meant to compensate Ms. Renfro solely for a bystander

claim.5 Additionally, there is no indication in the final judgment that any of the

4
In Castille, we noted that a “wrongful death action arises when the victim dies[,]” and
“compensates the beneficiaries for their own damages suffered from the moment of the direct
victim’s death and thereafter[,]” whereas a bystander claim “arises when a person observes an
injury-causing event or soon after comes upon the scene of an injury and is contemporaneously
aware that the event has caused severe harm to the direct victim” and “compensates the
bystander for the immediate shock of witnessing a traumatic event which caused the direct
victim severe and apparent harm.” 150 So.3d at 618-19.
5
The following jury instructions were provided (emphasis added):

In an action such as this one, Louisiana law permits a plaintiff as the surviving
beneficiary of the deceased to present evidence of the loss which she has suffered
as a result of the death and for which you may award damages to her.

This is a suit by the plaintiff, Thalia Renfro, seeking damages for the death
of her daughter, Mallory Young. The plaintiff contends that Mallory’s death was
caused by the acts or the failure to act on the part of the DOTD, or the Town of
Vinton, or both.
....

Therefore, you must now decide the question of whether there has been
damage [to] the plaintiff’s person or property, and if so, the amount of that
damage.
....

The law recognizes both general damages which the plaintiff may have
faced because of the incident, and specific damages sometimes called special
damages . . . .

If you decide to award the plaintiff general damages, you may consider
her grief, loss of love and affection and companionship, both in the past and to be
anticipated in the future.
....

The law recognizes that a Plaintiff may suffer mental distress and anguish
as a result of an incident. You are permitted to consider such consequences as a
part of the general damages which you may award.

The next item that Thalia Renfro may be entitled to recover in the form of
money is the loss suffered by her of the love, affection, companionship, society,
19

damages awarded were specifically meant to compensate Ms. Renfro for a

bystander claim, or that the trial court found that Ms. Renfro had proven her

entitlement to a bystander claim. Moreover, there is no indication that Ms. Renfro

even asked the trial court to find or award damages for a bystander claim.

Therefore, we have no basis upon which to conclude that Ms. Renfro was awarded

damages for a bystander claim.

On appeal, Ms. Renfro asserts only that the trial court should have applied

an additional statutory cap of $500,000 to her bystander claim. However, she does

not argue that the trial court awarded damages for a bystander claim, or otherwise

erred in not awarding any such damages. Therefore, without a judgment awarding

damages for a bystander claim, the issue of whether a separate statutory cap on

general damages is available for that claim is not properly before us.

We note that Uniform Rules–Courts of Appeal, Rule 1-3 does allow us to

consider issues that were not submitted to the trial court and not contained in

specifications or assignments of error when “the interest of justice clearly requires”

us to do so. However, we do not find that the interest of justice clearly requires us

to consider the merits of a bystander claim in this case as no such claim was pled,

submitted to the jury or the trial court for consideration, or awarded by the trial

court.6

comfort, attention, care, and kindness that she had received from her late daughter,
Mallory Young.
6
However, even if we were to consider the merits of a bystander claim based on the
record before us, the fact that Ms. Renfro chose to go to the scene of the accident after learning
that the accident had occurred and did not remember seeing the vehicle or Mallory’s body at the
scene, does not require a finding that Ms. Renfro sufficiently proved a bystander claim under
La.Civ.Code art. 2315.6, or otherwise renders the trial court’s presumed denial of her claim
manifestly erroneous. In Lejuene v. Rayne Branch Hosp., 556 So.2d 559, 570 n.11, the
Louisiana Supreme Court explained a bystander claim as follows:

“[T]he essence of the tort is the shock caused by the perception of the especially
horrendous event.” Gates v. Richardson, 719 P.2d 193 (Wyo.1986). See also
Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979), which found that “(t)he
20

Because we find that this assignment of error is not properly before us, we

affirm the trial court’s reduction of twenty-nine percent of the total general

damages awarded against DOTD ($1,914,000) to $500,000 in accordance with the

statutory cap on damages provided by La.R.S. 13:5106.

Amount of General Damages Awarded

DOTD argues that the total of $6,600,000 awarded in general damages was

impermissibly excessive and an abuse of discretion. We agree.

“[T]he role of an appellate court in reviewing general damages is not to

decide what it considers to be an appropriate award[.]” Youn v. Mar. Overseas

Corp., 623 So.2d 1257, 1260 (La.1993). Instead, an appellate court reviews

whether the award under the facts and circumstances of the case is a “clear abuse

of the ‘much discretion’” vested in the jury, as finder of fact. Id. at 1261. “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

emotional injury must be directly attributable to the emotional impact of the
plaintiff’s observation or contemporaneous sensory perception of the accident and
immediate viewing of the accident victim. Therefore, recovery will not be
permitted for emotional distress when the plaintiff is merely informed of the
matter after the accident....”

Similarly, in Trahan v. McManus, 97-1224, pp. 11-12 (La. 3/2/99), 728 So.2d 1273, 1279
(emphasis added), the Louisiana Supreme Court stated that the requirements of a bystander claim
under La.Civ.Code art. 2315.6:

[S]uggest a need for temporal proximity between the tortious event, the victim’s
observable harm, and the plaintiff’s mental distress arising from an awareness of
the harm caused by the event. The Legislature apparently intended to allow
recovery of bystander damages to compensate for the immediate shock of
witnessing a traumatic event which caused the direct victim immediate harm that
is severe and apparent but not to compensate for the anguish and distress that
normally accompany an injury to a loved one under all circumstances.

The Trahan court also stated that “[a] non-contemporaneous onset of mental distress is
not within the scope of the tortfeasor’s liability, as limited by this court in Lejeune[, 556 So.2d
559] and by the Legislature in [La.Civ.Code] [a]rt[.] 2315.6[.]” Id. at 1279 n.8.

The evidence supports a conclusion that Ms. Renfro did not become aware of Mallory’s
injury by coming upon the scene of the accident immediately, or shortly after it occurred, so as to
suffer the “immediate shock” contemplated by Lejeune, 556 So.2d 559, and Trahan, 728 So.2d
1273, and therefore she did not establish the requisite temporal proximity between the train
accident, Mallory’s injury or death, and Ms. Renfro’s mental distress.
21

under the particular circumstances that the appellate court should increase or

reduce the award.” Id.

The determination of the severity of mental anguish of distress
resulting from the death of another is a fact question which depends
upon several components, including, but not limited to, the closeness
of the ties between the parties, the degree of love in the relationship,
and the length of the relationship.

Hill v. Shelter Mut. Ins. Co., 05-1783, 05-1818, p. 6 (La. 7/10/06), 935 So.2d 691,

695.

Ms. Renfro testified regarding her feelings after Mallory’s death as follows:

A Actually, it was kind of -- I was just kind of numb because I
really couldn’t believe it. I really didn’t want to believe it. It was just
a bad, bad time. It’s like I went to this place, dark. It was a dark, dark
place. It made me understand something, though. It made me
understand why people kill theyself [sic] or drink theyself [sic] to
death or drug theyself [sic] to death when something tragic happens in
their life when they don’t know God. It’s a bad place to be.

Ms. Renfro further explained that, since Mallory’s death, she no longer

travels over the crossing at Eddy Street.

Shortly after Mallory’s death, Ms. Renfro began counseling with Lee Franks,

a licensed professional counselor. Ms. Franks concluded that Ms. Renfro was

suffering from “major depression.” She testified that Ms. Renfro “experienced

some difficulty accepting the fact that [Mallory] had passed.” She explained that

Ms. Renfro developed difficulties falling asleep at night, cried daily at multiple

times during the day, “seemingly could not . . . get a good grip on life at that time,”

“felt sad . . . constantly,” and suffered from a lack of motivation. She further

explained that Ms. Renfro “felt hopeless and . . . angry, resentful, frustrated,” and

was “discouraged.”

Ms. Franks also testified that “[Ms. Renfro] missed [Mallory’s] absence.

She felt the loneliness. She just missed [Mallory’s] presence, not being there, that

she was absent.” She further testified that Ms. Renfro suffered from anger at the
22

trauma of having learned of Mallory’s death and trying to rush to the scene to

“pick [Mallory] up and hug her[,]. . . and she was really hysterical” because she

was not allowed to hug Mallory, her daughter.

Ms. Renfro saw Ms. Franks for counseling through May 13, 2003, which is

approximately a year and half after the accident. Ms. Franks testified that Ms.

Renfro “had begun to make a little bit of progress,” although she “was not healed”

and that she felt it was better for Ms. Renfro to work independently on her issues.

Carl Renfro, Ms. Renfro’s husband, testified about the effects of Mallory’s

death on his wife, explaining that he “[did not] think [he] could put it into

words . . . . It was---it’s something that if you’ve never been through you can’t

explain it. It wasn’t easy for her. It was very difficult. All I could do was just be

by her side.” He further explained the unique bond between Mallory and her

mother as follows:

A They had the type of love for each other that if you have an
opportunity to be a part of it you would want to enhance it as far as
the beginning, and that was one of the driving forces that wanted me
to be a part of their lives.

Raven Gradnigo, Mallory’s sister, also testified at trial and explained her

mother’s grief as follows:

A I think for me I really didn’t get a chance to grieve Mallory’s
death because of my mom and I seen [sic] how much pain she was in,
and I had never seen her so -- so weak and so helpless. So I
immediately needed to be there and be strong for her. My aunt, she
came and she picked us up and when we got [to the scene] my mama,
she just passed out, she just hit the ground, and some man picked her
up and carried her and laid her in the back of the truck.

....

A I really -- the only thing I really, really remember is that
everybody kept -- they wouldn’t let us get to Mallory’s body. They
kept telling us we don’t want to see her like that and they were -- held
my mama and was restraining her as she was trying to get there and
that’s when she just -- I mean she just passed out, she was lifeless and
had to carry her, and I stayed with my mama on the back of the truck
23

until we were able to get her awake and then bring her home and she
was just in and out of it all night.

A I just don’t think that my mom has ever been the same since
this happened. She’s just been a totally different person. The life that
she lived and, you know, things that she used to do changed, you
know. She -- to me she was more energetic and, you know, she would
do a lot more fun things before Mallory died and I think now my mom
has this wall built up. I just think that she’s just been hurt so much
that she have [sic] a hard time. She feels guilty about having fun and
doing things knowing that, you know, Mallory is not here. So she
hasn’t been the same.

While Mallory’s death was tragic and certainly devastating to Ms. Renfro,

an award of $6,600,000 in general damages based on the record presented is

beyond that which could reasonably be assessed under the circumstances and an

abuse of discretion. Therefore, we must now determine what is the highest amount

of damages that was reasonably within the trial court’s discretion. Youn, 623 So.2d

1257.

The highest amount of general damages awarded for the wrongful death of a

child in cases cited by Ms. Renfro was $2,000,000.7 We find $2,000,000 to be the

highest reasonable amount of general damages that could have been awarded in

this case. However, after reducing that amount by the twenty-nine percent of fault

assessed to DOTD, and then limiting that amount by the $500,000 statutory cap

provided by La.R.S. 13:5106, the trial court’s ultimate award of $500,000 is

affirmed.

In addition, our conclusions herein render moot DOTD’s assertion that the

trial court erred by including “grief and sorrow” and “mental anguish” as two

separate and distinct categories of general damages on the jury verdict form.

Assessment of Costs

7
Hutto v. McNeil-PPC, Inc., 11-609 (La.App. 3 Cir. 12/7/11), 79 So.3d 1199, writ denied,
12-402 (La. 4/27/12), 86 So.3d 628, cert. denied, – U.S – , 133 S.Ct. 428 (2012).
24

In its final assignment of error, DOTD states that the trial judge erred in

assessing all court costs against DOTD, and suggests that its liability for court

costs should correspond with its allocated percentage of fault.

“Except as otherwise provided by law, the court may render judgment for

costs, or any part thereof, against any party, as it may consider equitable.”

La.Code Civ.P. art. 1920. This article “has been liberally interpreted as granting

the trial court broad discretion in apportioning costs as it deems equitable.” Boutte

v. Nissan Motor Corp., 94-1470, p. 13 (La.App. 3 Cir. 9/13/95), 663 So.2d 154,

162 (citation omitted). Assessing a negligent party with all court costs when other

parties are jointly liable is not a per se abuse of the trial court’s discretion. Id.

DOTD does not explain how the trial court’s assessment is otherwise an abuse of

its discretion, and we can find no abuse of discretion in the record.

CONCLUSION

For the foregoing reasons we affirm the trial court’s judgment. Costs of this

appeal are divided equally between DOTD and Ms. Renfro.

AFFIRMED.

25

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-372

THALIA RENFRO

VERSUS

BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, ET AL.

THIBODEAUX, Chief Judge, dissenting in part.

I dissent from the majority’s treatment of bystander damages and its

conclusion that the general damages award of $6,600,000 was excessive.

The issue of a separate cap is indeed before us despite the lack of a specific

pleading or lack of its inclusion in the jury instructions or the jury verdict form.

The majority’s rigid adherence to hypertechnical procedural rules abdicates a

court’s responsibility to render substantial—and deserved—fairness. Every

pleading and all admissible evidence should be construed so as to achieve

substantial justice, and courts are bound to determine the substance of a pleading.

See, e.g., Thompson v. Harrington, 99-571, (La.App. 3 Cir. 10/13/99), 746 So.2d

652. The subordination of substance to form in the interest of procedural

regularity has denied Ms. Renfro damages to which, from an evidentiary standard,

she is entitled.

In her answer to the appeal, Ms. Renfro asserts that the trial court erred in

reducing the general damages award to $500,000 pursuant to La.R.S. 13:5106. She

argues that the statute, as it existed at the time of judicial demand, was interpreted

by our supreme court to be “hopelessly ‘ambiguous,’” and thus should be

interpreted to limit her recovery to not one, but two damage caps. Ms. Renfro is

correct.

Louisiana Civil Code Article 2315.2 authorizes certain enumerated persons

to “recover damages which they sustained as a result of the death” of a person

through the fault of another. Louisiana Civil Code Article 2315.6 authorizes

statutorily enumerated persons who see another person become injured or “who

come upon the scene of the event soon thereafter,” to recover damages for the

mental injury suffered as a result of seeing the other person’s injury.

As this court explained in Castille v. Louisiana Med. Mut. Ins. Co., 14-519,

pp. 4-5 (La.App. 3 Cir. 11/5/14), 150 So.3d 614, 618-19:

A claim for bystander damages is also a separate cause of
action. Like a wrongful death and survival claim, a bystander claim is
provided for in a separate article. See La.Civ.Code art. 2315.6.
Moreover, a bystander claim arises at a different time than a survival
and wrongful death claim. A survival action arises simultaneously
with the commission of the tort against the direct victim and is
transmitted to the beneficiaries upon the victim's death. Guidry v.
Theriot, 377 So.2d 319 (La.1979), repudiated on different grounds in
Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983). A wrongful death
action arises when the victim dies. Id. Distinct from both actions is
the bystander claim, which arises when a person observes an injury-
causing event or soon after comes upon the scene of an injury and is
contemporaneously aware that the event has caused severe harm to the
direct victim. Trahan v. McManus, 97-1224 (La.3/2/99), 728 So.2d
1273. Further, a bystander claim compensates different injuries than a
wrongful death and survival action. A survival claim compensates the
direct victim for damages suffered from the time of injury until death.
Guidry, 377 So.2d 319. A wrongful death claim compensates the
beneficiaries for their own damages suffered from the moment of the
direct victim's death and thereafter. Id. Distinct from both actions is
the bystander claim, which compensates the bystander for the
immediate shock of witnessing a traumatic event which caused the
direct victim severe and apparent harm. Trahan, 728 So.2d 1273.
Thus, by the same jurisprudential logic by which a wrongful death and
survival claim are separate causes of action, a bystander claim is also
a separate cause of action.

Since it is a separate cause of action and it is unnecessary to plead specific

legal theories or causes of action as long as the essential facts are pleaded, the

talismanic words “bystander damages” need not be specifically articulated.

At the time suit was filed on January 31, 2002, La.R.S. 13:5106(B)(2)

provided:

2

In all suits for wrongful death of any one person, the total
amount recoverable, exclusive of property damages, medical care and
related benefits and loss of earnings or loss of support, and loss of
future support, as provided in this Section, shall not exceed five
hundred thousand dollars.

In Lockett v. State ex rel DOTD, 03-1767 (La. 2/25/04), 869 So.2d 89, the

trial court found DOTD partially liable for a vehicular crash and awarded each

parent $500,000 in general damages for the death of their daughter. The court of

appeal affirmed. The supreme court granted DOTD’s application for a writ to

determine the proper construction of the statute. Finding the statute to be

ambiguous and in derogation from the rights of tort victims, the supreme court

determined that the statute must be strictly construed against application and in

favor of the tort victims. The court explained “[La.R.S. 13:5106] does not restrict

the application of the cap for all claims.” Id. at 94.

Although the statute was subsequently amended to cap the total amount of

general damages at $500,000 regardless of the number of plaintiffs or claims,

damage caps are applied according to the date of judicial demand. E.g. Brown v.

Louisiana Indem. Co., 96-1393 (La.App. 3 Cir. 4/23/97), 693 So.2d 270, writ

granted, 97-1344 (La. 9/19/97), 701 So.2d 139, and aff’d in part, rev’d in part on

other grounds, 97-1344 (La. 3/4/98), 707 So.2d 1240. Because the supreme

court’s interpretation was the law in effect at the time of judicial demand, we must

apply the statute to be consistent with the Lockett opinion. I, too, find the statute,

as it read at the time of judicial demand, to be ambiguous regarding whether it

allowed for a single cap for all claims or multiple caps for multiple claims. Thus,

we must apply a strict construction against coverage. Consequently, Ms. Renfro

has separate claims: those pursuant to La.Civ.Code arts. 2315.2 and 2315.6.

Therefore, I conclude that Ms. Renfro is entitled to two statutory damages caps in

accordance with the Lockett decision.

3

Moreover, I note that, at the time of the accident made the basis of this suit,

La.R.S. 13:5106(B)(2) provided that, “[i]n all suits for wrongful death of any one

person, the total amount recoverable . . . shall not exceed five hundred thousand

dollars.” (Emphasis added). Here, Ms. Renfro brings suit for the damages she

sustained for the wrongful death of her daughter, Mallory, pursuant to La.Civ.Code

2315.2. Louisiana Revised Statutes 13:5106(B)(2), as it existed at the time of the

instant accident, capped damages at $500,000 “in all suits for wrongful death,” not

in suits for bystander damages, which this court has previously explained is a

separate cause of action.

Louisiana Code of Civil Procedure Article 2164 allows us to issue a

judgment which is just and proper and supportable by the record. Similarly,

La.Code Civ.P. art. 862 grants us the authority to issue a judgment for whatever

relief we deem is proper, even if a party has not demanded that relief in his

pleadings.

Mental anguish forms the basis for bystander damages under La.Civ.Code

art. 2315.6. Clearly, the jury awarded $1,320,000 for “mental anguish” and

$1,320,000 for “grief and sorrow.” The jury also awarded $3,960,000 for “loss of

love, affection, and companionship.” Those items are typically associated with

those damages occasioned by the wrongful death of an individual. It compensates

the codal beneficiaries for the absence of love, the absence of affection, and the

absence of companionship occasioned by the loss of a deceased. That is separate

and apart from “grief and sorrow” and “mental anguish.” Those are the damages

immediately experienced by the codal beneficiaries. Rachal v. Brouillette, 12-794,

p. 5 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, 1142, writ denied, 13-690 (La.

5/3/13), 113 So.3d 217, explained it succinctly: “[p]ut another way, grief is the

absence of an emotion as a result of a loved one’s death. Loss of love and

affection, however, is the absence of an experience; specifically the absence of a

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love previously bestowed.” In my view, the element associated with bystander

damages—mental anguish—was simply another way of awarding bystander

damages under La.Civ.Code art. 2315.6.

Louisiana Code of Civil Procedure Article 862 requires a final judgment to

“grant the relief to which the party in whose favor it is rendered is entitled, even if

the party has not demanded such relief in his pleadings and the latter contained no

prayer for general and equitable relief.” Typically, this provision gives authority to

a trial court to grant relief, regardless of whether such relief was pleaded. See, e.g.,

Johnson v. Fuselier, 302 So.2d 721 (La.App. 3 Cir. 1974). However, this

provision also authorizes a court of appeal to award certain damages, even though

the plaintiff did not seek those damages. For instance, in Kibbe v. Lege, 604 So.2d

1366 (La.App. 3 Cir.), writs denied, 606 So.2d 540, 541 (La.1992), this court

allowed the plaintiff to recover under quantum meruit, even though he had not

pleaded it. In that case, the trial court concluded that the plaintiff was entitled to

damages under a theory of equitable estoppel. However, this court ruled that

equitable estoppel did not apply, but that the plaintiff could recover under quantum

meruit. We also found that the plaintiff was not required to specifically plead

quantum meruit, since the defendant was put on “fair notice” as to what the

plaintiff was seeking by the factual pleadings. Bystander damages could be

analogized in this case to quantum meruit. Since the plaintiff sought damages for

mental anguish, the defendant was put on “fair notice” that the plaintiff was

seeking such damages which formed the basis for bystander damages. Kibbe

specifically said that Article 862 “supports this [court’s] authority to allow

recovery . . . .” Id at 1371. (Emphasis added).

The majority erroneously addresses the issue of excessive damages. Despite

concluding that the damages are limited to $500,000 because of the statutory cap

under La.R.S. 13:5106, it then proceeds to address the excessiveness issue under

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the abuse of discretion standard. Because of the $500,000 cap, that issue is now

moot. Why address it? The award will be $500,000 whether the damages are

$6,600,000 as the jury concluded, or $2,000,000 as the majority concludes.

Consequently, any discussion of the excessiveness of the award is unnecessary

dictum.

For the foregoing reasons, I respectfully dissent.

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