Ronald Lee Stutes and Carroll Lynn Stutes v. Greenwood Motor Lines, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-52 consolidated with 17-567, 17-568

RONALD LEE STUTES, ET UX.

VERSUS

GREENWOOD MOTOR LINES, INC., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20131119
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret,
Judges.

Conery, J., concurs in the result and assigns reasons.

AFFIRMED.

H. Alston Johnson III
Marshall M. Redmon
Virginia Y. Dodd
KevinW. Welsh
Phelps Dunbar LLP
II City Plaza
400 Convention Street, Suite 1100
Baton Rouge, LA 70802-5618
(225) 346-0285
COUNSEL FOR DEFENDANT-APPELLANT:
American Guarantee and Liability Insurance Company

Blake R. David
Robert B. Brahan, Jr.
Broussard & David
Post Office Box 3524
Lafayette, LA 70502-3524
(337) 233-2323
COUNSEL FOR PLAINTIFFS-APPELLEES:
Ronald Lee Stutes
Carroll Lynn Stutes

J. Marshall Montgomery
Attorney at Law
802 Johnston Street
Lafayette, LA 70501
(337) 269-0083
COUNSEL FOR PLAINTIFFS-APPELLEES:
Ronald Lee Stutes
Carroll Lynn Stutes

Jeff Landry
Attorney General
Laura L. Putnam
Assistant Attorney General
Louisiana Department of Justice
556 Jefferson Street, 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT-APPELLEE:
State of Louisiana, through the
Department of Transportation & Development

PICKETT, Judge.

This matter arises from a collision that occurred between a pickup truck and

an eighteen-wheeler tractor-trailer when the driver of the eighteen-wheeler drove

across an intersection in dense fog that limited the vision of both drivers. The

driver of the pickup truck suffered catastrophic injuries. He and his wife sued the

driver of the eighteen-wheeler, his employer, and the employer’s primary and

excess insurers. After a jury trial, the jury found the driver of the eighteen-wheeler

to be solely at fault and awarded the plaintiff damages exceeding $30 million. One

excess insurer appeals the jury’s verdict. For the following reasons, we affirm the

judgment of the trial court.

DISCUSSION

The facts of how the accident occurred are not at issue. In the early morning

hours of January 23, 2013, Gerald Pitre, an employee of Greenwood Motor Lines,

Inc. d/b/a R&L Carriers, was operating his R&L eighteen-wheeler on the outskirts

of Lafayette, upon return to R&L Carriers’ facility in nearby Scott from his regular

overnight roundtrip to Houston, Texas. Mr. Pitre traveled to Houston and back to

Lafayette on Interstate 10 between 9:00 p.m. on January 22 and 5:30 a.m. on

January 23. According to Mr. Pitre, he had driven back from Houston in fog that

he described as “heavier than ever,” and he could only see what was within the

area illuminated by his headlights.

Mr. Pitre exited Interstate 10 at Duson onto Austria Road and drove south to

where Austria Road intersects with U.S. Highway 90 (the Intersection). The

Intersection was controlled with stop signs and two red flashing signals for

motorists on Austria Road and a yellow flashing signal for motorists on Highway

90. Mr. Pitre stopped when he reached the Intersection at which time he noticed a

burning smell that he believed was coming from his trailer. He contacted the R&L

dispatcher to report the burning smell and informed the dispatcher that he was

going to drive to where he could safely stop and inspect the trailer to determine the

cause of the burning smell.

Mr. Pitre explained that he originally intended to turn left at the Intersection,

but after speaking with the dispatcher, he decided to drive straight across Highway

90 to stop and inspect his trailer. He further explained that when he ended his

conversation with the dispatcher, he looked at the Intersection, saw two cars pass

through it, “waited a few seconds,” then drove through it. Mr. Pitre also testified

that the fog at the Intersection was such that that although the vehicles traveling on

Highway 90 had their headlights on, he could not see them until they “crossed right

in front of my face.”

At the same time, Ronald Stutes was traveling to work on Highway 90. As

he approached the Intersection, Mr. Stutes saw the eighteen-wheeler crossing the

Intersection. He slammed on his brakes but was unable to stop or swerve to avoid

the tractor-trailer, and he crashed into the rear wheel of the tractor-trailer.

Mr. Stutes testified that although it was foggy, he could see the Intersection. As he

crossed the Intersection, Mr. Pitre heard a crunching sound, but he was unaware

that a vehicle had hit his trailer and continued traveling approximately 500 feet

down Austria Road. Mr. Pitre testified that he never saw Mr. Stutes’ vehicle

before the accident.

Mr. Stutes suffered very serious injuries and is now a paraplegic with

paralysis from his chest down; he is unable to care for himself. His injuries

include thoracic spine fractures at T4, T5, and T6 that required fixation with

screws and rods from T2-8; a cervical spine injury at C7; a transverse process

fracture with cervical spine injury; contusions in his cervical and thoracic spine;

collapsed lungs; a cerebral concussion; a brain injury; a comminuted humerus/
2

neck fracture; and numerous other injuries. The evidence indicates that Mr. Stutes’

limbs and most of his internal organs were damaged or impaired in some way in

the accident or as a result of his injuries. Additionally, after the accident, Mr.

Stutes developed diabetes.

Mr. Stutes and his wife, Carroll,1 filed suit against Mr. Pitre; R&L Carriers;

Greenwood Motor Lines, Inc.; R&L Carriers, Inc.; R&L Carriers Shared Services,

LLC; R&L Transfer, Inc.; Protective Insurance Company; Lexington Insurance

Company; Zurich American Insurance Company; and American Guarantee and

Liability Insurance Company (AGLIC). In their answers, the defendants asserted

affirmative defenses including fault of Mr. Stutes and fault of a third party, the

Louisiana Department of Transportation and Development (DOTD). The Stuteses

then added DOTD as a defendant.

Prior to trial, DOTD filed a motion for summary judgment, seeking

dismissal of the claims asserted against them on the basis that neither the Stuteses

nor the defendants could carry their burden of proving liability against them. The

Stuteses also filed a motion for summary judgment in which they sought the

dismissal of DOTD on that same basis. After a hearing, the trial court granted the

motions for summary judgment and dismissed DOTD from this suit.

Prior to trial, Mr. Stutes entered into a Partial Settlement Agreement with

Mr. Pitre, the R&L entities, and Protective Insurance Company in which those

defendants tendered a sum of money less than $4 million dollars in exchange for

being dismissed from the litigation. Pursuant to the Agreement, the Stuteses

reserved their rights to proceed against R&L’s excess insurers, Zurich and AGLIC,

as authorized in Futch v Fidelity & Casualty Co. of New York, 246 La. 688, 166

1
The Stuteses’ daughter, Ashely, also filed suit against the defendants but later dismissed
her claims with prejudice.
3

So.2d 274 (1964) and Gasquet v. Commercial Union Insurance Co., 391 So.2d 466

(La.App. 4 Cir. 1980), writs denied, 396 So.2d 921, 922 (La.1981). Pursuant to the

Agreement, Zurich and AGLIC received a credit of $4 million against any

judgment obtained against them.

After a jury trial, the jury awarded Mr. Stutes damages totaling $30,138,225

and awarded Mrs. Stutes $300,000 for loss of consortium. On November 3, 2016,

the trial court signed a judgment memorializing the jury’s verdict. Thereafter,

Lexington filed a motion for new trial and alternative motion for judgment

notwithstanding the verdict, and AGLIC filed a motion for new trial and

alternatively for remittitur and alternative motion for judgment notwithstanding the

verdict. The trial court denied the motions. Lexington and AGLIC each appealed;

Lexington dismissed its appeal before filing an appellate brief.

ASSIGNMENTS OF ERROR

AGLIC assigns the following errors with the trial court proceeding:

1. The trial judge erred in granting the pre-trial motions of the
plaintiffs and [] DOTD for summary judgment, resulting in the
omission from the jury verdict form of any possibility for the jury
to assign a percentage of fault to [] DOTD.

2. The trial judge erred in permitting the jury to consider a life care
plan based on the life expectancy of a person without the serious
injuries that Stutes had, and erred in denying post-judgment relief
on this basis.

3. The jury erred in awarding grossly excessive general damages to
Ronald Stutes for his injuries, and the trial judge erred in denying
the post-judgment relief sought by appellant to reduce those
damages

Summary Judgment

AGLIC first assigns error with the trial court’s grant of DOTD’s and the

Stuteses’ motions for summary judgment which prevented AGLIC from arguing to

the jury that the Intersection was unreasonably dangerous and prevented the jury

4

from assigning a percentage of fault to DOTD. The Stuteses named DOTD as a

defendant because the R&L defendants pleaded the affirmative defense of fault of

a third party, alleging that DOTD was negligent for failing to install a three-phase

signal 2 at the Intersection and that its negligence contributed to the accident.

DOTD filed a motion for summary judgment, arguing that a three-phase signal was

not required at the Intersection and that it was not negligent for not installing one.

The Stuteses followed suit and filed their own motion for summary judgment,

seeking the dismissal of DOTD on the same grounds asserted by DOTD.

Appellate courts review the grant or denial of a motion for summary

judgment de novo, “using the same criteria that govern the trial court’s

determination of whether summary judgment is appropriate; i.e. whether there is

any genuine issue of material fact, and whether the movant is entitled to judgment

as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880,

882; La.Code Civ.P. art. 966(A)(3). The party that files a motion for summary

judgment bears the burden of proof on the motion. La.Code Civ.P. art. 966(D). If,

however, the moving party will not bear the burden of proof at trial on the issue

addressed in the motion and points out that there is an “absence of factual support

for one or more elements essential to the adverse party’s claim, action, or

defense[,]” the non-moving party must then produce evidence showing that a

genuine issue of material fact exists “or that the mover is not entitled to judgment

as a matter of law.” La. Code Civ.P. art. 966(D)(1). If the non-moving party then

fails to produce such evidence, “there is no genuine issue of material fact[,] and

summary judgment will be granted.” Bufkin v. Felipe’s La., LLC, 14-288, p. 3 (La.

10/15/14), 171 So.3d 851, 854.

2
A three-phase signal is traffic signal with red, yellow, and green lights
5

With regard to their claims that DOTD was at fault for the accident, AGLIC

had the burden of proving that: (1) the accident occurred on property in DOTD’s

custody or control; (2) the property was defective because it contained a condition

that created an unreasonable risk of harm; (3) DOTD had actual or constructive

notice of this defect; and (4) the defect was the cause-in-fact of the injury. Toston

v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791. In its motion for summary

judgment, DOTD asserted that discovery by the parties revealed an absence of

support for the Stuteses’ and AGLIC’s claims that the Intersection was defective

and/or was a substantial factor in causing the accident. In their motion for

summary judgment, the Stuteses urged the same arguments DOTD asserted in its

motion.

DOTD has a “duty to maintain the public highways in a condition that is

reasonably safe for persons exercising ordinary care and reasonable prudence.” Id.

at 799. This duty requires DOTD to use appropriate signage and traffic signals.

Skulich v. Fuller, 46,733 (La.App. 2 Cir. 12/14/11), 82 So.3d 467. It does not,

however, make DOTD “the guarantor for the safety of all of the motoring public or

the insurer for all injuries or damages resulting from any risk posed by obstructions

on or defects in the roadway or its appurtenances.” Forbes v. Cockerham, 08-762,

86-770, pp. 31-32 (La. 1/21/09), 5 So.3d 839, 858. “Whether DOTD has breached

its duty to the public depends on all the facts and circumstances determined on a

case by case basis.” Id. at 859. The occurrence of an accident is not an inference

that an unreasonable risk of harm exists. Netecke v. State ex rel. DOTD, 98-1182,

98-1197 (La. 10/19/99), 747 So.2d 489. “DOTD’s duty to maintain highways in a

safe manner does not include the risk of injury or death caused by the gross

negligence of a third party motorist.” Ferrouillet v. State ex rel. Dep’t of Transp.

6

& Dev., 02-576, 02-577, p. 3 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, 688, writs

denied, 03-751 (La. 5/9/03), 843 So.2d 402; 03-756 (La. 5/9/03), 843 So.2d 403.

At the Intersection, Highway 90 is a two-way, two-lane highway situated in

an east-west direction. It has separate left-turn lanes on both approaches to the

Intersection. Austria Road is also a two-lane, two-way highway; it travels north-

south and intersects Highway 90 at a right angle. Traffic on Austria Road at the

Intersection is controlled by stop signs and overhead flashing signals. A yellow

flashing signal faces Highway 90 traffic, and a red flashing signal faces Austria

Road.

As a driver faced with a red flashing signal and a stop sign, Mr. Pitre’s

actions at the Intersection were governed by La.R.S. 32:234 and La.R.S. 32:123(B).

Louisiana Revised Statutes 32:234 provides, in pertinent part:

A. Whenever an illuminated flashing red or yellow signal is
used in a traffic sign or signal, it shall require obedience by vehicular
traffic as follows:

(1) FLASHING RED [STOP SIGNAL]—When a red lens is
illuminated with rapid intermittent flashes, drivers of vehicles shall
stop before entering the nearest cross-walk at an intersection or at a
limit line when marked, or, if none, then before entering the
intersection, and the right to proceed shall be subject to the rules
applicable after making a stop at a stop sign.

Louisiana Revised Statutes 32:123(B) defines the duty of the motorist at an

intersection regulated by a stop sign:

B. Except when directed to proceed by a police officer or
traffic-control signal, every driver and operator of a vehicle
approaching a stop intersection indicated by a stop sign shall stop
before entering the cross walk on the near side at a clearly marked
stop line, but if none, then at the point nearest the intersecting
roadway where the driver has a view of approaching traffic on the
intersecting roadway before entering the intersection. After having
stopped, the driver shall yield the right of way to all vehicles which
have entered the intersection from another highway or which are
approaching so closely on said highway as to constitute an immediate
hazard.

7

In Charan v. Bowman, 06-882, p. 11 (La.App. 1 Cir. 8/1/07), 965 So.2d 466,

474 (citations omitted), writ denied, 07-1773 (La. 11/9/07), 967 So.2d 505, the first

circuit addressed the care that must be exercised by drivers driving in conditions,

such as fog, that limits their ability to see, explaining:

A driver does not have the right to assume the course of travel is free
from danger if he cannot see clearly ahead. If he continues to travel
as if he knew there was perfect clearance, he does so at his own risk
and peril. Further, a motorist is held to a higher degree of care in
adverse conditions, and his duty to keep his vehicle under control
increases in periods of low visibility. Adverse driving conditions call
for unusual caution on the part of motorists. If conditions warrant it,
the motorist may be required to slow or pull over and stop until the
visibility improves. If the adverse condition or defect is open and
obvious, defendants [including DOTD] may have no duty to protect or
warn against the hazard and the condition may not be unreasonably
dangerous.

AGLIC defended against the motions for summary judgment, arguing that

the Intersection is unreasonably dangerous because DOTD should have installed a

three-phase signal at the Intersection and that a three-phase signal would have

prevented the accident. AGLIC supported these contentions with the testimony of

David Krauss, Ph.D., an expert in human factors, and Tony Tramel, a civil

engineer who practices in the fields of transportation engineering and

transportation safety and planning. Dr. Krauss testified that because Mr. Pitre

obeyed the stop sign/red flashing signal and stopped at the Intersection, he would

have obeyed a three-phase signal and entered the Intersection only when the light

facing him was green.

Mr. Tramel evaluated the Intersection under directives outlined in the

Manual on Uniform Traffic Control Devices (MUTCD)3 by collecting information

3
The MUTCD is the nationally accepted engineering treatise published by the Federal
Highway Administration which provides guidelines and recommendations for the
standardization of traffic control devices, such as signs and signals, nationwide. DOTD has
adopted the MUTCD as the minimum safety standards for highway design, construction, and
maintenance. La.R.S. 48:3513.

8

regarding traffic conditions at the Intersection and opined that a three-phase signal

should have been installed at the Intersection. He based his opinion on data

concerning four Traffic Signal Warrants4 enumerated in the MUTCD: eight-hour

traffic volume, four-hour traffic volume, peak hour traffic, and roadway network.

Mr. Tramel concluded that these four warrants were met or exceeded. Mr. Tramel

concluded that these four warrants were met or exceeded.

Mr. Tramel determined that the conditions existing at the Intersection

“exceed the guidelines used by traffic engineers, in conjunction with their

engineering judgment, to justify the installation of a traffic signal at the subject

location” and opined “that it would be more likely than not that a practicing traffic

engineer would recommend signalization at this location.” Nonetheless, he also

testified that it would be reasonable for other engineers to conclude that a traffic

signal is not justified at the Intersection, that other practicing engineers might

disagree with his opinion, and that such disagreement would be reasonable.

Mr. Tramel admitted that the installation of a signal was not mandated by the

MUTCD. Furthermore, he did not opine that the lack of a three-phase signal at

the Intersection created an unreasonable risk of harm to the motoring public or that

the absence of a three-phase light at the Intersection contributed to the accident.

Compliance with the MUTCD constitutes prima facie evidence of no fault

by DOTD for failing to install proper signalization. La.R.S. 32:235(E). Renfro v.

Burlington N. Santa Fe Ry. Co., 15-372 (La.App. 3 Cir. 5/11/16), 193 So.3d 1192.

This presumption is rebuttable and does not preclude a finding, based on other

evidence, that the highway actually was unreasonably dangerous and that DOTD

was negligent. Id.

4
A warrant is a factor that must be considered in determining whether a three-phase
signal is required. One or more warrants must be met before a traffic signal can be installed.
9

DOTD hired a traffic engineer, Joseph D. Blaschke, to review Mr. Tramel’s

conclusions and AGLIC’s claim that the lack of a three-phase signal at the

Intersection constituted an unreasonable risk of harm. In addition to reviewing

Mr. Tramel’s traffic study, Mr. Blaschke reviewed evidence of how the accident

occurred and opined that the accident was caused by Mr. Pitre’s entering the

Intersection as Mr. Stutes approached it and that the traffic study of the

Intersection conducted by Mr. Tramel did not justify a three-phase signal.

AGLIC’s argument that because Mr. Pitre stopped at the stop sign/flashing

signal, he would have obeyed three-phase signal and entered the Intersection only

when he had a green light has been rejected under similar facts by courts that

determined “there is no negligence on the part of DOTD when an accident is

caused by the fault of a motorist failing to obey the existing signage and arguing

that had a different warning been given it would have been obeyed.” Stewart v.

State ex rel. Dep’t of Transp. & Dev., 08-772, p. 9 (La.App. 1 Cir. 3/20/09),

9 So.3d 957, 964, writs denied, 09-1228 (La. 9/18/09), 17 So.2d 968. See also

Jacques v. State Through Dep’t of Transp. & Dev., 03-2226 (La.App. 1 Cir.

9/17/04), 905 So.2d 294, writ denied, 04-3013 (La. 2/18/05), 896 So.2d 36; Holt v.

State Through Dep’t of Transp. & Dev., 28,183 (La.App. 2 Cir. 4/3/96), 671 So.2d

1164, 1171, writs denied, 96-1074 (La. 6/21/96), 675 So.2d 1093; 96-1132 (La.

6/21/96), 675 So.2d 1080; and Burge v. City of Hammond, 509 So.2d 151 (La.App.

1 Cir.1987).

Mr. Pitre stopped at the Intersection but then proceeded into it knowing that

he could only see traffic within the Intersection and drove directly into the path of

Mr. Stutes’ truck. Mr. Pitre’s entering the Intersection without being able to see

approaching traffic was in direct contravention of La.R.S. 32:234(B) which has

been held to constitute gross negligence. See Holt, 671 So.2d 1164. By entering
10

the Intersection without being able to see approaching traffic he also failed to

exercise the “unusual caution” required by the foggy conditions, Charan, 965

So.2d at 474, and violated the “high standard of care” he owed the motoring public.

Davis v. Witt, 02-3102, 02-3110, p. 13 (La. 7/2/03), 851 So.2d 1119, 1129.

Based on the evidence before us, Mr. Pitre’s entering the Intersection as

Mr. Stutes approached constitutes gross negligence and was the sole cause of the

accident. Accordingly, no genuine issue of material fact has been shown to exist

with regard to whether DOTD had a duty to install a three-phase signal at the

Intersection, and we affirm the trial court’s grant of summary judgment in favor of

DOTD and the Stuteses.

Life Expectancy

AGLIC next asserts that the trial court erred in permitting the jury to

consider a life care plan based on the life expectancy of a person without a serious

spinal cord injury such as Mr. Stutes and then denying its request for a reduction in

the jury’s award for Mr. Stutes’ future medical expenses. It argues that because of

the nature and severity of Mr. Stutes’ injuries, the trial court erred in allowing the

jury to consider the testimony of Mr. Stutes’ physicians that he could live until

81.5 years of age, a “normal” lifespan. Dr. Cornelius Gorman, a vocational

rehabilitation expert and life care planner, and Dr. Shelly Savant, a neurologist,

psychologist, and life care planner, prepared a life care plan to establish the

estimated cost of all the medical treatment his physicians expected him to need

during the remainder of his lifetime. The life care plan was prepared in

consultation with Mr. Stutes’ treating physicians. Drs. Gorman and Savant

confirmed that when preparing their life care plan for Mr. Stutes, they calculated

his future life expectancy based on the general Life Expectancy Table published by

the U.S. Department of Health and Human Services. They testified that the quality
11

of care provided to a person with a spinal injury is directly related to his longevity.

Their testimony was corroborated by Mr. Stutes’ current treating physicians, who

testified that they treated patients with spinal cord injuries such as Mr. Stutes who

lived into their eighties. Based on this information, Mr. Stutes’ expert economist

calculated the value of the Gorman/Savant life care plan based on the estimated

21.5-year general life expectancy table. He also calculated the value of an 18.25-

year life care plan. The jury awarded the cost of the 18.25-year life care plan.

The jury also considered the testimony of the defendants’ life care plan

experts, Dr. Susan J. Garrison and Ginny Stegent, R.N., which reflected a reduced

life expectancy of fifteen years. The Garrison/Stegent Plan utilized a life

expectancy table prepared by the National Spinal Cord Injury Statistical Center at

the University of Alabama at Birmingham (NSCISC). This “table estimates life

expectancy for persons with spinal cord injuries who survive at least one year post-

injury by current age and neurologic category.” Duncan v. Kansas City So. Ry.Co.,

00-66, p. 21 (La. 10/30/00), 773 So.2d 670, 687.

AGLIC argues that in Duncan, 773 So.2d 670, the supreme court prohibited

the use of a normal life expectancy table for all persons with spinal cord injuries;

therefore, the trial court committed manifest error in allowing the Gorman/Savant

life care plan to be presented to the jury. AGLIC made this argument to the trial

court in a motion in limine which the trial court denied. It then filed writ

applications with this court and the supreme court, seeking review of the trial

court’s denial of its motion in limine. The requested relief was denied by this court,

Stutes v. Greenwood Motor Lines, Inc. 16-854 (10/24/16), and the supreme court.

Stutes v. Greenwood Motor Lines, Inc., 16-1934 (10/26/16).

Citing Duncan, 773 So.2d 670, AGLIC contends that the jury should only

have been allowed to consider evidence that Mr. Stutes’ remaining life expectancy
12

at the time of trial was fifteen years, as per the NSCISC life expectancy table and

testified to by Dr. Stengent. In Duncan, the jury accepted the plaintiff’s expert

testimony that that the 15-year-old plaintiff, who had suffered a spinal injury at C5,

had a normal life expectancy of eighty-one years. The supreme court held that the

trial court’s acceptance of the plaintiff’s expert’s testimony constituted manifest

error because it failed to account for the effect of her injuries on her life

expectancy.

Contrary to AGLIC’s argument, the supreme court did not hold that the life

expectancy stated in the NSCISC table represented the plaintiff’s maximum life

expectancy. Instead, the supreme court observed that the NSCISC table’s life

expectancy for the plaintiff was 42.6 years but then accepted the defendant expert’s

opinion of a 57-year life expectancy as being more “accurate” than the 81-year life

expectancy predicted by the plaintiff’s expert. Moreover, AGLIC’s argument fails

to acknowledge Dr. Savant’s testimony regarding the latest version of the NSCISC

Life Expectancy Tables which states that the tables are “rough estimates for life

expectancy” and specifically recognizes that “access to care” is a prognostic factor

to be considered when estimating life expectancy.

Our review of the record shows that the jury approached this issue in the

same manner the supreme court approached it in Duncan, 773 So.2d 670. That is,

the jury considered the defendant experts’ opinion that Mr. Stutes’ life expectancy

is fifteen years, as per the NSCISC life expectancy table, and weighed it against

the testimony of Dr. Savant and Mr. Stutes’ treating physicians that in their

experience, a patient with a spinal cord injury who follows his physicians’

treatment recommendations and receives the level of care Mr. Stutes has received

can have a normal life expectancy. The jury then concluded that although

Mr. Stutes’ life expectancy will likely be extended beyond the age stated in the
13

NSCISC table, his life expectancy will most likely be reduced to some extent as a

result of his injuries.

Based on the evidence before us, we find no error with the trial court’s

decision to allow evidence of the “normal” life expectancy table along with the

NSCISC table for patients with spinal cord injuries. The jury’s conclusion that Mr.

Stutes’ life expectancy ranged between the ages opined by the experts is supported

by the evidence. Accordingly, we find no manifest error with the jury’s award of

$7,500,000 for future medical and life care expenses. The award reflects the jury’s

reduced life expectancy of 18.25 years for Mr. Stutes which is supported by the

evidence.

General Damages

Lastly, AGLIC argues that the jury’s general damage awards are excessive.

The jury awarded Mr. Stutes the following general damages:

Physical pain and suffering (past, present, future) $ 4,000,000

Mental pain and suffering (past,present,future) $ 5,000,000

Diminished life expectancy $ 1,750,000

Loss of enjoyment of life $ 6,000,000

Permanent disability $ 4,000,000

Louisiana jurisprudence has long held that the trier-of-fact has great

discretion when assessing damages; therefore, general damage awards are

reviewed under the abuse of discretion standard. Guillory v. Lee, 09-75 (La.

6/26/09), 16 So.3d 1104. This standard of review is both hard to articulate and

“necessarily non-specific.” Cone v. Nat’l Emergency Servs., Inc., 99-934, p. 8 (La.

10/29/99), 747 So.2d 1085, 1089 (quoting Youn v. Maritime Overseas Corp., 623

So.2d 1257, 1261 (La.1993)). In Youn, 623 So.2d at 1261, the supreme court

acknowledged that reasonable persons often cannot agree on an appropriate award
14

for general damages and held that appellate courts should disturb an award of

general damages 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.” Appellate courts only

examine prior awards to determine whether a judgment is abusively low or

excessively high after it has determined that an abuse of discretion has occurred.

Cone, 747 So.2d 1085.

The difficulty of the jury’s task in awarding Mr. Stutes general damages and

our task in reviewing those awards was addressed by this court in McMullen v. Pan

American Fire & Casualty Co., 352 So.2d 1058, 1060 (La.App. 3 Cir. 1977), writs

denied, 354 So.2d 209 (La.1978):

The pain and suffering, disfigurement and disability have been
well proven in this case by both expert and lay witnesses. To listen to
the testimony given by these witnesses in relation to the injuries
suffered, as well as seeing this man in person at the trial and the
picture taken after the accident, one must come to the conclusion that
there is just no proper dollar amount which could possibly indemnify
anyone for such injuries. However, this Court must nevertheless try.

The evidence at trial showed that Mr. Stutes’ life was completely

transformed in the early morning hours of January 23, 2013. In a matter of

minutes, he went from a hard-working man who was most satisfied by helping

others to a man who must rely on others to tend to his every need. Mr. Stutes had

been married to his wife, Carroll, for many years when the accident occurred.

They had a close, loving relationship and enjoyed many activities together. Carroll

had suffered a stroke approximately two and one-half years before the accident and

lived in a nursing home. Mr. Stutes visited her daily, going directly to the nursing

home after work every weekday. He participated in social activities at the nursing

home with Carroll and the other residents and often performed tasks around the

nursing home.
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Immediately after the accident, Mr. Stutes learned that his spinal cord was

injured at T4 level and that he was paralyzed from his chest down. Among

Mr. Stutes’ numerous injuries, an injury to his right shoulder was one of his worst.

His daughter Ashley testified that when looking at him, the only area not injured

was his head. Medical testimony established, however, that he did have lacerations

on his head, a concussion, and brain injury. Due to the extent and severity of his

injuries, Mr. Stutes was transferred from Lafayette to New Orleans to a

rehabilitation facility. He did not return home until approximately six months after

the accident.

As a result of his right shoulder injuries, there is a great deal of calcification

in his right shoulder that prevents Mr. Stutes from being able to fully extend his

right arm and rotate his shoulder, which has resulted in the use of his right arm

being greatly limited. He cannot use his right arm to assist in transferring himself

from one surface to another, such as his wheelchair to his bed. Mr. Stutes

attempted to transfer himself on one occasion when Ashley was present. His right

arm could not support him, and he fell. He also had injuries to his left arm that

have caused limitations. As a result, his treating physicians testified that

Mr. Stutes is a “functional” quadriplegic.

Mr. Stutes must have assistance twenty-four hours a day. He requires a

catheter to void urine which has painful complications. He also suffers daily the

humiliation of having no privacy as his caretakers tend to his bodily functions to

insure that they are properly maintained. He cannot dress or feed himself. The

daily ritual of bathing, dressing, feeding, and otherwise preparing him for the day

requires three to four hours. He can only be left alone for very short periods of

time because he cannot move himself in the event of an emergency.

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Mr. Stutes enjoyed hunting, fishing, gardening, and woodworking as

hobbies, but he had stopped participating in those hobbies when Carroll was

moved to the nursing home. He testified that he attempted to do some gardening in

box planters after his wife died but quit because his bladder drain would get kinked.

He also testified that although he has no feeling from his chest down, his shoulders,

especially his right shoulder, are a great source of pain for him. He further testified

that he wakes every morning aching from his chest up and explained that he

refuses to take prescription pain medication because they put him in a bad mood

and make him drowsy. With regard to his right shoulder, Mr. Stutes testified that

he has good days and bad days and that on bad days he stays in bed all day.

Changes in the weather often cause an increase in his pain. He explained that cold

weather is very hard on him because he has “so much metal in me” that his

shoulders are never warm.

Mr. Stutes testified that he was excited because Ashley was pregnant, but

expressed sadness that he would not be able to play with the baby on the floor. He

described for the jury the effect the accident has had on him emotionally. His

simple, direct testimony reveals the range of emotions he must deal with

regularly—despair, depression, optimism, and thankfulness, as a result of his

injuries:

Every day I wake up[,] and I thank God because I can see sunlight.
God kept me alive for a reason. And what I have left I’m trying to do
the best with what I have. Because some days I don’t want to live.
It’s very hard to live the rest of your life in a chair or in the bed. And
I can’t do the simplest things as change a light bulb. And it’s very
hard to watch somebody else do something for you when you’re used
to helping everybody else. It’s very tough to deal with. So, I try to do
the best with what I have left. My main concern is helping other
people[,] and I can’t no more. And that hurts. But there’s always
somebody worse than me.

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Mr. Stutes’ treating physicians; Michael Norman, his primary certified

nursing assistant who cares for him during the day; and Ashley further described

his physical and mental suffering, the serious pain he has endured, and his

struggles to adapt to his new life. His physicians outlined his extensive injuries,

how they have affected him from a professional standpoint, and the limitations he

now has. They also detailed the personal attention and medical care that he

requires, including preventive care that is required as a result of his spinal cord

injury. They explained that due to his paralysis, Mr. Stutes is prone to develop bed

sores, urinary tract infections, pneumonia, and continued calcification and arthritis

in his right shoulder, all of which will require medical treatment and possibly

hospitalizations. His physicians further testified that Mr. Stutes complies with

their treatment recommendations as best he can.

Mr. Norman gave further insight into the impact that Mr. Stutes’ injuries

have had on his ability to socialize. He explained that Mr. Stutes likes to go on

outings but his outings are limited by accessibility for his wheelchair and that on

most outings, Mr. Stutes remains in his van. He further explained that on those

occasions that Mr. Stutes gets out of the van, he worries about inconveniencing

others with his wheelchair. Mr. Norman related that on one trip, he brought Mr.

Stutes to visit a location where he had planned to retire, explaining that Mr. Stutes

got emotional when they reached their destination because he knew he could not

retire there as he had previously planned.

Ashley described how the accident affected her father, explaining that he is

often depressed because he is not the man he once was. She explained that he was

upset that people now opened doors for him, whereas before he was injured, he

opened doors for others. She testified that he was upset after seeing accident

photographs at trial that he had not seen before. Ashley told the jury how excited
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her father was that she was pregnant and expecting a little girl. She then related

that she had asked him to build a crib for the baby, but he began crying and told

her that he could not because his right arm injury will not allow him to use his

power tools. Ashley also testified that her father had fallen twice. On the first

occasion, she called a local police officer, a personal friend, who brought along his

brother and two friends to be able to move him safely. On the second occasion,

she called a firefighter friend who brought four others to move him. Ashley and

her husband live with Mr. Stutes, so she can care for him when a CNA is not with

him.

The jury heard and considered the extensive evidence of Mr. Stutes’ injuries

and the impact, physically and mentally, those injuries have had on him and will

continue to have on him. Based on the record before us, we cannot say that the

jury’s damage awards are an abuse of the much discretion afforded them and

affirm them all.

DISPOSITION

Having considered American Guaranty and Liability Insurance Company’s

assignments of error and finding no error with the trial court’s grants of summary

judgment in favor of the Department of Transportation and Development and the

Stuteses, with the trial court’s decision to allow into evidence the Department of

Health and Human Services Life Expectancy Table, or with the jury’s general

damage awards, we affirm the judgment of the trial court. All costs are assessed to

American Guaranty and Liability Insurance Company.

AFFIRMED.

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Conery, J., concurs in the result and assigns reasons.

I concur with the result of the majority’s opinion. The main issue with

which I have concern is the amount of the general damage award, which I feel was

extremely high. The total general damage award in this case, $21,750,000.00, far

exceeds the average past awards for injuries of this type. As noted by AGLIC’s

counsel in its brief and reply brief, the vast majority of general damage awards

cited for similar injuries range between 2.5 million and 9 million dollars.

The jury verdict form contains separate line items of general damages that

arguably allow for a duplication of awards for specific items that juries may find

difficult to differentiate. For example, the jury returned a verdict for general

damages on a special verdict form as follows:

Physical pain and suffering (past, present, future) $4,000,000

Mental pain and suffering (past, present, future) $5,000,000

Diminished life expectancy $1,750,000

Loss of enjoyment of life $6,000,000

Permanent disability $4,000,000

In addition, approximately 9 million was awarded in special damages for a

total judgment of $30,438,225.00.

I am of the view that the itemization of general damage categories on the

verdict form added substantially to the likelihood that the jury would award

separate general damages for, essentially, the same injury, and, in my view,

contributed to the high verdict. However, since there was no objection to the jury

verdict form, a finding of manifest error cannot be supported on that basis. Royer v.

State Dep’t of Transp. & Dev., 16-534 (La. App. 3 Cir. 1/11/17), 210 So.3d 910,

923, writ denied, 17-288 (La. 4/24/17), 221 So.3d 69; Kennedy v. Davis, 17-218

(La. App. 3 Cir 10/4/17), ____So.3d____.
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Plaintiff’s closing argument also contains a strong “send a

message/retribution statement” that should properly be directed only at punitive

damages, not applicable in this case. See Gillespie v. Calcasieu Parish School Bd.,

15-647 (La.App. 3 Cir. 12/2/15), 179 So.3d 966, 970. Likewise, there was no

objection to plaintiff’s counsel’s “send a message” plea to the jury.

I agree that Mr. Stutes had extremely serious and debilitating injuries and is

entitled to fair and just compensation. I question whether the total general damage

award is also reasonable. However, based on the manifest error rule and our

limited appellate role in reviewing a jury’s verdict, I cannot say that there is no

“reasonable basis” for the general damage awards in the record, especially after a

review of the “day in the life video” shown to the jury, again without objection.

Therefore, I respectfully concur in the result.

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