Riley Leblanc v. City of Abbeville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-206
RILEY LEBLANC
VERSUS
CITY OF ABBEVILLE
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APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 102352
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

AFFIRMED

Joy C. Rabalais

Allison M. Ackal

BORNE, WILKES & RABALAIS, LLC

P. O. Box 4305

Lafayette, LA 70502-4305

(337) 232-1604

COUNSEL FOR DEFENDANT/APPELLANT:
City of Abbeville

Bernard F. Duhon

P. O. Box 1169

Abbeville, LA 70511-1169

(337) 893-5066

COUNSEL FOR PLAINTIFF/APPELLEE:
Riley LeBlanc

G. Andrew Veazey

Bradford H. Felder

Dona K. Renegar

VEAZEY, FELDER & RENEGAR

P. O. Box 80948

Lafayette, LA 70598-0948

(337) 234-5350

COUNSEL FOR PLAINTIFF/APPELLEE:
Riley LeBlanc

KYZAR, Judge.

Defendant/Appellant, the City of Abbeville (“the City”), appeals a trial court
judgment rendered in favor of Plaintiff/Appellee, Riley LeBlanc, after Mr. LeBlanc
was injured while stepping on a storm grate in the custody and control of the City.
After a full trial on the merits, the trial court awarded Mr. LeBlanc the following:
past medical expenses in the amount of $35,846.38; future medical expenses in the
amount of $100,532.50; past lost earnings in the amount of $59,348.00; future loss
of earning capacity in the amount of $524,595.00; and past and future general
damages in the amount of $250,000.00 for a total award of $970,321.88. For the
following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On April 1, 2016, Riley LeBlanc was standing outside of his neighbor’s home
at 203 Gauraud Street in Abbeville, Louisiana, speaking to his neighbor, Reed
Hebert. The two men were in front of Mr. Hebert’s house, Mr. Hebert inside his
fenced yard and Mr. LeBlanc on the outside. During their conversation, Mr.
Hebert’s daughter, who had been playing in the yard, fell into a rose bush and cried
out for help. Both gentlemen immediately stepped toward the sound in an effort to
reach and assist the child. In his haste, Mr. LeBlanc stepped on a metal storm grate
that was partially covered with grass. The grate sits above a catch basin. When Mr.
LeBlanc stepped on the metal grate, it purportedly broke at two separate corners,
causing Mr. LeBlanc’s right leg to fall through the opening. This caused Mr.
LeBlanc to suffer a severe laceration to his lower leg. Due to this injury, Mr.
LeBlanc is unable to continue his work as a carpenter and purportedly has ongoing

pain and issues with his lower extremity.

On September 21, 2016, Mr. LeBlanc filed a Petition for Damages, naming
the City as the defendant. Mr, LeBlanc stated that the metal storm grate involved is
part of a sewage servitude maintained by the City in connection with its sewage,
water, and wastewater systems and that the City is authorized and conducts routine
maintenance and inspections on the sewage servitude and its related parts. He
asserted the storm grate in question was severely deteriorated and riddled with rust.
The City denied all of Mr. LeBlanc’s claims and filed a motion for summary
judgment, claiming that it owed no duty to the plaintiff as the storm grate was open
and obvious and also that the grate was in good condition and not unreasonably
dangerous. The City’s motion was heard and denied on October 23, 2017.

A trial on the merits took place on November 20, 2017 to November 21, 2017,
after which the trial court rendered judgment in favor of Mr. LeBlanc with written
reasons signed on December 6, 2017. The trial court found the City liable for Mr.
Leblanc’s injury, citing the provisions of La.Civ.Code art. 2317 and La.R.S. 9:2800.
It specifically found that the compromised condition of the storm grate was not
“obvious to all” and as such the City did owe a duty and, further, that the City had
constructive knowledge of the grate’s defect. Finally, the trial court awarded Mr.
LeBlanc both general and special damages, including past medical expenses, future
medical expenses, past lost earnings, and future loss of earning capacity.

The City timely appealed on January 3, 2018. On appeal, the City presents
six issues for review.

(1) Whether the trial court misapplied the law to the facts presented at

trial on the issue of whether the storm grate was [an] open and
obvious condition.

(2) Whether the trial court committed legal error in finding that the City

of Abbeville owed a duty of care to plaintiff to protect him from an
open and obvious condition.

(3) Whether the trial court committed legal error in finding that the City
of Abbeville had notice of any alleged defect pursuant to La.R.S.
9:2800.

(4) Whether the trial court committed legal error in failing to find that
the City was immune for its discretionary acts under La.R.S.
9:2798.1.

(5) Whether the trial court committed error in failing to assess plaintiff
with any fault.

(6) Whether the damages awarded by the trial court are impermissibly
excessive.
OPINION

The City asserts that the trial court committed legal error in finding that it was
liable for Mr. Leblanc’s injury. The City stipulated that the storm grate involved in
the incident was in its custody. However, the City argues the trial court erred in
ruling that the storm grate in question was not an open and obvious condition for
which the City owed no duty to Mr. LeBlanc and also in ruling that the City had
notice as to any alleged defect in said storm grate. Under La.Civ.Code art. 2317,
“(w]e are responsible, not only for the damage occasioned by our own act, but for
that which is caused by the act of persons for whom we are answerable, or of the
things which we have in our custody.” Louisiana Revised Statutes 9:2800(C), which
governs the analysis of a public entity’s liability for a defective thing within its
custody or care, further states:

[N]o person shall have a cause of action based solely upon liability

imposed under Civil Code Article 2317 against a public entity for

damages caused by the condition of things within its care and custody

unless the public entity had actual or constructive notice of the

particular vice or defect which caused the damage prior to the

occurrence, and the public entity has had a reasonable opportunity to

remedy the defect and has failed to do so.

To establish a claim against a public entity for damages caused by the

condition of things within its care or custody, a plaintiff must show that (1) the thing

that caused the damage was in the care or custody of the public entity, (2) the thing
was defective due to a condition that created an unreasonable risk of harm, (3) the
public entity had actual or constructive notice of the condition yet failed to take
corrective action within a reasonable period of time, and (4) the defect was a cause
in fact of the plaintiff's harm. La.R.S. 9:2800; La.Civ.Code art. 2317; Ricks v. City
of Shreveport, 42,675 (La.App. 2 Cir. 10/24/07), 968 So.2d 863. Constructive notice
means the existence of facts which imply actual knowledge. La.R.S. 9:2800(D). A
trial court’s findings under La.R.S. 9:2800, the statute governing limitations of
liability for a public entity for things within its care and custody, are subject to
manifest-error review. Ricks, 968 So.2d 863.
Liability of the City

In its first three assignments of error, the City alleges the trial court erred in
finding the City liable to Mr. LeBlanc for his injury based upon a number of the
factors that a plaintiff is required to show in order to establish a claim against a public
entity. See Ricks, 968 So.2d 863. As such, we will now address these factors.
(1) Care or Custody of the Storm Grate

The City’s custody of the storm grate involved in the incident is undisputed.
Clay Menard, the City’s Public Works Director, and Richard Sysak, the foreman for
the City’s Streets Department, both testified at trial. Mr. Menard acknowledged that
the storm grate was in the custody of the City and that the City is responsible for the
maintenance, repair, and cleaning of storm and drainage grates that are in its rights-
of-way. Mr. Sysak testified that the storm grates around the City are part of the
City’s infrastructure and they are responsible for maintaining them. The City

replaced the subject storm grate after the incident.

(2) Unreasonable Risk of Harm

To determine whether a defect presents an unreasonable risk of harm, the
supreme court has adopted a risk-utility balancing test, synthesized to a
consideration of four pertinent factors: “(1) the utility of the complained-of
condition; (2) the likelihood and magnitude of harm, including the obviousness and
apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature
of the plaintiff's activities in terms of its social utility or whether it is dangerous by
nature.” Broussard v. State ex rel. Office of State Bldgs., 12-1238, p. 10 (La. 4/5/13),
113 So.3d 175, 184.

Because the determination of whether a defective thing presents
an unreasonable risk of harm “encompasses an abundance of factual
findings, which differ greatly from case to case, followed by an
application of those facts to a less-than scientific standard, a reviewing
court is in no better position to make the determination than the jury or
trial court.” [Reed v. Wal-Mart Stores, Inc., 97-1174, p.4 (La. 3/4/98,
3), 708 So.2d 362, 364-365.] Accordingly, the fact-finder’s
unreasonable risk of harm determination is subject to the manifest error
standard of review and should be afforded deference on appeal. /d. at
364-65. Under the manifest error standard of review, a court of appeal
may not set aside a jury’s finding of fact unless it is manifestly
erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844
(La.1989). The reviewing court must only decide whether the fact-
finder’s conclusion was reasonable, not whether it was right or wrong.
Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993). In order
to reverse a jury’s factual finding as manifestly erroneous, an appellate
court must find the record, when reviewed in its entirety, (1) contains
no reasonable factual basis for the jury’s finding and (2) establishes the
finding is clearly wrong. /d. The court of appeal must always be
mindful that if the jury’s findings “are reasonable in light of the record
reviewed in its entirety ... [it] may not reverse even though convinced
that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Jd. at 882-83; Rosell, 549 So.2d at 844.

Broussard, 113 $o.3d at 185-86.
Utility of the Thing

There can be no doubt that storm grates like the one involved in the current
incident serve a vital purpose as a part of the City’s drainage system. The storm

drainage system employed by the City is designed to remove water from the

roadways and provide proper drainage for neighborhoods. However, this is only the
first prong in our inquiry.
Likelihood and Magnitude of Harm: Obvious and Apparent

It is while studying the likelihood and magnitude of the harm that the
obviousness and apparentness of the complained of condition should be considered.
Mr. Menard and Mr. Sysak both testified for the City that storm grates located within
the City’s rights-of-way, such as the one at issue here, are expected to be able to
fully support the weight of a vehicle. While instances of injuries involving storm
grates are rare, the involved storm grate’s structural integrity was weakened to such
an extent that the portion of the grate that Mr. LeBlanc stepped on broke and fell
into the catch basin.

The City asserts that the trial court did not properly apply the law to the facts
and evidence adduced at trial. The City suggests that the accident occurred, not
because the storm grate was rusted, but because it was not seated properly over the
catch basin. According to the City’s version of events, the improperly seated storm
grate flipped up when stepped on by Mr. LeBlanc, allowing Mr. LeBlanc’s leg to
fall between the grate and the wall of the catch basin. This is in direct contradiction
to the testimony of Mr. LeBlanc and his neighbor, Mr. Hebert, who witnessed the
incident.

Both Mr. LeBlanc and Mr. Hebert testified that the storm grate broke when
Mr. LeBlanc stepped on it. Photographs taken after the event by Mr. LeBlanc’s
father and by Mr. Menard corroborate this version of events and show the storm
grate with broken pieces and jagged edges. The trial court specifically found that
Mr. Menard’s testimony was not credible and, further, that his assertion that the
storm grate was not bent or broken was contradicted by other evidence. “[W]here

there is conflict in the testimony, reasonable evaluations of credibility and

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reasonable inferences of fact should not be disturbed upon review[.]” Rosell v.
ESCO, 549 So.2d 840, 844 (La.1989).

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding and belief in what
is said.

Id. at 844. As there is ample evidence in the record to support the trial court’s
findings, we will not disturb them here.

The City also asserts the trial court erred in regard to its finding that the
corroded storm grate was not an open and obvious condition such that it owed a duty
to Mr. LeBlanc. Whether a dangerous or defective condition is obvious and apparent
is covered under the second prong of the risk-utility balancing test utilized by the
supreme court in determining if a condition presents an unreasonable risk of harm.
See Broussard, 113 $0.3d 175. Though the City concedes that the storm grate was
in its custody, a property owner generally does not have a duty to protect against an
open and obvious hazard. La.Civ.Code art. 2317; Broussard, 113 So.3d 175. “In
order for a hazard to be considered open and obvious, this Court has consistently
stated the hazard should be one that is open and obvious to all, ie., everyone who
may potentially encounter it.” /d. at 184. If the facts show that the supposedly
defective condition should be obvious and apparent to all, the condition may not be
unreasonably dangerous, and the defendant may owe no duty. Dauzat v. Curnest
Guillot Logging Inc., 08-528 (La. 12/2/08), 995 So.2d 1184.

On appeal, the City argues that the storm grate at issue was an open and
obvious condition. To support its position, the City cites Pitre v. Louisiana Tech

University, 95-1466 (La. 5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117

S.Ct. 509 (1996). In Pitre, 673 So.2d 585, the supreme court held that a

landowner/custodian does not owe a duty to persons on their land when it comes to
obvious or apparent defects so long as the injured person was in the same position
as that of the landowner to observe the alleged defect. The City argues that because
Mr. LeBlanc knew of the location of the storm grate, he was in a better position than
the City to view any defect in said grate. It urges that Mr. LeBlanc has lived across
the street from the storm grate for many years and points to Mr. Leblanc’s testimony
stating that the weather on the day of the accident was sunny and clear and that Mr.
Leblanc saw the storm grate before he stepped on it. The City asserts that based
upon these facts, it owed no duty of care whatsoever to Mr. Leblanc. However, as
the supreme court noted:

[T]he key to a finding of no liability in such cases is not the plaintiff's

subjective awareness of the risk, but the determination that the

defendant did not act unreasonably vis-a-vis the plaintiff, or injure the
plaintiff through the instrumentality of an unreasonably dangerous

thing in his custody. The determination of what the plaintiff knew

regarding the risk of injury is made after fault on the part of the

defendant has been established[.]
Pitre, 673 So.2d at 591 (quoting Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1136
(La.1988)). “The open and obvious inquiry thus focuses on the global knowledge
of everyone who encounters the defective thing or dangerous condition, not the
victim’s actual or potentially ascertainable knowledge.” Broussard, 113 So.3d at
188. Further, it is the defect or dangerous condition of the thing that must be open
and obvious, not merely the thing itself. See id.

Accordingly, Mr. LeBlanc’s knowledge of the existence of the storm grate is
not enough to make it “open and obvious” such that the City owes him no duty.
Rather, the defective condition of the storm grate must have been obvious to all that
encounter it. The trial court specifically found that the compromised condition of

the storm grate was not “obvious to all.” As the trial court notes in its written reasons

for judgment:

The photographs admitted into evidence show grass growing around

the outer edges of the catch basin. Mr. LeBlanc testified that he had to

pry the grate up out of the grass and dirt in order to extricate his leg.

Richard Sysak, who subsequently replaced the grate, testified that it

was hard to remove it because grass was grown into it.

While storm grates are not inherently dangerous, the magnitude of the harm
created by the defective condition of the one at issue in the current case is great.
This storm grate, as testified to by the City’s own employees, was expected to be
able to support the full weight of a vehicle. However, as the trial court’s extensive
written reasons for judgment note, “this particular storm grate was so compromised
by pitting rust that it was incapable of supporting the weight of an adult male.” This,
coupled with the fact that the grass was allowed to grow around and into the grate
masking its deteriorated condition, clearly show that the likelihood of the storm grate
causing harm was high.

Cost of Preventing the Harm

The third prong in the risk-utility balancing test requires us to balance the risk
of harm presented against the cost and feasibility of repair. Broussard, 113 So.3d
175. Evidence at trial shows that the cost of replacing the storm grate in question
would cost the City approximately $100.00. This is clearly not an unreasonable
amount, especially given the injury sustained. The City argues that since it has
thousands of storm grates in place as part of its drainage system, the cost to replace
each one at any showing of rust would be cost prohibitive. It claims it does not have
the manpower nor the financial resources to replace its storm grates at such a rate.

However, as the trial court noted, it is not necessary for all of the storm grates
to be replaced as soon as they begin to exhibit signs of rust. Rather, the City had a
duty to replace this particular storm grate when it became, or should have become

in the exercise of reasonable care, obvious that it needed to be replaced. Mr. Sysak,

who inspected the grate six months before the incident, acknowledged that this

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particular grate had not been replaced during the thirty-three years he had been
employed by the City and, further, that the City had never utilized the type of
material used in this particular storm grate at any point during his tenure. It is clear
from the evidence introduced at trial that the storm grate in question was severely
compromised and that the cost of replacing it is between $100.00-$200.00. Thus, it
appears the City failed to take the relatively inexpensive precaution of replacing its
outdated grate. As such, we find the trial court did not err in holding that the cost of
preventing the harm was not as great as the City’s arguments would suggest.
Nature of Plaintiff's Activities

Finally, we must examine the nature of Mr. LeBlanc’s activity, particularly in
terms of its social utility and whether it was dangerous by nature. Broussard, 113
So.3d 175. Both Mr, LeBlanc and Mr. Hebert testified that Mr. LeBlanc moved in
response to Mr. Hebert’s young daughter crying out in pain. As the trial court noted,
Mr. LeBlanc’s action of stepping on the grate was taken in a laudable attempt to aid
a child in distress. The instinct and determination to aid those in peril is highly useful
to society.

The City’s position is that Mr. LeBlanc’s activity of stepping on the storm
grate was unreasonable, stating that he was in a position to avoid his injury by merely
walking around the storm grate. However, we do not find stepping on a storm grate
in one of the City’s rights-of-ways to be an inherently dangerous activity. Both Mr.
Menard and Mr. Sysak testified that such storm grates are expected to hold the
weight of a vehicle. Therefore, it follows that it should be more than capable of
supporting the weight of an adult male. Is stepping on a manhole cover considered
an inherently dangerous activity? Manhole covers are numerous, have great utility,
are easily visible to those who encounter them, and could cause great injury if an

unsuspecting person fell into one. However, people routinely step on manhole

10

covers while walking along streets every day. Are we to presume all of these people
are acting unreasonably or engaging in inherently dangerous activities?

Further, given Mr. Sysak’s claim that he thrice jumped up and down with his
full weight to test the strength of the grate in question, it is not unreasonable for Mr.
LeBlanc to have assumed the storm grate was capable of holding his weight as he
rushed to assist Mr. Hebert’s daughter. We find the City’s argument that a
reasonable person would have walked around the grate in Mr. LeBlanc’s situation
to be unpersuasive. The trial court found Mr. LeBlanc’s actions to have high social
utility, and that it was the condition of the storm grate, rather than the actions of Mr.
LeBlanc that was unreasonably dangerous. The manifest error-clearly wrong
standard demands great deference to the trier of facts findings. Rosell, 549 So.2d
840.

Accordingly, we find the trial court did not err in balancing the gravity and
risk of harm created by the corroded storm grate offset against Mr. LeBlanc’s actions
and their social utility along with the cost and feasibility of repair. Our review of
the record finds there is ample evidence to determine the storm grate in question
created an unreasonable risk of harm that was not open and obvious to all and that
the prevention of this harm was of relatively low cost to the City.

(3) Actual or Constructive Notice of the Defect or Condition

In order to held liable for injuries caused by a thing in its care or custody, a
plaintiff must show the public entity had actual or constructive notice of the
condition and failed to take corrective steps. Ricks, 968 So.2d 863. For purposes of
the statutory requirement in liability actions that a public entity must have had actual
or constructive notice of the particular defect that gave rise to the injury, “[a]ctual
notice is knowledge of dangerous defects or conditions by a corporate officer or

employee of the public entity having a duty either to keep the property involved in

11

good repair or to report defects and dangerous conditions to the proper authorities.”
Smithwick v. City of Farmerville, 45,362, p. 3 (La.App. 2 Cir. 6/23/10), 42 So.3d
1039, 1042, writ denied, 10-2013 (La. 11/12/10), 49 So.3d 888. “Constructive
notice shall mean the existence of facts which infer actual knowledge.” La.R.S.
9:2800(D). A public entity’s constructive knowledge of a defect in a thing in its
custody may be shown by facts demonstrating that the defect or condition has existed
for such a period of time that it would have been discovered and repaired had the
entity exercised reasonable care; a public entity has constructive knowledge if it
knew or should have known of the defective condition. Greene v. Succession of
Alvarado, 15-1960 (La.App. 1 Cir. 12/27/16), 210 So.3d 321.

The City asserts it had no knowledge or notice of the defective condition of
the storm grate, and, as such, it cannot be held liable for Mr. LeBlanc’s injury per
La.R.S. 9:2800(C). We note that a public entity has no independent duty to inspect
city property, and as such, failure to do so does not impute constructive notice of
defects to the entity. See Murphy v. City of New Orleans, 09-567 (La.App. 4 Cir.
11/12/09), 25 So.3d 956. The City claims that because no complaints or other reports
of a problem were made concerning the specific storm grate, it can not be found to
have had notice. We again find the City’s argument unpersuasive.

Evidence introduced at trial clearly shows the City conducted maintenance on
the catch basin beneath the subject storm grate on October 9, 2015. Mr. LeBlanc’s
accident occurred on April 1, 2016, a mere six months later. Mr. Menard, Director
of Public Works for the City, testified that the City is responsible for the maintenance,
repair, and cleaning of the storm and drainage grates in its rights-of-way.
Furthermore, it was City policy that workers performing maintenance on
infrastructure were required to inspect the part on which they were working for

potentially hazardous conditions. Mr. Sysak, therefore, would have inspected the

12

subject storm grate while working on the catch basin beneath in October 2015, as he
would have had to remove the storm grate and reinstall it after the catch basin repairs
were made. Mr. Sysak claimed that he did perform a strength test on the subject
storm grate and that he “found it was sound.” However, he then stated that the test
he performed was merely himself jumping up and down on the grate a few times.
He admits he in no way tested whether the grate was capable of holding the weight
of a vehicle, as the City’s policy dictates.

Both Mr. Menard and Mr. Sysak acknowledged that the storm grate in
question was not constructed of the same steel grating material utilized by the City
as a cover during their ten and thirty-three year respective tenures. Further, it was
not galvanized and was subject to rusting, unlike the cast-iron/rebar-type material
utilized by the City as a cover because such material is less resistant to corrosion.
The pictures admitted into evidence clearly show a storm grate with heavily corroded
comers and a broken row. The evidence in the record clearly establishes that the
subject storm grate has been in use for many years, as no storm grates made of the
same material as the one at issue were installed in either Mr. Sysak’s or Mr.
Menard’s time with the City per their own admissions. Though no evidence was
introduced regarding the precise rate at which the storm grate corroded, there was
also no evidence admitted suggesting or explaining an accelerated rate of
deterioration in the storm grate. Even Mr. Sysak admitted in his deposition
testimony that there was no material difference in the storm grate between when the
work was performed in October 2015 and Mr. LeBlanc’s accident in April 2016 and
acknowledged that failing to replace the grate in 2015 may have been an error.
Specifically, Mr. Sysak’s deposition testimony stated:

Q With respect to your previous testimony, Mr. Sysak, regarding
jumping up and down on this particular grating — and I think you said

13

in October of 2015 when the project took place for the work under it —
yeah — how many times did you jump up and down on it?

A Two or three times.
Q Okay. And it was rusty at that point, correct?
A Yes, I assume it was.

Q Now, are you telling me that looking at the photographs in
Menard Number 9, which are the photographs that [Mr. Menard]
testified that he took following this accident, are you telling me that in
the six to seven months that elapsed from the time that you Jumped up
and down on that grating to the time that these photographs were taken,
that the grating deteriorated to such an extent that it could not support
the weight of someone like Mr. Leblanc?

A Run it by me again.

Q Okay. You specifically recall jumping up and down on the grate?
A Yeah, and it secured my weight at the time. Yes.

Q Okay. And it’s your testimony from that point on until Mr.
Leblanc’s accident on April 1st of 2016 that it deteriorated to such an

extent between that time that it couldn’t support this gentleman when
he ran on top of it to go retrieve a child?

A Yeah, I’m not saying it deteriorated anymore; it’s just it held my
weight. And it might have been a bad judgment call, but I felt it was
safe enough if] could jump up and down on it about three times.

Q_ It may have been a bad judgment call to not replace it at that point?

A Possibly.

In order to be held liable for injuries caused by a thing in its care or custody,

a plaintiff must show the public entity had actual or constructive notice of the
condition and failed to take corrective steps. Ricks, 968 So.2d 863. Actual notice is
knowledge of dangerous defects or conditions by a corporate officer or employee of
the public entity having a duty either to keep the property involved in good repair or
to report defects and dangerous conditions to the proper authorities. Smithwick, 42

So.3d 1039. Mr. Sysak is the foreman for the City’s Streets Department. He and

14

Mr. Menard testified that part of their duties included the maintenance of the City’s
drainage system, which includes storm grates. Though Mr. Sysak was more reticent
at trial, it is clear he was aware of the rusted condition of the storm grate. He stated
that even freshly built grates have rust, meaning the rust on the subject storm grate
would have begun to form early and presumably become progressively worse over
its more than thirty-three years in use.

The trial court inferred from the aforementioned facts that “significant
deterioration must have been evident when the grate was removed and reinstalled
six months prior to the accident.” There was no evidence suggesting an accelerated
rate of deterioration. Though the City claims the trial court ignored Mr. Sysak’s
claim that the grate’s condition was substantially worse than when he first saw it
post-accident compared to its condition when plaintiff's counsel requested to
photograph it, we note Mr. Sysak’s own deposition testimony. Where there is
conflict in testimony, a reviewing court should not disturb reasonable evaluations of
credibility and reasonable inferences of fact. Rosell, 549 So.2d 840. Accordingly,
we find the trial court did not err in finding the City had notice of the defective
condition of the storm grate.

(4) Causation

The trial court found that the accident occurred in the manner described by
Mr. LeBlanc and Mr. Hebert, namely that part of the storm grate broke when Mr.
LeBlanc stepped on it causing his leg to fall through. Mr. Hebert also testified that
he noticed blood and flesh on a broken edge of the grate; a statement corroborated
by photographic evidence. While Mr. LeBlanc acknowledges that the farthest side
of the storm grate flipped up and his leg scraped against the concrete wall of the
catch basin, the trial court found that this alone would not account for the severe

laceration suffered by Mr. LeBlanc as the City’s theory suggests. As the tria! court
15

stated in its extensive written reasons for judgment, “It cannot be reasonably inferred
that such a severe, penetrating injury occurred by simply scraping against the side
of an intact storm grate ... [t]he most likely cause was contact between [Mr.
LeBlanc’s] leg and the broken edge of the storm grate identified by Mr. Hebert.”

As we find that the record contains ample evidence for the trial court’s holding
that the storm grate was an unreasonably dangerous condition, we further find the
trial court did not err in finding said dangerous condition to be the cause of Mr.
LeBlanc’s injury. Mr. LeBlanc, therefore, is entitled to recover from the City for his
injury per the provisions of La.R.S. 9:2800.

Other Arguments Advanced by Appellant
Discretionary Immunity per La.R.S. 9:2798.1

Alternatively, the City argues the trial court erred in failing to find that it was
immune from liability as a public entity under La.R.S. 9:2798.1. Louisiana Revised
Statues 9:2798.1 states, in pertinent part, “B. Liability shall not be imposed on public
entities or their officers or employees based upon the exercise or performance or the
failure to exercise or perform their policymaking or discretionary acts when such
acts are within the course and scope of their lawfu! powers and duties.” The City
asserts that Mr. Sysak performed an inspection in October of 2015 and did not find
the grate to be broken, bent, or corroded. He then made the decision not to replace
the storm grate in his discretion, and as such, the City is immune from liability under
La.R.S. 9:2798.1.

However, the immunity offered to public entities under La.R.S. 9:2798.1
applies only to policy decisions, which are those based on social, economic, or
political concerns. Saine v. City of Scott, 02-265 (La.App. 3 Cir. 6/12/02), 819 So.2d
496. “Operational decisions are not considered to be ‘discretionary’ within the

meaning of La.R.S. 9:2798.1 and are not shielded from liability thereby.” Valet v.
16

City of Hammond, 577 So.2d 155, 167 (La.App. | Cir. 1991). The decision to repair
or replace a particular storm grate, and the extent of said repairs, is a decision which
the City and its members, which are responsible for the upkeep and maintenance of
the drainage system, must make. However, these are operational decisions, not
discretionary or policy-making decisions for which La.R.S. 9:2798.1 provides
immunity. See fd.

The policy, i.e. to maintain the storm drainage system and to maintain storm
grates in the City’s rights-of-way that are able to hold the weight of a vehicle, has
already been made by the City. The subject employee’s decisions regarding the
maintenance of the storm drainage system are operational in nature, as any such
decision is merely an implementation of the City’s policy. See Valet, 577 So.2d 155.
As operational decisions are not considered discretionary for the purposes of La.R.S.
9:2798.1 immunity, we find this assignment of error by the City without merit.
Comparative Fault

The City next asserts the trial court erred in its assessment of fault for the
incident, namely in failing to assess any fault to Mr. LeBlanc. In Ricks, the court
also discussed the issue of comparative fault of a plaintiff in instances of injury,
stating:

Under La. C.C. art. 2323, “If a person suffers injury, death, or

loss as a result partly of his own negligence and partly as a result of the

fault of another person or persons, the amount of damages recoverable

shall be reduced in proportion to the degree or percentage of negligence

attributable to the person suffering the injury, death, or loss.”

Comparative fault applies to claims against public entities under La.

C.C. art. 2317 and R.S. 9:2800. Priest v. City of Bastrop, [38,841

(La.App. 2 Cir. 7/11/01), 792 So.2d 80]. In assessing comparative fault,

the courts consider (1) whether 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. Watson v. State Farm, [469 So.2d 967
(La.1985)]. The trial court’s allocation of fault is subject to manifest

17

error review. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607,
Priest v. City of Bastrop, supra.

Ricks, 968 So.2d at 869.

In the case at hand, the City argues that as Mr. LeBlanc was aware of the storm
grate’s existence and location, that he was in a better position than the City to be
aware of the danger and could have stepped around the grate. However, it is unlikely
Mr. LeBlanc stepping on the storm grate “involved an awareness of the danger,” as
stepping on a storm grate should not be an inherently dangerous activity as discussed
above. /d. Similarly, an adult male stepping on a grate purportedly capable of
supporting the weight of a vehicle is not a high-risk activity. The City further argues
that Mr. LeBlanc was in a superior position to note the defective condition of the
storm grate, given his personal knowledge of the area. However, as noted by Mr.
LeBlanc, if the condition of the storm grate was not obvious to Mr. Sysak, a
professional tasked with the maintenance and specific inspection of such storm
grates, then it is equally unlikely to be obvious to Mr. LeBlanc, particularly given
the overgrown grass surrounding the grate.

As to the significance of what was sought by the conduct, Mr. LeBlanc was
attempting to assist a young child in distress. This is also pertinent to the fifth
consideration regarding extenuating circumstances that might cause Mr. LeBlanc to
act in haste. The City asserts that because the child was ultimately fine, that there
was no need for Mr. LeBlanc to have jumped to action. However, neither Mr.
LeBlanc nor Mr. Hebert was aware of the extent of the child’s injuries when she
cried out; they were merely startled to action to help. To place such a burden upon
third persons would appear to discourage them from assisting others in need. “In
any event, considerations such as ‘the extent of the risk created by the [actor’s]

conduct’ and ‘extenuating circumstances which might require the actor to proceed

18

in haste’ are more appropriate considerations for the fact-finder when apportioning
fault among all responsible parties.” Broussard, 113 So.3d at 193 (citing LeBlanc v.
Stevenson, 00-157 (La. 10/17/00), 770 So.2d 766).

The trial court specifically found that “Mr. LeBlanc’s action of stepping on
the grate was not dangerous in nature, and it was taken in a laudable attempt to aid
a child in distress.” In a manifest error review, if the record reveals a reasonable
factual basis for the finding of the trial court, the court of appeal may not reverse
even if it would have weighed the evidence differently had it been sitting as the trier
of fact. Rosell, 549 So.2d 840. Based upon the record before us, we cannot say the
trial court abused its great discretion in apportioning fault.

Damages

In its final assignment of error, the City asserts the trial court erred in awarding
damages that are excessively high. “The primary objective ... in fixing the award
in a personal injury case is to adequately compensate the injured person for his injury
under facts shown to exist in the case. The primary considerations in assessing
damages are severity and duration of injured party’s pain and suffering.” Thompson
v. Louisiana Dep’t of Transp., 93-1294, p. 8 (La.App. 3 Cir. 6/29/94), 639 So.2d
864, 871, writ denied sub nom. Thompson v. State ex rel. Dep't of Transp. & Dev.,
94-2047 (La. 11/4/94), 644 So.2d 1052 (internal citations omitted). Before an
appellate court may disturb an award of damages, the record must clearly show the
trial court abused its broad discretion in making the award. Lawrence v. City of
Shreveport, 41,825 (La.App. 2 Cir. 1/31/07), 948 So.2d 1179, writ denied, 07-441
(La. 4/20/07), 954 So.2d 166.

General Damages

The trial court awarded Mr. LeBlanc $250,000.00 in general damages.

19

General damages are those which may not be fixed with
pecuniary exactitude; instead, they involve “mental or physical pain or
suffering, inconvenience, the loss of intellectual gratification or
physical enjoyment, or other losses of life or life-style which cannot be
definitely measured in monetary terms.” Kaiser v. Hardin, 2006-2092
(La.4/11/07), 953 So.2d 802; Nelson v. Southeast Food Inc., 39,157
(La.App. 2 Cir. 1/28/05), 892 So.2d 790. In the assessment of damages
in cases of offenses, quasi offenses, and quasi contracts, much
discretion is left to the judge or jury. La. C.C. art. 2324.1; Kaiser v.
Hardin, supra. The role of the appellate court in reviewing awards of
general damages is not to decide what it considers an appropriate award,
but rather to review the exercise of discretion of the trier of fact. Jd.;
Hae Woo Youn v. Maritime Overseas Corp., 92-3017 (La.9/3/93), 623
So0.2d 1257, cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d
379 (1994). The initial inquiry is whether the trier of fact abused its
vast discretion in assessing the amount of damages. Kaiser v. Hardin,
supra; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after finding
that the trier did in fact abuse its great discretion may the appellate court
resort to prior awards, and then only to determine the highest or lowest
point reasonably within that discretion. Kaiser v. Hardin, supra, Coco
v. Winston Industries Inc., 341 So.2d 332 (La.1976).

Ricks, 968 So.2d at 870.

The City asserts this award of general damages is abusively high, citing past
awards to support its position. However, each of the cases cited by the City are
distinguishable. Further, “[o]nly after finding that the trier did in fact abuse its great
discretion may the appellate court resort to prior awards, and then only to determine
the highest or lowest point reasonably within that discretion.” Jd.

Mr. LeBlanc suffered a deep, penetrating wound on his right leg causing such
excruciating pain it required strong narcotic medication, of which he has since been
weaned off. The wound developed a deep infection that required surgery and the
removal of tissue. Though the wound was sutured after, Mr. LeBlanc was left with
significant scarring. He then was forced to undergo a second surgery in October
2016 due to the lasting pain caused by his injury and its failure to heal fully. After
the surgery, Mr. LeBlanc’s mobility was severely restricted, and his leg immobilized
in a splint and later in an orthopedic device. His physicians have stated future

surgery will also be necessary, again resulting in restricted mobility.

20

Mr. LeBlanc continues to experience pain, balance problems, and swelling of
his leg, foot, and ankle. He asserts he has lost the ability to engage in recreational
activities he enjoyed before the accident. As noted by the trial court, “[a]t best, his
activities will be significantly limited by the pain and swelling in his legs.” His
experts testified that he will be unable to resume employment in his chosen field of
carpentry. Experts for both sides agree he has some level of permanent disability,
though they disagree about the extent of that rating. One of Mr. LeBlanc’s treating
physicians, who performed the surgery in October 2016, testified it would take a
year and a half from that surgery for Mr. LeBlanc to achieve maximum medical
improvement.

The trial court found that given the above and Mr. LeBlanc’s young age of
twenty-nine years, he can be expected to sustain damages for an extended time in
the future. We find, based upon the record, that the trial court did not abuse its great
discretion in its general damages award to Mr. LeBlanc. As such, we need not look
to prior awards for determinations of permissible highest and lowest amounts.
Special Damages
Past and Future Medical Expenses

“A plaintiff may ordinarily recover reasonable medical expenses, past and
future, incurred as a result of the injury.” Lawrence, 948 So.2d at 1187.

Mr. LeBlanc’s wound was cleaned and sutured on the day of the accident. He
developed a deep infection causing the wound to break open, so Dr. Weston Miller
performed a debridement and secondary closure of the wound. Before he could do
so, Dr. Miller had to remove gangrenous tissue, leaving a large scar. Mr. LeBlanc
was referred to Dr. Darrell Henderson, a plastic and reconstructive surgeon, on July
6, 2016 because he was still having pain in his unhealed wound and because Dr.

Miller felt he was developing a condition known as stenosynovitis, meaning the

21

tendons in Mr. LeBlanc’s leg were stuck together, resulting in an inflammatory
response and scar tissue formation causing clicking, popping, and crunching sounds
known as crepitus. Dr. Henderson agreed and referred Mr. LeBlanc to a neurologist,
Dr. James Domingue. Dr. Domingue found Mr. LeBlanc had tears in the nerve and
an enlargement of the nerve known as a neuroma just below the inner ankle.

On October 4, 2016, Dr. Henderson performed a neurolysis, consisting of
removing scar tissue from the nerves. He also prescribed physical therapy to try to
increase the motion and strength of Mr. LeBlanc’s leg and allow him to walk freely
without the use of an orthopedic boot device. The trial court found Mr. LeBlanc had
incurred medical expenses totaling $35,846.38 at the time of trial and that those
expenses were reasonably incurred and necessary for the treatment ofhis injury. The
City does not argue against the amount of past medical expenses awarded to Mr.
LeBlanc. Based upon the foregoing, we find that Mr. LeBlanc’s medical expenses
were reasonable and affirm the amount of $35,846.38 in damages awarded by the
trial court.

Mr. LeBlanc was also awarded $100,532.50 in special damages for future
medical expenses. The substantive law governing Mr. LeBlanc’s claims for future
medical expenses necessary to treat and compensate for his injury was stated by the
supreme court in Menard v. Lafayette Insurance Co., 09-1869, pp. 12-13 (La.
3/16/10), 31 So.3d 996, 1006:

Under Louisiana law, a tort victim may recover past (from injury

to trial) and future (posttrial) medical expenses caused by tortious

conduct. Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort

Law § 7.02[1], 7-5(Michie 2009). The victim must, however, establish

he incurred past medical expenses in good faith as a result of his injury

and future medical expenses will more probably than not be incurred.

Stiles v. K Mart Corp., 597 So.2d 1012, 1012 (La.1992)(remanding for

a determination of “an award for future medical expenses which the

medical evidence established that plaintiff, more probably than not, will

be required to incur”); Maraist & Galligan, supra, § 7.02[1], 7-5-7-6.
A plaintiff shows the probability of future medical expenses with

22

supporting medical testimony and estimations of their probable cost.
Smith v. Municipality of Ferriday, 05-755, pp. 11-12 (La.App. 3 Cir.
2/1/06), 922 So.2d 1222, 1231, writ denied, 06-0934 (La.9/29/06), 937
So.2d 860; Highlands Ins. Co. v. Missouri Pacific R. Co., 532 So.2d
317, 324 (La.App. 3d Cir.1988), judgment affirmed sub nom. Lee v.
Missouri Pacific R. Co., 540 So.2d 287 (La.1989); see also, Stiles, 597
So.2d at 1012 (referring to future medical expenses established by
medical evidence). Importantly, future medical expenses must be
established with some degree of certainty. Highlands, 532 So.2d at 324.
Nevertheless,

[w]hen the record establishes that future medical expenses
will be necessary and inevitable, the court should not
reject an award of future medical expenses on the basis
that the record does not provide the exact value of the
necessary expenses, if the court can examine the record
and determine from evidence of past medical expenses and
other evidence a minimum amount that reasonable minds
could not disagree will be required.

Stiles, 597 So.2d at 1012. The proper standard for determining whether

a plaintiff is entitled to future medical expenses is proof by a

preponderance of the evidence the future medical expense will be

medically necessary. Hoskin v. Plaquemines Parish Gov't, 97-0061

(La.App. 4 Cir. 12/1/97), 703 So.2d 207, 211, writ denied, 98-270, 98-

271 (4/3/98), 717 So.2d 1129.

Dr. Henderson testified in his deposition that Mr. LeBlanc has a neuroma in
his lower ankle area that is tender and is bothered when rubbed by shoes. He feels
that it is more likely than not that Mr. LeBlanc will require surgery to have the
neuroma removed, consisting of excising the neuroma and inserting the end of the
nerve into a bone in his lower leg. Dr. Henderson stated that he believes the neuroma
is going to gradually worsen over time. Dr. Henderson notes that even with the
surgery the neuroma would inevitably reform, but in its new location in the bone
marrow canal, it could not be pressed or hit, causing more pain or inflammation.

The City’s expert, Dr. Kenneth Odinet, stated he did not believe additional
surgery would be medically necessary. He admitted that Dr. Henderson’s

recommendation would be an option but suggested a nerve graft as an alternative.

Dr. Henderson acknowledges that the surgery he recommends would result in an

additional loss of sensation. The City argues that this would leave Mr. LeBlanc ina
worse position than he currently is, but, as Dr. Henderson notes, causing the foot to
be more numb is a reasonable payoff for decreasing chronic pain.

Dr. Henderson also stated that Mr. LeBlanc will need to wear compression
stockings on his injured leg for the remainder of his life. The stockings presumably
jast about two months, and the court found each pair lasts Mr. LeBlanc twice as long
as he only wears one stocking at a time.

Dr. Henderson further recommended semi-annua! doctor visits and periodic
EMG studies for the rest of Mr. LeBlanc’s life. Dr. Odinet testified that he did not
believe semi-annual visits would be necessary while simultaneously acknowledging
that future doctor visits might be. He offered no insight into how often those doctor
visits might be required if or when Mr. LeBlanc experienced problems.

Finally, Dr. Henderson testified that Mr. LeBlanc would need a membership
to a gym that has a pool, as it would take the weight off of his leg and be the best
way to perform most of his exercises. Though Mr. LeBlanc testified that prior to his
injury he had a membership at a different gym, the trial court found that he aiso
engaged in many other physical activities. The trial court’s written reasons for
judgment specifically state, “Inasmuch as he can no longer engage in these other
activities, and he is forced to get his exercise under the low impact conditions
afforded by a gym with a pool, the Court finds that an award of the future costs of a
gym membership is appropriate.”

The trial court found that as Dr. Henderson was Mr. LeBlanc’s treating
physician, his opinion was entitled to greater weight. It found that the need for future
surgery had been established with sufficient certainty, as well as the other future
medical expenses listed above. When there is conflict in testimony, including expert

testimony, evaluations of credibility are for the trier of fact and should not be

24

disturbed upon review unless the record contains no reasonable basis, or the stated
reasons of the expert are patently unsound. Sportsman Store of Lake Charles, Inc.
v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201 (La. 10/19/99), 748 So.2d 417.

The trial court next deferred to the expertise of Dr. G. Randolph Rice, an
economist, in setting Mr. LeBlanc’s future medical expenses award and generally
found the median figure of the range presented to be appropriate. “As a
determination of fact, a judge’s or jury’s assessment of quantum, or the appropriate
amount of damages, is one entitled to great deference on review.” Menard, 31 So0.3d
at 1007.

It is a well-acknowledged fact that awards for future medical expenses are
highly speculative and, therefore, “generally do not involve determining the amounts,
but turn on questions of credibility and inferences, i.e., whose experts and other
witnesses does the [factfinder] believe?” /d. at 1006.

Notably, reasonable persons frequently disagree regarding the
measure of damages in a particular case. Where there are two
permissible views of the evidence, the factfinder’s choice between them
cannot be manifestly erroneous or clearly wrong. “Where there is
conflict in the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review, even
though the appellate court may feel that its own evaluations and
inferences are as reasonable.”

Id. at 1007 (citations omitted). “Because the discretion vested in the trier of fact is
so great, and even vast, an appellate court should rarely disturb an award on review.”
Id.

The trial court awarded Mr. LeBlanc a total of $100,532.50 for future medical
expenses, including: $19,626.00 for future surgery and physical therapy; $14,288.50
for compression stockings for the remainder of his life; $24,105.00 for semi-annual

doctor visits for the remainder of his life; $17,250.00 for EMG studies; and

$25,263.00 for a gym membership at a club that includes a pool. We find that the

25

trial court had a reasonable factual basis for its award of past and future medical
expenses in favor of Mr. LeBlanc.
Past and Future Lost Wages

Past and future lost wages are separate and distinct damage awards. Fontenot
v. Sw. Offshore Corp., 00-1722 (La.App. 3 Cir. 6/6/01), 787 So.2d 588, writ denied,
01-1913 (La. 10/12/01), 799 So.2d 504. In order to recover for past lost wages, a
plaintiff must prove his past lost earnings and the length of time absent from work
which is attributable to the injury caused by the defendant. /d. The trial court
awarded Mr. LeBlanc $59,348.00 in past lost wages.

At the time of his injury, Mr. LeBlanc was employed as a carpenter. Mr.
LeBlanc testified that when he began carpentry in 2008, he was earning $10.00 per
hour. He worked other jobs but returned to full time carpentry in 2014 on jobs
secured by his father and grandfather. He stated that his initial billing fee was $18.00
per hour but that it had been increased to $20.00 per hour as his skills and experience
increased. Mr. LeBlanc introduced a pay stub that showed that at the time of his
injury, he was earning $20.00 per hour on a job for the Vermilion Corporation, which
is in line with his testimony.

Dr. Rice, the economist retained by the plaintiff, calculated Mr. LeBlanc’s
lost earnings at the time of trial to be $68,343.00. This number was based off of a
forty-hour work week, fifty-two weeks a year, at the rate of $20.00 per hour.
However, as the trial court noted, Mr. LeBlanc admitted that while he worked forty
to forty-five hours per week, he typically only worked forty-two to forty-three weeks
per year. Pursuant to this testimony, the trial court appropriately lowered Mr.
LeBlanc’s award for past lost wages from $68,343.00, based on annual earnings of

$41,600.00, to $59,348.00, based on annual earnings of $36,125.00.

26

The City argues that Mr. LeBlanc failed to show any proof at trial that he
earned his $20.00 per hour wage for forty-two weeks out of the year, while
acknowledging that he was earning that wage on the job he was working at the time
of his injury. Mr. LeBlanc’s father, with whom he works, specifically testified that
carpentry work was in high demand in late 2016 due to the excessive flooding in the
area. Further, Mr. LeBlanc’s Vocational Rehabilitation Expert, Mr. Sy Arceneaux,
testified that the annual earnings amount calculated by Dr. Rice corresponded with
what the statistics reported by the Bureau of Labor Statistics for the Lafayette,
Louisiana metropolitan area show a carpenter of Mr. LeBlanc’s age and experience
would be expected to earn in the area.

This court set forth the standard in determining past lost wages

and stated that: “Lost wages ‘need not be precisely proven, they must

be shown with reasonable certainty.’ ” Taylor v. Premier Ins. Co., 98-

1935, p. 7 (La.App. 3 Cir. 6/30/99); 742 So.2d 35, 40 (citations omitted).

“An award for lost past wages can be ‘computed on the amount the

plaintiff would have in all probability’ earned had he been able to work.”

Id. at pp. 7-8; 40. (Citations omitted). This court has consistently held

that a plaintiff's uncorroborated testimony is sufficient to prove lost

wages as long as such proof is uncontradicted and reasonably

establishes his claim. Green v. Superior Oil Co., 441 So.2d 54 (La.App.

3 Cir.1983); Richard v. Teague, 92-17(La.App. 3 Cir. 5/4/94); 636

So.2d 1160, writ denied, 94-1934 (La.11/11/94); 644 So.2d 388. “It is

well settled that factual conclusions of the trial judge particularly where

the credibility of a witness is involved, are entitled to great weight and

will not be disturbed upon appeal.” Charles v. Arceneaux Ford, Inc.,

542 So.2d 846, 850 (La.App. 3 Cir.1989) (citations omitted).

Skipper v. Berry, 99-1433, p. 8 (La.App. 3 Cir. 3/15/00), 762 So.2d 56, 61-62
(alterations in the original).

The trial court found that the medical evidence presented demonstrated with
reasonable certainty that Mr. LeBlanc’s residual disability was causally related to
the accident. The City argues strenuously that Mr. LeBlanc’s tax returns for the

years immediately preceding the accident do not support the trial court’s award for

past lost wages. On the other hand, Mr. LeBlanc’s testimony concerning his earned

27

wages was not only uncontradicted but was specifically corroborated with pay stub
evidence. Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be manifestly erroneous or clearly wrong. Menard, 31
So.3d 996. As such, we find the trial court clearly had a reasonable basis for the
award of past lost wages to Mr. LeBlanc.

Finally, the trial court awarded Mr. LeBlanc $524,595.00 for future loss of
earning capacity.

To recover an award for future loss of earnings, the plaintiff must

present medical evidence that indicates with reasonable certainty that a

residual disability causally related to the accident in question exists,

which results in the plaintiffs inability to earn wages to the same extent

he could have earned had he not been injured.

Fontenot, 787 So.2d at 593.

Mr. LeBlanc testified that while he is not totally disabled, standing or walking
for more than a couple hours and anything involving high impact increases his
symptoms. Further, his ankle swells if forced to make even a two hour drive to New
Orleans. He also stated he has experienced balance problems, which have slowly
improved.

The City argues that their expert, Dr. Odinet, would not place any work
restrictions on Mr. LeBlanc other than a general one against climbing. However, Dr.
Odinet acknowledged that Mr. LeBlanc will always have swelling in his leg that
limits how much he can and cannot walk based upon the build up of fluid in his
ankle. Dr. Odinet further testified that he did not test for balance problems that may
have been caused by Mr. LeBlanc’s injury, which may further limit certain jobs Mr.
LeBlanc will be able to perform. Dr. Odinet specifically found Mr. LeBlanc had

suffered a permanent partial disability of his lower right extremity; though he felt

Mr. LeBlanc’s impairment was only five to ten percent.

28

Alternatively, Dr. Henderson testified that in his opinion, Mr. LeBlanc would
only be able to perform fully sedentary work with opportunities to rest and elevate
his leg and that activities that caused more swelling and pain were too much and
should be restricted. He stated that it would be best if Mr. LeBlanc doesn’t have a
job where he has to stand on his feet and testified that Mr. LeBlanc will have to
choose the type of work he will perform very carefully. He unequivocally stated
that Mr. LeBlanc cannot go back to carpentry. Dr. Henderson found that the
permanent partial disability of Mr. LeBlanc’s right lower extremity was thirty
percent, to which Dr. Miller, another one of Mr. LeBlanc’s treating physicians,
agreed.

The trial court accepted the testimony of Dr. Henderson regarding Mr.
LeBlanc’s abilities when re-entering the labor force. The trial court specifically
stated in its written reasons for judgment that it “accords greater weight to the
opinions of the treating physicians.” When opinions of expert witnesses differ, it is
for the trier of fact to determine the most credible evidence and these determinations
will not be overturned unless it is proven that the expert’s stated reasons are patently
unsound. Fontenot, 787 So.2d 588.

Next both the City and Mr. LeBlanc had vocational consultants testify
regarding the types of sedentary jobs available to Mr. LeBlanc given his training and
background. Mr. Arceneaux, Mr. LeBlanc’s vocational consultant who tested and
evaluated him, testified that earnings of $20.00 per hour or $41,600.00 per year is
consistent for a carpenter based upon data provided by the Bureau of Labor Statistics
for the Lafayette area. Given Dr. Henderson’s recommended restrictions on Mr.
LeBlanc’s future employment, Mr. Arceneaux concluded that Mr. LeBlanc is unable
to perform eighty-seven percent of all available jobs in the current labor market,

including all of his prior work experience. He found that based upon Mr. LeBlanc’s

29

experience, skills, and restrictions, he would be able to find entry-level, sedentary
positions that would pay between $18,400.00 and $23,020.00 annually. Tiffany
Harrington, the vocational consultant employed by the City, found available
positions for Mr. LeBlanc with annual earnings between $18,800.00 and $20,880.00
were he to work full time, year-round.

Though the record contains testimony relating to the benefits of a functional
capacity evaluation in determining Mr. LeBlanc’s physical restrictions and future
work ability, no such evaluation was ordered or provided. Further, though the City
elicited testimony that retraining might improve Mr. LeBlanc’s future prospects,
there was no testimony regarding Mr. LeBlanc’s potential to be retrained, the time
and cost said training would involve, or to what extent retraining might improve his
future earning capacity. Therefore, the trial court found based upon the evidence
before it that Mr. LeBlanc’s future earning capacity was most appropriately set at
the median figure of $20,740.00, as was utilized by Dr. Rice in calculating Mr.
LeBlanc’s loss of future earning capacity.

The City again argues that Mr. LeBlanc failed to show that he was consistently
earning $20.00 per hour. It argues that even though Mr. Arceneaux’s research
clearly shows the average annual earnings of carpenters with Mr. LeBlanc’s
experience and skill level, it is inequitable to attribute those earnings to Mr. LeBlanc
based upon his past tax returns and his own testimony that he only worked forty-two
to forty-three weeks a year. However, an award for future loss of earnings is
speculative and cannot be calculated with absolute certainty. Freeman v. Harold
Dickey Transp., Inc., 467 So.2d 194 (La.App. 3 Cir. 1985). “Damages for loss of
future earnings or loss of future earning capacity is based on the injured person’s
ability to earn money, rather than on what he actually earned prior to the injury.” Jd.

at 196 (citing Merrell v. State, ex rel. Dep’t. of Transp., 415 So.2d 660 (La.App. 3rd

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Cir.), writ denied, 420 So.2d 443 (La.1982)). Further, an injured plaintiffs future
ability to earn is not necessarily determined by actual earnings at the time of injury.
Id. As the trial court itself noted in its written reasons and the supreme court has
stated, “[e]arning capacity in itself is not necessarily determined by actual loss;
damages may be assessed for the deprivation of what the injured plaintiff could have
earned despite the fact that he may never have seen fit to take advantage of that
capacity.” Hobgood v. Aucoin, 574 So.2d 344, 346 (La.1990).
Because of the speculative nature of an award for future loss of
income there is no right formula in arriving at an award, Rather, the

trial court must exercise sound discretion and award an amount that is

fair to both litigants while not being unduly oppressive to either.

Unbehagen v. Bollinger Workover, Inc., 411 So.2d 507 (La.App. Ist

Cir.1982); Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). In

reaching an award for lost wages the trial court should consider the

following factors: the injured party’s age, life expectancy, work life
expectancy, any discount rate and inflation factor which may be
applicable, the annual wage rate increase, probable future earning
capacity, and the loss of future earning ability and capacity. Unbehagen,
supra; Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807
(La.App. 3rd Cir. 1980).
Freeman, 467 So.2d at 196.

Mr. LeBlanc was twenty-seven years old at the time of his injury and twenty-
nine years old at the time of trial. Based upon U.S. Department of Labor Statistics,
Dr. Rice testified that Mr. LeBlanc had a work life expectancy of 30.07 years. He
noted the difference between Mr. LeBlanc’s future earning capacity and his pre-
accident earning capacity is $20,860.00. Using this information and a discount rate
of 2.5%, Dr. Rice testified that Mr. LeBlanc’s projected future loss of earnings or
earning capacity was $604,101.00. The trial court found it appropriate to adjust
these calculations proportionately to reflect the difference caused by Mr. LeBlanc’s

choice to only work forty-two or forty-three weeks a year rather than fifty-two, 1.e.

base the calculations off of annual earnings of $36,125.00 rather than $41,600.00.

These adjustments result in Mr. LeBlanc’s projected future loss equating to
$524,595.00.

Before an appellate court can disturb award by trial court, the record must
clearly reveal that the trier of fact abused its discretion in making its award. Freeman,
467 So.2d 194. Based upon the above information, we cannot say the trial court was
clearly wrong in its findings and its award to Mr. LeBlanc. As such, we affirm the
ruling of the trial court.

Disposition

Based upon the foregoing, we affirm the judgment of the trial court finding
the City of Abbeville liable for the defective condition of the subject storm grate and
awarding Riley LeBlanc $970,321.88 in related damages: $35,846.38 in past
medical expenses; $100,532.50 in future medical expenses; $59,348.00 in past lost
wages; $524,595.00 in future loss of earning capacity; and $250,000.00 in past and
future general damages. Costs of this appeal in the amount of $5,216.00 are assessed
to the City of Abbeville. La.R.S. 13:5112.

AFFIRMED.

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