David Travasos v. Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-640

DAVID TRAVASOS, ET AL.

VERSUS

LAFAYETTE PARISH SCHOOL BOARD, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2013-1995
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

STILES, J., concurring in part and dissenting in part with reasons.

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

K. Kyle Celestin
Harold James Adkins
Alejandro R. Perkins
Hammond, Sills, Adkins, Guice, Noah, & Perkins, LLP
2431 S. Acadian Thruway, # 600
Baton Rouge, Louisiana 70808
(225) 923-3462
COUNSEL FOR DEFENDANT/APPELLANT:
Lafayette Parish School Board

Kraig Thomas Strenge
Post Office Box 52292
Lafayette, Louisiana 70505-2292
(337) 261-9722
COUNSEL FOR PLAINTIFFS/APPELLEES:
David Travasos
Jamie Travasos
Michael Travasos

Stephanie JohnLouis
In Proper Person
411 Woodvale Avenue, #104 G
Lafayette, Louisiana 70503
(337) 315-2562
COUNSEL FOR DEFENDANT/APPELLEE:
Stephanie JohnLouis

SAVOIE, Judge.

After a bench trial, the trial court rendered judgment in favor of Plaintiffs

David Travasos, Jamie Travasos, and Michael Travasos, awarding damages

totaling $450,340.00. Defendant Lafayette Parish School Board now appeals. For

the following reasons, we affirm in part, as amended, and reverse in part.

FACTS AND PROCEDURAL HISTORY

In the spring of 2012, while in the seventh grade, Michael Travasos was

sexually molested by Desmond JohnLouis on the school bus. This happened on

numerous occasions while riding the school bus to L.J. Allemon Middle School, as

well as on school property. Michael repeatedly asked the school bus driver to re-

assign his seat on the bus away from Desmond. This request was refused. When

these actions were discovered by Michael’s parents, David and Jamie Travasos,

they were immediately reported to the assistant principal at the middle school. A

conference was held with the principal and a Lafayette Police Officer wherein

Desmond admitted to his behavior. Michael and Jamie Travasos were told that

Desmond had been expelled from the school. Michael and Jamie agreed to not

press charges against Desmond due to his expulsions and assurances from the

school that he would not be allowed to return to L.J. Allemon Middle School.

During the summer of 2012, Michael and Jamie discovered that Desmond

was allowed to re-enroll at L.J. Allemon Middle School. After a meeting with the

assistant principal, David learned that Desmond was scheduled to be in several

classes with Michael in the fall. The assistant principal assured David that

Desmond would not be allowed to ride the same bus as Michael, and they would

not have any classes together. In addition, David made several calls to

Defendant’s transportation office, and he was assured that Michael and Desmond

would not be riding the same bus. After school began, David and Jamie noticed

attitude changes in Michael, and his grades began to drop. Michael’s health and

growth began to suffer.

In November 2012, Desmond was placed in Michael’s social studies class.

In April 2013, David and Jamie found out that Desmond had been riding the same

school bus with Michael for the entire school year, despite assurances by the

middle school and Defendant.

As a result, David and Jamie Travasos filed suit, individually and on behalf

of Michael Travasos, who was a minor at the time, against the Lafayette Parish

School Board.

A bench trial was held on February 5, 2020. The trial court allowed counsel

thirty days to file post-trial briefs. In March 2020, the courthouse was closed due

to the Covid-19 pandemic. Judgment was signed October 5, 2022, in favor of

Plaintiffs and against Defendant Lafayette Parish School Board, awarding damages

in the amount of $450,348.00. Lafayette Parish School Board now appeals.

PLAINTIFFS’ OBJECTION

Plaintiffs object to the trial court’s grant of Defendant’s Amended Motion

and Order for Devolutive Appeal. The original judgment in this case, along with

written reasons, was rendered on October 5, 2022. On October 13, 2022, Plaintiffs

filed a Motion to Supplement and/or Amend Judgment or in the Alternative,

Motion for New Trial, requesting that the trial court amend the judgment to include

court costs and legal interest. This motion was set for hearing on January 17, 2023.

After the hearing, the trial court signed the Amended Judgment on January 20,

2023, re-stating the original judgment and adding a paragraph taxing Defendant

with legal interest and court costs. Thereafter, Defendant filed a Motion and Order

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for Devolutive Appeal, appealing the January 20, 2023 Judgment, which was

signed by the trial court on February 2, 2023. Defendant then filed its Amended

Motion and Order for Devolutive Appeal in the trial court on September 21, 2023,

attempting to appeal both the October 5, 2022 and January 20, 2023 Judgments.

The trial court granted the amended motion for appeal, signing the order on

September 22, 2023.

Plaintiffs argue that the trial court was divested of jurisdiction once the

original Motion and Order for Devolutive Appeal was signed on February 2, 2023,

citing La.Code Civ.P. art 2088. Louisiana Code of Civil Procedure Article 2088(A)

states:

The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal and the timely filing of
the appeal bond, in the case of a suspensive appeal or on the granting
of the order of appeal, in the case of a devolutive appeal.

Therefore, Plaintiffs argue that the trial court did not have jurisdiction to

sign the Amended Motion and Order for Devolutive Appeal. Plaintiffs contend

that the January 20, 2023 Judgment only concerns the issues of legal and interest

and court costs. As a result, Plaintiffs argue that court costs and legal interest are

the only issues properly before this court.

We agree with Plaintiffs that the trial court was divested of jurisdiction once

the Motion and Order for Devolutive Appeal was signed on February 2, 2023;

however, we disagree that the only issues before this court are court costs and legal

interest.

Plaintiffs in this case filed a Motion to Supplement and/or Amend Judgment

or in the Alternative, Motion for New Trial. “[A] final judgment may be amended

at any time to alter the phraseology of the judgment or to correct deficiencies in the

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decretal language or errors of calculation.” La.Code Civ.P. art. 1951. However,

“[a] final judgment may not be amended under this Article to change its substance.”

Id. “It is well established that Article 1951 contemplates that correction of a

‘clerical error’ in a final judgment, but does not authorize substantive amendments.”

Denton v. State Farm Mut. Auto. Ins. Co., 08-483, p. 6 (La. 12/12/08), 998 So.2d

48, 52.

“An amendment to a final judgment to add interest is a substantive change

which is not permitted under LSA-C.C.P. art. 1951.” Suprun v. Louisiana Farm

Bureau Mut. Ins. Co., 09-1555, p. 11 (La.App. 1 Cir. 4/30/10), 40 So.3d 261, 269.

A substantive alteration is in violation of La.Code Civ.P. art. 1951. Id.

“‘Substantive amendments to judgments can be made only by consent of the

parties or after a party has successfully litigated a timely application for new trial,

an action for nullity, or a timely appeal.’” A.M.C. v. Caldwell, 17-628, p. 9

(La.App. 3 Cir. 2/15/18), 239 So.3d 948, 957 (quoting Greene v. Succession of

Alvarado, 15-1960, p. 29 (La.App. 1 Cir. 12/27/16), 210 So.3d 321, 339).

“‘A pleading is considered a motion for new trial if it requests a substantive

modification of the judgment and is filed within the delays applicable to a motion

for new trial.’” Id. (quoting Greene, 210 So.3d at 339). In the present case, the

Motion to Supplement and/or Amend Judgment or in the Alternative, Motion for

New Trial was filed within the time delays for a motion for new trial. See La.Code

Civ.P. art. 1974. As such, we will treat the motion as a motion for new trial. See

Katz v. Katz, 412 So.2d 1291 (La.1982); See also A.M.C., 239 So.3d 948.

Louisiana Code of Civil Procedure Article 2087 sets forth the delay for

taking a devolutive appeal. That Article states:

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A. Except as otherwise provided in this Article or by other law,
an appeal which does not suspend the effect or the execution of an
appealable order or judgment may be taken within sixty days of any of
the following:

(1) The expiration of the delay for applying for a new trial or
judgment notwithstanding the verdict, as provided by Article
1974 and Article 1811, if no application has been filed timely.

(2) The date of the mailing of notice of the court’s refusal to grant a
timely application for a new trial or judgment notwithstanding the
verdict, as provided under Article 1914.

B. When a devolutive appeal has been taken timely, an appellee
who seeks to have the judgment appealed from modified, revised, or
reversed as to any party may take a devolutive appeal therefrom
within the delays allowed in Paragraph A of this Article or within ten
days of the mailing by the clerk of the notice of the first devolutive
appeal in the case, whichever is later.

C. When one or more parties file motions for new trial or for
judgment notwithstanding the verdict, the delay periods specified
herein shall commence for all parties at the time they commence for
the party whose motion is last to be acted upon by the trial court.

D. An order of appeal is premature if granted before the court
disposes of all timely filed motions for new trial or judgment
notwithstanding the verdict. The order becomes effective upon the
denial of such motions.

“An application for new trial does not interrupt the delay for applying for a

new trial or the delays for appealing unless the application is timely.” Everett v.

Baton Rouge Student Housing, L.L.C., 10-856, p. 4 (La.App. 1 Cir. 5/6/11), 64

So.3d 883, 886, writ denied, 11-1169 (La. 9/16/11), 69 So.3d 1149. Because

Plaintiffs filed a timely motion for new trial, the appeal delays were interrupted.

The motion was granted, and the Amended Judgment was filed January 20, 2023.

Defendant filed a timely appeal of the January 20, 2023 Judgment.

Defendant’s original request for appeal referenced the January 20, 2023

Judgment and not the October 5, 2023 Judgment. Plaintiffs maintain that, because

its Motion to Supplement and/or Amend Judgment or in the Alternative, Motion

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for New Trial only concerned the issues of court costs and legal interest, those are

the only issues on appeal before this court. We disagree.

“[T]he jurisprudence provides that the granting of a new trial sets aside the

original judgment, which cannot thereafter afford the basis of a plea of res judicata

or an appeal.” In Re Transit Mgmt. of Se. Louisiana, Inc., 04-632, p. 10 (La.App. 4

Cir. 10/20/06), 942 So.2d 595, 600. “The judgment from the new trial becomes the

final judgment from which an appeal may be taken.” Id.

In the present case, the February 2, 2023 Amended Judgment re-stated the

rulings of the original judgment relating to fault and damages, and it added a

paragraph assessing Defendant with legal interest and court costs. This judgment,

as a whole, is the final judgment from which this appeal is now taken.

Based on the foregoing, Plaintiffs’ objection is sustained insofar as we find

the trial court lacked the jurisdiction to grant the Amended Motion and Order for

Devolutive Appeal. The original Motion and Order for Devolutive Appeal signed

by the trial court on February 2, 2023, is properly before this court, appealing the

January 20, 2023 Judgment in its entirety.

ASSIGNMENTS OF ERROR

1. The Trial Court committed legal error by imposing a duty on the
School System that is not grounded in statute or jurisprudence.

2. The Trial Court erred in finding that the Appellees suffered injury
that was causally related to the actions of the School System.

3. The Trial Court failed to allocate fault to the admitted tortfeasor
and co-defendant Desmond JohnLouis, through Stephanie
JohnLouis.

4. The Trial Court’s award of $250,000 for general damages for
Michael Travasos was excessive and a clear abuse of discretion.

5. The Trial Court’s award of $50,000 for general damages for Jamie
Travasos was excessive and a clear abuse of discretion.

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6. The Trial Court’s award of $50,000 for general damages for David
Travasos was excessive and a clear abuse of discretion.

7. The Trial Court’s award of $26,485.00 for Michael Travasos’
School Tuition was improper and a clear abuse of discretion.

8. The Trial Court erred in failing to allocate fault to the other
tortfeasors.

LAW AND DISCUSSION

I. Standard of Review

In Hebert v. State Farm Fire and Casualty Company, 21-10, pp. 2–3

(La.App. 3 Cir. 8/4/21), 325 So.3d 1090, 1093, writ denied, 21-1358 (La.

11/17/21), 327 So.3d 992, this court explained:

The standard of appellate review of factual determinations is
manifest error. Stobart v. State, Dep’t of Transp. & Dev., 617 So.2d
880 (La.1993). When reviewing factual determinations for manifest
error, the issue is not whether the trier of fact was right or wrong, but
whether the fact finder’s conclusion was reasonable. Id. If the trial
court’s findings are reasonable in light of the record reviewed in its
entirety, the court of appeal may not reverse, even if convinced that
had it been sitting as trier of fact, it would have weighed the evidence
differently. Id. Additionally, where factual findings are based on
determinations regarding the credibility of witnesses, great deference
is afforded to those factual findings under the manifest error standard.
Rosell v. ESCO, 549 So.2d 840 (La.1989). Factual findings based on
the fact finder’s decision to credit the testimony of one of two or more
witnesses can virtually never be manifestly erroneous. Id. This rule
applies equally to the fact finder’s evaluation of expert testimony.
Lasyone v. Kansas City S. R.R., 00-2628 (La. 4/3/01), 786 So.2d 682.

The Louisiana Supreme Court discussed the liability of a school board in

Wallmuth v. Rapides Parish School Board, 01-1779 (La. 4/3/02), 813 So.2d 341.

The supreme court stated:

The court of appeal set out what we believe is the correct
standard of liability regarding the liability of a school board for the
actions of its students under La. C.C. art. 2320:

A school board, through its agents and teachers,
owes a duty of reasonable supervision over students. La.

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Civ.Code art. 2320; Adams v. Caddo Parish School Bd.,
25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, writ
denied, 94,684 (La.4/29/94), 637 So.2d 466. The
supervision required is reasonable, competent
supervision appropriate to the age of the children and the
attendant circumstances. Jackson v. Colvin, 98–182
(La.App. 3 Cir. 12/23/98), 732 So.2d 530, writ denied,
99–228 (La.3/19/99), 740 So.2d 117. This duty does not
make the school board the insurer of the safety of the
children. Id. Constant supervision of all students is not
possible nor required for educators to discharge their
duty to provide adequate supervision. Adams, 631 So.2d
70.

Before liability can be imposed upon a school
board for failure to adequately supervise the safety of
students, there must be proof of negligence in providing
supervision and also proof of a causal connection
between the lack of supervision and the accident. Id.
“Injury from horseplay between discerning students
which, at some stage may pose an unreasonable risk of
harm to the participants, does not automatically and of
itself render the supervising authority liable.” Henix v.
George, 465 So.2d 906, 910 (La.App. 2 Cir.1985).
Furthermore, before a school board can be found to have
breached the duty to adequately supervise the safety of
students, the risk of unreasonable injury must be
foreseeable, constructively or actually known, and
preventable if a requisite degree of supervision had been
exercised. Id.

Wallmuth, 813 So.2d at 346.

II. Assignment of Error Number One – Legal Error

Defendant first submits that the trial court committed legal error because it

held that Defendant “breached its duty by failing to expel Desmond for the

disciplinary infractions that he committed prior to grabbing Michael’s genitals.”

In its Reasons for Ruling, the trial court stated:

This is an action seeking damages for physical, mental, and
emotional pain and suffering caused by Desmond JohnLouis[’s]
assault on Michael Travasos. Mr. JohnLouis ultimately admitted to
the allegations and was subsequently removed from the school for the
remainder of the school year. No criminal charges were sought by the

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plaintiff’s family because they were assured the perpetrator had been
removed from the victim’s school.

The trial court explained Defendant’s duty thus:

For the School Board to be held liable, it must be shown that
the School Board breached its duty to provide “reasonable, competent
supervision appropriate to the age of the children and the attendant
circumstances, “and that the breach of that duty is causally connected
to the damages sustained.[”]

This is the correct standard of liability for this case as set forth by the

Louisiana Supreme Court in Wallmuth, 813 So.2d 341. When stating the factual

basis for finding that Defendant breached its duty, the trial court did list lack of

Desmond’s expulsion as a reason. After stating Defendant’s duty, the trial court

found the following:

The plaintiffs have clearly met their burden of proof on the
breach of the School Board’s duty. This case is focused on the actions
taken after Principal Aloisio and Vice Principal Hebert having actual
knowledge of the actions of Desmond JohnLouis toward multiple
students, and their failure to take the appropriate disciplinary actions
at that time. There is no question the incidents described by the
plaintiff occurred. The offender, Desmond JohnLouis, admitted to the
allegations when questioned. Following two incidents where the
authorities could have recommended expulsion and it could be argued
that expulsion was mandatory on those offenses, Desmond JohnLouis
went on to assault two more students to which they again did not
follow the LPSS Middle School Discipline Matrix and instead sent the
perpetrator home for the remainder of the school year on a 10 day out
of school suspension.

The following school year, the authorities continued to fail in
their reasonable competent supervision of the children. Michael’s
parents were assured the boys would be kept separate. [] However, the
school enrolled the boys in the same classes, classrooms, and allowed
to play on the same sports teams, thereby causing interaction between
Michael Travasos and his offender. The school did not adjust the
boys[’] schedule until they were approached about the problem and
then failed to follow up on the situation. The plaintiffs eventually
rectified the situation themselves by removing the victim from the
school and placing him in private school.

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Based on these factual findings, the trial court found that Defendant

breached its duty.

In Vaughn ex rel. Vaughn v. Orleans Parish School Board, 01-556 (La.App.

4 Cir. 11/28/01), 802 So.2d 967, writ denied, 02-05 (La.6/7/02), 818 So.2d 773, a

second-grade student at Lafayette Elementary School suffered a sexual assault

while in the classroom. The trial court found that the School Board’s employee,

the teacher, failed to adequately supervise the class. The appellate court explained:

In the present suit, we are confronted with a second grade
student who was threatened and sexually assaulted in a classroom at
an elementary school. He was forced to perform a sexual act on
another student after being bullied by fellow students. The School
Board does not challenge the veracity of these allegations. Moreover,
the trail court believed the victim’s testimony and other evidence in
the record supports these findings.

Id. at 969.

Finding that the trial court did not err in determining that the teacher failed

to reasonably supervise the class, the appellate court concluded that “[r]egardless

of her presence or absence, a sexual assault occurred in her classroom while she

was ostensibly in charge of these grade school children.” Id. at 970.

In Doe ex rel. Doe v. DeSoto Parish School Board, 39,779 (La.App. 2 Cir.

6/29/05), 907 So.2d 275, writ denied, 05-2020 (La. 2/10/06), 924 So.2d 167, Doe

was a sixteen-year-old girl who was sexually assaulted by five members of the

basketball team while riding on a school bus that was transporting them to and

from a basketball game. A jury found in favor of the plaintiffs, concluding that the

school board had breached its duty, and the appellate court affirmed. The appellate

court reviewed the applicable jurisprudence and found that Wallmuth, 813 So.2d

341, and much of its progeny, “found no liability on the part of school boards for

fights occurring between students, or accidents at school, either because the school

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board did not breach its duty of reasonable supervision, or because the school

board or school personnel could not have prevented the incident from occurring.”

Doe ex rel. Doe, 907 So.2d at 281. The Doe court distinguished these cases and

determined that those cases “largely focused on a spontaneous act on the part of

the students involved, one that would not have been preventable absent constant

supervision.” Id. The Doe court ultimately found that the sexual assault that

occurred on the school bus “was not a ‘spontaneous act’ that could not have been

prevented with adequate supervision on the part of the coaches.” Id. at 282.

As stated above, we find that the trial court applied the appropriate standard

of liability to this case, and it did not commit legal error. Therefore, we will utilize

the manifest error standard of review. Based on the jurisprudence and evidence,

we do not find that the trial court manifestly erred in finding that Defendant

breached its duty. This case involves a sexual assault which occurred numerous

times while on a school bus. During this time, the evidence shows that the same

offender bullied and assaulted other students as well. The offender admitted to the

sexual assault while in the presence of a law enforcement officer and the principal

of the middle school. Additionally, Desmond JohnLouis was allowed to continue

at the same school, in the same activities, in the same classes, and on the same

school bus with the victim despite numerous assurances to the contrary. This

assignment has no merit.

III. Assignment of Error Number Two – Causal Relationship

Defendant next argues that the trial court erred in finding that Michael

Travasos suffered injury due to Defendant’s actions. Defendant contends that “no

medical professional causally connected the incidents between Michael and

Desmond with Michael’s hormone deficiency.”

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Regarding causal connection, the trial court found:

[T]he plaintiffs have met their burden to show the causal connection
between the breach of this duty and the resulting damages. Michael
Travasos suffered from physical, mental, and emotional pain during
and following the assaults. The unrebutted expert testimony clearly
relates the worsening of Michale Travasos’ hormone deficiency to the
stresses placed upon him. Testing ruled out any other physical caused
[sic] other than the stresses placed on the victim during his 7 th and 8th
grade years by the offender. The unrebutted testimony established
that the situation either caused the hormone deficiency or exacerbated
it. These medical opinions were given by Dr. Ramirez fulfilling the
proper burden of proof as being “more probably than not within a
reasonable degree of medical certainty.” Due to this hormone
deficiency, Michael Travasos, by age 13, only reached the 3 rd
percentile of the growth chart for his age. Dr. Ramirez recommended
daily hormone injections for a period of three years. The treating
physician testified that when children who present with these types of
hormone deficiency are removed from the stressors causing the
hormone deficiency[,] they usually catch up and grow. However,
Michael Travasos was not removed from the stressors causing the
hormone deficiency until his parents removed him from the public
school and placed him in a private school.

The evidence submitted at trial was clear. The school failed to
follow their protocol in disciplining Desmond JohnLouis. This
resulted in further trauma and incidents occurring which caused
Michael Travasos and his family physical, mental, and emotional pain.

“To recover, a plaintiff must show that the defendant’s conduct is the cause

in fact of the plaintiff’s injuries. An action is the cause in fact of an injury if it is a

substantial factor in bringing about the harm, such that the harm would not have

occurred without it.” LaBorde v. Aerial Crop Care, Inc., 22-442, p. 10 (La.App. 3

Cir. 3/1/23), 358 So.3d 244, 249, writ denied, 23-469 (La. 5/23/23), 360 So.3d

1262 (citations omitted). Whether an action is a cause-in-fact of the injury is a

factual determination left to the factfinder. Miller v. Shelter Ins. Co., 18-216

(La.App. 3 Cir. 1/30/19), 266 So.3d 347.

A review of the record shows Plaintiffs’ expert, Dr. Dania Ramirez, testified

that the physical harassment and bullying that Michael encountered could cause the

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growth hormone deficiency that he experienced. She further testified that had

Michael been removed from the stressful environment, he probably would not have

needed the three years of growth hormone injections.

As pointed out by Plaintiffs, this medical testimony was unrebutted by

Defendant. Defendant did not submit a medical expert to testify at trial. Based on

the record before us, we cannot say that the trial court was manifestly erroneous in

finding that the injuries suffered by Michael Travasos was caused by Defendant.

IV. Assignments of Error Numbers Three and Eight – Allocation of Fault

Defendant first argues that this lawsuit was filed due to a sexual assault by

Desmond JohnLouis, and as the primary tortfeasor, he should have been allocated

fault. Next, Defendant contends that Michael’s parents David and Jamie should be

allocated fault because they were negligent in allowing Michael to play football

and basketball with Desmond.

In Brammer v. Bossier Parish School Board, 50,220 (La.App. 2 Cir.

11/25/15), 183 So.3d 606, a fourth-grade student was injured when he was

knocked to the ground by fellow students to keep him from “tattling” to the teacher

on duty. The appellate court affirmed the trial court’s judgment, finding the school

board liable. The appellate court further found that allocation of 100% fault to the

school board was appropriate. Specifically, it found that an allocation of fault to

the fellow students who knocked the victim down would be inappropriate under

La.Civ.Code art. 2320.1

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Louisiana Civil Code Article 2320 states:

Masters and employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in which they are employed.

Teachers and artisans are answerable for the damage caused by their scholars or
apprentices, while under their superintendence.

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In Pike v. Calcasieu Parish School Board, 18-996 (La.App. 3 Cir. 5/15/19),

272 So.3d 943, writ denied, 19-1196 (La. 10/15/19), 280 So.3d 611, B.P., a first

grader at Bell City High School, and two other boys engaged in sexual activity on

the school bus. The child’s parents sued the school board over the incidents. A

jury found the school board 50% liable, with the other 50% assessed to the abuser.

The plaintiffs filed a motion for JNOV on the issue, and the trial court granted the

motion, citing Doe ex rel. Doe, 907 So.2d 275, finding the school board

vicariously liable for the actions of the abuser. The school board appealed, arguing

the trial court erred in failing to allocate fault to the child who abused the victim on

the bus. Citing Doe, this court affirmed the 100% assessment of fault to the school

board, finding that “[a]llowing the school board the benefit of the assessing of fault

to a tortfeasor it is bound to supervise defies logic.” Pike, 272 So.3d at 957.

An appellate court may only reallocate fault if it finds the trial
court was clearly wrong or manifestly erroneous in its allocation of
fault. See Clement v. Frey, 95–1119, 95–1163 (La.1/16/96), 666 So.2d
607, 611. Pursuant to this standard, the two-part test for the appellate
review of a factual finding is: 1) whether there is a reasonable factual
basis in the record for the finding of the trial court; and 2) whether the
record further establishes that the finding is not manifestly erroneous.
Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Even though an
appellate court may feel its own evaluations and inferences are as
reasonable as the fact finder’s, reasonable evaluations of credibility
and reasonable inferences of fact should not be disturbed upon review
where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840,
844 (La.1989); Barham & Arceneaux v. Kozak, 02–2325 (La.App. 1st
Cir.3/12/04), 874 So.2d 228, 240, writ denied, 04–0930 (La.6/4/04),
876 So.2d 87.

In the above cases, responsibility only attaches, when the masters or employers,
teachers and artisans, might have prevented the act which caused the damage, and have
not done it.

The master is answerable for the offenses and quasi-offenses committed by his
servants, according to the rules which are explained under the title: Of quasi-contracts,
and of offenses and quasi-offenses.

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Doe v. East Baton Rouge Parish School Board, 06-1966, p. 14 (La.App. 1
Cir. 12/21/07), 978 So.2d 426, 438-39, writ denied, 08-189 (La. 3/28/08),
978 So.2d 306.

Based on the cases cited, we cannot say that the trial court was manifestly

erroneous in assessing 100% fault to Defendant in this case.

V. Assignments of Error Numbers Four, Five, Six, and Seven – Damages

Defendant complains that the trial court’s amount of general damages

awarded to Michael, David, and Jamie Travasos was excessively high. The trial

court awarded the following amounts of general damages: Michael Travasos was

awarded $250,000.00; David Travasos was awarded $50,000.00, and Jamie

Travasos was awarded $50,000.00.

A fact-finder has great discretion in awarding general damages.

La.Civ.Code art. 2324.1; Pete v. Boland Marine and Mfg. Co., LLC, 23-170 (La.

10/20/23), 379 So.3d 636. When an appellate court reviews a general damages

award, the initial inquiry is whether the trial court abused its discretion. Pete, 379

So.3d 636. “It is the initial inquiry – determining whether there has been an abuse

of discretion in an award for general damages – that is problematic, as ‘[g]eneral

damages . . . are inherently speculative in nature and cannot be fixed with

mathematical certainty.’” Id. at 641 (quoting Wainwright v. Fontenot, 00-492, p. 6

(La. 10/17/00), 774 So.2d 70, 74 (citation omitted) (alteration in original).

The jurisprudence previously mandated that a reviewing court only look to

prior general damages awards once it determined that the trial court abused its

discretion “and then only for the purpose of determining the highest or lowest point

which is reasonably within that discretion.” Id. at 639. However, the Louisiana

Supreme Court recently pronounced:

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We have carefully considered whether it remains a sound
practice to allow consideration of prior awards only after finding an
“abuse of discretion,” or whether those awards are a relevant factor to
be considered in determining whether there has been an abuse of
discretion at the outset. There are no specific parameters by which an
“abuse of discretion” is measured, nor a meaningful definition of this
phrase. Such determinations are not subject to mathematical
exactitude or scientific precision. Indeed, as this Court has recognized,
“[t]he standard for appellate review for abuse of discretion in the
award of general damages is difficult to express and is necessarily
non-specific.”

The inherently subjective nature of the abuse of discretion
standard in the context of reviewing general damage awards compels
that some measure of objectivity be incorporated into the
determination of an award’s reasonableness, so that there is some
standard for comparison. We now hold that an appellate court must
consider relevant prior general damage awards as guidance in
determining whether a trier of fact’s award is an abuse of discretion.

Id. (alteration in original) (citations omitted) (footnotes omitted).

The supreme court further explained:

To be clear, a review of prior awards is not the only factor to be
considered in evaluating whether a general damage award is an abuse
of discretion; it is a starting point. No two cases will be identical. The
review of prior awards will simply serve to illustrate and supply
guidance in the determination of damages.

Id. at 643.

“[T]o determine whether a trier of fact abused its discretion in its award for

general damages, an appellate court is to consider the particular facts and

circumstances of a case, in conjunction with a review of prior awards.” Id. at 644.

Hence, the Louisiana Supreme Court established the following standard of review

for an award of general damages:

We do not abandon the two-step analysis for the appellate
review of a general damage award but modify the analysis as follows.
The question of whether the trier of fact abused its discretion in
assessing the amount of damages remains the initial inquiry. However,
to evaluate this issue, an appellate court is to include a consideration
of prior awards in similar cases, as well as the particular facts and
circumstances of the case under review. If an abuse of discretion is

16

found, the court is to then also consider those prior awards to
determine “the highest or lowest point which is reasonably within that
discretion.”

Id. at 644 (quoting Jones v. Market Basket Stores, Inc., 22-841, p. 16 (La. 3/17/23),

359 So.3d 452, 464.

In Doe, 907 So.2d 275, a sixteen-year-old girl was sexually assaulted by five

members of the basketball team while riding on a school bus that was transporting

them to and from a basketball game. A jury awarded her $250,000.00 in total

general damages: $200,000.00 for past and future mental anguish and $50,000.00

for past and future physical pain and suffering. Regarding the award for past and

future physical pain and suffering, the appellate court stated, “Although the

evidence does not show extensive physical injury to Jane Doe as a result of this

sexual incident, we conclude that the award, even if on the high end, would not be

considered excessive considering the physical ordeal she endured.” Id. at 284.

Similarly, in reviewing the past and future mental anguish award, the appellate

court found:

Considering the totality of the psychological evidence evaluating Jane
Doe, we cannot say that this award for past and future mental anguish
and loss of enjoyment of life is excessive. Although there was
evidence that after the incident, Jane Doe fared well at her new school,
the jury was in a better position to evaluate the psychological
evidence offered and to assess the mental anguish she suffered while
observing her demeanor and overall well being.

Id. at 284–85.

In CD v. SC, 22-961 (La. 6/1/23), 366 So.3d 1245, plaintiff CD was sexually

assaulted by DJ in the bathroom while they were both campers at Rock Solid

Camp. A jury awarded CD $1,250,000.00 in general damages. The appellate

court found this award to be an abuse of discretion and reduced the award to

$250,000.00. The Louisiana Supreme Court reversed the appellate court and

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reinstated that original award of $1,250,000.00, finding CD suffered long term

mental and emotional effects because of the sexual assault. It further found that

the court of appeal erred by substituting its own judgment for that of the jury.

In Pike v. Calcasieu Parish School Board, 272 So.3d 943, B.P., a first grader

at Bell City High School, and two other boys engaged in sexual activity on the

school bus. A jury awarded B.P. $62,500.00 in general damages. The plaintiff

filed a JNOV, and the trial found the jury’s general damages award to be abusively

low. The trial court increased this award to $500,000.00. On appeal, this court

found that the $500,000.00 award was abusively high. This court awarded

$200,000.00 in general damages to B.P.

Michael Travasos testified that he felt scared, uneasy, and timid around

Desmond and like he was “walking on eggshells.” Michael’s health and growth

began to suffer as a result. Michael was diagnosed with a growth hormone

deficiency due to the abuse and continued contact with his abuser for which he had

to take three years of hormone injections. David and Jamie testified that they

noticed attitude changes in Michael, and his grades began to drop.

Based on our review of the record and the jurisprudence, we cannot say that

the trial court’s general damages award of $250,000.00 to Michael Travasos was

an abuse of discretion. This assignment has no merit.

Next, Defendant complains that the general damages awarded to David and

Jamie Travasos were abusively high. They were each awarded $50,000.00 for loss

of consortium.

In general, loss of consortium has seven elements: (1) loss of love and
affection, (2) loss of society and companionship, (3) impairment of
sexual relations, (4) loss of performance of material services, (5) loss
of financial support, (6) loss of aid and assistance, and (7) loss of
fidelity. The parents’ claim for loss of service and society of their

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child is essentially the same, but excludes the sexual component. A
child may sustain physical injury without necessarily causing his
parents a loss of consortium.

Doe, 907 So.2d at 285.

In Doe, 907 So.2d 275, which has been previously discussed, the appellate

court affirmed a loss of consortium award of $10,000.00 to both the victim’s father

and twin sister as a result of the sexual assault that occurred. Adjusted for inflation

as of the February 2022 trial date, using the U.S. Bureau of Labor Statistics

Consumer Price Inflation Calculator, this award was approximately $15,000.00.

In Pike, 272 So.3d 943, the jury did not award loss of consortium damages.

The trial court granted JNOV on the issue and awarded them $20,000.00. This

court found no abuse of discretion in the trial court’s grant of the JNOV. Finding

that reasonable minds could not differ regarding the parents’ loss, this court stated

that the parents “testified at trial about how these incidents have changed their

relationship with their son, about the mental distress and anguish these incidents

have caused them, about the distrust they have in the school board, and about the

efforts they have expended in attempting to get their son treated.” Id. at 953.

In S.K. v. Catholic Diocese of Baton Rouge, 07-742 (La.App. 1 Cir. 12/21/07)

(unpublished opinion), plaintiffs’ minor daughter was improperly touched while in

class. After reversing the trial court and finding the defendant was liable, the

appellate court awarded loss of consortium damages to the father in the amount of

$500.00. The mother was awarded $1,000.00.

After a review of the record, the Travasos and the rest of their family were

affected by the actions of the school board. The Travasos placed Michael in

private school in order to move Michael away from his abuser. The hormone

injections were $20,000.00 per year. The ordeal caused much stress for the family.

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However, based on the jurisprudence, we find that $50,000.00 for each parent is an

abuse of discretion. We further find that $15,000.00 awarded to each parent is the

highest point which is reasonably within the factfinder’s discretion.

Finally, Defendant argues that the special damages award of $26,485.00 for

Michael’s private school tuition was an abuse of discretion. Defendant argues that

this was not an expense that Plaintiffs incurred. Jamie’s father, Nelson, paid 100%

of Michael’s private school tuition. When asked if these payments were a loan to

David and Jamie, Nelson responded that it was not. Defendant argues Plaintiffs

did not incur any loss because they did not pay the tuition, and they are not

expected to repay Jamie’s father. The testimony of Plaintiffs is that it was a loan

and that they were planning on paying it back from the amount awarded in this

case.

“Special damages are those damages that can be determined with some

degree of certainty.” Weir v. Kilpatrick’s Rose-Neath Funeral Homes,

Crematorium and Cemeteries, Inc., 54,030, p.8 (La.App. 2 Cir. 9/22/21), 327

So.3d 618, 624. Special damages must be proven by a preponderance of the

evidence by the plaintiff. Id. “An award of special damages is reviewed pursuant

to the manifest error standard of review.” Id.

The record shows that Plaintiffs did not pay Michael’s private school tuition

– Michael’s grandfather did. There is conflicting testimony about whether the

tuition was expected to be re-paid. Based on the record, we cannot say that

Plaintiffs proved this item of special damages by a preponderance of the evidence.

We find that the trial court was manifestly erroneous in awarding $26,485.00 for

Michael’s private school tuition.

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DECREE

Plaintiffs’ objection to the Amended Motion and Order for Devolutive

Appeal is sustained. The loss of consortium damages awarded to David Travasos

is reduced to $15,000.00. The loss of consortium damages awarded to Jamie

Travasos is reduced to $15,000.00. That part of the judgment awarding private

school tuition in the amount of $26,485.00 is reversed. The judgment is affirmed

in all other respects. Costs of this appeal in the amount of $8,819.11 is assessed

equally between the parties.

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

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NUMBER 23-640

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

DAVID TRAVASOS, ET AL.

VERSUS

LAFAYETTE PARISH SCHOOL BOARD, ET AL.

STILES, Judge, concurring in part, dissenting in part.

I concur in part with the majority’s opinion and dissent in part, as discussed

below.

I agree with the majority’s ultimate determination that the trial court was not

manifestly erroneous in finding that Defendant, Lafayette Parish School Board,

breached its duty to Plaintiffs. I dissent, however, to the extent that the majority

maintains a finding of fault for the original school bus incident which occurred when

Michael Travasos and Desmond JohnLouis were in the seventh grade. As recently

stated by this court in Taylor v. Swift, 22-623, p. 11 (La.App. 3 Cir. 5/10/23), 366

So.3d 666, 674, the “proper analysis is to determine whether the conduct was

foreseeable from these particular students, at this particular time, in this particular

manner.” I find no indication that, with regard to that initial school bus encounter,

Defendant had reason to believe that Desmond posed a threat to Michael for that

particular harm, under those circumstances.

I agree with the majority, however, that Defendant was at fault for allowing

Michael and Desmond into the same classroom in eighth grade, a choice that was

made only after the school bus incident and after Defendant assured the parents that

a plan would be implemented to keep the boys separate from each other. Once

Defendant set forth a plan, the plan became the duty it owed Plaintiffs. Defendant

breached that duty in failing to see the plan through.

The majority also finds that the trial court was not manifestly erroneous in

determining that Michael’s injuries were caused by Defendant’s breach of the duty

it owed to Plaintiffs. My review of the evidence, however, does not reveal support

for a finding that damages for the type of injuries alleged by Plaintiffs—“hormone

deficiency”—are awardable on this record. Rather, “[a] risk may not be within the

scope of a duty where the circumstances of the particular injury to the plaintiff could

not be reasonably foreseen or anticipated, because there was no ease of association

between that risk and the legal duty.” Kulka v. Shag II, 12-398, p. 7 (La.App. 3 Cir.

10/24/12), 100 So.3d 412, 417 (citing Todd v. State Through Dep’t of Soc. Servs., 96-

3090 (La. 9/9/97), 699 So.2d 35). “To recover, a plaintiff must show that the

defendant’s conduct is the cause in fact of the plaintiff’s injuries. An action is the

cause in fact of an injury if it is a substantial factor in bringing about the harm, such

that the harm would not have occurred without it.” LaBorde v. Aerial Crop Care,

Inc., 22-442, p. 8 (La.App. 3 Cir. 3/1/23), 358 So.3d 244, 249 (citations omitted),

writ denied, 23-469 (La. 5/23/23), 360 So.3d 1262. I find that Plaintiffs’ claim of

hormone deficiency was tenuous and not proven to be “a substantial factor in

bringing about the harm, such that the harm would not have occurred without it.” Id.

Nor does the record reflect that any such harm was a foreseeable consequence of

Defendant’s breach.

While Plaintiffs offered Dr. Dania Ramirez’s testimony regarding causation,

Dr. Ramirez stated merely that the physical harassment and bullying experienced by

Michael “could cause” his growth hormone deficiency, and that had he been

removed from the stressful environment, he “probably would not have needed” three

2

years of growth hormone injections. “Could cause” growth hormone deficiency and

“probably would not have needed” treatment do not equate to cause-in-fact,

particularly given Michael’s medical history. Moreover, Michael’s parents were

concerned that he was not growing and had not hit puberty prior to the incidents

which occurred when he was in the eighth grade. Thus, in my opinion, the medical

evidence regarding causation of the hormone deficiency was inconclusive and

further failed to support a finding that such a deficiency was a foreseeable harm that

would result from Defendant’s breach of duty. Accordingly, I would reduce the

general damage award to $100,000.00 to reflect an award for Plaintiffs’ remaining

claims.

For these reasons, I concur with the majority’s finding that Defendant was at

fault for the eighth-grade incidents, as it failed to uphold its end of the bargain to

Michael and his family. However, I respectfully dissent from the majority’s finding

that Defendant’s breach of duty was a cause in fact of Michael’s hormone deficiency

and would thus reduce the general damage award to $100,000.00. Finally, I concur

with the majority’s reduction of the parents’ loss of consortium damages and join in

the majority’s opinion in all other aspects.

3