Trial Court County: Kane
Disposition: Affirmed.
report in which they tested 1999 Grand Cherokee?
A. Correct.
Q. And what did the Vehicle Research Testing Center find when they tested [the] 1999 Grand Cherokees with the in line six [the type of vehicle involved in the Guillots' accident] and the 42RE transmission. When they tested them, what were the results of their test? What did they show?
A. They found they didn't behave significantly different from the `93 to `98.
Q. And did the Vehicle Research Testing Center, did they find that you could take a Grand Cherokee with the in line six and 42RE transmission like this from 1999, and have a delayed engagement of hydraulic reverse on it?
A. Yes, they did.
Q. And in all the testing of 1999 Grand Cherokees with an in line six and 42RE transmission, just like the Guillots' vehicle, did they find that every one of those vehicles had a delayed engagement in reverse?
A. Yes.
Q. And did they find any substantial difference in the performance of the 1999 Grand Cherokees with the in line six and the 42RE transmission in the `93 to `98 vehicles?
A. Not any significant difference.
* * * *
Q. And Mr. Rosenbluth, in the various testing that was done, as described in the VRTC report which I've marked as Exhibit 90, did NHTSA utilize the same methodology and test procedures that you use in this case?
A. NHTSA did, and the [V]RTC did, as well.
Furthermore, although Chrysler argues that the new shift selector in 1999 Jeep Grand Cherokees distinguishes it from other vehicles such that the OSIs were improperly admitted, the record demonstrates that the NHTSA found that the 1999 shift selector did not eliminate the potential to have an unintended powered reverse on a Jeep Grand Cherokee. Chrysler's expert, Mr. Keefer, testified that he did not dispute the NHTSA's findings in this respect:
Q. And, sir, we've heard some discussion about the change from [counsel for Chrysler]. And in fact the 1993 to 1998 Grand Cherokees had an older shift selector, didn't they, sir. This one right here?
A. That looks like it.
Q. Okay. And in 1999, some people, if you got a ½8 you got the new transmission, but everybody got this new shift selector, right?
A. They got the one over there, yes, if that's the same one.
Q. Now, what did NHTSA say about the addition of the shift selector. Did they say that made it impossible to have unintended powered reverse in this car, the same `99s that they tested?
A. My recollection is that they said that there were three or, I think it was four, significant improvements and that the complaint rates were different, down, way down, and that they could, in fact, if they worked at it, still get what they called the UPR, which is consistent with the kind of thing that we did with the variety of vehicles having this positioning and reengagement.
Q. And discussing the 1999 Grand Gherokees, what NHTSA said was, "Unintended powered reverse was found to occur only when the transmission was not shifted into gated park and when hydraulic reverse temporarily disengaged during the shift process. A flat spot on the manual lever between reverse and park appears to be a major factor contributing to mis-shifting. The addition of a new shift lever detent and spring on the 1999 and later models" That's what we just saw, right, sir? That's the new shift lever from 1999?
A. Yes. That's the detent.
Q. "May reduce the probability but not eliminate the possibility of mis-shifting the transmission. The new components had no effect on the occurrence of early hydraulic disengagement." Is that what the NHTSA said?
A. Early hydraulic disengagement. I'm not sure what that means, but that's what they said. You read it properly and that's, generally, consistent with what I told you?
Q. Do you agree with what the NHTSA said?
A. I have no reason to disagree with their findings.
Considering the foregoing, we do not find that the trial court abused its discretion in admitting OSI demonstrations and testimony on the basis of substantial similarity. Likewise, we find that the probative value of such evidence outweighed any prejudicial effect. See Gurley, 2007-1477, pp. 3-4, 985 So.2d at 302.
Next, Chrysler argues that the trial court erred in admitting irrelevant and prejudicial evidence of alleged negligence and wrongdoing by Chrysler and its attorneys. Appellees' expert, James Williams, testified regarding other accidents that had been investigated by Chrysler, as well as Chrysler's corporate conduct with respect to Jeep Grand Cherokee customer complaints received by Chrysler. Mr. Williams testified that, up until the date of the Guillots' accident on May 21, 1999, Chrysler had received over 200 park-to-reverse customer complaints regarding the Jeep Grand Cherokee with the transmission that went into production in 1993. Of the 200 customer complaints that he reviewed, twenty-two were admitted into evidence. These twenty-two customer complaints were instances where Chrysler's investigators were able to successfully achieve the delayed engagement from placing the vehicle between park and reverse that had been alleged in the customer complaint. Additionally, each of the twenty-two vehicles involved in the customer complaints had the same transmission as the one in the Guillots' vehicle. As previously noted herein, we find no error on the part of the trial court in the admission of Mr. Williams' testimony with regard to the customer complaints or in admitting into evidence the twenty-two complaints in which the delayed engagement of reverse was achieved by Chrysler's investigators.
With regard to Chrysler's argument that the OSIs in the form of customer complaints were inadmissible under Art. 801 as hearsay, we find that even if the OSIs were improperly admitted, it does not constitute reversible error. Admission of hearsay evidence is not reversible error where the record contains ample other evidence on which the trier of fact could base its findings. Williamson v. Haynes Best Western of Alexandria, 95-1725 (La.App. 4 Cir. 1/29/97), 688 So.2d 1201, 1241 ( quoting Meadoux v. Hall, 369 So.2d 240, 245 (La.App. 4 Cir. 1979), writ denied, 369So.2d 1366(La. 1979)).
Likewise, we disagree with Chrysler's contention that the trial court erred in admitting denial letters Chrysler sent in response to customer complaints. The letters were relevant to Chrysler's theory that August was at fault in the accident. Accordingly, the trial court did not abuse its discretion with respect to the admission of the denial letters. See Brodtmann v. Duke, 96-0257, pp. 12-13 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, 455-456.
The denial letters were submitted in connection with the corresponding customer complaints in which the Chrysler investigators were able to duplicate the delayed engagement of reverse on the vehicle. The letters generally advise the complainant that an inspection was performed on the vehicle in response to the complaint; that the inspection revealed no manufacturing defect or error in connection with the accident; and that Chrysler was unable to accept responsibility for the accident.
Assignment of Error # 4
In its fourth assignment of error, Chrysler argues that the trial court erred in admitting evidence establishing that Chrysler's New Orleans counsel faxed a copy of the Guillots' police report to Chrysler's Office of General Counsel on June 9, 1999. Chrysler submits that the document was introduced merely to inflame the jury, as counsel for Appellees noted that it was faxed on the same date that Collin was buried, and suggested that Chrysler's tracking of the Guillots' accident while the prescriptive period ran was evidence of Chrysler's awareness of a defect. Chrysler further argues that the incident report was inadmissible hearsay under La. Code Evid. Art. 803(8)(b)(i). At trial, Chrysler objected to the admission of the report, but the trial court over-ruled the objection, noting that the fax was relevant to the issue of prescription, which Chrysler also asserts was an error by the trial court, as prescription was a legal issue for the court to decide.
La. Code Evid. Art. 803(8)(b)(i) provides as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(8) Public records and reports.
* * *
(b) Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:
(i) Investigative reports by police and other law enforcement personnel.
As recognized previously herein, a trial court is afforded vast discretion with regard to evidentiary rulings, and the court's decision to admit or deny evidence will not be disturbed on appeal absent a clear abuse of that discretion. Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763. Where improperly admitted evidence is merely corroborative and cumulative of other properly introduced evidence, it is considered harmless error. State v. Taylor, 2001-1638, p. 22 (La.1/14/03), 838 So.2d 729, 748. We find that even if the police report were improperly admitted, the error, if any, was harmless. The trial court noted that the fax was relevant not only to the issue of prescription, but also as evidence of Chrysler's possession of information regarding the Guillots' accident at the time it occurred. Therefore, we do not find that the trial court's decision to admit the police report constituted a clear abuse of the trial court's vast discretion. See Jones, supra; see also Brodtmann v. Duke, 96-0257, p. 12, 708 So.2d at 456 (emphasizing the trial court's vast discretion with regard to the admission of evidence on the grounds of relevance).
Assignment of Error # 5
In its fifth assignment of error, Chrysler argues that the jury's verdict was clearly wrong in allocating only 1% of fault to August Guiilot, and that his percentage of fault should be increased, as the jury found that his negligence proximately caused or contributed to the damages. Chrysler submits that Mr. Guiilot was aware of the danger, had the last clear chance to prevent the accident, and was careless in not ensuring that the vehicle was in park.
With regard to allocation of fault, great deference is afforded to trier of fact. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610. "[Allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and that any allocation by the fact finder within that range cannot be `clearly wrong.'" Foley v. Entergy La., Inc., 06-0983, p. 32 (La.11/29/06), 946 So.2d 144, 166. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award. Clement, 95-1119 at p. 7, 666 So.2d at 611. In determining allocation of fault, a jury is obligated to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages suffered. See Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 971 (La. 1985).
When considering the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) the size of risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610 (citing Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 971 (La. 1985)).
Upon a careful review of the record, we find that the jury's findings as to the allocation of fault are reasonable and were not an abuse of discretion. We disagree with Chrysler's alarmist assertion that the allocation of only a nominal degree of fault to August Guiilot will serve as a disincentive to other drivers to act prudently before exiting their vehicles.
Assignment of Error # 6
In the sixth assignment of error, Chrysler argues that the trial court erred in allowing the jury to award duplicative elements of general damages.
First, Chrysler argues that the trial court used a verdict form that over-itemized related items and thus allowed several elements of damages that were duplicative and not recoverable under Louisiana law. Chrysler submits that in addition to general damages, the jury also awarded August Guiilot separate awards for his mental anguish and emotional distress, wrongful death, loss of consortium for Juli Guillot's injury, and his own lost enjoyment of life. Chrysler argues that each compensating emotional or mental injury to a plaintiff who was not physically injured is improper as a matter of law, and that at a minimum, the jury's $200,000.00 award for Mr. Guillot's lost enjoyment of life should be vacated.
With regard to Mr. Guillot's damages for loss of enjoyment of life, both Mr. Guiilot and Lt. Lee testified regarding the mental anguish and distress Mr. Guiilot personally suffered as a result of the accident. Juli also testified regarding Mr. Guillot's tremendous emotional suffering resulting from the accident:
At the time of trial, Lt. Lee was retired.
Augie was real depressed, and he was real sad and everything, and it was like, I've got to keep my family together. This is horrible. We've got to make it through this. He looked at me; we were sitting at the table and he said, Juli, I know you blame me, and I said, I don't blame you. I said, if you blame yourself, then, maybe, we need to get you some help, but [I] said, I don't blame you for this. We just had to — we had to hold our family together. We had a three-year-old.
Accordingly, the jury could reasonably award damages for Mr. Guillot's loss of enjoyment of life as a result of his injuries, as "a participant in an accident is entitled to recover any damages sustained as a result of an injury, whether physical or mental or both." Brodtmann, 96-0257 at 24, 708 So.2d at 461 (citing Moms v. Maryland Cas. Co., 94-1556 (La-App. 3 Cir. 5/3/95), 657 So.2d 198) (holding that a train engineer was allowed recovery for "serious psychological damages" resulting from an accident with an automobile even though engineer sustained no physical damages). In Molden v. Georgia Gulf Corporation, the Court examined the Third Circuit's reasoning in Morris, supra, noting that "[w]hat was important to the court in Morris was the plaintiffs involvement in the accident which caused his serious psychological damage." Molden v. Georgia Gulf Corporation, 465 F.Supp.2d 606, n. 77 (M.D.La.ll/14/06) (emphasis added). Accordingly, where a plaintiff is an "actual participant[] in an accident . . . mental anguish [is] clearly a foreseeable injury." Molden, 465 F.Supp.2d at 617.
Mr. Guillot testified at trial regarding the mental anguish he suffered as a result of the accident, both with regard to the decision with Juli and their physician to remove Collin from life support, and in the days following Collin's death:
[Removing Collin from life support was] A decision no one should have to make. We had to make the decision to pull the plug on my little boy. And they said maybe, he would live, and maybe, he would die; but all my wife was praying for was for him to the so he wouldn't suffer, because we knew he was brain dead, and that he would only be a vegetable. So she prayed, and we both prayed that when they took him off the ventilator that he would just die peacefully.
* * * *
Of course. My little boy. I would come home in the evenings, and my wife would be mourning for her little boy. That went on for a long time. . . . It goes on constantly. We're reminded of our little boy. You know, Juli explained everything in her testimony. Every time we go somewhere, every time, you know, we go hunting and that. Friends, they have little boys, and you know, it's a constant reminder that I will never have that opportunity to bring my little boy. There's always something missing.
You know, I have a lot to live for. I have a beautiful wife. I have a successful business. I have a wonderful mom, dad, family, and just recently, I'm wondering, I shouldn't be depressed. I have what every man would want. You know, just the past couple of month [sic] or years, it's just been, why am I depressed and, you know, from all this — now, I kind of know, it's that little boy in my life that's possibly missing that could be making me feel like this, because I'm forty years old now. I'm kind of through with all the hunting and the fishing and all that. I'm not as excited as I was before, and not to be able to see that through my little boy's eyes, to experience, to let him experience, you know, why I experienced.
Additionally, Lt. Lee testified at trial that he arrived at the hospital on the date of the accident to conduct an investigation and interview of Mr. Guillot, while Collin and Juli were being treated by physicians in the next room, witnessing Mr. Guillot's obvious emotional distress:
A. I proceeded to go upstairs to locate Mr. Guillot; and in this course, Mr. Guillot was standing there, and I believe his mother was there, and they were just tremendously distraught, crying. It was very emotional to stand there next to Mr. Guillot and look through a window and his baby was seizing right there, and I started to conduct my investigation as to what happened. . . .
* * * *
Q. You're interviewing him on the other side of a glass window where his child is being attended to by physicians?
A. Yes, sir. We were talking here, and the window was here, and his child was on the other side of the window being attended to by the physicians.
Q. His child was obviously in some type of distress?
A. Absolutely yes, sir.
Q. When you asked him — when you tried to get information from him, what did he tell you, Lieutenant Lee?
A. It was very difficult, because it was an emotional situation, I mean, he had his wife in critical condition in one hospital, and here he is with his child having seizures, and I'm trying to handle this as delicately as possible, because it was naturally a terrible thing, and I proceeded to question him about what had happened, and just the general information, and he, obviously, was crying. He was upset, he would run his hands through his hair and said I don't know. I don't know. We were in the driveway, I was getting ready to leave to go to the hospital to bring my wife. She said, it's time; let's go. He would just repeatedly say, I don't know. . . .
See also Chappetta v. Bowman Transportation, Inc., 415 So.2d 1019, 1022 (La.App. 4th Cir. 1982) (finding that wife of a tort victim could recover damages for emotional injuries even though she sustained no physical injuries; "when emotional injuries are proven by a preponderance of the evidence to exist and to have been caused by a negligent act, damages should be awarded for those injuries, even when they are not accompanied by physical injuries" and that "there is no reason to distinguish between physical injuries and independent emotional injuries and to award compensation for one but not for the other"). "Severe and debilitating emotional distress need not be proven by clinical diagnosis in order for a claimant to recover related damages." Dickerson v. Lafferty, 32, 658, p. 3 (La. App. 2 Cir. 1/26/00), 750 So.2d 432, 434.
Furthermore, loss of enjoyment of life may be listed as a separate item of damages pursuant to La. Civ. Code art. 2315.6 and the Louisiana Supreme Court's decision in McGee v. AC S, 2005-1036, p. 6 (La.7/10/06), 933 So.2d 770, 774-75. Noting that "[c]ourts commonly list different elements of general damages, including mental anguish and physical pain and suffering, both past and future, separately," the McGee Court held that " allowing a separate award for loss of enjoyment of life would not offend the existing concept of general damages and would reflect the accepted method of listing elements of general damages separately." Id. (emphasis added). The Court further described the distinction between the loss of enjoyment of life and other types of general damages:
Moreover, loss of enjoyment of life is conceptually distinct from other components of general damages, including pain and suffering. Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.
Id. (emphasis added).
The Court also described the distinction between loss of enjoyment of life and loss of consortium, noting that "[l]oss of consortium is a harm to a relational interest which occurs when the other party to the relationship suffers physical harm (invasion of an interest or personality)." Id. at p. 13, 933 So.2d at 779. Likewise, this Court explicitly recognized the Louisiana Supreme Court's position that a separate award for loss of enjoyment of life is not erroneous as a matter of law, and thus may properly be listed as a separate and independent item of damages, in McGee v. AC S, supra, in Clarkston v. Louisiana Farm Bureau Cos. Ins. Co.:
Acknowledging that a loss of consortium claim is separate and distinct from the primary tort victim's claim, the Court found that, much like a wrongful death claim, "a loss of consortium claim . . . clearly compensates the beneficiaries for their own injuries, separate and distinct from the primary victim's injuries." McGee, p. 14, 933 So.2d at 780 (emphasis added).
Notably, in McGee v. AC S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770, the Supreme Court specifically rejected this court's earlier position that a separate award for loss of enjoyment is erroneous as a matter of law: "A majority of the lower courts have supported this position by allowing separate awards for loss of enjoyment of life . . . while only the Fourth Circuit Court of Appeal has held that such an award is erroneous as a matter of law . . . However, we reject the Fourth Circuit's conclusion . . ." Id., pp. 7, 12, 933 So.2d at 776, 778.
Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 2007-0158, p. 38 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, n. 15 (quoting McGee, supra).
While we are mindful of the McGee Court's language regarding awards to family members of the primary tort victim for loss of enjoyment of life, it is important to note that those principles are inapplicable to the particular facts of this case. The McGee Court commented that allowing a family member of a primary tort victim to recover for both loss of enjoyment of life and loss of consortium would be duplicative. McGee, p. 13, 933 So.2d at 779. To illustrate how the awards could be considered duplicative, the Court used the hypothetical of an injured husband and his (ostensibly non-injured) wife, noting that "a wife's claim that she is unable to engage in activities that she formerly enjoyed prior to her husband's injury, such as taking vacations, attending sporting events, or dancing, is compensated under loss of consortium and need not be compensated again under loss of enjoyment of life." Id. (emphasis added).
As previously noted, the husband/wife hypothetical was not representative of the fact pattern in McGee. In McGee, the Court reviewed a lower court's denial of a motion in limine which would have prevented plaintiffs from presenting a claim for loss of enjoyment of life. The plaintiffs were a widow and children of James Edward McGee, an individual who suffered injuries as a result of his exposure to asbestos and passed away on January 28, 2000. The widow and children brought wrongful death and survival actions against the defendants, who were Mr. McGee's former employers and manufacturers of various asbestos-containing products.
This case does not present such a scenario. Here, Mr. Guillot was compensated by the jury for loss of enjoyment of life "as a consequence of his injuries," pursuant to the language on the jury verdict form (emphasis added). Thus, unlike the hypothetical posed by the Court in McGee, supra, the jury's award to Mr. Guillot was separate and independent from Mrs. Guillot's injuries, and resulted from his own injuries that he suffered in the accident-mental anguish and emotional distress.
The evidence presented at trial regarding the mental anguish and emotional distress Mr. Guillot suffered is described at length previously herein and also at notes 33 and 34, supra.
Finally, and perhaps most significantly, McGee ultimately held that "whether or not loss of enjoyment of life is recoverable depends on the particular facts of the case, and should be left to the district court's discretion on a case-by-case analysis." Id. at p. 12, 933 So.2d 770 (emphasis added). Considering the horrific nature of the injuries suffered by Mr. Guillot, and the unusual and extraordinary facts and circumstances of this particular case, we find that the jury did not err in compensating Mr. Guillot for his loss of enjoyment of life as a consequence of his injuries.
Chrysler further argues that Lejeune damages do not apply to witnessing an injury to a child in utero, noting that Civil Code Article 2315.6 provides for damages for parents and siblings viewing an event causing injury to another person. Chrysler submits Civil Code article 26 provides that an unborn child born alive is a person, but only "for whatever relates to its interests." Therefore, Chrysler maintains, the Article 2315.6 action does not relate to the interests of the unborn child, because Article 2315.6 does not relate to the interests of the fetus, but rather to the interests of family members. Chrysler submits that the portion of the award to August and Madison Guillot for witnessing the injury sustained by Collin Guillot must be vacated; likewise, Juli Guillot's award for same must be vacated in its entirety. However, Chrysler does not challenge the award to August and Madison Guillot for witnessing the injury to Juli Guillot.
Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990) (damages are recoverable for mental pain and anguish suffered as a result of witnessing an event causing injury to another person).
La. Civ. Code art. 2315.6 provides as follows (emphasis added):
A. The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person's injury:
(1) The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.
(2) The father and mother of the injured person, or either of them.
(3) The brothers and sisters of the injured person or any of them.
(4) The grandfather and grandmother of the injured person, or either of them. B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience, and the claimant's mental anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article.
Considering Chrysler's argument with regard to the Lejeune damages, it is important to note, as Chrysler acknowledges, that La. Civ. Code art. 26 provides that an unborn child born alive is a person from conception. Article 2315.6 specifically provides that the mother, father, and siblings of the "injured person" may recover damages for witnessing the injury to the injured person. Collin Guillot was not only born alive, but was also alive for seventeen days, and was a natural person in utero. Accordingly, Wartelle v. Women's and Children's Hosp., Inc., 97-0744, pp. 10-13 (La.12/2/97), 704 So.2d 778, 784-85, disallowing an Article 2315.6 recovery on behalf of a stillborn fetus, is inapplicable to the facts of the instant case. Wartelle simply held that a stillborn fetus cannot be considered a "person" for purposes of Article 2315.6. Id. Therefore, we can find no error in the jury's award to August, Juli, and Madison Guillot for witnessing the injury to Collin Guillot.
La. Civ. Code art. 26 provides as follows:
An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for purposes of actions resulting from its wrongful death.
Chrysler further argues that because Juli Guillot subsequently gave birth to a healthy child, the jury's award for loss of ability to bear additional children is legally erroneous. We disagree. The record evidences that after the birth of her daughter, Blythe, Juli underwent a tubal ligation as a result of the severe damage and scarring to her reproductive organs from the accident. Additionally, the jury heard extensive testimony with respect to the irreversible damage to Juli's reproductive organs as a result of the accident. An at-fault party must compensate the victim of a tort for all damages resulting from the act. McGee, 933 So.2d at 773. Therefore, we find that the jury's award for loss of ability to bear additional children was not manifestly erroneous or clearly wrong.
Juli testified at trial regarding her subsequent pregnancy, a highrisk pregnancy, and the tubal ligation she underwent after delivery:
Q. Are you able to have any other children?
A. I am not.
Q. Why is that?
A. When they went in to do the C-section my uterus was so twisted and scarred up that he didn't know how I got pregnant in the first place. He didn't know how I held the baby, kept the baby, but he had to tie my tubes so that I wouldn't get pregnant again, he said because I could die from it.
Assignment of Error # 7
In its final assignment of error, Chrysler argues that the jury awarded excessive general damages.
The well-settled standard of review for general damages is whether the trial court abused its discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993). The trial court's discretion "is `great' and even vast, so that an appellate court should rarely disturb an award of general damages." Id. Although reasonable persons may disagree regarding an award of general damages in a particular case, "[i]t is only when an award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award." Id. Only if an abuse of discretion is found will the reviewing court refer to prior awards, and then only for the purpose of determining the highest or lowest point within the court's discretion. Logan v. Brink's, Inc., 2009-0001, p. 13 (La.App. 4 Cir. 7/1/09), 16 So.%. 530, 540 (citing Riley v. Maison Orleans II, Inc., 2001-0498, p. 11 (La.App. 4 Cir. 9/25/02), 829 So.2d 479, 487). For a trial court to have abused its vast discretion, the award "must be so high or so low in proportion to the injury or fault that it `shocks the conscience.'" Id.
We do not find that the trial court abused its vast discretion with respect to the general damage award, nor do we find that the award shocks the conscience. It is indisputable that the unique facts of this case are extraordinarily tragic. Additionally, the Louisiana Supreme Court has held that "[tlhe determination of the severity of mental anguish of distress resulting from the death of another is a fact question which depends upon several components, including, but not limited to, the closeness of the ties between the parties, the degree of love in the relationship, and the length of the relationship." Herbert v. Webre, 2008-0060, p. 8 (La.5/21/08), 982 So.2d 770, n. 7 (citing Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 695). The record evidences that the Guillots testified as to the extreme anguish and emotional suffering associated with making the determination to end Collin's life. Juli Guillot further testified that she and August held Collin as he died, and that, at their request, the nurses wanned up Collin's body so that his skin would not appear blue in the photographs they took after disconnecting Collin from the endotracheal tube and ventilator.
The Guillots' treating physician, Dr. Reynolds, also testified regarding his distinct recollection of the loving bond between the Guillots and their son Collin. Dr. Reynolds stated that he observed this bond and noted that in his general experience, the bond between parent and child is strengthened by technological innovations which allow parents to learn the sex of a child and thus choose names before birth, and to view ultrasound pictures that evidence the baby's appearance and features. As previously noted herein, an appellate court may not disturb a jury's finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176.
Notably, the Louisiana Supreme Court recently reiterated the well-established principle that vast discretion is afforded to the factfinder in assessing the appropriate amount of both general and special damages, and is therefore entitled to great deference on review. Menard v. Lafayette Ins. Co., 2009-1869, pp. 7-9 (La.3/16/10), 31 So.3d 996, 1007 (citing Guillory v. Lee, 09-0075 at p. 14, 16 So.3d 1104, 1116; Wainwright v. Fontenot, 00-0492 at p. 6, 774 So.2d 70, 74). Accordingly, although a reviewing court may feel that its determinations are more reasonable, the Court emphasized that the trier of fact's conclusions should rarely be disturbed on review:
[T]he reviewing court must give great weight to factual conclusions of the trier of fact; 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. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.
Id. (quoting Guillory, 09-0075 at p. 14, 16 So.3d at 1116-17; Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606).
The Court then articulated a two-step process for an appellate court reviewing a jury's determination regarding special damages:
An appellate court, in reviewing a jury's factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Kaiser [v. Hardin], 06-2092 at pp. 11-12, 953 So.2d at 810; Guillory v. Insurance Co. of North America, 96-1084, p. 5 (La.4/8/97), 692 So.2d 1029, 1032. This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Guillory, 09-0075 at p. 16, 16 So.3d at 1118; Kaiser, 06-2092 at p. 12, 953 So.2d at 810. The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury's fact finding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).
Id. at pp. 14-15, 31 So.3d 996 (emphasis in original).
Likewise, "[a]n appellate court on review must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently." Id. at p. 15, 31 So.3d 996 (citing Rosell, 549 So.2d at 844). Based upon the record as a whole, we cannot say that the jury's determinations were unreasonable.
CONCLUSION
For the foregoing reasons, the trial court's judgment is affirmed.
AFFIRMED.
TOBIAS, J., concurs in part, dissents in part, and assigns reasons.
TOBIAS, J., Concurs in Part, Dissents in Part, and Assigns Reasons.Page 1
I agree with the majority that the doctrine of contra non valentem agere nulla currit praescriptio applies in this case. In my view, the facts support the application of the doctrine. A person such as Mr. Guillot would in almost all circumstances assume that he did not shift his automatic transmission into the "park" mode as he hurriedly left the vehicle to retrieve the cell phone that had been left inside the house. An ordinary person recognizes the excitement surrounding a woman entering labor and human nature directing speedy actions to get the woman to the health care provider for delivery of the child. Only when as a result of the newspaper reporter's inquiries were the plaintiffs' interests aroused that a defect in the automatic transmission and its gearshift lever may have been involved in causing the accident and injury did the prescriptive period commence to run.
I do, however, disagree with the majority's heavy reliance on cases dealing with medical malpractice to support the application of contra non valentem in this case. Medical malpractice cases are quite different from a products liability case such as the case at bar. A whole different line of jurisprudence has arisen to support contra non valentem in medical malpractice because of our statutory scheme addressing malpractice. Rather, I would reason from the specific facts of this case that adequately support the application of the doctrine for it is well-established in our jurisprudence that "[prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action as long as such ignorance is not willful and does not result from his neglect." Young v. Clement, 367 So.2d 828, 830 (La. 1979). The trial court was neither manifestly in error nor clearly wrong in finding that the plaintiffs case against the corporate defendants was not prescribed.
Although the preferred methodology in a jury case for handling a Daubert/Foret challenge to an expert's qualifications or opinion is a separate hearing rather than exposing the jury to the expert's possibly inadmissible opinion, I agree with the majority that the trial court's methodology is not reversible error. If an error exists in this case, it is harmless.
Likewise, I agree with the majority that the trial judge was well within his discretion in this case to admit evidence about other similar incidents involving Chrysler vehicles, recognizing the potential danger of prejudice and forcing and/or enticing Chrysler to explain how the other incidents were dissimilar and thereby needlessly expanding the length of the trial. La.C.E. art. 403. Further, I find no error in the trial court's admission of evidence that Chrysler's New Orleans counsel sent by facsimile transmission to Chrysler's Office of General Counsel a copy of the police report about the Guillots' accident. If anything, such practice demonstrates that Chrysler was concerned about the quality and safety of the vehicles that they manufactured; by receiving the reports of accidents nationwide, they would be in a better position to monitor whether a particular vehicle that they sold had a higher incidence of similar problems that could be corrected earlier. That a plaintiffs counsel could raise the inference that that the practice was somehow sinister is of no moment. It is a business practice, the evidence of which is admissible under the Louisiana Code of Evidence.
C.E. art. 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
The assessment of one percent of the fault for the accident to Mr. Guillot by the jury is, however, an abuse of discretion, manifestly erroneous, and clearly wrong as a matter of law.
La.R.S. 32:145 states:
No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels to the curb or side of the highway.
This statute is generally applied to public highways and roadways and has no direct application to vehicles located on private property such as where the Guillots' vehicle was located when Mr. Guillot exited the vehicle leaving the engine running, the keys in the ignition, and the parking brake unset. However, the statute does express the legislature's view of the danger of leaving unattended a vehicle with the engine running and the parking brake unset.
Stated another way, it is the solemn expression of legislative will. La.C.C. art. 2.
In Storey v. Parker, 13 So.2d 88 (La. App. 1st Cir. 1943), the defendant, Mr. Parker, drove his automobile with an automatic transmission (a new technological innovation at the time) for servicing at a service station. He exited the vehicle, leaving the engine running, the vehicle in gear, and the parking brake unset in order to help his wife get out from the passenger seat. The car remained stationary for a few moments, but began to move forward after about a minute per the court's estimate. The moving vehicle struck and severely injured the plaintiff, Mr. Storey. The court concluded that the direct cause-in-fact (proximate cause at the time) of the accident "was the leaving of the control lever in high [in gear] by Mr. Parker while the motor was kept running and without the hand brake having been set." Id. at 94.
Storey, although somewhat dated by its age, expresses the duty of a person leaving a vehicle running and unattended on private property. La.R.S. 32:145 expresses the duty of a person on public property. The duty of the driver is the same. One does not leave a car running without in the very least setting the parking brake.
In this regard, it clear that Mr. Guillot was negligent; but no reasonable person could fix his comparative fault at a mere one percent. I find that the lowest percentage of fault that a factfinder could set Mr. Guillot's fault is at twenty-five percent and that is the percentage I would set in this case. Accordingly, I would amend the jury verdict to increase Mr. Guillot's fault to twenty-five percent from one percent and adjust the quantum of damages accordingly.
I cannot agree that each plaintiff is entitled to $1,000,000 for the wrongful death of their infant son, Collin, who lived but 17 days. As a matter of law, our jurisprudence does not support that quantum; it is excessive, an abuse of discretion, manifestly erroneous, and clearly wrong.
The specific interrogatory answered by the jury read as follows:
Loss of Collin's love, affection and companionship and mental pain, suffering and distress resulting from Collin's death:
This interrogatory in the context of the entire jury interrogatory form asks the quantum of damages, if any, for Collin's wrongful death. A thorough quantum search of our jurisprudence reveals that the highest reported award for a "lost chance of survival," equivalent to a wrongful death in this case, for an infant (eight months old) is $550,000, but was reduced to $500,000 by virtue of the $500,000 damage cap in medical malpractice. Raines v. Columbia Lakeland Medical Center, 05-0243, pp. 5-7 (La.App. 4 Cir. 1/4/06), 923 So.2d 170, 173-74. The Louisiana Supreme Court was never asked to review the Raines decision.
Raines was authored by the author of the majority opinion herein.
An award for wrongful death is low for a person of young age and gradually increases as one ages, where abilities and relationships can be determined and assessed. See, e.g., Anderson v. New Orleans Public Service, Inc., 572 So.2d 775, 777-78 (La. App. 4th Cir. 1990), rev'd in part and qffd in part, 583 So.2d 829, 833-34 (La. 1991).
Under our current jurisprudence, I find based upon the Guillots' testimony that the highest award that a reasonable factfinder could award for the death of a 17-day old infant is $500,000, and I would set that amount in this case. I would reduce each of the $1,000,000 awards to $500,000, to be reduced further by the comparative fault attributable to Mr. Guillot addressed above.
Additionally, I cannot agree that Mr. Guillot is entitled to recover for both loss of consortium and loss of enjoyment of life as set forth in the jury interrogatories. The recovery is duplicative. McGee v. AC S, Inc., 05-1036, pp. 12-13 (La.7/10/06), 933 So.2d 770, 779. The Supreme Court said, "allowing family members to recover for both their loss of consortium and their enjoyment of life would be duplicative and would not be authorized by La.C.C. art. 2315(B)." Id. And recovery for "the loss of enjoyment of life suffered by the primary victim's family members . . . is duplicative of their wrongful death claim." Id., p. 14, 933 So.2d at 780. We are required to reverse to zero Mr. Guillot's $200,000 award for loss of enjoyment of life.
La.C.C. art. 2315.6 states:
A. The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person's injury:
(1) The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.
(2) The father and mother of the injured person, or either of them.
(3) The brothers and sisters of the injured person or any of them.
(4) The grandfather and grandmother of the injured person, or either of them.
B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience, and the claimant's mental anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article. [Emphasis supplied.]
This article is statutory authority for bystander or " Lejeune" damages. Per Lejeune v. Rayne Branch Hasp., 556 So.2d 559 (La. 1990), to recover bystander damages, (a) one must "either view the accident or injury-causing event or come upon the accident scene soon thereafter and before substantial change has occurred in the victim's condition . . .; (b) [t]he direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that one in the plaintiffs position would suffer serious mental anguish from the experience . . .; (c) [t]he emotional distress sustained must be both serious and reasonably foreseeable to allow recovery, . . . going well beyond simple mental pain and anguish . . . [,]for the emotional injury . . . must be both severe and debilitating;" [and] (d) all claimants must have a close relationship with the victim. Id., at 570
Only an unborn child born alive is a person from the moment of conception "for whatever relates to its interests." La.C.C. art. 26; see also Wartelle v. Women's Children's Hosp., Inc., 97-0744, pp. 12-13 (La.12/2/97), 704 So.2d 778, 784-85. It follows, therefore, that Mrs. Guillot's Lejeune damages cannot stand (being contained within other awards for damages by the jury). Further, a part of the damages to Mr. Guillot must be reduced to $200,000 as he did not witness actual injury to Collin, but rather only witnessed injury occurring to his wife. While I would not award Collin's sister, Madison, Lejeune damages for injury to Collin, I find the $50,000 set by the jury is an appropriate award under the circumstances for the emotional damages she sustained due to her witnessing injury to her pregnant mother. Thus in summary, I would reduce the awards of Lejeune damages to Mrs. Guillot to zero and to Mr. Guillot to $200,000, but maintain the Lejeune damages for Madison at $50,000, being the highest awards that our law will support on the facts of this case.
In all other respects, I agree with the majority's conclusions as the quantum of recovery to be reduced by the comparative percentage of fault of Mr. Guillot as I have found applicable above.
For the foregoing reasons, I respectfully concur in part and dissent in part from the decision of the majority.