29,366 La.App. 2 Cir. 6/20/97, Eppinette v. City of Monroe
| Decision Date | 20 June 1997 |
| Citation | 698 So.2d 658 |
| Parties | 29,366 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Aug. 22, 1997.
Dennis Hennen, Monroe, for Arlton and Sherry Eppinette.
Theus, Grisham, Davis & Leigh by David H. Nelson, Monroe, for Phillips Contracting and Liberty Mutual Insurance Co. Nanci S. Summersgill, Assistant City Attorney, for City of Monroe.
Brady D. King, II, Monroe, for Riverwood International and John Hancock Mutual Life Ins. Co.
Before NORRIS, WILLIAMS and GASKINS, JJ.
The plaintiffs, Arlton Gregory Eppinette and Sherry Myers Eppinette, filed suit against the defendants, the City of Monroe, Phillips Contracting and Liberty Mutual Insurance Company, for damages arising from an electrical shock injury sustained by Mr. Eppinette at the Monroe Regional Airport. Because the City of Monroe, a political subdivision which cannot be tried by jury, was included as a defendant, the trial was bifurcated. The trial court decided liability and damages against the City of Monroe and a jury determined liability and damages against Phillips Contracting (Phillips) and its insurer, Liberty Mutual Insurance Company. The judge and jury arrived at different allocations of fault among the defendants and made different awards for the various elements of the plaintiffs' damages. The plaintiffs appealed, asserting that the disparate jury and trial court verdicts in a bifurcated trial demand a de novo review by this court and arguing that the damages awarded by both judge and jury were excessively low.
The City of Monroe also appealed the judgment, arguing that the trial court erred in assessing it with 25% fault in the accident and erred in failing to rule on its claim against Phillips for indemnification.
We now review the record to consider the arguments raised by the parties and to resolve the differences in the factual findings between the trial court and the jury in this bifurcated proceeding. For the following reasons, we affirm in part, reverse in part and vacate in part the decisions of the jury and trial court.
Arlton Gregory Eppinette and his wife, Sherry Myers Eppinette, took their minor son to the Monroe Regional Airport on the night of May 24, 1991 to watch the planes land. Mr. Eppinette walked to the chain link security fence surrounding the airport to watch the planes. The fence was not completed and was being installed by Phillips Contracting Company. Mr. Eppinette placed one hand on a post of the fence without consequence. However, when he leaned against another post, an electrical current passed through his body, rendering him motionless. After about thirty seconds, Mr. Eppinette fell away from the fence, but could not speak and had difficulty moving and breathing. He was taken by ambulance to the hospital. Mr. Eppinette was admitted to the critical care unit of the hospital and treated for right shoulder pain, left arm pain, upper back pain, burning eyes and muscle spasms in his neck and back. He was released from the hospital on May 29, 1991.
Following his discharge from the hospital, Mr. Eppinette was treated by Dr. Warren Daniel, Jr., who found him to have severe pain and weakness in the right shoulder with a 50% decrease in range of motion, chest and back pain, hand problems and generalized weakness. He was treated by a psychiatrist for depression. He also saw an orthopaedic surgeon who diagnosed him with fibrotic muscle changes caused by the electrical shock.
The City of Monroe owns the airport. On April 18, 1991, Phillips entered into a contract with the City of Monroe for the construction of a new metal chain link security fence around the airport. While digging a post hole with an auger, a worker for Phillips, Danny Wayne Westerman, cut through a conduit containing electrical wiring. Cleve Norrell, the airport director, was contacted. Phillips says Mr. Norrell told workers that the wire was dead and abandoned and to go ahead with placement of the fence. The City contends that Mr. Norrell thought the wires led to an old flight service station and informed Phillips that the fence could be moved over a foot or two to avoid the wires. The fence was not moved and the post was set on top of the electrical wiring. Apparently the wires were attached to a power source and became energized when the night lights at the airport came on. Therefore, no electricity was flowing to the wires during the day while the construction crew worked, but the fence was electrified at night when the lights came on.
Mr. Eppinette was employed at Riverwood International as a heavy manual laborer working on a paper machine. Although he was released from the hospital a few days after the accident, he was deemed to be unable to work from May 24, 1991 through March 1, 1992. During this time, Mr. Eppinette was on a sick leave of absence and was paid short term disability benefits in the amount of $132 per week.
On March 1, 1992, the plaintiff returned to work at a temporary storeroom job which was not as physically demanding as his previous position working on the paper machine. Mr. Eppinette continued to experience right shoulder pain and was eventually seen by Dr. John Ferrell, an orthopaedic surgeon who diagnosed a rotator cuff tear caused by the airport accident. Surgery was performed to correct this problem on June 23, 1993. The plaintiff was again on sick leave disability from that date until May 16, 1994. During that time he was treated by a neurologist, Dr. Juanita McBeath, for migraine headaches that became more severe after the accident. In February 1994, the plaintiff was evaluated by an ear, nose and throat doctor for a muscle knot behind his ear which was found to be caused by the airport accident.
Almost one year after the shoulder surgery, Mr. Eppinette was released to return to work on May 16, 1994. He returned to work in a labor pool job. Shortly after his return, Dr. Ferrell placed a restriction upon his activities, specifying that he perform no work with his right shoulder or arm above the shoulder level. A labor team at Riverwood determined that Mr. Eppinette could not perform the labor intensive job. He was returned to sick leave disability on June 5, 1994. His disability payments expired in late 1994. Mr. Eppinette was off work from June 5, 1994 until June 23, 1995, when he returned to work at Riverwood as a quality control tester.
In May 1992, Mr. Eppinette filed suit against the City of Monroe, Phillips Construction Company and their insurer, Liberty Mutual Insurance Company. His wife, Sherry Myers Eppinette, joined in the suit for loss of consortium. The City of Monroe filed a cross claim against Phillips Construction Company for indemnification should the City be cast in judgment. Riverwood International filed an intervention to recover medical expenses and disability paid on behalf of Mr. Eppinette. 1
The matter was heard in a bifurcated trial on July 24-28, 1995. The jury heard the issues of the liability and damages as to Phillips Construction Company. Because La. R.S. 13:5105 prohibits a jury trial in a suit against a political subdivision, the trial court decided the issues of liability and damages as to the City of Monroe. The trial court did not give reasons for it judgment, but assessed fault at 25% to the City of Monroe and 75% to Phillips and Liberty Mutual. The jury assessed fault at 50% to the City of Monroe and 50% to Phillips and Liberty Mutual. The trial court and jury then awarded damages to the plaintiffs as follows:
Trial court Jury
Pain and suffering $ 35,000.00 $ 15,000.00
Mental anguish 25,000.00 15,000.00
Past lost wages 26,847.92 25,000.00
Future wages/lost earning capacity 34,000.00
Medical expenses 31,536.92 12,000.00
Loss of consortium 12,500.00 10,000.00
Total $130,884.84 2 $111,000.00
The trial court signed and filed a written judgment on April 3, 1996, awarding damages to the plaintiffs in the amount of $32,720.98 (25% of the court's total damage award of $130,883.92) against the City of Monroe and $55,000 (50% of the jury's damage award of $111,000) against Phillips Contracting and Liberty Mutual Insurance Company.
The plaintiffs appealed, arguing that the trial court and jury inaccurately allocated fault among the defendants and that the amount of damages awarded to the plaintiffs was excessively low. The City of Monroe also appealed, arguing that the trial court erred in assessing fault against the City at 25% and in failing to rule on the City's claim for indemnification against Phillips.
The threshold question in this case is the proper standard of review to be applied by this court in a bifurcated case where the jury and trial court render inconsistent verdicts. The plaintiffs and Phillips argue that the proper appellate standard in such a case is de novo. The City contends that the verdicts are not necessarily inconsistent because the judge and jury found both the City and Phillips to be partially at fault in causing the accident which injured Mr. Eppinette. We find that, in this case, the trial court and jury did reach inconsistent verdicts.
The proper standard of appellate review in bifurcated trials with inconsistent verdicts is not a settled question. A split exists in the circuits regarding the proper standard. This court and the fourth circuit have held that the proper standard is a de novo review of the record, without according any weight or deference to the factual findings of the judge or jury. Mayo v....
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