96-198 La.App. 3 Cir. 8/28/96, Hollie v. Beauregard Parish Police Jury

• Decision Date: 28 August 1996
• Citation: 680 So.2d 1218
• Parties: 96-198 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1218

680 So.2d 1218

96-198 La.App. 3 Cir. 8/28/96

Larry D. HOLLIE, et ux., Plaintiffs-Appellants, v. BEAUREGARD PARISH POLICE JURY, et al., Defendants-Appellees.

No. 96-198.

Court of Appeal of Louisiana,

Third Circuit.

Aug. 28, 1996.

Rehearing Denied Oct. 25, 1996.

Larry A. Roach, Lake Charles, for Larry D. Hollie, et ux.

Henry Gregory Walker Jr., Shreveport, for Beauregard Parish Police Jury, et al.

Alvin Bardine King, Lake Charles, for Vickie L. Hollie.

David Ramsey Lestage, DeRidder, for Bolivar Bishop, Sheriff.

Before KNOLL, THIBODEAUX and DECUIR, JJ.

[96-198 La.App. 3 Cir. 1] THIBODEAUX, Judge.

Larry D. Hollie and his now former wife, Vickie Hollie, filed a personal injury suit against the Beauregard Parish Police Jury to recover damages resulting from injuries Mr. Hollie received when he fell from a dump truck while attempting to loosen hardened asphalt from the bed of the truck. The trial court awarded Mr. [96-198 La.App. 3 Cir. 2] Hollie $225,000.00 for past, present and future pain and suffering; $87,907.00 for loss of past and future earnings, and $15,000.00 for future medical expenses. Also, the trial court awarded Ms. Hollie $7,500.00 for her loss of consortium. It is from this judgment that the Hollies appeal asserting that the damage awards were inadequate. Beauregard Parish answered the Hollies' appeal and questioned the trial court's apportionment of fault and award of damages to the Hollies.

We affirm for the following reasons.

I. ISSUES

The issues presented on appeal are whether the trial court erred in: (1) its apportionment of fault; (2) its award for Mr. Hollie's general damages, loss of earnings and future medical expenses; and, (3) awarding Ms. Hollie damages for her loss of consortium.

II. FACTS

The facts of this case are virtually undisputed. On October 20, 1986, while a trustee at the Beauregard Parish jail, Hollie agreed to perform work outside of the jail environment. Melvin Manuel, a parish employee, instructed Phil Burgess, another parish employee, and Hollie to go to Camp Edgewood Road in a parish-owned dump truck. The truck was loaded with hot-mix asphalt which was to be used to fill potholes. The hot-mix asphalt was loaded on the truck at approximately 8:00 a.m., but was not used until noon. The hot-mix asphalt had begun to harden by the time Burgess and Hollie reached their destination. Further, diesel fuel had not been [96-198 La.App. 3 Cir. 3] sprayed on the truck bed to aid in off-loading the asphalt prior to loading the asphalt in the truck bed.

Hollie and Burgess took turns getting into the tilted truck bed to "chop" and loosen the asphalt, forcing the already hardened asphalt out of the truck, and shoveling it into the potholes. The truck bed of the dump truck was tilted at about a 45-degree angle to aid in the removal of the hot-mix asphalt. After all of the potholes in an area were filled, Burgess would drive the truck to another area of potholes. Burgess and Hollie would repeat the process.

During one of Hollie's turns in the dump truck bed, the load of asphalt shifted, causing Hollie to lose his balance and fall backward out of the truck onto the road. Hollie landed on the small of his back and hips. A passerby, Ezra Daugherty, drove Hollie to the DeQuincy Memorial Hospital where he was seen by Dr. A. Romero. Hollie was x-rayed, given a shot for pain, sent back to the Beauregard Parish jail and confined in a holding cell. Hollie continued with complaints of pain and was taken to Beauregard Memorial Hospital on October 24th. At the DeRidder Hospital, he was seen by Dr. Flynn A. Taylor. Hollie was diagnosed with lumbosacral strain and disc abnormality and discharged on November 17, 1986. Hollie continued to complain of problems with his urine retention, bladder, as well as his back.

In March of 1987, Hollie underwent a decompressive laminectomy with disc excision surgical procedure as well as a posterior lateral spine fusion at L5 and S1, and posterior inner body fusion with the application of VSP plates at Byrd Memorial Hospital in Leesville. Hollie claimed that he suffered continuing bladder problems and sexual dysfunction that led to implantation of an Alpha I Prosthesis (a penile implant) to remedy the sexual dysfunction.

[96-198 La.App. 3 Cir. 4] The trial court concluded that Beauregard Parish was 80% at fault for Hollie's injuries with Hollie being 20% at fault for causing his own injuries. This appeal followed.

III.

LAW AND DISCUSSION

Apportionment of Fault

Beauregard Parish argues that the trial court should have assessed Hollie a greater percentage of fault for contributing to his own injuries because the fall was a result of Hollie's own carelessness. It notes that Hollie chose to perform the manual labor and was happy to get outside. Further, Beauregard Parish notes Hollie's experience spreading asphalt out of truck beds and onto the road to fill potholes.

The trial court determined that Hollie's prior experience in performing the work in question should have given him an understanding of the hazard with which he was confronted. The trial court further opined that, given his experience in the field, Mr. Hollie should have voiced some objection to performing the task in the manner executed. The trial court also concluded that "the volunteer nature of the work does not allow the Parish to disregard the safety of the work environment," and held that Beauregard Parish had an obligation to provide Mr. Hollie with a work environment which would not expose him to an undue risk of harm.

A person owes the duty of reasonable care to prevent injuries to himself. Each case must be decided upon its own facts and circumstances. Cockerham v. Atlantic Richfield Co., 615 So.2d 547 (La.App. 3 Cir.), writ denied, 623 So.2d 1303 (La.1993). Beauregard Parish asserts that the conclusion reached in Fruge v. Trahan, 194 So.2d 478 (La.App. 3 Cir.1967) should be followed by this court as to the parish's liability. We disagree. Fruge, although factually similar, is a precomparative[96-198 La.App. 3 Cir. 5] fault case and is not dispositive on the issue of Beauregard Parish's and Hollie's comparative negligence.

Since the Louisiana legislature's adoption of a comparative fault system, it has been the task of the fact finder to allocate shares of negligence. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). In Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985), the supreme court stated:

"[i]n determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed."

Id. at 973.

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) how great of a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and, (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. A further consideration is the relationship between the fault/negligent conduct and the harm to the plaintiff. Cockerham, 615 So.2d 547. The trial court also noted standards applicable to this particular case as designated by the supreme court in Bridgewater v. State Through Department of Corrections, 434 So.2d 383 (La.1983). Those standards include: (1) the relative knowledge of the danger by the supervising employee and the injured employee; (2) the relative control over the employee's situation and the voluntariness of the employee's actions; (3) the alternatives available to the employee; (4) the obviousness of the danger; and, (5) the relative ability to eliminate danger.

Because each of these factors that may influence the respective degrees of fault are factual considerations, the manifest error/clearly wrong standard applies. [96-198 La.App. 3 Cir. 6] The percentage allocation of fault in a comparative negligence case is also a question of fact and, as in any other question of fact, it should not be disturbed in the absence of manifest error. Socorro, 579 So.2d 931. Applying the factors as set forth above to assess the nature of the conduct of each party, we find that the trial court was not clearly wrong nor did it commit manifest error in its allocation of fault for the following reasons.

Hollie had knowledge of the custom of using diesel fuel to lubricate the truck bed in order to facilitate removal of the asphalt. As a prisoner, alternatives available to him were limited, although he could have said that he did not want to remove the asphalt once it had hardened. The risk of danger apparently was not obvious to either Hollie or the parish employee, Burgess. Burgess, as supervisor over the project, should have had the appropriate knowledge, skill and experience to conduct the project in a safe manner. Compared with Hollie, the parish was in a superior position to eliminate the danger. Once Burgess realized that removal of the asphalt would be difficult due to its hardening, he could have discarded the asphalt.

There is a duty to recognize and take reasonable precautions to prevent harm. A comparison of the respective degrees of causation regarding each party's breach of their respective duties supports the trial court's conclusions in assigning Beauregard Parish with 80% of the fault under these facts.

Quantum

A. General Damages

Hollie urges that the trial court was clearly wrong in awarding inadequate damages. His wife makes the same assertion as to the trial court's award for her loss of consortium. Contrarily, Beauregard Parish urges that the trial court erred in awarding excessive damages.

[96-198 La.App. 3 Cir. 7] The standard for an appellate court's review of damages was well established in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed...