Alex v. Rayne Concrete Service

• Decision Date: 14 September 2005
• Docket Number: No. 2004-1555.,2004-1555.
• Parties: Harold ALEX, Jr. v. RAYNE CONCRETE SERVICE, et al.
• Court: Louisiana Supreme Court

915 So.2d 931

Harold ALEX, Jr. v. RAYNE CONCRETE SERVICE, et al.

No. 2004-1555.

Court of Appeal of Louisiana, Third Circuit.

September 14, 2005.

COPYRIGHT MATERIAL OMITTED

Harold D. Register, Jr. Lafayette, LA, for Plaintiff/Appellant, Harold Alex, Jr., Brithney Alex.

Charles Martin Kreamer, Sr., Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Employers Mutual Casualty Company, Rayne Concrete Service.

Patricia J. Delpit, Louisiana Workers' Comp., Baton Rouge, LA, for Intervenor/Appellee, Louisiana Workers' Compensation Corp.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The plaintiff, Harold Alex, Jr., appeals from a jury verdict finding him comparatively at fault in causing his work-related accident, its award of general and special damages, and the trial court's assessment of court costs. For the following reasons, we vacate the judgment and render as follows.

FACTS

Alex was employed by Louisiana Concrete Specialist (LCS), a company involved in all aspects of concrete work. In 1984, he suffered a work-related injury to his lower back while employed by a previous employer. As a result, he underwent a posterior lumbar laminotomy, with removal of the L4-5 disc and, thereafter, received a ten to fifteen percent anatomical disability. Alex remained under doctor's care until 1988. In 1989, he compromised his claim with his employer through a joint petition, in which he alleged that he was totally and permanently disabled. Approximately six months later, he returned to work, working a multitude of jobs until his employment with LCS. Prior to this accident, Alex had worked off and on for LCS for two years. At the time of the accident, he had just returned to work with LCS and was on his second day back to work.

On October 17, 1995, LCS was pouring and finishing the decking around a swimming pool being constructed by Professional Pools at a residence in Rayne, Louisiana. Rayne Concrete Service provided the concrete for the job via a truck driven by Jerry Dugas. Alex suffered an alleged work-related injury to his lower back when Dugas lowered the trough through which the concrete was poured onto his back. As a result of this incident, he filed suit against Rayne Concrete and its insurer, Employers Mutual Casualty Company. The Louisiana Workers' Compensation Corporation intervened in this matter seeking to recoup indemnity and medical benefits paid as a result of Alex's work-related accident.

A jury trial was held in this matter in 1998, however, it ended in a mistrial. A second jury trial was held in December 2000. At the conclusion of that trial, the jury found both Alex and Rayne Concrete at fault in causing this accident, assessing Alex with 80% fault and Rayne Concrete with 20% fault. Alex was awarded $18,750 in general damages, $9,578 in past medical expenses, $32,523 in future medical expenses, $29,640 in past lost wages, and $33,280 in future lost wages. In response to this judgment, Alex filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. This motion for a new trial was granted by the trial court. Rayne Concrete and Employers Mutual appealed from this judgment; however, the trial court's judgment was affirmed by this court. Alex v. Rayne Concrete Serv., 01-1535 (La.App. 3 Cir. 4/3/02), 813 So.2d 1189.

A third jury trial was held in this matter from July 12-16, 2004. At the conclusion of the evidence, the jury rendered a verdict finding Alex, Rayne Concrete, and LCS at fault in causing the accident. The jury apportioned fault 45% to Alex, 50% to Rayne Concrete, and 5% to LCS. The jury further awarded Alex $40,000 in general damages, $13,000 in past medical expenses, $13,000 in future medical expenses, $10,000 in past lost wages, and nothing for future lost wages. A judgment was rendered in this matter on August 9, 2004. Alex then filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. Upon the denial of his motion, this appeal followed.

ISSUES

On appeal, Alex raises five assignments of error.¹ He argues that the trial court erred in denying his Batson challenge during voir dire and in allowing into evidence the June 8, 2000 medical records from Our Lady of Lourdes Hospital. He next argues that the jury erred in its assessment of fault and comparative negligence and in its award of damages, both general and special. Finally, he argues that the trial court erred in its assessment of court costs.

BATSON CHALLENGE

In his first assignment of error, Alex argues that the trial court erred in denying his Batson challenge to Rayne Concrete's systematic exclusion of blacks from the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Although we had previously held that a Batson/Edmonson challenge could only be reviewed via supervisory writs, we recently held in this matter that we would consider such challenges on appeal. Alex v. Rayne Concrete Serv., Inc., 04-1555 (La.App. 3 Cir. 05/04/05), 902 So.2d 563 (en banc).

The law pertaining to Batson/Edmonson challenges was laid out by the first circuit in Hurts v. Woodis, 95-2166, p. 6 (La.App. 1 Cir. 6/28/96), 676 So.2d 1166, 1172:

A private litigant in a civil case may not use peremptory challenges to exclude jurors on the account of race. To do so is a violation of the Equal Protection Clause. Richard [v. St. Paul Fire and Marine Ins. Co.], 94-2112 [(La.App. 1 Cir. 6/23/95)], 657 So.2d [1087] (citing Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)). First, the challenging party must make a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. The burden then shifts to the opposing party to articulate a race-neutral explanation for striking the jurors in question which is related to the case to be tried. Batson, 476 U.S. at 96-98, 106 S.Ct. [at] 1723-1724. This second step of the process does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995).

In the final step of the analysis, the trial court must determine whether the party raising the Batson challenge has carried his burden of proving purposeful discrimination. At this stage, the trial court must consider the persuasiveness of the explanations. It is at this stage that implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. Purkett, 514 U.S. at [768], 115 S.Ct. at 1771.

At the beginning of the jury selection process, four blacks were selected as part of the voir dire panel: Dennis Thomas, Reve Mae Charlot, Mary Taylor, and Natalie Jordan. After the panel had been questioned, the trial court challenged Taylor for cause. Thereafter, Rayne Concrete used three of its peremptory challenges to excuse Thomas, Charlot, and Jordan. Once the jury was selected, counsel for Alex raised a Batson challenge by objecting to Rayne Concrete's exclusion of the three jurors based on race. He argued that Alex, who was black, had the right to a fair trial by a jury of his peers and that the exclusion of these three jurors deprived him of that right. Before the trial court determined whether Alex had made a prima facie showing of discrimination, counsel for Rayne Concrete voiced his race-neutral explanations for striking the subject jurors. Thus, the first step of the three-part step was rendered moot. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

Rayne Concrete challenged all of the prospective black jurors. Taylor was challenged for cause and we find no abuse of the trial court's discretion in that ruling. Counsel for Rayne Concrete offered the following explanations for striking the remaining black jurors:

MR. KREAMER: Mr. Thomas indicated that he worked in the concrete business for fifteen years and had not been trained, very similar to Mr. Alex. We don't want his particular history. We're afraid that anything that he might think about what Mr. Alex went through being what the standard is in the industry, and he might not listen to what is going to (sic) on; as opposed to the other guy, Mr. Kershaw, who was also in the industry. He was trained, and he knows the standards that are going to be consistent with the particular rules that are going to be testified to by Dennis Howard, the concrete liability expert.

Ms. Charlot: She and I just didn't get revised. I was looking at her, and she just looked like she didn't like me, and I think she liked Mr. Alex. And that's just based on my personal observations, and that was just kind of a gut feeling.

Ms. Jordan: There were many reasons. We thought she was very close to being a challenge for cause, and we did make a for cause challenge against her. She obviously wasn't going to be able to focus on the evidence. And she also answered some of my general questions in ways which I think would make her more favorable to the plaintiff than the defendant.

In response to these explanations, the trial court first stated that it did not believe that Batson applied in a civil context. However, it went on to find that Rayne Concrete had asserted race-neutral reasons in the use of its peremptory challenges.

In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection...