Baw v. Paulson

• Decision Date: 29 June 2016
• Docket Number: No. 50,707–CA.,50,707–CA.
• Citation: 198 So.3d 186
• Parties: Benjamin O. BAW, Plaintiff–Appellant v. Norman C. PAULSON, Defendant–Appellee.
• Court: Court of Appeal of Louisiana — District of US

198 So.3d 186

Benjamin O. BAW, Plaintiff–Appellant

v.Norman C. PAULSON, Defendant–Appellee.

No. 50,707–CA.

Court of Appeal of Louisiana, Second Circuit.

June 29, 2016.

Phillip Thomas Deal, for Appellant.

Bolen, Parker, Brenner, Lee & Engelsman by Daniel G. Brenner, R. Preston Mansour, Jr., for Appellees Norman Paulson Farmers Ins. Exchange.

James Michael Edwards, for Intervenor Appellee City of Monroe.

Before MOORE, LOLLEY and GARRETT, JJ.

LOLLEY

, J.

This appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, wherein Benjamin Baw filed a personal injury suit against Norman Paulson and Farmers Insurance Exchange. After a four-day trial, the jury returned a decision assigning 90% comparative fault to Paulson for the injuries sustained by Baw during a physical altercation. The jury awarded Baw $2,500.00 in past lost wages, $7,500.00 in medical expenses, and $25,000.00 in general damages. A judgment was rendered in accordance with the jury's verdict, and Baw now appeals. For the following reasons, we affirm the trial court's judgment.

FACTS

On July 2, 2012, Benjamin Baw and Norman Paulson became involved in a physical altercation in the parking lot of Trio's Restaurant (“Trio's”) in Monroe, Louisiana. Baw, a Monroe Police officer, was dating Ginger Valentine at the time of the incident, and the pair had gone to Trio's for dinner. Notably, Valentine previously had a romantic relationship with Paulson, who was sitting at the bar with a friend. Paulson, a regular at the bar, had informed the waitress not to serve Baw and Valentine. As Baw and Valentine attempted to exit the restaurant, Paulson called Valentine a profane name, and Baw said something to Paulson in response. Baw walked outside, followed by Valentine, but as she exited the building, Paulson hit her from behind, knocking her into one of the vehicles in the parking lot. Baw attempted to restrain Paulson, who punched Baw in the right eye, knocking his glasses off. Baw wrestled Paulson to the ground, and the Trio's bartender broke up the fight by pulling Baw off of Paulson. Baw was treated for injuries sustained during the fight and ultimately underwent lumbar disc surgery. He filed suit against Paulson.¹

A four-day trial ensued, in which medical testimony from four experts was heard by the jury. During the trial, the jury heard testimony about Baw's previous back injuries, one which he sustained in 2004 while doing yard work, and another in 2011 after an awkward sneeze. After the trial, the jury returned a verdict, assigning 90% comparative fault to Paulson for the injuries sustained by Baw during the fight. The jury awarded Baw $2,500.00 in past lost wages, $7,500.00 in medical expenses, and $25,000.00 in general damages. A judgment was rendered awarding Baw 90% of $35,000.00, which is $31,400.00. Baw filed a motion for JNOV, and alternatively, requested a new trial on the issue of damages, which the trial court denied. This appeal followed.

DISCUSSION

On appeal, Baw asserts two assignments of error concerning the damages awarded by the jury. Baw argues the jury award for special damages, past lost wages and past medical expenses, is abusively low. Instead, he claims that significantly more damages were proved. Baw also argues that the jury erred in the amount awarded for general damages, claiming that the amount should have been significantly higher based on Baw's injuries. We disagree.

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr–McGee Rocky Mountain, LLC, 2014–2592 (La.04/17/15), 168 So.3d 389

. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently, but rather in reversing a trial court's factual conclusions with regard to causation, the appellate court 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. Id. ; citing,

Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

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, but instead, the court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Hayes Fund, supra ; citing, Parish Nat. Bank v. Ott, 2002–1562 (La.02/25/03), 841 So.2d 749

. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the factfinder's conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Notably, reasonable persons frequently can and do disagree regarding causation in particular cases, but where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

Accordingly, an appellate court on review must be cautious not to reweigh the evidence or substitute its own factual findings just because it would have decided the case differently. As stated in Rosell, supra, at 844–5:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (citations omitted).

General Damages

In his assignment of error concerning general damages, Baw argues that an award of only $25,000.00 is a clear abuse of the jury's discretion. Baw suggests on appeal that $125,000.00 is the lowest amount the jury could have reasonably awarded, but offers no support for this assertion. We disagree.

In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1

. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Brammer v. Bossier Par. Sch. Bd., 50,220 (La.App.2d Cir.11/25/15), 183 So.3d 606, 615

. The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. LeBlanc v. Pynes, 46,393 (La.App.2d Cir.07/13/11), 69 So.3d 1273, 1283–4, writ denied, 2011–1792 (La.10/14/11), 74 So.3d 213. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Brammer, supra, at 616.

An appellate court may disturb a damage award only when the record clearly reveals that the trial court abused its discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App.2d Cir.05/09/01), 786 So.2d 269, 276

. Only after finding that the trier of fact abused its great discretion may the appellate court resort to prior awards, and then only to determine the highest or lowest point reasonably within that discretion. Farmer v. Patrician SLP, L.L.C., 43,601 (La.App.2d Cir.10/01/08), 997 So.2d 578, 581, writs denied, 2008–2606, –2613 (La.01/09/09), 998 So.2d 724, 725. An abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. Zimmerman v. Progressive Sec. Ins. Co., 49,982 La.App.2d Cir.08/12/15), 174 So.3d 1230, writ denied, 2015–1955 (La.11/30/15), 184 So.3d 36.

Here, the jury was to determine the extent of Baw's injuries and whether Paulson's conduct caused Baw to require surgery, or merely aggravated a preexisting condition. The jury found Paulson to be 90% at fault for the altercation, and that finding has not been appealed. Specifically, the jury found that Paulson, in whole or in part, was the primary cause of Baw's injuries during the altercation. Notably, there was no specific line on the verdict form which addressed the percentage for which the altercation contributed to Baw's need for surgery; thus that was left to the jury's discretion. The issue here is if the jury, after considering all the medical evidence presented, came to an unreasonable decision concerning the cause of Baw's need for surgery, which ultimately influenced the award of damages.

Dr. Woods, expert in family practice of medicine, testified to his treatment of Baw over the past 14 years. Dr. Woods related that the first time Baw complained of lower back pain was in 2004 after he hurt his back doing yard work. Baw presented with lower back pain, pain in his left leg, trouble bending forward, and decreased range of motion. The 2004 injury was treated in the office with injections of anti-inflammatory...