Kshirsagar v. State Farm Ins. Co.

• Decision Date: 22 July 2020
• Docket Number: No. 53,520-CA,53,520-CA
• Citation: 300 So.3d 914
• Parties: Sushma KSHIRSAGAR and Deelip Kshirsagar Plaintiffs-1 Appellants v. STATE FARM INSURANCE CO., Carol Perez And Daniel G. Perez, Jr. Defendants-2 Appellants
• Court: Court of Appeal of Louisiana — District of US

300 So.3d 914

Sushma KSHIRSAGAR and Deelip Kshirsagar Plaintiffs-1^st Appellants
v.
STATE FARM INSURANCE CO., Carol Perez And Daniel G. Perez, Jr. Defendants-2^nd Appellants

No. 53,520-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered July 22, 2020.

EDDIE CLARK & ASSOCIATES, LLC, By: Eddie M. Clark, MARSHALL L. SANSON, Counsel for 1^st Appellants

HUDSON, POTTS & BERNSTEIN, L.L.P., By: Jan P. Christiansen, III, Counsel for 2^nd Appellants

Before WILLIAMS, COX, and McCALLUM, JJ.

WILLIAMS, C.J.

300 So.3d 918

The plaintiffs, Sushma Kshirsagar and Deelip Kshirsagar, appeal a jury's verdict which they claim awarded insufficient general damages for Sushma's injuries resulting from an attack by a neighbor's dog. They also appeal the jury's failure to award damages for Sushma's future medical expenses and for Deelip's claim for loss of consortium. The defendants, State Farm Insurance Company, Carol Perez, and Daniel G. Perez, Jr., appeal the jury's finding of liability and the trial court's denial of their motion to assess court costs to the plaintiffs. For the following reasons, we amend in part, affirm as amended and render.

FACTS

On September 13, 2015, the plaintiff, Sushma Kshirsagar, was walking on a sidewalk in her neighborhood in West Monroe, Louisiana. A "mixed breed" dog owned by the defendants, Carol and Daniel Perez, Jr., was attached to a metal cable leash, which Carol testified she was holding in her hand. The dog broke away from its leash, ran across the street and attacked Sushma, biting her on the leg and hip multiple times.

Sushma was treated in the emergency room at Glenwood Regional Medical Center. Her treatment included 28 stitches to her right leg and injections of antibiotics and pain medication. She was discharged from the emergency room with instructions to remain on bedrest for seven days and to follow up with her primary care provider within two to three days.

Sushma and her husband, Deelip Kshirsagar, filed a lawsuit against Carol, Daniel and their homeowners’ insurer, State Farm Insurance Company ("Defendants"). The plaintiffs alleged as follows: Sushma sustained significant injuries as a result of the dog's attack, which resulted in permanent scarring on her right hip and lower right leg; Sushma suffers from chronic/recurring pain and swelling in her right leg, an inoperable tear to her Achilles tendon, and scar tissue impinging on a nerve in her lower right extremity; and Sushma was entitled to an award of damages for future medical treatment to cover the cost of future pain management and scar revision surgery. The plaintiffs also alleged that Deelip was entitled to an award of damages for loss of consortium.

A jury trial was conducted and several witnesses were called to testify. Sushma testified as follows: she was walking in her neighborhood when she heard a dog barking; she stopped and looked around but did not see a dog; when she resumed walking, she saw a large brown and white dog running in her direction; the dog appeared to be "very vicious, angry" and ran "really aggressively"; she did not see a leash on the dog; she became frightened and began calling for help but she did not see anyone; the dog began biting her right leg and ankle; she "screamed and begged" for help, but she did not see anyone nearby; she struggled to keep from falling to the ground because she believed the dog would attack her neck area if she did so; the dog continued to "dig into" her leg and began "jumping on [her] upper body"; the dog then "latched on[to]" her hip; she continued to scream but no one came to her aid; the dog began biting her inner right leg; at that point, she heard the dog's owner (Carol) calling him; Carol could not control the dog; she asked Carol to "please help me, take him off"; the dog continued to bite her leg "for some time"; Carol struggled to pull the dog away from her; she did not see a chain or leash on the dog during the attack; she did not know how Carol managed to pull the dog away from her because she was "in so much pain" and she was losing "so much blood"; she began to

300 So.3d 919

feel "dizzy and nauseous"; she fell to the ground after Carol gained control of the dog; she asked Carol, "Why didn't you come quickly?"; Carol replied that she "was coming"; she called 911, but was unable to provide the operator with the address of the incident; Carol left the scene to put the dog away, but returned and called 911 to provide the location; the ambulance arrived approximately 15 minutes after Carol called; her husband was working out of town and her children were at home alone; and she called a friend to care for her children while she was being transported to the emergency room.

The defendant, Carol, testified as follows: she was the owner of the dog that attacked the plaintiff; the dog was "part Cur and part Lab," approximately 3½ years old, and weighed 40-45 pounds; she did not have a fence around her yard and her dog generally remained indoors; the dog was always restrained by a leash when outside; Sushma did not do anything to provoke the dog's attack; the dog ran across the street and attacked Sushma on a public roadway; prior to the attack, she and her dog were in her front yard; she was preparing to take the dog inside and was holding a part of the leash in her hand when the dog began running "very fast"; she "had to release the leash" because it was "kind of like, hurt[ing] [her] hand"; the leash was a 30-foot "cable leash"; the leash would "hurt your finger" when it was pulled; the leash could have "cut off" her finger if the dog had continued to pull on it; she was familiar with the leash because she had owned it for "two to three years"; the dog had been trained at a "training school" and had been taught "how to follow commands"; the dog had never bitten anyone in the past; prior to the attack, the dog would routinely be restrained by a leash tied to a tree in the front yard; the dog had a tendency to run toward strangers as far as the leash would allow him to do so; on the morning of the attack, she was outside working in her flower bed while the dog played in the yard; when she decided it was time to go inside, she grabbed the dog's leash; the dog "turned around all of a sudden and started running toward the driveway"; she dropped the leash because it "hurt [her] hand" when the dog began to run; the dog "continued running toward the end of the driveway [and] broke his leash"; she "tried to step on the leash to catch it but he was just so fast"; she was unable to hold onto the leash with her foot because it "burned [her] foot because [she] was barefoot at that time"; she "tried [her] best" to stop her dog from attacking Sushma; she did not see the dog when he first began biting Sushma because her "attention was divided" between the dog and the leash; she heard Sushma screaming and "everything was just a blur"; when she approached the scene, the dog was still biting Sushma; she was afraid to remove her dog from Sushma "because of his aggression"; Sushma collapsed to the ground after she [Carol] gained control of her dog; she cannot say that the dog had "aggressive tendencies" prior to the attack; she does not know why the dog attacked that day; Sushma did not have a chance to react prior to the attack; Sushma called 911; she did not call 911 because she did not have her phone with her and she had to get her dog "secured inside the house"; she called 911 after Sushma asked her to call and provide the correct address;¹ she is "in the medical field" but she did not attempt to render aid to Sushma; she offered to drive Sushma to

300 So.3d 920

the hospital in her sports utility vehicle; Sushma declined because she was unable to get up and the vehicle was "too high" from the ground; after the attack, she went to the emergency room and paid Sushma's "co-pay" for her emergency room visit; she also followed Sushma to the pharmacy and paid for her medication; she sent Sushma a text message, instructing her to send her hospital bill to her; she did not pay the hospital bill because Sushma did not send it to her; she surrendered her dog to Animal Control to be quarantined; the dog was returned to her after approximately 10 days; after the incident, she began keeping her dog on a different type of leash; and she no longer ties her dog's leash to a tree in her front yard.

Deputy Michael Meredith, of the Ouachita Parish Sheriff's Office, also testified at trial. He stated as follows: he arrived on the scene of the incident and observed Sushma "laying in a yard just off the edge of the road"; he noticed that Sushma had a "bite or a laceration to her right leg"; he was unable to tell if Sushma had multiple bites; Sushma appeared to be "in pain" when he arrived; the ambulance arrived shortly after he arrived; he talked to Sushma and Carol at the scene; he could not recall seeing the dog; he believed the dog had been taken inside the house before he arrived; he did not see a broken dog chain at the scene; Carol informed him that the dog "bolted" and broke its leash when he saw Sushma walking on the sidewalk; and Sushma declined to "press charges" against Carol.

With regard to her medical treatment and recovery, Sushma testified as follows: she was "bedridden" for approximately 6-7 days; during this time,...