McDaniel v. Carencro Lions Club

• Decision Date: 12 July 2006
• Docket Number: No. 05-1013.,05-1013.
• Citation: McDaniel v. Carencro Lions Club, 934 So.2d 945 (La. App. 2006)
• Parties: Mel McDANIEL v. CARENCRO LIONS CLUB, et al.
• Court: Court of Appeal of Louisiana

934 So.2d 945

Mel McDANIEL v.CARENCRO LIONS CLUB, et al.

No. 05-1013.

Court of Appeal of Louisiana, Third Circuit.

July 12, 2006.

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John R. Shea, John Shea & Associates, Lafayette, LA, for Plaintiff/Appellant: Mel McDaniel.

E. Byrne Edwards, Nolan G. Edwards, Edwards Law Firm, Lafayette, LA, for Plaintiff/Appellant: Mel McDaniel.

John S. Thibaut, Jr., Baton Rouge, LA, for Secondary Defendants/Appellants: J G Enterprises, Inc., John Gullett, Global Telemedia, Inc.

John W. Penny, Jr., Lafayette, LA, for Defendants/Appellants: Division of Arts & Culture, Carencro Lions Club, Lafayette City-Parish Consolidated Government, Royal Insurance Company of America.

George Armbruster, III, The Panagiotis Firm, Lafayette, LA, for Secondary Defendants/Appellants: Lafayette City-Parish Consolidated Government, Division of Arts & Culture, Lafayette Consolidated Government.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

In this case, the plaintiff, Mel McDaniel, appeals the judgments awarded to him in a bifurcated trial against the defendants, the Lafayette City Parish Consolidated Government(Lafayette), the Carencro Lions Club (Lions Club) and its insurer, Royal Insurance Company(Royal), and John Gullett d/b/a/ J.G. Enterprises, Inc.For the following reasons, we affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

McDaniel, a country western singer who recorded several hit records including "Louisiana Saturday Night" and "Baby's Got Her Blue Jeans On," was injured when he fell approximately seven feet into an open orchestra pit while performing in November 1996, at the Heymann Performing Arts Center (Heymann Center) in Lafayette, Louisiana.The Heymann Center is owned by Lafayette and was leased to the Lions Club.Gullett, an event promoter, contracted with McDaniel on behalf of the Lions Club to perform for this event.In the lease agreement, the Lions Club is given the option of purchasing the use of an orchestra pit cover which is available only upon advanced request and the payment of $100.Neither the Lions Club nor Gullett requested the cover nor paid the $100 fee.

This case was first tried in June 2002.At the conclusion of McDaniel's case, the trial court granted the defendants' motion for directed verdict/involuntary dismissal, finding that McDaniel was solely at fault for the accident.McDaniel appealed, and we ordered a new trial.SeeMcDaniel v. Carencro Lions Club, 02-1244(La.App. 3 Cir.3/12/03), 846 So.2d 837, writs denied, 03-1061, 03-1065, 03-1069 (La.6/27/03), 847 So.2d 1269.Lafayette, the Lions Club, and Royal applied for writs to the Louisiana Supreme Court, which were denied in June 2003.

Following a bifurcated four-day-trial in June 2004, in which the trial court considered the claims against Lafayette, the trial court attributed fault as follows:

      McDaniel            75%
                      City Government     15%
                      John Gullett         8%
                      Lions Club           2%
                

It further awarded damages as follows: past medical expenses, $87,589; future medical expenses, $0; past lost wages, $60,000; past pain, suffering, and disability, $100,000; future pain, suffering, and disability, $25,000, for a total of $272,589.The trial court ordered Lafayette/Royal to pay McDaniel $40,888.35.

The jury considered McDaniel's claims against the Lions Club and Gullett and apportioned fault as follows:

       City Government    41.5%
                       Lions Club            2%
                       John Gullett         21%
                       McDaniel           35.5%
                

The jury awarded damages as follows: pain, suffering and disability, physical and mental, and loss of enjoyment of life, past, $110,523 and future, $52,727; past medical expenses, $73,830; future medical expenses, $53,636; and, past lost wages, $104,882 for a total of $395,598.The trial court ordered Lions Club/Royal to pay McDaniel $7,911.96 and Gullett d/b/a J.G. Enterprises, Inc./Royal to pay $83,075.58.

The trial court signed a written judgment in September 2004.The defendants filed a motion for JNOV or in the alternative, a motion for new trial in November 2004, which was denied.McDaniel, the Lions Club, Lafayette, Royal, and Gullett now appeal.

ISSUES

McDaniel assigns as error:

1.The trial court and jury's assessment of fault as it should be found that Lafayette was 100% at fault or in the alternative, the jury's finding of fault was more reasonable than the trial court's assessment.

2.The trial court and jury's damage assessment was inadequate or, in the alternative, the jury's assessment of damages is more reasonable than the trial court's assessment.

3.The trial court's refusal to allow the testimony of his architectural expert in regard to the industry standards of orchestra pit covers and safety features, and whether the proffered testimony of the expert should be considered on appeal.

4.The trial court's assessment of court costs, which should be assessed against the defendants.

5.The trial court's award of expert fees to his architectural expert.

The Lions Club, Lafayette, and Royal assign as error:

1.The jury and trial court's failure to assess McDaniel with 100% of the fault or, in the alternative, that the trial court's findings were more reasonable.

2.Royal claims that the trial court erred in finding that Gullett was an "insured" under its policy when he was not an active member of the Lions Club and was not acting in his capacity as an honorary member of the Lions Club.

3.The jury's award of damages was manifestly erroneous and the trial court's awards should be accepted.

Gullett assigns as error:

1.All of the errors assigned by Lafayette and the Lions Club but not Royal's assignment that he was not an insured under its policy.

2.The findings by the trial court and jury that he was at fault.

LIABILITY

Lafayette, the Lions Club, Royal, and Gullett urge that McDaniel should be found 100% at fault, while McDaniel urges that Lafayette should have been found 100% at fault or, in the alternative, that the jury's findings of fault were more reasonable.

STANDARD OF REVIEW

In this bifurcated case, the trial court determined the liability of Lafayette, while the jury determined the liability of the remaining defendants.However, in apportioning fault under the comparative fault system (in which the jury had to assign a percentage of fault to Lafayette), the jury and trial court came up with different fault percentages.In this instance, we must follow a special standard in reviewing these differing findings.Among the appellate courts and even within our own circuit, this standard of review is unsettled and confusing.The record in this case reveals that none of the lawyers nor the trial court had a clear understanding of the standard of review and that the "casesare very confusing in that area and there's no definitive answer."Additionally, as we shall discuss in further detail later, the supreme court has noted this problematic issue on several occasions, but has not yet addressed it.

Having reviewed our previous jurisprudence, along with that of courts of other circuits, we find it necessary to address the standard in our circuit at least as to the method of review.We do not reach the more problematic issue of harmonizing findings that do not equal 100%; nevertheless, we will attempt to clarify the standard of review on appeal as to fault apportionment and the review of damages.As we have noted in many of our opinions on this issue, the goal is to render a single harmonized decision with fault allocation among all parties equaling 100%.We feel it is imperative to review the history of the standard of review applied in cases of bifurcated trials.

In Felice v. Valleylab, Inc.,520 So.2d 920, 924(La.App. 3 Cir.1987), writ denied,522 So.2d 562, 563(La.1988), this court stated that in bifurcated cases where there are conflicting findings of fact, the manifest error standard does not apply and the "court of appeal must decide which decision is more reasonable after a careful examination of the record."We went on to state that findings of fault are factual findings and that when there is no conflict between the judge and jury (there can be different findings and still not be a conflict), these findings are reviewable under the clear error standard.However, if the percentages are in conflict, they must be harmonized and the clear error standard is inapplicable to the assessment of percentages of fault.Additionally, if the assessment of damages are in conflict the more reasonable award must be chosen.

We went on to find that there were no conflicts in the findings of fact as to fault and that, after subjecting the findings to the clear error test, the trial court's finding passed, but the jury's finding was clearly wrong.We then assessed the state with 100% of the fault.We went on to find that the jury's damage award was the more reasonable one.

Judge Guidry concurred in the result, but expressed disagreement with the majority's conclusion that there was no conflict in the findings of fact as to fault.We agree.The trial court affixed fault to the Stateat 100% whereas the jury affixed the defendant, Valleylab, Inc., with 30% of the fault.As Judge Guidry pointed out, "This finding obviously fixes a 70% degree of fault attributable to others and, specifically, the State.In my view these findings on the issue of fault clearly conflict."Id. at 931.Later pronouncements that as a matter of law only a trial court can assess the fault of a public body do not change the fact that the percentages are in conflict.

Nearly seven years later, in Hasha v. Calcasieu Parish Police Jury, 94-705(La.App. 3 Cir.2/15/95), 651 So.2d 865, writs denied, 95-0667, 95-0676, (La.4/28/95), 653 So.2d 592, 593 an opinion...