Norfleet v. Lifeguard Transp. Service, Inc.
| Decision Date | 17 May 2006 |
| Docket Number | No. 2005-CA-0501.,2005-CA-0501. |
| Citation | 934 So.2d 846 |
| Parties | Reginald NORFLEET, Rene Norfleet, Sr., Zapata Norfleet, Byron Norfleet and Mercedes N. Ducre, all Individually and on Behalf of their Deceased Mother, Betty Butler Norfleet v. LIFEGUARD TRANSPORTATION SERVICE, INC., Sharon Dean, American Casualty Company of Reading Pennsylvania, Sunbridge Healthcare Corporation d/b/a Sunbridge Care & Rehab for New Orleans, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Richard C. Trahant, Metairie, LA, Steven J. Rando, Law Offices of Steven J. Rando, L.L.C., Harahan, LA, Harry T. Lemmon, M. Lauren Lemmon, New Orleans, LA, for Plaintiffs/Appellants.
Paul A. Eckert, Bastian & Associates, New Orleans, LA, and Margaret Diamond, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
Reginald, Byron, Rene, Mercedes, and Zapata Norfleet appeal the jury findings and trial court decisions stemming from the death of their mother, Betty Norfleet. The jury allocated thirty percent fault to Easthaven Nursing Home and seventy percent fault to Lifeguard Transportation Service, Inc. Mrs. Norfleet's children filed a motion for JNOV or, alternatively, a new trial seeking to reallocate fault and increase damages. The trial court denied this motion on the above issues and Mrs. Norfleet's children timely appeal followed. We affirm the jury's findings entered by the trial court with the exception of the wrongful death claim. We reverse and render to award wrongful death damages to the children and amend the attorney's fees award to reflect the additional recovery of wrongful death damages pursuant to the contingency fee contract.
Reginald, Byron, Rene, Mercedes, and Zapata Norfleet ("Norfleets") filed suit against Easthaven Nursing Home ("Easthaven") for negligence arising from the death of their seventy-three year old mother, Betty Norfleet ("Mrs.Norfleet"), a resident of Easthaven since 1992. Mrs. Norfleet suffered a stroke approximately one year prior to entering Easthaven. However, she regained her ability to fully communicate and feed herself prior to entering Easthaven. After becoming a resident of Easthaven, a portion of Mrs. Norfleet's left leg was amputated due to circulatory problems. The stroke and amputation rendered her wheelchair bound. Mrs. Norfleet's primary medical problems while at Easthaven consisted of hypertension, urinary tract infections, arthritis, high cholesterol, circulatory problems, and bedsores. Throughout her residence at Easthaven, at least one of her children visited with her daily.
Due to bedsores and other skin problems, an Easthaven driver, Sandra Patterson ("Ms.Patterson"), drove Mrs. Norfleet, accompanied by one of her children, Byron, to a dermatological appointment on September 18, 2001. On the drive home from the appointment, Mrs. Norfleet's wheelchair flipped backwards causing her to strike her head on the metal deck of Easthaven's van ("first accident"). Byron pulled his mother upright and she began to complain of head pain. Ms. Patterson drove Mrs. Norfleet back to Easthaven.
Later that day, an ambulance transported Mrs. Norfleet to Lakeland Hospital ("Lakeland") for an examination due to her possible head injury from the earlier fall in the van, the first accident. The hospital did not perform any x-rays, CT scans, or MRIs on Mrs. Norfleet after the fall. After approximately four hours, she was discharged with a diagnosis of a contusion and given post head trauma precautionary paperwork.
While being transported from the Lakeland emergency room to a Lifeguard Transportation Service, Inc. ("Lifeguard") ambulance, Mrs. Norfleet fell off the stretcher and struck her head again ("second accident"). Lifeguard transported Mrs. Norfleet back into Lakeland's emergency room for another examination. A CT scan revealed a subdural hematoma. Mrs. Norfleet underwent an emergency craniotomy performed by a neurosurgeon Dr. Joseph Epps ("Dr.Epps"). She was in a coma, but Dr. Cabiran stated she "appeared" to be awakening during the two and a half months after the surgery, until her death on December 4, 2001.
The Norfleets filed suit against Easthaven and Lifeguard alleging negligence and seeking survival and wrongful death damages, and any other damages proven at trial. Byron allegedly sustained personal injuries from the Easthaven accident and sought medical expenses, mental and physical pain and suffering, lost wages, loss of future insurability, damages for future functional impairment, and any other damages proven at trial. The trial court later granted Byron's motion for partial dismissal with prejudice for his personal injury claims. Lifeguard settled with the Norfleets prior to trial.
After a four-day jury trial, the jury returned a verdict in favor of the Norfleets and allocated fault between Easthaven and Lifeguard as thirty percent and seventy percent, respectively. The jury also awarded general and special damages for Mrs. Norfleet's survival action as follows:
Physical pain and suffering $100,000.00
Mental and emotional distress $ 52,000.00
Medical expenses $343,000.00
Funeral expenses $ 5,000.00
____________
TOTAL AMOUNT $500,000.00
The jury did not award wrongful death damages to any of the Norfleets. The trial court judge entered the jury's verdict, reduced Easthaven's damages in proportion to their thirty percent liability, and awarded court costs to the Norfleets.
The Norfleets filed a motion for judgment not withstanding the verdict ("JNOV") or, alternatively, a new trial. The trial court partially granted the motion for a JNOV and increased the medical expenses to $343,792.25, and the funeral expenses to $5,700.00, to reflect the actual monetary amounts evidenced at trial. The trial court then adjusted Easthaven's portion according to its thirty percent liability. The trial court also awarded attorney's fees, pursuant to La. R.S: 40:2010.9, with legal interest to the Norfleets based on their forty percent contingency fee contract with their attorneys based on the amount of recoverable compensatory damages. The trial court also awarded full court costs to the Norfleets in the amount of $8,977.66. The trial court denied the Norfleets' alternative motion for a new trial. The Norfleets' devolutive appeal timely followed.
The Norfleets assert the trial court erred by entering judgment on the jury verdict by: 1) incorrectly apportioning the fault between Easthaven and Lifeguard as thirty percent and seventy percent, respectively; 2) awarding inadequate survival damages; and 3) refusing to award wrongful death damages although the jury awarded survival damages. The Norfleets assert the trial court erred by excluding five of their proposed jury charges and by not correcting the above errors through the request for a JNOV or alternatively, a new trial.
Easthaven asserts the trial court erred by entering the jury's findings that Easthaven was thirty percent at fault and by awarding excessive attorney's fees, based on a contingency fee contract, and court costs.
Appellate courts review factual findings of the trial court or jury using the "manifest error" or "clearly wrong" standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court developed a two-part test for reviewing and reversing the factfinder's determinations. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This bifurcated test states: 1) the reviewing court must find that the trial court's findings have no reasonable factual basis and 2) the record shows that the findings are wrong (manifestly erroneous). Mart, 505 So.2d at 1127. The reviewing court must view the record in its totality to determine if the factfinder was clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). The appellate court must determine if the factfinder's decision was a reasonable one. Id. This rationale stems from the fact that the trial court has "better capacity to evaluate live witnesses." Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). "[W]here two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart, 617 So.2d at 883. The majority of the issues presented in the case sub judice are factual questions and will be reviewed using the above standard.
Errors of law are reviewed de novo by the appellate courts. Balseiro v. Castaneda-Zuniga, 04-2038, p. 6 (La.App. 4 Cir. 8/17/05); 916 So.2d 1149, 1153.
Louisiana negligence claims are examined using a duty/risk analysis. Perkins v. Entergy Corp., 00-1372, p. 7 (La.3/23/01); 782 So.2d 606, 611. This analysis requires: 1) proof that defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; 2) proof that the defendant owed a duty to the plaintiff; 3) a breach of the duty; 4) proof that the defendant's substandard conduct was the legal cause of the plaintiff's injuries; and 5) damages. Id. The plaintiff must prove every element by a preponderance of the evidence. Riley v. Salley, 03-1601, p. 2 (La.App. 4 Cir. 4/21/04); 874 So.2d 874, 876. "Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not." Riley, 03-1601, p. 3, 874 So.2d at 876-77. Medical testimony can prove that an accident more probably than not caused a plaintiff's injuries. Id. at p. 2, 874 So.2d at 876.
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