Reck v. Stevens

• Decision Date: 25 June 1979
• Docket Number: No. 63982,63982
• Citation: 373 So.2d 498,14 A.L.R.4th 313
• Parties: Gothlyn J. RECK, Plaintiff-Appellant-Relator, v. Richard STEVENS, Defendant-Appellee-Respondent.
• Court: Louisiana Supreme Court

Page 498

373 So.2d 498

14 A.L.R.4th 313

Gothlyn J. RECK, Plaintiff-Appellant-Relator, v. Richard STEVENS, Defendant-Appellee-Respondent.

No. 63982.

Supreme Court of Louisiana.

June 25, 1979.

Gothard J. Reck, New Orleans, for plaintiff-appellant-relator.

George H. Jones, New Orleans, for defendant-appellee-respondent.

TATE, Justice.

After a lengthy trial, the district court awarded the plaintiff $10,000 for pain and suffering. The court of appeal found the award to be excessive and reduced it to $5,000. 365 So.2d 876 (La.App. 4th Cir. 1979).

We granted certiorari, 368 So.2d 144 (La.1979), because we felt that, in reducing the award, the intermediate court erred (whatever its result) in failing to follow the principles of appellate review required by La.Civ.C. art. 1934(3) and the jurisprudence of this court. Specifically, we felt that the intermediate court had erred:

(1) In apparently finding that the trier of fact's great discretion in the award of general damages had been abused, simply on the basis of previous awards made for Medically similar injuries, without considering the particular facts and circumstances of the injury to this particular person (the plaintiff).

(2) In its failure to articulate the prior awards and their range, in the light of which a principled reduction of the award might be made if the reviewing court first finds an abuse of discretion by the trier of fact in the award of general damages.

I

Civil Code Article 1934(3) provides that, in the assessment of general damages, "much discretion must be left to the (trial) judge or jury * * * ." Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) is the fountainhead decision of modern jurisprudence interpreting and applying this code provision. In annulling an appellate change of the trier of fact's award for general damages, we there stated, 158 So.2d 158:

"The primary question before the appellate court, then, is whether the judge or the jury in fixing the amount of the award has abused its great discretion vested in them by law. . . . (Prior decisional awards) relied upon may be similar in that each of them involve a similar injury such as broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances peculiar to the case under consideration. The primary purpose of the judge or jury in fixing the award in a personal injury case is to adequately compensate the injured person for his injury under the facts shown to exist in his case."

We elaborated on the methodology of appellate review of awards for general damages in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). We there stated, 341 So.2d 335-36 (Italics supplied and citations omitted):

"We do re-emphasize, however, that Before a Court of Appeal can disturb an award made by a trial court that the record must Clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that The record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence."

In the present instance, the intermediate court's written opinion ignores these principles, although it cites and purports to follow Coco. ¹

II

We initially note that, in reducing the award, the court of appeal apparently did so only on the basis of the nature of the medical injuries. It described the medical injuries it found proved (post-concussion syndrome lasting not more than six months, loss of hearing treated for approximately two months, laceration inside her mouth resulting from blows to her face), and then found the award of $10,000 to be excessive. The methodology of the reduction was as if the intermediate court had read only medical reports to this effect, and then had determined that for this type of injury no more than $5,000 should be awarded.

The court of appeal did not take into consideration the particular effects of these particular injuries upon this particular plaintiff (with an underlying previously latent psychiatric disorder), nor the emotional trauma caused by the particular circumstances of this particular tort, where her uncle-defendant struck the plaintiff-victim to the floor, and again hit her when she arose, propelling her part way across the room.

The use of such a scale of prior awards, made for merely generically similar medical injuries, has been expressly and repeatedly disapproved by Gaspard and the succeeding jurisprudence. Such a hypothetical scale of hypothetical awards cannot be used to determine whether or not This trier of fact has abused its discretion in the award to This particular plaintiff under the facts and circumstances peculiar to this case. ²

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.

With regard to appellate review of the much discretion of the trier of fact in the award of general damages, La.C.Civ.P. art. 1934(3), we stated (after exhaustive review of the facts, and reversing the appellate court for disturbing (On the basis of prior awards ) the trier of fact's award) in Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127, 132 (1967) (Italics ours):

"The law is plain and means what it says, and it is the duty of all appellate courts to follow it. Under this rule the amount of damages assessed by the judge or jury should not be disturbed unless the appellate court's examination of the Facts reveals a Clear abuse of the discretion vested in the trial court. . . . The facts and circumstances in the other neck injury awards, relied upon by respondent as showing that this award was all out of proportion with the previous awards for similar injuries, causes them to have little or no relevancy for purposes of demonstrating the excessiveness of This award."

Thus, the initial inquiry must always be directed at whether the trier court's award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact's "Much ³ discretion," La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.

In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) "similar" injuries, see Coco at 341 So.2d 334.

However, absent an initial determination that the trial court's very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier's award. Wilson v. Magee, 367 So.2d 314 (La.1979).

III

The trial court awarded the plaintiff, Miss Reck, $10,000 general damages, and $1,362.75 special damages. The latter included $926.75 medical expenses occasioned by Miss Reck's injuries and $400 for twenty days loss of work resulting from them.

Miss Reck received severe blows from her uncle by marriage, the defendant Richard Stevens, in the aftermath of a heated quarrel between Miss Reck and her aunt (Mrs. Stevens), and her grandmother (Mrs. Lamana). The plaintiff is a 31-year-old female weighing 115 pounds, while the defendant is a 48-year-old male weighing 185 pounds.

Miss Reck, who had underlying emotional problems (see below) and was very upset, was in a tug of war with her grandmother to take out a family portrait. (The plaintiff had lived with her grandmother since the age of two, but she had moved out shortly after Mr. and Mrs. Stevens had moved into the grandmother's household.) The grandmother slipped and fell. As the trial court expressly indicated, there was no intention indicated on the part of Miss Reck to assault her grandmother.

However, the defendant Stevens, fearing for the grandmother's safety, then intervened. The defendant admitted he struck Miss Reck with a total of four blows on the right side of her face, but he claims they were in defense of his wife and the grandmother and in self-defense. At least one severe blow was just above the plaintiff's right ear.

The trial court found that his intervention was reasonable under the circumstances, but that his response was greatly excessive and "out of proportion to the realities of the situation."

In the district court's words, Stevens struck Miss Reck with "a full force blow ("somewhere between a slap and a professional punch "). It propelled plaintiff eight to ten feet across the room, causing her to fall to the ground. She got up, and now in full anger, approached him threateningly....