author: [.MARION F. EDWARDS, Judge.

text:
    Esther HENRY, Kim Henry (Murray), and Curtis Jones, v. The PARISH OF JEFFERSON, through the DEPARTMENT OF PARKS AND RECREATION, Traveler’S Insurance Company, and William Coleman, Sr., et al.
    No. 02-CA-748.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Rehearing Denied Feb. 10, 2003.
    Lester J. Waldmann, Brian C. Beckwith, Gretna, LA, Jim S. Hall, Metairie, LA, for Appellant.
    Michael F. Grennan, Metairie, LA, for Appellee, Travelers Insurance Company.
    William P. Connick, Michael S. Futrell, Metairie, LA, for Appellees, Parish Of Jefferson.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and MARION F. EDWARDS.
   [.MARION F. EDWARDS, Judge.

Plaintiffs/Appellants appeal a jury verdict finding that the defendant, The Parish of Jefferson, through the Department of Parks and Recreation, was not at fault or negligent for several shootings which occurred at Marrero Action Center Playground on'the evening of November 14, 1992. For the following reasons, we affirm.

On the afternoon of November 14, 1992; Lakesha Lambert (“Lambert”), who was then a minor, appeared at the Marrero Action Center (MAC), in order to rent the upstairs room of the gym for her “Sweet Sixteen” birthday party. In booking the room for the party, Lambert was assisted by playground supervisor, William Coleman (Coleman). Lambert was required to fill out a form in conjunction with the room rental. On the form, Lambert indicated that the party would last from 8:00 p.m. until 1:00 a.m., and that eight chaperones would be present. Based on these assurances, Coleman allowed Lambert to reserve the room, as there was no MAC prohibition against renting rooms to minors. Because the amount of guests indicated on the form was below 100 persons, Jefferson Parish |3Recreation Department rules did not require the mandatory presence of a security officer. The party was by invitation only.

On the night of the November 14, Coleman twice 'called the Jefferson Parish Sheriffs Office, once to have the JPSO pass by as part of their normal rounds, and the second time to report an excess number of cars in the MAC parking lot. During the course of the evening the party drew many uninvited individuals who congregated in the MAC parking lot. At 12:06 a.m. on the morning of November 15, Coleman had called the JPSO a third time to request assistance in shutting down the party when, at the same time, he heard gun shots being fired. After .police arrived, among several victims who had been shot, it was discovered that Corey Henry had been killed by the gunfire and that plaintiff, Curtis Jones, had become paralyzed as a result of his bullet wounds.

Plaintiffs filed suit on November 12, 1993, and, in supplemental and amending petitions, added the Parish of Jefferson through the Department of Parks and Recreation (Jefferson Parish) as a defendant, alleging that Jefferson Parish, through William Coleman, was negligent for failing to provide security and supervision for the party on the night that the shootings occurred.

The trial of this matter began before a jury on September 10, 2001, and the jury rendered a verdict in favor of Jefferson Parish on September 18, 2001, finding no fault or negligence on their behalf by William Coleman. Plaintiffs timely filed this appeal.

LAW AND ARGUMENT

In their first assignment of error, plaintiffs assert that the jury erred in finding no fault on the part of Jefferson Parish for the shootings that took place.

In Canter v. Koehring Co., the Louisiana Supreme Court stated:

|4[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

In Perkins v. Entergy Corp., The Louisiana Supreme Court further noted in regard to appellate review of jury verdicts:

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Id. (citing Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)). In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Further, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221.

In the determination of whether a defendant is liable under La. C.C. art. 2315, Louisiana has established a duty-risk analysis, which was explained the Louisiana Supreme Court in Posecai v. Wal Mart

This court has adopted a duty-risk analysis to determine whether liability exists under the particular facts presented. Under this analysis the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Syrie v. Schilhab, 96-1027, p. 4-5 (La.5/20/97), 693 So.2d 1173, 1176-77; Berry v. State, 93-2748, p. 4 (La.5/23/94), 637 So.2d 412, 414. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. LeJeune v. Union Pacific R.R., 97-1843, p. 6 (La.4/14/98), 712 So.2d 491, 494.

In regard to the liability for injury of governmental agencies operating playgrounds, this court noted in Dussouy v. City of Kenner:

Municipalities must exercise that care in the maintenance and operation of its public parks, playgrounds and recreational areas, and the appliances therein and thereof, commensurate with ordinary and reasonable care under the circumstances. The municipality is not the insurer of the | ¡^safety of those making use of such facilities, neither is it required to eliminate every source or possibility of danger.
The duty is not to insure against the possibility of an accident, but to act reasonably. A governmental agency or municipality operating a public park or playground is held to the same degree of care arising from ownership as any other person in possession and control of land; this rule requires that the agency or municipality use reasonable or ordinary care to keep the premises in reasonably safe condition for those using them. Sutter v. Audubon Park Commission, 533 So.2d 1226 (La.App. 4 Cir.1988), writ denied, 538 So.2d 597 (La.1989).

In addition, as will be discussed below, other courts have held that public entities have no legal duty to anticipate unforeseeable criminal acts that occur in public places.

Thus, our review then, is to determine whether the jury was manifestly erroneous in finding that Jefferson Parish used reasonable care or ordinary care in regard to the plaintiffs and therefore was not negligent or at fault for the injuries sustained by plaintiffs resulting from the criminal acts which occurred on the MAC premises.

At trial, the jury was presented with the following evidence: Tim Whitmer, for Administrator of the Westbank recreation Department, testified that, depending on the type of event, the booking and policy procedure in 1992 was silent as to the specific age of those who would rent a facility, and that the determination was made on a case-by case basis by the supervisor. Whitmer also testified that in regard to the department’s 1992 policies, there were no specific number of chaperones was needed if the renter was under 18 years of age, and that this, once again, was left to the supervisor on a case-by case basis for “same day bookings.” Whit-mer stated that typically only one park personnel would be on hand for an event unless it was a rather large event. The staff member on hand would also have the authority to shut down the party at his discretion. For events that served | ^alcohol, “one uniformed deputy” was required for gathering of 100-199 people; however, same day bookings with no alcohol would not require a policeman.

The supervisor’s responsibility was to make sure that “nothing exceeded that it was supposed to exceed” and that “everything was under control.” There was no formal procedure in place stating when a supervisor is supposed to call the Jefferson Parish Sheriffs Office. This was also left to the discretion of the supervisor on a case-by-case basis. Whitmer further stated that after his investigation into the incident, he was very pleased with Coleman’s performance, and felt that Coleman had gone above and beyond his job duties by calling police earlier in the evening to monitor the MAC.

Lakesha Lambert testified that she rented the room at the MAC on the afternoon of the day that the party took place, accompanied by a man, Tracy Kent, who was over 30 years old. She put on the rental form that she was going to have approximately 100 people at the party. She also put on the form that there would be eight chaperones. The party would take place from 8:00-1:00 a.m, and was by invitation only. Notably, she did not invite plaintiffs Cory Henry, Kim Henry, or Curtis Jones to the party. She did not have any chaperones scheduled for the party, however her mother and aunt stopped by during the party and stayed for the duration. She recalled seeing MAC supervisor, William Coleman, checking in on the party. Lambert testified that there was no one smoking inside the room, and that she did not have liquor at her party, although people downstairs may have been drinking. Adults who attended the party were Linda Lambert, her mother, Brenda Frazier, her aunt, Tracy Kent, and Tammy Williams. Lambert’s mother turned away people at the door who did not have invitations.

William Coleman was the MAC supervisor at the time of the party. He testified that Lambert had an adult with her at the time she made the booking. He stated that it was impossible to get a deputy on same day bookings through the 17Sheriff s department. When the party started, Coleman saw three or more adults in the party room at the time the party started. At no time during the night did the party exceed 100 people. Coleman said that he checked in the party room several times that night. At 8:15, he called police and asked for a unit to pass through during normal rounds. He also checked the parking lot several times that night as well. Coleman testified that he never saw marijuana or alcohol at the party or in the parking lot during the night. At 10:00 p.m., Coleman called police to report excess cars in the parking lot.

Coleman consulted with Mrs. Lambert and told her that if the crowd outside became unruly, he would shut the party down. At approximately 12:00 a.m., Coleman did shut the party down because of the crowd. Lambert told him that she did not know the people outside. While shutting down the party, Coleman called police to help flush out parking lot. While on the phone with police, he heard the first shot fired.

At trial, the plaintiffs presented testimony, however, that painted the event in a different light altogether. By way of summary, in their brief, appellants characterize the scene at the MAC on the night in question as follows:

Hundreds of teenagers came to the MAC Playground that night. The ninety-six parking spaces at the playground were full. Both the room that was rented and the parking lot was filled with teenagers. There was beer, malt liquor, pot smoking and guns on the premises ... The party was out of control, with no uniformed deputy, adequate chaperones, grown ups or security guards. Because of the lack of supervision, the teenagers at the party were allowed to party virtually unrestrained, drinking alcohol, using drugs, carrying weapons, violating curfew and essentially running amok. Numerous altercations occurred at the party. During the evening, MAC supervisor Coleman twice calls the emergency 911 line to summon sheriffs deputies to the scene before the shootings, but fails to terminate the party.

In support of their assertions of Jefferson Parish’s alleged negligence, plaintiffs solicited the testimony of three experts who concluded that Jefferson Parish’s negligence consisted of several acts, both leading up to and on the night of | Rthe party itself. In summary, the alleged acts of negligence were: renting the activity room to a minor; failing to explain the Recreation Department’s stated policy and procedures as they pertained to the room rental; not requiring a JP Deputy to be on duty, and not requiring adult supervision, despite knowledge of “the known characteristic and instincts of minors when gathered in a group, and the probability of serious injury when such supervision is not required”; that Coleman should have been on hand to supervise the party; a recreation employee should have patted down party goers for weapons; Coleman should have shut down the party earlier if more than 100 persons attended; Coleman had a duty to shut the party down when a crowd appeared in the parking lot at 10:16 p.m.; and finally that the shooting was foreseeable because it occurred in a high crime area.

In spite of these assertions and according testimony by plaintiff witnesses, the jury had ample evidence before it to conclude that Jefferson Parish exercised reasonable or ordinary care in regard to the party. In particular, the record contains testimony that Coleman did not violate the Jefferson Parish policy in renting the room to Lambert, and that such rentals were left to the supervisor’s discretion. There was testimony that for events that served alcohol, “one uniformed deputy” was required for gathering of 100-199 people; however, same day bookings with no alcohol would not require a policeman. Additionally, Coleman also testified that JP Deputies could not be obtained for security in instances where the party was booked and would occur' on the same day. Based upon our review of the record, we further find no error in the jury’s determination that the Parish had no duty, through William Coleman, to conduct pat down weapon searches of the guests entering the party in the upstairs room.

In regard to plaintiffs claims of inadequate adult supervision, we note the following: Lambert indicated on the MAC rental form that she expected to have eight chaperones at the party. While this number was not accurate, and she, in fact, |9had not secured chaperones for the party, both Lambert’s mother and aunt were present at the party on the night of the shootings. Coleman testified that at the beginning of the party, he noted that three adults were present. The record indicates that at least five named adults were present at the party over the course of the evening: William Coleman, Linda Lambert, Brenda Frazier, Tracy Kent and Tammy Williams. Coleman testified, and corroborating testimony established, that he, himself, had checked in on the party several times during the night, further employing the aid of Jefferson Parish Deputies to monitor the proceedings.

The record contains conflicting testimony regarding the number of persons present at the party, pertaining to both the crowd contained in the upstairs room of the MAC, and in the parking lot. Based on the testimony, however, the jury apparently determined that Coleman did not let the party in the upstairs room exceed 100 persons. In regard to the uninvited crowd that had assembled in the parking lot downstairs, however, the record shows that Coleman summoned Jefferson Parish Deputies at approximately 10:00 p.m. that night to report an excess of cars in the parking lot. As defendants point out, the Deputies that did appear to assess the scene determined that no intervention was necessary. The jury was further presented with Coleman’s testimony that he finally made the call to close down the party and request police assistance when the crowd assembled in the parking lot became unruly. It was during this call for assistance that the shootings occurred.

As previously stated, Lakesha Lambert testified that the plaintiffs were not invited guests to her party which took place on the night of November 14, 1992. The jury was further presented with evidence that the plaintiffs were involved in a verbal altercation that occurred just prior to the party at the Belle Promenade Mall, located on the West Bank of Jefferson Parish. A group from Marrero, that included Curtis Jones and Corey Henry, took issue with the fact that members of arrival Westwe-go group, had communicated with a certain female while at the mall. Carl Jones, who was present at the Belle Promenade incident as a member of the Marrero group testified that the Westwego group went to the MAC on the night of the party with the “mall incident” on their minds. Brandon Craig also testified that after the shootings of Corey Henry and Curtis Jones, the only reason he could come up with for why it happened was the incident at the mall. ' Based on the foregoing, it would not have been unreasonable for the jury to determine that the shootings which took place were not related to the MAC party at all, but were a continuation of events that had occurred previously that evening, and were wholly unrelated to the party conducted in the upstairs room of the MAC. This conclusion was further bolstered by the testimony of plaintiffs expert, Dr. Wade Schindler who testified as follows:

DEFENSE COUNSEL:

I’m asking you if based on your review of the materials, the confrontation at the Belle Promenade Mall, had they met up right outside the gates of the playground, isn’t it a fact, Mr. Schindler,
that this would have gone down right there, and that they just happened to be in the parking lot at MAC Playground?

SCHINDLER:

It could have happened anywhere.

Appellants arguments related to the for-seeability of the shootings because of the location of the MAC in a high crime area, as testified to by plaintiffs expert, Wade Schindler, apparently merited little consideration by the jury. We note that the court in Sutter v. Audubon Park Commission, addressed a similar issue. In Sut-ter, the plaintiff was shot in a restroom in Audubon Park in New Orleans, and was rendered a paraplegic. Sutton argued at trial that the Audubon Park Commission, the park’s operator, was liable for his injuries because they had ^knowledge of several crimes that had previously occurred on the premises and did not provide special protection. The court, in reversing the lower court, held that Mr. Sutter’s shooting “was a random, unforeseeable criminal attack which could not easily have been prevented,” and that the Commission had no legal duty to anticipate such an attack.

In this case, Schindler testified that there had been no homicides at the MAC prior to November 14, 1992. Accordingly, based on the foregoing, we find that the jury did not commit manifest error in finding that Jefferson Parish was not at fault or negligent for plaintiffs injuries on the grounds that such an attack was foreseeable.

In their second assignment of error, plaintiffs assert that the trial court erred in failing to instruct the jury about legal fault under La. C.C. art. 2317, regarding the legal doctrine of garde, thereby tainting the verdict.

La. C.C. art. 2317 states:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. (Emphasis added).

In LaFrance v. Bourgeois, we noted the standard for appellate review for jury instructions:

In a jury trial, the judge has a duty to charge the jury as to the law applicable in a case and the correlative right and responsibility to require that the jury get only the correct law ... Adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. In making his charges to a jury, a trial judge is not required to give the precise instructions submitted by either party, but must give instructions which properly reflect the law applicable in light of the facts of the particular case ... The adequacy of jury instructions must be determined in light of the jury instructions as a whole. (Citations omitted).

11?In Toups v. Cochran, the Court rejected a similar argument to the one that plaintiffs make in the case at bar. In Toups, the plaintiff was beaten in the parking lot of a supermarket. At trial, plaintiff alleged that defendants breached a duty to protect the plaintiff from third party criminal acts, further asserting a strict liability claim under La. C.C. art. 2317. In that ease, the court held:

Plaintiffs contend that A & P is strictly liable to them pursuant to LSA-C.C. art. 2817, which imposes a legal duty upon all persons to be responsible for things in their custody. For this theory to apply plaintiffs must prove that 1) the thing which caused damage was in the care and custody of the defendant, 2) the thing had a vice or defect which created an unreasonable risk of harm, and 3) the injuries were caused by defect ... Plaintiffs do not even allege liability under these factors much less offer evidence to support them. In short, Art. 2317 has no application to this case. This is a simple negligence claim under C.C. art. 2315, which imposes liability upon one who causes damage to another.

(Citations omitted).

Similarly, in this case, we find that the plaintiffs have failed to show the applicability of the proposed charge. Further, in reviewing the jury instructions as a whole, we find the trial judge adequately instructed the jury as to the law as it pertained to the issues in this case. In particular, the record reflects that the trial court properly instructed the jury as to the duty owed by a premises owners toward persons on their property, specifically, the duty to protect others from the criminal acts of third parties. Accordingly, this assigned error lacks merit.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

      . 283 So.2d 716, 724 (La.1973).

      . 782 So.2d 606, 612, 2000-1372 La. 3/23/01, (La.2001).

      . 99-1222 (La. 11/30/99), 752 So.2d 762,

      . 97-1254 (La.App. 5 Cir. 4/28/98), 710 So.2d 1200.

        . Sutter v. Audubon Park Commission, 533 So.2d 1226 (La.App. 4 Cir.1988), writ denied, 538 So.2d 597 (La.1989).

      . 533 So.2d 1226 (La.App. 4 Cir.1988), writ denied, 538 So.2d 597 (La.1989).

      . 97-376 (La.App. 5 Cir. 10/15/97), 701 So.2d 1026.

      .98-0331 (La.App. 4 Cir. 10/7/98), 720 So.2d 140.


source: Caselaw Access Project

author: J^CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Yolanda Griffin HENDERSON, et al. v. NISSAN MOTOR CORPORATION, et al.
    No. 02-CA-337.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 2003.
    Rehearing Denied Feb. 3, 2003.

      Thomas G. Wilkinson, Michael P. Ciac-cio, Gretna, LA, and Jay M. Napolitano, New Orleans, LA, for plaintiffs-appellants — Fred and Yolanda Henderson.
    Richard P. Ieyoub, Attorney General, Kathi Vernaci Logan, G. Scott Vezina, Special Assistant Attorney Generals, Appeal Counsel for State of Louisiana, Department of Transportation & Development, Vezina And Gattuso, Gretna, LA, for defendant-cross-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   J^CLARENCE E. McMANUS, Judge.

FACTS

On June 26, 1993, Fred Henderson (“Fred”) was operating a 1998 Nissan 2000 SX on I — 10 Eastbound in the left lane. Yolanda Henderson (“Yolanda”) was a passenger in that vehicle. Christiane Schwartz (“Schwartz”) was operating a 1992 Honda Accord on 1-10 eastbound in the right lane. Fred was traveling about 55 miles per hour. He had just reduced his speed in anticipation of crossing the “Three Mile Bridge” just north of Laplace, Louisiana. Schwartz was traveling between 55 and 65 miles per hour. Before approaching the bridge, Schwartz crossed a portion of the roadway that had been repaired by the Louisiana Department of Transportation and Development just 4 months earlier. She testified at trial that she felt like her car had been struck from behind and she had run over something. She then lost control and veered into the left lane. She struck the right rear bumper of the Hendersons’ car, causing his car to strike the guardrail and ricochet into the path of Schwartz’s car. The passenger, Yolanda, was ejected from the car. As a result, she sustained serious, life threatening injuries. Yolanda and Fred filed a petition for damages naming Nissan, Schwartz, Schwartz’s father 13as owner of the vehicle, two insurance companies and the Louisiana Department of Transportation and Development (“DOTD”). Barriere Construction (“Barriere”) was later added as a defendant.

Barriere filed a motion for summary judgment arguing no liability because it had performed the work in accordance with plans furnished by the DOTD and DOTD had supervised and accepted the work. The trial court granted the motion for summary judgment. All other parties, except for the DOTD, settled with plaintiffs prior to trial.

A jury trial was then held and the jury found the highway to be unreasonably dangerous and the defect was a cause of the plaintiffs injuries. The jury also found Schwartz to be at fault in the cause of the accident. Fault was apportioned at 5% for the DOTD and 95% for Schwartz. The jury awarded Fred $125,000.00 for past mental anguish, $125,000.00 for past medicals and $125,000.00 for future medicals for a total award of $375,000.00. The jury awarded Yolanda a total of $3,200,000.00. This award included $1,000,000.00 for past pain and suffering and $1,000,000.00 for past mental anguish, $200,000.00 for past medicals, $500,000.00 for physical disability, and $500,000.00 for disfigurement.

Plaintiffs, Fred and Yolanda, then filed a motion for judgment notwithstanding the verdict arguing that the jury erred in allocating 95% fault to Schwartz and the jury erred in failing to award damages for future pain. and suffering, past and future loss of enjoyment of life, future mental anguish, past and future wage loss, loss of earning capacity, and future medical expenses. The trial court found that the allocation of fault and assessment of damages were questions of fact and that there was evidence upon which the jury may have concluded that Schwartz was negligent and the award of damages was within the jury’s discretion. Therefore, the trial court denied the plaintiffs’ motion and the jury verdict became the judgment of the court.

|4Plaintiffs now appeal the judgment arguing that the DOTD should have been held 100% at fault and Yolanda should have been awarded damages for future pain and suffering, future mental anguish, future medicals, past lost wages, loss of future earning capacity, and loss of enjoyment of life. They also argue that Fred should have been awarded damages for past pain and suffering, future pain and suffering, loss of enjoyment of life, and future mental anguish. The DOTD appeals arguing that it is not at fault in the cause of the accident.

DISCUSSION

A jury verdict is a factual finding and cannot be disturbed on appeal unless the trial court committed manifest error or a finding of fact is clearly wrong. Mart v. Hill, (La.1987) 505 So.2d 1120, citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Apportionment of Fault

At trial, the jury heard evidence from varying expert witnesses, who testified for both the defense and plaintiff. Those witnesses each formulated different opinions as to the cause of the accident. The plaintiffs expert, James Clary, testified that the “dip” in the highway could be unreasonably dangerous. Plaintiffs also presented the testimony of an accident reconstructionist, Dale Moore. The DOTD argues on appeal that Clary’s testimony was not credible. He had no personal knowledge of the area and had only visited the site twice. The DOTD further argues that Moore’s opinions were not supported by scientific evidence and his conclusions were vague. The DOTD presented Maurice Jordan as an expert in Highway Maintenance. Jordan testified that the road was not defective or hazardous to the motoring public after the patch was placed. The DOTD also presented David Hall as an expert in highway maintenance, design, safety, signing and accident reconstruction. Hall testified that there was no scientific evidence that the patch would have caused Schwartz to lose control of her vehicle and no Isevidence that the bouncing up and down would have caused her vehicle to move left. Hall further testified that the condition of the interstate was not unreasonably dangerous.

Deputy Blaine Wear of the St. John the Baptist Sheriffs office investigated the accident and testified at trial that there was an indentation or dip in the patch on the roadway. On his accident report, he noted this patch work was a contributing cause of the accident because it could cause someone to lose control of their vehicle.

After reviewing the testimonies presented at trial, we find the jury’s verdict as to the apportionment of fault to be manifestly erroneous. We believe the DOTD’s patch on the highway was a substantial cause of the accident. Therefore, we find the DOTD and Schwartz to each be 50% at fault in the cause of the accident.

Damages

Plaintiffs argue that the jury erred by not awarding the damages listed previously. First, Yolanda claims she is entitled to damages for past and future loss of enjoyment of life. She argues she is unable to participate in those things she enjoyed before the accident, including sports. We find Yolanda is entitled to an award for loss of enjoyment of life and the jury was manifestly erroneous in failing to award damages for this loss. Yolanda testified at trial that she is unable to participate in activities like she did before the accident. She testified that she and Fred used to jog for exercise, but she is unable to do that now because of her injuries. Dr. Chad Millet, an orthopedic surgeon, testified that Yolanda has a permanent restriction in the motion of her left forearm and a permanent limp in her right leg, which could cause future arthritis in her lower back and/or hip. Dr. Millet testified that he would recommend that she not jog because it would accelerate the arthritis. Yolanda was also treated by Dr. Joseph Tramontana, a | ^clinical psychologist. She told Dr. Tramontana that prior to the accident she was active and participated in jogging, walking, and riding bikes. After the accident, she was unable to participate in those activities. Therefore, we find she is entitled to an award for loss of enjoyment of life in the amount of $100,000.00.

Yolanda also argues she is entitled to damages for her loss of earning capacity because before the accident she was pursuing a career in business/banking and since the accident she decided to pursue a career in social work. She contends her earning capacity is less with a career in social work than with a career in banking/business. She testified at trial that her career change was the result of the injuries she suffered from the accident. She now has a scar on her face and a scar on her leg. She stated the scars attract attention and are embarrassing. She stated she cannot work in business/banking because she would be forced to deal with the public and would have no private time to attend to her medical needs. As a social worker, she is able to adapt her schedule to accommodate her physical and medical needs. We do not find that she is entitled to damages for loss of future earning capacity. She is fully capable of pursuing the career she had begun before the accident, but has chosen not to. She chose to return to school and obtain a different degree. Barney Hedgwood, a vocational rehabilitation counselor, testified that according to the Occupational Outlook Handbook, in 1997 the average salary of a social worker with a masters degree was $35,000. He further testified that in 1996, the median salary for an individual in the securities and financial services area would be $38,800. In comparison, the average salaries of these two careers are not vastly different. In addition, the injuries sustained from the accident are not precluding her from pursuing a career in business/banking. Therefore, we find the plaintiff is not entitled to damages for loss of future earning capacity.

17Yolanda next contends she is entitled to lost wages which occurred as a result of her inability to work following the accident. Yolanda testified that prior to the accident she worked part time as a cashier in the Tiger Lair student union while attending school at Louisiana State University. She was to receive her undergraduate degree in August 1993, two months after the accident. Because of the accident she received her diploma while in the hospital. After the accident, she was unable to work for approximately six months. In January 1994, she returned to her part time job as a cashier at the Tiger Lair working 10 hours per week and earning minimum wage of $4.25 per hour. In the Fall of 1994, Yolanda returned to school to pursue a masters degree in social work. Yolanda is arguing that her lost wages for the six months following the accident should be based on the salaries of the jobs she had been offered that were to begin after she graduated. She testified at trial that she had received two job offers, but had also considered pursuing an accounting program at LSU.

We find that Yolanda is entitled to past lost wages for the six month period of time she was unable to work. We further find that these lost wages should be calculated based upon the part time minimum wage job she had prior to the accident, and returned to in January 1994. We do not believe she is entitled to lost wages based upon the salaries of the job offers she had received prior to the accident because she provided no proof at trial that she intended to pursue one of those jobs. If she pursued the accounting program at LSU, then she would likely keep her part time job. Therefore, we find she is entitled to $1,020.00 for lost wages as a result of the accident.

We also find that Yolanda is entitled to damages for future pain and suffering. As of the date of trial, Yolanda continued to have swelling in her right leg, which is permanent, and has to wear a Jobst stocking to prevent fluid from collecting in her leg. Dr. Chad Millet, an orthopedic surgeon, testified at trial that | sYolanda would have a permanent limp in her right leg and this would cause future arthritis in her lower back and hip. Based on the testimonies presented at the trial, we find Yolanda is entitled to $300,000.00 for future pain and suffering.

Further, we find that Yolanda is entitled to damages for future mental anguish. Following the accident, Yolanda was treated by Dr. Joseph Tramontana, a clinical psychologist. He testified that his last session with Yolanda was on June 13, 1997. At that time, he felt she was improving, but not fully recovered from the psychological illnesses she was suffering as a result of the accident. She still had some anxiety disorders. In addition, Yolanda continues to dislike her appearance because of the scarring caused by the accident. Therefore, we find Yolanda is entitled to $150,000.00 for future mental anguish.

In addition to the above, we have reviewed the jury verdict and the evidence presented at trial and will address Yolanda’s damage awards for past mental anguish, past medicals, physical disability, and disfigurement. We believe the jury was manifestly erroneous in deciding the amounts of these awards and, therefore, we find that these damage awards should be reduced for the reasons which follow.

We find that Yolanda did suffer mental anguish as a result of the accident. However, we believe the award of $1,000,000.00 is contrary to the evidence presented. Yolanda was ejected from the vehicle and did suffer traumatic injuries. She treated with Dr. Tramontana, a clinical psychologist for three and a half years. He found that she suffered from severe major depression, secondary to physical trauma and generalized anxiety disorder. She was only seen as an outpatient once per week for about six months and then sporadically for the remainder of the three and a half years. In addition, she was distressed about her appearance. Although we find that Yolanda suffered substantial mental anguish as a result of this accident, we believe the jury’s award is too high. Therefore, we find Yolanda is entitled to $500,000.00 for her past mental anguish.

|flWe also believe the jury’s awards for Yolanda’s physical disability and disfigurement are contrary to the evidence presented. According to Dr. Robert Allen, Yolanda will suffer a 30-40% permanent partial disability to her right leg. She will also have a permanent drop foot and a permanent limp. Dr. Allen also testified that Yolanda has scarring on 9% of her body. This includes scars on her left leg, abdomen, left thigh, buttocks, face and back. Based on the testimonies presented at trial, we find Yolanda is entitled to $100,000.00 for physical disability and $200,000.00 for disfigurement.

We also note that the jury awarded $200,000.00 to Yolanda for past medicals. Yolanda has stipulated that her past medicals are only $199,177.82. Therefore, we make that correction to the judgment as well. Further, we agree with and affirm the awards for past pain and suffering and future medicals.

We have also reviewed the damage awards for Fred and agree and affirm the award for loss of enjoyment of life. We also note that the jury awarded Fred $125,000.00 for past medicals. However, he has stipulated that his past medicals were only $5,730.25 and we make that correction to the judgment. We also review the other awards to Fred with the following analysis.

We believe Fred is entitled to an award for past pain and suffering. He was injured in the accident and was treated for injuries to his ankle, knee and lower back. As of the date of trial, Fred testified he was still hurting and that his knee hurt constantly. Therefore, we find that Fred is entitled to $20,000.00 for past pain and suffering. We also find that he is entitled to future pain and suffering. Dr. S. Daniel Seltzer treated Fred for his injuries. Dr. Seltzer recommended arthroscopy surgery on his knee. Since this surgery is likely to be necessary in the future, we find that Fred is entitled to $10,000.00 for future pain and suffering.

Fred is also entitled to future mental anguish. He was treated by Dr. Tramontana and was diagnosed with post-traumatic stress disorder, hyper vigilance hoand survivor’s guilt. He was .treated until July 14, 1995. At that time, Dr. Tramontana felt he was improved, but not fully recovered. Therefore, we find he is entitled to $25,000.00 for future mental anguish.

Even though Fred suffered from the mental disorders mentioned above, we find the jury’s award for past mental anguish to be contrary to the evidence. He was only treated by Dr. Tramontana sporadically. He did suffer the unfortunate experience of finding his fiancé after being ejected from the car and suffers nightmares about the ordeal. Therefore, we find Fred is entitled to $90,000.00 for past mental anguish.

Finally, we find the jury’s award of future medicals for Fred to be contrary to the evidence. As discussed above, Dr. Seltzer recommended future arthroscopy surgery. He estimated this surgery would cost from $4,000-6,000.00. No other evidence of future medicals was presented. The jury awarded $125,000.00, however, we find Fred is only entitled to $6,000.00 for future medicals.

In accordance with the above, we amend the jury’s apportionment of fault and damage awards. We find the DOTD and Schwartz to each be 50% at fault in the cause of the accident.

Further, we amend the jury’s damage awards. We find Yolanda is entitled to $1,000,000.00 for past pain and suffering, $300,000.00 for future pain and suffering, $500,000.00 for past mental anguish, $100,000.00 for loss of enjoyment of life, $150,000.00 for future mental anguish, $199,177.82 for past medicals, $100,00.00 for physical disability, $200,000.00 for disfigurement, and $1,020.00 for past lost wages. The total damages awarded to Yolanda are $2,550,197.82. We also find that Fred is entitled to $20,000.00 for past pain and suffering, $10,000.00 for future pain and suffering, $90,000.00 for past mental anguish, $25,000.00 for future mental anguish, $5,730.25 for past medicals and $6,000.00 for future medicals. The total damages awarded to Fred are $156,730.25.

Inin accordance with the above, we amend the trial court’s judgment and, as amended, we affirm the judgment.

JUDGMENT AMENDED AMENDED, AFFIRMED,