author: LTHOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Thomas L. BERGMAN.
    No. 04-KA-435.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, Louisiana for Plaintiff/Appellee.
    Kenneth J. Beck, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   LTHOMAS F. DALEY, Judge.

Defendant, Thomas Bergman, entered a guilty plea to charges of possession of alprazolam in violation of LSA-R.S. 40:969(C) and reserved his right to appeal the trial court’s denial of his Motion to Suppress under Crosby. For the reasons that follow, we affirm the trial court’s denial of the Motion to Suppress.

FACTS:

At the hearing on the Motion to Suppress, Deputy Thomas Bryson testified that while driving on the Huey P. Long Bridge he observed a vehicle driving in both the left and right hand lanes. He followed the vehicle, a 4x4 truck, and saw it strike the left guardrail and then move to the right side and strike the right guardrail where the vehicle climbed up the rail before landing back in the lane. Deputy Bryson testified that at this point, he activated his emergency lights and siren. Thereafter, he observed the truck strike the guardrail three more times before it stopped at the Circle K in Bridge City.

| ¡¡Deputy Bryson testified that he asked the driver, later identified as defendant, Thomas Bergman, to exit the vehicle and the driver complied. Deputy Bryson conducted a pat-down search of defendant before advising him of his Miranda rights and placing him under arrest for careless operation of a motor vehicle. Deputy Bry-son testified that at that point, defendant advised that he had a handgun in his vehicle. Deputy Bryson went to the truck to retrieve the handgun, explaining that he first looked under the driver’s seat. He did not find the gun, but found a pill bottle containing white tablets, which Deputy Bryson recognized as Xanax. Deputy Bryson subsequently located the loaded gun between the console and the driver’s seat.

LAW AND DISCUSSION:

On appeal, defendant argues that the trial court erred in denying his Motion to Suppress the evidence because the al-prazolam was illegally seized. He first contends the pill bottle was seized as the result of an illegal search of his vehicle. Defendant asserts the search of his vehicle was not part of a valid search incident to arrest. He maintains the police were limited to searching the area within his immediate control, which did not include his vehicle since he was detained out of reach of his truck. Defendant further asserts he did not consent to a search of the vehicle and maintains exigent circumstances were not present to justify a search of his truck. He next argues the pills in the bottle were not in plain view and, therefore, there was no justification for the police officer to open the bottle and retrieve the pills. Defendant contends the police had no reason to suspect the pill bottle contained anything illegal. He also asserts the pill bottle itself, which was under the driver’s seat, was not in plain view.

The State responds the seizure of the alprazolam was justified as a search incident to arrest and the automobile exeeption to the warrant requirement. The I ¿State argues defendant was stopped for a traffic violation, which provided the police with the authority to arrest him. Once defendant was arrested, the State maintains the police had the authority to search his vehicle. The State contends the plain view doctrine is inapplicable because the search, which yielded the narcotics, was made pursuant to a lawful arrest.

In a hearing on a Motion to Suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a Motion to Suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 138, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. War-rantless searches are per se unreasonable unless they can be justified under one of the narrowly drawn exceptions to the Fourth Amendment’s warrant requirement. State v. Freeman, 97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 634. The State bears the burden of proving that such an exception applies. Id.

One exception to the warrant requirement is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Joseph, 02-717 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049, 1051. Once a lawful arrest has been made, a warrant-less search of the arrestee’s person and of the area within his immediate control is permissible in order to remove any weapons from his person and to prevent evidence from being destroyed. Id. When the occupant of an automobile is arrested, the police may search the passenger compartment of the automobile as a search incident to the arrest. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Freeman, supra at 634. Police may also examine the contents of any containers found within 1 ¡¡the passenger compartment, whether they are open or closed, as the arrest justifies the infringement of any privacy interest the arrestee may have. New York v. Belton, 453 U.S. at 460, 101 S.Ct. 2860.

• Defendant was stopped and arrested for careless operation of a vehicle, a violation of LSA-R.S. 32:58, after Deputy Bryson observed him hit the curb on five occasions while crossing the Huey P. Long Bridge. The penalty for violation of LSA-R.S. 32:58 is found in LSA-R.S. 32:57(A) which provides for a fine of not more than $175 and/or imprisonment for not more than thirty days for a first violation. By definition, a violation of LSA-R.S. 32:58 is a misdemeanor offense. LSA-C.Cr.P. art. 933; LSA-R.S. 14:2. Having committed a misdemeanor offense in the presence of the police officer, defendant was subject to arrest without a warrant. LSA-C.Cr.P. art. 213. Defendant does not contest the fact he was lawfully arrested. Rather, he argues the search of his automobile exceeded the permissible scope of a search incident to an arrest. He asserts the interior of his automobile was not within his immediate control once he was detained out-of reach of the vehicle.

In State v. Alaimo, 95-1044 (La.App. 4 Cir. 6/29/95), 657 So.2d 1102, 1104, the Fourth Circuit, relying on New York v. Belton, supra, stated “the police may search the passenger compartment of a car and any containers therein' even though the occupant has been removed, so long as the former occupant was lawfully arrested and had been an occupant just prior to that arrest.” In Alaimo, defendant and his passenger were removed from their car after a traffic stop. The defendant was subsequently arrested for various traffic violations. After | (¡defendant’s arrest, the police searched the vehicle and found two tinfoil packets in the ashtray. The packets were opened and found to contain heroin.

The Fourth Circuit found that if the police had probable cause to arrest the defendant for traffic violations, the search of the passenger compartment of the car was permissible as a search incident to arrest and the heroin was not subject to suppression. The trial court had not determined if probable cause existed to arrest the defendant so the matter was remanded for an evidentiary hearing on the issue. The court further noted its earlier decision in State v. Smith, 489 So.2d 966 (La.App. 4 Cir.1986), where it found that police officers were justified in conducting a search of an automobile and in opening a container found inside that contained drugs as incident to defendant’s arrest.

The rationale in Alaimo is consistent with the United States Supreme Court’s most recent discussion of Belton in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 904 (2004). In Thornton, the United States Supreme Court discussed the scope of a search incident to a lawful arrest of an occupant of an automobile. The issue presented was whether Belton’s rule is limited to situations where the officer makes contact with the occupant while the occupant is inside the vehicle or whether it also applies when the officer first makes contact with the arrestee after he has stepped out of his vehicle. The Supreme Court found no distinction between an officer ordering occupants out of the vehicle and an officer initiating contact with the occupants while they remained in the vehicle for purposes of a search of the vehicle incident to the occupants’ arrest.

In so ruling, the Supreme Court discussed the dangerous situation created by a custodial arrest. The Supreme Court stated that “the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.” Id. at 124 S.Ct. at 2131. The Supreme Court noted a custodial arrest creates a highly volatile situation for the officer. The court acknowledged that not all contraband in the passenger compartment is likely to be readily accessible to a recent occupant of the vehicle, but concluded it was reasonable to allow officers to ensure their safety by searching the entire passenger compartment. Id. at 124 S.Ct. at 2132.

In the present case, testimony at the Motion to Suppress indicates that defendant was lawfully arrested following a traffic violation. He was advised of his Miranda rights. Thereafter, he advised Deputy Bryson that he had a gun in the vehicle. While Deputy Bryson admitted it is not illegal to keep a gun in a ear, he went to retrieve the gun out of safety concerns. The passenger remained outside the vehicle by the curb and, therefore, was in close proximity to the vehicle and gun. In searching for the gun, Deputy Bryson looked under the driver’s seat where he discovered the pill bottle containing the alprazolam. Under Belton, supra, and the rationale of Thornton, supra, Deputy Bryson was justified in searching the vehicle and opening the containers therein as incident to defendant’s lawful arrest. Accordingly, the trial court properly denied the defendant’s Motion to Suppress.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors in this case.

For the foregoing reasons, the judgment of the trial court denying defendant’s Motion to Suppress is affirmed.

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      .LSA-R.S. 32:58 provides: "Any person operating a motor vehicle on the public roads of this state shall drive in a careful and prudent manner, so as not to endanger the life, limb, or property of any person. Failure to drive in such a manner shall constitute careless operation.”

      . See, State v. Knight, 574 So.2d 483, 485-486 (La.App. 4 Cir.1991), and State v. Morgan, 445 So.2d 50, 53-54 (La.App. 4 Cir.1984), writ denied, 446 So.2d 317 (La.1984).

      . This Court cited Alaimo with approval in State v. Freeman, supra.


source: Caselaw Access Project

author: 19JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Shelby Joseph HIMEL, Jr., Individually, and as Curator of Sandra Rhodes Himel v. The STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Wal-Mart Stores, Inc., Goodyear Tire & Rubber Company and the Kelly-Springfield Tire Company.
    No. 04-CA-274.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      William S. Watkins, James M. Funder-burk, Stanwood R. Duval, Duval, Funder-burk, Sundbery, Lovell & Watkins, Hou-ma, LA, for Plaintiff/Appellee.
    Charles C. Foti, Jr., Attorney General, Baton Rouge, LA, Ronald J. Landry, La-Place, LA, Nancy A. Miller, Metairie, LA, for DefendanVAppellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   19JAMES L. CANNELLA, Judge.

The Defendant, State of Louisiana, through the Department of Transportation and Development (DOTD), appeals from a judgment of liability and damages in wrongful death and survival actions brought by and on behalf of Sandra Himel, the decedent and her husband and son, Plaintiffs, Shelby Himel, Jr. and Shelby Himel, III. The Plaintiffs also filed a cross-appeal to the trial judge’s reduction of the damage award under La.R.S. 13:5106 B(2). We amend in part and affirm as amended.

On September 8, 2000, the decedent was an active and healthy 48-year-old woman living in Vacherie, Louisiana with her husband, their 21-year old son and their 9-year old granddaughter. That morning, she drove her son to work in Thibodaux in her 1994 Mazda. At around 8:00 a.m., she was returning home on Louisiana Highway 20, traveling northbound on the two-lane road when she lost control of her car, crossed the road and flipped over into the bayou paralleling the southbound lane. The accident occurred somewhere near mile post 28.9. The sole ^eyewitness to the accident was Richard Stein (Stein), an 18-wheel truck driver who had been following her car. Stein stopped, jumped from his truck, dove into the water and tried to remove her from the car. He was unable to do so because the car was “pretty much under the mud.” When the rescue unit arrived, the workers unsuccessfully tried to flip over the car. The mud was too soft. Allen Chenier, a volunteer fireman, used the rescue unit to pull the car onto shore where the rescuers were able to turn the car over and remove the decedent. She was not breathing. Cardiopulmonary resuscitation (CPR) was started. Her heart rate was finally detected 15-20 minutes later and she was transported to Thibodaux Regional Medical Center.

At the hospital, state troopers and the emergency medical technicians told Dr. Sarat Donepudi that they believed that the decedent had been trapped for 15-20 minutes in the submerged vehicle. The doctor found no physical injuries, but determined that she was in a coma caused by lack of oxygen. She was unable to respond to questions and unable to recognize anyone. According to the doctor, she was like a “vegetable.” The decedent remained in a comatose state until her death 14 months later, on November 1, 2002, from complications following surgery to remove an infected mediport.

The Plaintiffs filed suit on July 13, 2001 against DOTD, Wal-Mart Stores, Inc., Goodyear Tire and Rubber Company and the Kelly-Springfield Tire Company. All the Defendants, except DOTD, settled with the Plaintiffs prior to trial. A jury trial was held August 13, 2003 through August 15, 2003. The jury found DOTD 93% at fault and the decedent 7% at fault. It awarded her |4$1,260,912.15, which included medical expenses of $723,912.15. The jury further awarded $861,000 to Shelby Himel, Jr. and $300,000 to Shelby Himel, III for their wrongful death actions. The award totaled $2,421,912.15. In the judgment by the trial judge on September 16, 2003, the award was reduced by $694,000 to comply with the trial judge’s interpretation of the statutory cap in La.R.S.13:5106 B(2). Judgment was entered against DOTD in the amount of $1,558,378.30.

On appeal, DOTD contends that the inconsistencies in the jury’s answers to the interrogatories require this Court to conduct a de npvo review. It further asserts that the trial judge erred in refusing to strike a certain juror for cause when the juror expressed her inability to be fair and impartial. Third, DOTD contends that the trial judge erred in allowing the Plaintiffs’ expert to testify regarding the road condition when the photograph relied on was not properly authenticated. Next, it asserts that the jury committed manifest error in finding that it was in any way at fault, or in its apportionment of fault. DOTD also asserts that the jury erred in awarding Shelby Himel, III $300,000 when he failed to appear at trial to testify, and in the amount awarded to Shelby Himel, Jr. for the decedent’s past lost wages ($87,-000), and for his loss of services, loss of past support, and loss of future support ($350,000).

The Plaintiffs answered the appeal. They contend that the trial judge incorrectly interpreted La.R.S.13:5106 B and in reducing the general damage awards to a single $500,000.

INCONSISTENT JURY INTERROGATORIES

DOTD first argues that the answers to the jury interrogatories were inconsistent, and that this inconsistency requires a de novo review. However, it failed to object either at the reading of the verdict or in any post-trial motions in the trial court. Thus, the trial judge never had an opportunity to take remedial action while the jury was present or otherwise rule on the question. As provided |Bby La.C.C.P. art. 1813, the objection is waived. Metz v. Howard, 93-726, p. 5 (La.App. 5th Cir.1/25/94), 631 So.2d 1248, 1250-51; Morris v. United Services Auto. Ass’ n., 32,528 p. 12-13 (La.App. 2nd 2/18/00), 756 So.2d 549, 560; Bourque v. Gulf Marine Transp., Inc., 480 So.2d 337, 340 (La.App. 3rd Cir.1985). In the absence of an objection properly raised in the trial court, the issue has not been preserved for appellate review and we will not address it.

FAILURE TO EXCUSE JUROR FOR CAUSE

DOTD next argues that one of the jurors that served on the jury, Elizabeth Ordeneaux (Ordeneaux), should have been excused for cause because she felt that the highway where the accident occurred was dangerous. She informed the trial court that her brother’s car had also gone off the roadway and into the bayou. He was unhurt. When asked by DOTD’s counsel if she could set aside her preconceived conclusions and listen to the evidence, she responded that “I think it’s dangerous.” She made that statement several times, but did not state that she could not evaluate the evidence fairly.

The juror was not alone in her assessment of the safety of the roadway. Most of the persons questioned indicated uneasiness about driving on that section of the highway or felt it was dangerous and unsafe. In addition to Ordeneaux, other members of the jury venire noted that family members or friends had run off the road into the bayou in that area. Several indicted that their preconceived notions of the roadway’s safety would affect their ability to judge the case fairly. They were excused for cause. However, when the trial judge questioned the potential jurors who felt that the road was dangerous in an attempt to rehabilitate them, Ordeneaux was overlooked and not questioned. That was an oversight. In the jury selection conference among the trial judge and attorneys, counsel for DOTD stated he did not know if she had been rehabilitated because he could not hear. Everyone was having trouble hearing the potential jurors’ responses because | (¡there was a problem with the acoustics in the courtroom. The trial judge and Plaintiffs’ attorneys thought that she had been rehabilitated. After reviewing the transcript, we find that she had not been rehabilitated. However, no counsel attempted to find out at the time that the trial judge was questioning the potential jurors what her response had been, or to ask the court reporter to read back the rehabilitation colloquy during the conference to find out whether she had been rehabilitated. A quick review of the colloquy would have brought the oversight to the notice of the trial judge and he could have rectified it then. Because there was ample opportunity to correct the problem, we find that DOTD waived any objections to the inclusion of the juror in the jury and that a de novo review is unnecessary.

TESTIMONY OF PLAINTIFF’S EXPERT

DOTD contends that the trial judge erred in allowing the Plaintiffs expert, Ronald Shields (Shields), P.E., to testify regarding the dangerous condition of the roadway on the day of the accident when the photographs relied on by the expert were not authenticated as to time, place, and subject. The eyewitness, Stein, was shown several photographs and asked to assume that they depicted the area, but no evidence was produced to show that the photograph containing a police car was the exact spot where the deceased left the road on the second attempt to regain control of the car. No evidence was produced as to who took the photographs or when they were taken. Then, those photographs were shown to Shields, an expert in the “field of design, construction, and maintenance of highways.” He relied on the photographs to conclude that the highway did not have an adequate edge of pavement and shoulder and that the drop-off from the road was between 4-6 inches where the deceased first left the road. The other photographs allegedly showed the general area that the car went off the road the second time. Shields concluded that |7because of the condition of the highway and its shoulder, there was a high probability that she would not have turned over in the bayou had the condition of the roadway been improved.

The record disclosed that the photos in question were admitted into evidence at the start of trial without objection and no objection was raised when Shields testified to his conclusions from the photographs. The failure of a party to make a contemporaneous objection to the admission of evidence during trial waives the right of a party to complain that the evidence was improperly admitted on appeal. Karagiannopoulos v. State Farm Fire & Cas. Co. 94-1048, p. 10 (La.App. 5th Cir.11/10/99), 752 So.2d 202, 208. Furthermore, DOTD failed to cross-examine the Plaintiffs’ expert regarding his conclusions insofar as they related to the photographs. Consequently, we find that the objection has been waived.

LIABILITY

Two of DOTD’s assignments of error relate to the finding of liability by the jury. The highway at issue was constructed in 1930 as a gravel road with gravel shoulders. The road had been overlaid with asphalt between 1930 and 2000. Each of the two lanes was 10 feet wide. The shoulders were four feet wide on each side of the roadway. There were no white stripes on the edges of the road and there were drop-offs from the roadway to the shoulders in various areas along the road. The only work that DOTD performed on the road prior to the accident was asphalt overlays. No major work was done until after the accident at issue herein.

Stein was following the deceased at a distance of about 100-200 yards when the accident happened. He testified that she was driving in a safe manner, at or below the speed limit, approximately 45 m.p.h. At a point near the accident site, he noticed that the decedent’s car gradually drifted off of the lane of travel onto the shoulder of the road. In an attempt to bring her car back onto the road, she jerked the car to the left, sending the car across the yellow dividing line into the |ssouthbound left lane. The decedent again overcorrect-ed her steering and the car veered back to the right. For the second time, she went off the road onto the right hand shoulder. When she tried to regain the road again, her car went across the two lanes, flipped upside down and went into the bayou.

On appellate review, the court’s function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Brown v. Seimers, 98-694, p. 6 (La.App. 5th Cir.1/13/99), 726 So.2d 1018, 1021, writ denied, 99-0430 (La.4/1/99), 742 So.2d 556; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a 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. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Rosell, 549 So.2d at 844. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart, 617 So.2d at 882. Only where the documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Brown, 98-694 at p. 7, 726 So.2d 1018 at 1021; Rosell, 549 So.2d at 844-45.

La. C.C. art. 2315 provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2316 provides that every person is responsible for the damage that he | goccasions, not merely by his act, but by his negligence, his imprudence or his want of skill. The Plaintiffs bear the burden of proving every element of their case by a preponderance of the evidence, that is, whether it is more likely than not, that the harm was caused by the negligent conduct of the DOTD. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). In determining whether the conduct of DOTD is negligent, the courts apply the duty/risk analysis. Todd v. State Through Dept, of Social Services, Office of Community Services, 96-535, p. 7 (La.App. 5th Cir.11/26/96), 685 So.2d 313, 317. The duty/risk analysis requires the plaintiff to prove: (1) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) that there were actual damages (the damages element). Boykin v. Louisiana Transit Co., Inc., 96-1932, p. 8-9 (La.3/4/98) 707 So.2d 1225,1230.

The question of whether a defendant owes a plaintiff a legal duty is a question of law. Todd, 96-535 at 7, 685 So.2d at 317. Whether a defendant has breached a duty owed is a question of fact. Id. Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm. Socorro v. City of New Orleans, 579 So.2d 931, 939 (La.1991).

In order for DOTD to be held liable under either a negligence or strict liability theory, the plaintiff must prove that (1) DOTD had custody of the thing which caused plaintiffs’ damages, (2) the thing was defective because it had a condition which created an unreasonable risk of harm, (3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a | ^reasonable time, and (4) the defect was a cause-in-fact of plaintiffs injuries. Woodbury v. Louisiana Dept, of Transp. and Development, 03-13, pgs.5-6 (La.App. 5th Cir.5/28/03), 848 So.2d 104, 108; Brown v. Louisiana Indem. Co., 97-1344, p. 3 (La.3/4/98), 707 So.2d 1240, 1242.

DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. Brown, 97-1344 at 3, 707 So.2d at 1242 (citing La. R.S. 48:21); Woodbury, 03-13, p. 6, 848 So.2d at 109. This duty extends to the shoulders of highways as well. Brown, 97-1344 at 3, 707 So.2d at 1242; Woodbury, 03-13 at 6, 848 So.2d at 109.

In Woodbury, we stated that:

The highway department’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. Id. ... This duty extends to drivers who are slightly exceeding the speed limit or momentarily inattentive. Led-better v. State, Through Louisiana Dept, of Transp. and Development, 502 So.2d 1383 (La.1987) ... Whether DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of the case. Campbell v. Louisiana Dep’t. of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898, 901-02.

Woodbury, 03-13 at 6-7, 848 So.2d at 109.

DOTD contends first that the Plaintiffs failed to maintain their burden of proof pursuant to La.R.S. 9:2800. R.S. 9:2800 C and D provide:

C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.

I nDOTD is required to adopt minimum safety standards regarding highway design, construction and maintenance, conforming to the standards approved by the American Association of State Highways and Transportation Officials (AASH-TO), whenever possible. La.R.S. 48:35 A(l). While design standards at the time of construction and at the time of the accident may be relevant in determining whether a roadway presents an unreasonable risk of harm, they are not determinative of that issue. Dill v. State, Dept. of Transp. and Development, 545 So.2d 994, 996 (La.1989); Schexnayder v. Hyundai, 00-177, p. 6 (La.App.9/14/00), 769 So.2d 683, 686 (citing Dill.) However, DOTD cannot escape liability solely because the highway met the design standards when it was built. Dill, 545 So.2d at 996; See also: Schexnayder, 00-177 at 6, 769 So.2d at 686; Furthermore, the “combination of more than one unreasonably dangerous condition” may render an off roadway area unreasonably dangerous to the public. Aucoin v. DOTD, 97-1967, p. 8 (La.4/24/98), 712 So.2d 62, 67.

In this case, the record shows that Louisiana Highway 20 was considered a dangerous roadway by Stein, by the Plaintiffs’ expert, Shields, and by the council members for the Parish of St. James. Stein testified that in the area where the accident occurred, there was a bad drop-off from edge of the pavement to the shoulder. He described it as “Just where like the rocks would have been ate out from against the blacktop.” He felt that such a drop-off would “hold a tire on the side of the road.” Shields testified that there was “a relatively vertical edge to the roadway down onto the gravel area.” He estimated the angle at 75% and the drop-off between 4/& inches and 6 inches where the car went off the road the first time. He testified that this condition is considered an “immediate fix” by DOTD, and that drop-offs generally appear where vehicles are forced to drive close to or on the edge of the roadway because the lanes are too narrow. He also noted that the highway lacked white striping on the edge of the highway. In his opinion, the | ^combination of the narrow lanes, the repetitive washing away and wallowing out of the edges of the shoulders, the very steep, narrow shoulders, and the lack of white edge, all contributed to the accident. He testified that DOTD has a duty on older roadways to look at the use of the road and whether it is changing and requires upgrading.

David Hall, DOTD’s expert in traffic engineering, highway design and accident reconstruction, testified that the sole cause of the accident was the inattention of the deceased. He contended that a white stripe is designed to provide visual assistance in fog, nighttime or bad weather. In this case, it was drizzling rain and cloudy, but daylight. Thus, he felt that the lack of white lines did not cause the accident. He further stated that there was no physical evidence to show where the decedent went off of the road the first time.

Trooper Van Etta was the first police officer on the scene. He took photos of the area, saw the “yaw marks” on the unimproved shoulder indicating where the car left the roadway and marked the spot. He testified that Stein told him where the deceased left the road the first time.

James Brazan (Brazan), St. James Parish councilman for the area in which the accident happened was familiar with the roadway and traveled it frequently. He testified that his constituents had been concerned about the road for years and considered it dangerous. He knew of accidents in which people had gone off the road into the bayou. Mr. Brazan stated that he had been in office for 8 years and that, during that time and before he became councilman, the St. James Parish had been trying to get the DOTD to do something to make the road safer. Over 20 years, St. James Parish sent numerous letters, some of which were admitted into evidence, and held many meetings with the DOTD, informing it that the road was dangerous and asking it to paint white stripes on the road edge, widen the road, upgrade the shoulders, or take any action, all to no avail. DOTD responded that it 113couId not paint stripes because the road was too narrow, but made no plans to widen the lanes.

Gregory Whitney, a medical legal death investigator for the Terrebonne Parish Coroner’s office and an accident reconstruction investigator, found other roads in St. James or Lafourche Parishes, near this area, where the striping had been done on similarly narrow roads.

The jury listened to the evidence and concluded that DOTD was liable. We find no manifest error in this regard. The jury could reasonably have concluded that the combination of conditions on the road contributed to the decedent’s inability to regain the highway safely, that those conditions were known by DOTD and that they posed an unreasonable risk of harm to the driving public. See: Aucoin, 97-1967 at 8, 712 So.2d at 67.

DOTD contends also that the jury erred in apportioning 97% of the fault to it because the decedent was inattentive and it was her inattentiveness that caused her to leave the roadway. Further, DOTD contends that she was negligent by not attempting to slow down by braking.

In Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La. 1986), the Louisiana Supreme Court identified the factors to consider in weighing the degree of fault assigned by the jury. Those include:

... whether the conduct resulted from inadvertence or involved awareness of the danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the capacities of the actors, whether superi- or or inferior, and any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Estevez v. Baron, 02-326 (La. App. 5th Cir.10/16/02), 828 So.2d 725.

See also: Scramuzza v. River Oaks Inc., 03-959, p. 12 (La.App. 5th Cir.3/30/04), 871 So.2d 522, 530.

The jury apparently was not convinced that the decedent’s actions were the substantial cause of the accident. As we stated in Woodbury, the DOTD has a duty |uto maintain safe shoulders and that duty encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. This duty extends to drivers who are momentarily inattentive. See: Woodbury, 03-13 at 6-7, 848 So.2d at 109. Furthermore, there is no evidence that had she tried to brake, the accident would have been avoided. Thus, the record supports the conclusion that the dangerous condition of the roadway was the major cause of the decedent’s injuries and death. Those conditions prevented her from recovering from her momentary lapse. See: Wood-bury, 03-13 at 6-7, 848 So.2d at 109. Thus, we find the jury did not err in its apportionment of fault.

GENERAL DAMAGE AWARD TO SHELBY HIMEL, III

DOTD contends that the jury erred in awarding Shelby Himel, III, $300,000 in damages for the loss of his mother because he did not testify at trial. DOTD contends that the testimony of his father relative to the son’s relationship with his deceased mother was not sufficient to prove the son’s damages and cites Sims v. Winn Dixie Louisiana, Inc., 93-1411 (La.App. 3rd Cir.6/22/94), 638 So.2d 716.

The first day of trial Shelby Hi-mel, Jr. testified that his 23 year old son would not attend the trial. He explained that his son had just started working a new job 70 miles offshore and did not want to jeopardize his job and future with the company. Furthermore, his son was so distressed by his mother’s death that he did not want to relive those events. Shelby Himel, Jr. testified that his son felt guilty because his mother was killed after taking him to work. He further testified that his son and the decedent were very close. She had done most of parenting of their son because he was frequently offshore while his son was growing up.

In Sims, the husband failed to attend the proceedings and the defendant claimed that his failure ipso facto precluded his recovery of loss of consortium damages. However, the wife testified that she and her husband were unable to L shave marital relations for several months because of the defendant’s negligence. The court stated that, although it may not affect the ultimate outcome, it felt compelled to vacate the award to the husband and remanded the case for a hearing on his damages, because it could not determine if “defendant held its fire in cross-examination or in prosecuting its ease, in reliance on the trial court’s statements that [it would rule against Mr. Sims on his consortium claim ‘if this guy doesn’t testify and doesn’t make out his case.’]” However, the court noted that the wife’s testimony alone was sufficient in and of itself to show loss of consortium.

In this case, DOTD knew on the first day of trial that the son was not going to testify and had ample opportunity to convince the jury that the son was not entitled to an award. The jury concluded otherwise. Based on our review, we find no necessity to remand the case and no manifest error in the jury’s award of damages to the son.

PAST LOST WAGES, LOSS OF SERVICES AND SUPPORT

The Defendant contends that the jury erred in the amounts awarded to Shelby Himel, Jr. for the decedent’s past lost wages ($87,000), and for his loss of services, loss of past support, and loss of future support ($350,000). The Plaintiffs agree. According to the evidence, the amount for past lost wages should be $12,400 (annual wage of $10,600 for 14 months), and no more than $267,000 for loss of services, the present amount of that item of damages calculated by the Plaintiffs’ economic expert, Charles Theriot, CPA. Thus, we will reduce the award to those amounts, minus 7% comparative fault attributed to the decedent.

THE PLAINTIFFS’ APPEAL

The Plaintiffs’ assert that the trial judge erred in applying the $500,000 statutory cap on general damages imposed by La. R.S. 13:5106 and reducing the |1figeneral damage award to reflect a single cap for the three victims, rather than imposing the cap separately on each of the Plaintiffs’ general damage awards.

As cited by the Plaintiffs, in a ruling made subsequent to this judgment, the Louisiana Supreme Court resolved the split in the circuits on this issue. In Lock-ett v. DOTD, 03-1767, p. 1 (La.2/25/04), 869 So.2d 87, 89, the Court stated that “the cap is to be applied ‘per plaintiff for the wrongful death of any one person ...” Here, the jury awarded $450,000 for the decedent’s general damages, $500,000 to Shelby Himel, Jr. and $300,000 for Shelby Himel, III. The trial judge reduced the general damage awards to a single $500,000. Based on the Lockett decision, the individual jury awards for general damages are reinstated.

Accordingly, the judgment is hereby affirmed as to liability and fault apportionment. We hereby amend the damage awards as follows. The jury verdict awarding Shelby J. Himel, Jr. $500,000 for general damages is reinstated. The award to Shelby J. Himel, Jr. for loss of services, loss of past support and loss of future support is reduced from $350,000 to $267,000 and the award to Shelby J. Hi-mel, Jr. for funeral expenses in the amount of $11,000 is affirmed. The total award to Shelby J. Himel, Jr. of $778,000 is hereby reduced by 7% for Mrs. Himel’s comparative fault, for a final total of $723,540 ($778,000 minus $54,460.) The jury ver-diet for general damages awarded to Shelby J. Himel, Jr. on behalf of the decedent for her survival claim in the amount of $450,000 is reinstated. The award for the decedent’s medical expenses of $723,912.15 is affirmed. The award for Sandra Hi-mel’s past lost wages in the amount of $87,000 is reduced to $12,400. The total award for Sandra Himel of $1,186,312.15 is reduced by 7% for her 117comparative fault, for a total of $1,103,271.15 ($1,186,312.15 minus $83,041.) The jury verdict in favor of Shelby J. Himel, III in the amount of $300,000 for general damages is reinstated, reduced by 7% for the decedent’s comparative fault, for a total of $279,000 ($300,000 minus $21,000.) The judgment is affirmed in all other respects. Costs of the appeal are to be paid by the Defendant.

AMENDED IN PART, AFFIRMED IN PART, AND AFFIRMED AS AMENDED.

      . On January 2, 2002, Shelby Himel, III was added as a Plaintiff in an amended petition for damages.

      . The Plaintiffs filed a supplemental petition individually and “on behalf of’ the deceased. La.C.C.P. 801 requires a party seeking to be substituted for a deceased party to file an ex parte written motion and proof of his capacity to act as legal successor. However, technical forms of pleading are not required. C.C.P.art. 854. Thus, we construe the supplemental petition as an “ex parte motion’’ to substitute the parties for the decedent, pursuant to La.C.C.P. art. 801. We further note that the capacity to sue or be sued is presumed, unless challenged by the dilatory exception. C.C.P. art. 855. Since the Defendant failed to challenge the capacity of the Plaintiffs to represent the deceased, we find that any objection was waived.

      . The jury verdict was unanimous.

      . Writ Denied, 03-1830 (La. 10/31/03), 857 So.2d 477 and 03-1832 (La. 10/31/03), 857 So.2d 478.

      . La.R.S. 135106 B. (2) provides:
      In all suits for wrongful death of any one person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars.


author: | .SUSAN M. CHEHARDY, Judge. ■

text:
    Randall K. FOREMAN v. Terrell P. BABIN and USAA Casualty Insurance Company.
    No. 04-CA-423.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Peter J. Wanek, Lynda A. Tafaro, Me-tairie, LA, for Appellant, Terrell D. Babin.
    James R. Nieset, Jr., New Orleans, LA, for Second Appellant, United Services Automobile Association.
    Sean D. Alfortish, Gretna, LA, for Ap-pellee, Randall Foreman.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | .SUSAN M. CHEHARDY, Judge. ■

In this personal injury lawsuit, after trial, the trial court found in favor of plaintiff, Randall Foreman, and awarded general damages and special medical damages. Defendants, Terrell Babin and his liability insurer, United Services Automobile Association (“USAA”), appeal the trial court’s damages award. For the following reasons, we affirm.

This litigation arises from an automobile accident that occurred on April 2, 1999, in which Terrell Babin rear-ended Randall Foreman while Foreman was waiting at a stop light at the intersection of Veterans Highway and Bonnabel Boulevard. According to plaintiff, his car was “violently struck” from behind by Babin’s large, white pickup truck. He testified that his car, which had been stopped, was moved forward by the impact of the collision.

On April 3, 2000, plaintiff filed the instant lawsuit against Terrell Babin and his insurer, USAA. The matter proceeded to trial on May 27 and May 28, 2003. After taking the matter under advisement, the trial judge issued judgment on December 5, 2003 in favor of Randall Foreman and awarded general damages of $40,000.00 and special damages of $11,244.90 for medical costs and $61,500.00 for future medical costs.

| .Babin and USAA timely filed a Motion for New Trial, Or Alternative, for Remitti-tur alleging that the future medical award was not supported by evidence entered at trial; their motion was denied on February 5, 2004. On March 5, 2004, Babin and USAA each filed a suspensive appeal.

At trial, Foreman testified that he had been in five automobile accidents, including the accident that is the subject of this litigation, since April 1994. In April 1994, he broadsided another driver who failed to stop at a stop sign. He injured his neck and his lower back in that accident. He sought medical treatment from Dr. Louis Bogran, a general practitioner, who prescribed medication and physical therapy and referred Foreman to Dr. Ralph Gess-ner, an orthopedic surgeon.

On April 30,1994, Dr. Gessner examined Foreman and found spasms in his cervical and lumbar spine. Dr. Gessner prescribed pain and sleep medications and mild physical therapy. On July 20, 1994, Dr. Gess-ner ordered MRI of Foreman’s cervical and lumbar spine. Dr. Lander Pearce, a radiologist, reviewed the films and found cervical disc herniations and mild disc dehydration at L-2, L-3 and mild disc dehydration with subligamentous central disc herniation at L-5, S-l, which “does not appear to be impinging on the nerve.” Dr. Gessner reviewed the films and reports and agreed with Dr. Pearce’s assessment. Dr. Gessner related these injuries to the 1994 accident.

Dr. Gessner referred Foreman to Dr. Vogel, a neurosurgeon, for a second opinion on his cervical injury. On November 15, 1994, Foreman presented to Dr. Vogel with complaints of cervical pain, bilateral shoulder pain, lumbosacral pain, and bilateral leg pain. Upon examination, Dr. Vo-gel found moderate limitation of range of motion in neck but no limitation of range of motion in the back. Dr. | ¿Vogel found spasm in Foreman’s neck but did not detect spasm in his lower back. Dr. Vogel diagnosed Foreman with herniation cervical disc and chronic lumbar strain. Dr. Vogel explained that a strain would be expected to resolve. Dr. Vogel reviewed plaintiffs 1994 cervical spine films but did not review Foreman’s lumbar spine films. Dr. Vogel attributed both injuries to the 1994 accident. Dr. Vogel recommended conservative treatment but not cervical spine surgery.

According to Dr. Gessner, he continued treating Foreman for complaints of neck pain through June 26, 1995. Further, Dr. Gessner testified that, on June 26, 1995, his records reflect that Foreman had not complained of back pain since 1994. Foreman testified that, in 1995, his lower back pain had resolved and his neck pain was present but tolerable. Dr. Gessner opined that Foreman’s lower back problems from 1994 had resolved. Foreman also stated that his neck pain after the 1994 accident did not affect his full-time law practice.

On July 9, 1997, Foreman was in another automobile accident. He stated that another driver backed into him at a stop sign. He sought treatment from Dr. Gess-ner for neck pain after that accident. He denied any lower back pain from that accident. Foreman did not undergo any diagnostic testing after the 1997 accident. Dr. Gessner prescribed medication and physical therapy. On August 13, 1997, about one month after the 1997 accident, Foreman presented to Dr. Gessner with complaints of neck pain, lower back pain with left radicular pain to the leg and left elbow pain. Dr. Gessner described these complaints as an aggravation of Foreman’s 1994 injuries and related them to the 1997 accident. Dr. Gessner instructed Foreman to limit his activities and prescribed pain medication and physical therapy.

As a result of litigation surrounding the 1997 accident, Foreman underwent an independent medical examination on September 30, 1998 with Dr. James Butler, an orthopedic surgeon with Tulane Medical Center. Foreman reported to | BPr. Butler that he had neck pain after that accident but not lower back pain. Foreman also testified that he did not allege that his back was injured in that litigation. In his report, which was introduced at trial by stipulation, Dr. Butler wrote that Foreman reported increased and recurrent neck pain that radiated to his right arm with intermittent numbness but did not report back pain. Dr. Butler’s examination of Foreman showed subjective tenderness in the trapezius muscle as well as the lumbo-sacral junction but no evidence of muscle spasm at either site.

On February 4, 1998, Foreman presented to Dr. Gessner with complaints that his left leg went numb while kneeling in church the previous weekend. Foreman did not report lumbar pain. Dr. Gessner opined that Foreman was not “having too much trouble with the [lumbar] disc” at that point.

On October 31, 1998, Foreman rear-ended another driver; this was his third motor vehicle accident since 1994. On November 11, 1998, Foreman presented to Dr. Gessner with complaints of “mild exacerbation of pain” but Dr. Gessner’s notes indicate “cold weather causing problems.” Dr. Gessner refilled Foreman’s pain medication.

On January 27, 1999, Foreman presented to Dr. Gessner with “chronic back and neck pain.” He had also gained weight. Dr. Gessner recommended mild exercise and refilled pain medications.

On March 26, 1999, approximately one week before the accident at the center of this litigation, Foreman presented to Dr. Gessner with “neck and back problems intermittently.” Dr. Gessner agreed that Foreman did not report leg pain on that date.

On Friday, April 2, 1999, Foreman was involved in the automobile accident that is the subject of this litigation. Foreman, who is a personal injury attorney, | fitestified that, immediately after the impact, he felt pain “sharply hitting” his lower back. He stated that he also felt pain in his neck, too, but mainly in his lower back. He testified that he could not immediately exit his vehicle because he was “really very dazed” and had to collect himself. By the time his wife arrived at the accident scene, which was only blocks from their house, Foreman had “shooting pains going into my legs” so he had his wife immediately call his orthopedist, Dr. Gess-ner. Foreman testified that, because it was Good Friday, Dr. Gessner could not examine him that day. Foreman stated that Dr. Gessner told him “to stay in bed.” Foreman scheduled an appointment with Dr. Gessner for the following Tuesday.

Dr. Gessner testified that he did not schedule an office visit for Foreman on the day of the accident in question. Dr. Gess-ner advised Foreman to go to an emergency room, rest over the weekend, and use Pereocet as needed for pain until his office visit the following week.

On April 6, 1999, Foreman presented to Dr. Gessner with reports of “extreme pain” in his lower back, which he had not reported since 1994. Foreman also reported that he experienced “radiating pain going laterally across my rear, straight down my leg and ending at my heel where I felt like I had a tack sticking in it” and pain radiating into his right ear that caused dizziness. When Dr. Gessner examined Foreman, he found marked spasm in his lower back and marked limitation of motion in his lower back. The straight leg raising test was positive fifteen degrees to the left, which was caused by discomfort in his lower back. Dr. Gessner also noted marked spasm in the cervical spine.

Dr. Gessner ordered x-rays of Foreman’s spine on April 6, 1999. The x-rays showed degenerative changes to the cervical and lumbar spine but no evidence of bone or joint injury. Dr. Gessner opined that the 1999 accident caused an acute strain to the lumbar spine and “markedly aggravated” Foreman’s pre-existing neck |7injury. Dr. Gessner prescribed increased dosages of pain medication and physical therapy to alleviate Foreman’s pain.

Dr. Gessner ordered an MRI of the cervical and lumbar spine, which Foreman underwent on May 3, 1999. Dr. Pearce reviewed the 1999 films and compared them with the 1994 studies. In the 1999 lumbar spine film, Dr. Pearce noted “a distinctive difference in appearance” at L~ 5, S-l because there was a tear in the annulus at this level, which allowed prominent protrusion to the left. Dr. Pearce noted that, in 1994, the L-5, S-l herniation was smaller and remained central. Finally, Dr. Pearce stated that neither the 1994 nor the 1999 films reveal nerve impingement.

Dr. Gessner also reviewed the 1999 lumbar spine film and found mild dehydration, left paracentral herniation at L-5, S-l. When Dr. Gessner compared 1999 lumbar spine film with the 1994 lumbar spine film, he noted “an extension of the herniation toward the left side.” In his opinion, Dr. Gessner stated that the 1999 accident caused “exacerbation of pain and extension of his [lumbar] disc.” He was primarily concerned that Foreman could require lumbar spine surgery at that point so Dr. Gessner referred Foreman to Dr. Tom Whitecloud, Chief of Orthopedic Surgery at Tulane Medical Center, who was a lumbar spine specialist.

On December 6, 1999, Foreman presented to Dr. Whitecloud with low back pain radiating to his left leg. Dr. Whitecloud’s examination of Foreman did not reveal any significant numbness, tenderness, or muscle spasm. Further, Dr. Whitecloud noted that Foreman’s range of motion for his neck and back was only slightly reduced. Dr. Whitecloud reviewed Foreman’s 1999 lumbar spine MRI and noted degenerative disc at L-5, S-l with slight prolapse but without compression of neurological structures. Dr. Whitecloud prescribed pain and anti-inflammatory medications and a specific lumbar spine exercise program.

|sWhen Foreman presented to Dr. Whi-tecloud on January 18, 2000, he continued to complain of low back pain and his examination revealed the same findings as the previous month’s examination. Dr. Whi-tecloud noted that the straight leg raising test was positive on the left. On that date, Dr. Whitecloud discussed surgery to stabilize the L-5, S-l lumbar segment. Dr. Whitecloud described Foreman’s pain as “discogenic,” which occurs when the disc is compromised and no longer functions as a “shock absorber” and “ball bearing” for spinal movement. Dr. Whitecloud stated that discogenic pain is caused by irritation of the nerves “in the area of the disc.” Dr. Whitecloud stated that, according to his notes, surgery was tentatively scheduled for March 1, 2000.

Before the surgery, Foreman received documentation from Tulane Medical Center that the scheduled decompression lami-nectomy and lumbar fusion with cages and pedical instrumentation, which was not covered by his health insurance, would cost approximately $61,500.00. Because of financial limitations, Foreman opted to continue conservative treatment, including medication and physical therapy, with Dr. Gessner instead of pursuing lumbar surgery.

On August 1, 2000, however, Foreman again presented to Dr. Whitecloud with the same complaints, including pain in the left leg. The straight leg raising test was again positive. When questioned about whether the 1999 accident caused Foreman’s herniated disc, Dr. Whitecloud deferred to Dr. Gessner’s opinion because Dr. Gessner had been treating Foreman for many years.

On March 22, 2002, Foreman was in a fifth automobile accident. He presented to Dr. Gessner on March 27, 2002 with neck and lower back pain. Dr. Gessner felt that the accident only exacerbated the pre-ex-isting injury and aggravated Foreman’s need for surgery. In 2002, Dr. Gessner referred Foreman to Dr. Vogel, a neurosurgeon, for a surgical consult. On September 17, 2002, Foreman presented to Dr. Vogel with complaints of low back pain, left leg pain, |sand mild neck pain. The examination revealed the following differences from Dr. Vogel’s 1994 examination of Foreman: positive leg raising test to the left at seventy degrees, which indicates sciatic nerve irritation, and bilateral muscle spasm in the lumbar spine. Dr. Vogel stated that, in all medical probability, Foreman’s lower back injury was caused by the 1999 automobile accident and aggravated by the 2002 accident.

At trial, Dr. Vogel described Foreman as a surgical candidate. He could not definitively recommend surgery until Foreman has further testing, including a lumbar discogram and cervical myelogram, which Dr. Vogel does not order unless the patient is prepared to undergo surgery immediately when the test results indicate that surgery is necessary.

Defendants presented testimony from Dr. David Aiken, an orthopedic surgeon. Dr. Aiken testified that he reviewed numerous medical records including Foreman’s 1994 and 1999 MRIs. Dr. Aiken agreed that the 1994 cervical spine MRI “definitely shows a problem,” which remains unchanged in the 1999 cervical film. He disagreed that the 1994 lumbar film shows a herniation at L-5, S-l. Further, he felt that there were no appreciable differences from the 1994 film to the 1999 lumbar film. Dr. Aiken also stated that the MRIs do not reflect a structural abnormality that could be repaired or stabilized so Foreman “should not have any surgery on that low back.”

On cross examination, Dr. Aiken admitted that he had never examined Foreman. Dr. Aiken also admitted that, in Foreman’s 1994 lumbar study, he saw a dehydrated disc with an annulus tear that allowed the disc to bulge slightly. Dr. Aiken finally stated the fact that the 1999 film reflects no change from the 1994 film would lead him to conclude that “an accident in between there did not structurally change the neck or back.”

|inAt trial, Foreman testified that he has ongoing pain from his lower back injury. He also has difficulty walking and climbing stairs, a marked limp, and difficulty sitting for prolonged periods. His marital relationship has suffered. His relationship with his younger son has suffered. His earnings have decreased because Dr. Gess-ner limited his work hours to four to five hours per day. After the 1999 accident, he also referred several cases to other attorneys and split the attorney’s fee, which resulted in loss of earnings.

On May 25, 2004, Babin and USAA each filed appellate briefs. On appeal, Babin asserts three assignments of error: the trial court erred in awarding future medical expenses for lumbar surgery “which is speculative at best;” the trial court erred in awarding future medical expenses for surgery that plaintiff did not prove was medically necessary; and the trial court’s award of general damages in the amount of $40,000.00 was excessive and unreasonable because the plaintiffs testimony was inaccurate, conflicting, and not credible.

On appeal, USAA asserts two assignments of error: the trial court erred in awarding future medical expenses because plaintiff did not prove that lumbar surgery was “more probably than not” required or related to the April 2, 1999 accident; and the trial court erred in awarding $40,000.00 in general damages for aggravation of a pre-existing degenerative disc condition to plaintiffs lumbar spine.

On June 14, 2004, Foreman filed his appellee brief and answer to defendants’ appeal. In his brief, Foreman requests sanctions for frivolous appeal and appeals the trial court’s failure to award past loss of earnings.

On a procedural note, Babin filed a Motion to Dismiss Foreman’s Answer as untimely on June 23, 2004. The next day, this Court ordered Foreman to show cause why Babin’s motion to dismiss answer should not be granted. Our search of this Court’s records does not reveal any response from Foreman to this order. In Further, this Court’s records do not show further action on Babin’s Motion to Dismiss. Accordingly, in addition to appellants’ assignments of error, we will consider Babin’s pending Motion to Dismiss and address whether this Court will consider Foreman’s answer to appeal.

DEFENDANTS’ ASSIGNMENTS OF ERROR

Future Medical Expenses

Babin and USAA assert that the trial court erred in awarding future medical expenses. Babin argues that the award was unwarranted because the plaintiff failed to prove that the lumbar surgery was medically necessary, that the medical expenses would likely be incurred, and that the future expenses were causally related to the 1999 accident. USAA argues that future medical expenses were unwarranted because the medical evidence did not establish by a preponderance of the evidence that the expenditures will be incurred.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id.

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. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). A defendant in a personal injury case takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Gunn v. Robertson, 01-347, p. 10 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, 563, writs denied, 02-0170, 02-0176 (La.3/22/02), 811 So2d 942. When the tort-feasor’s conduct aggravates a |1?,pre-exist-ing condition, the tortfeasor must compensate the victim for the full extent of the aggravation. Gunn, 801 So.2d at 563.

In order to recover future medical benefits, plaintiff must prove that these expenses will be necessary and inevitable. Gunn, 801 So.2d at 564. Future medical expenses must be established with some degree of certainty and generally must be supported with medical testimony and estimation of probable costs. Hopstetter v. Nichols, 98-185 (La.App. 5 Cir.7/28/98), 716 So.2d 458, 462, unit denied, 98-2288 (La.11/13/98) 731 So.2d 263. However, when the need for future medical care has been demonstrated, but the cost is not susceptible of determination, the court may make a reasonable award. Hopstet-ter, 716 So.2d at 462. In addition, the award can be made despite the fact that no dollar estimate was made by experts at trial. See: Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281,1287 (La.1984).

Randall Foreman was 46 years old at the time of the accident. After the 1999 accident, Foreman’s main complaints were low back pain that radiated down his left leg into his foot. In 1994, Foreman was diagnosed with mild disc dehydration with subligamentous central disc herniation at L-5, S-l, which “does not appear to be impinging on the nerve.” After the 1999 accident, three doctors agree that the herniation had shifted left and was “larger.” At trial, Foreman testified that he still suffers with back pain and radiating pain into his left leg and foot.

Since the 1999 accident, Foreman has had to decrease his work hours. He has tried, within his pain limitations, to continue his same lifestyle and work activities. However, walking and sitting for long periods are painful. Dr. Whitecloud recommended surgery. Furthermore, both Dr. Whitecloud and Dr. Vogel testified that, although some patients can become asymptomatic, disc herniations, like the injury that Foreman has, do not heal on their own.

11sAccording to Dr. Whitecloud and Foreman, the decompression laminectomy and lumbar fusion with cages and pedical instrumentation was scheduled for March 1, 2000. The charge for the surgery was estimated at $61,500.00. Foreman stated that he opted not to undergo the surgery at that time because of financial limitations.

Finally, Dr. Pearce, Dr. Gessner, and Dr. Vogel agreed that Foreman’s 1999 lumbar spine MRI showed a significant change in the herniation at the L-5, S-l level. Dr. Gessner and Dr. Vogel both attributed the change to the trauma Foreman suffered in the 1999 automobile accident.

In this case, the trial judge awarded future medical expenses of $61,500.00. After reviewing the entire record, we conclude that Foreman not only established his future medical expenses with a degree of certainty with medical testimony and estimation of probable costs, but he also proved that these expenses will be necessary and inevitable.

Defendants also argue that future medical expenses were unwarranted because the medical evidence did not establish by a preponderance of the evidence that the expenditures will be incurred. We are, however, not persuaded by this argument because the cases upon which defendants rely are distinguishable from this case. In each of those cases, this Court, after reviewing the record, found that the trial court had not abused its vast discretion in denying future medical expenses. Here, defendants ask this Court to find that the trial court abused its discretion in awarding future medical expenses.

After reviewing the record, we cannot say that the trial court’s award of future medical expenses was unreasonable and clearly wrong. Accordingly, we will not disturb this award.

| ^General damages

Defendants also argue that the trial court erred in awarding $40,000.00 in general damages where the 1999 accident did not cause “additional structural damage” to Foreman’s back.

In the assessment of damages in cases of offenses and quasi offenses, much discretion must be left to the judge or jury. La.C.C. art. 2324.1. Absent a determination that the trial court’s very great discretion in the award of general damages has been abused in the matter under review, the reviewing court should not disturb the trier’s award. Reck v. Stevens, 373 So.2d 498, 501 (La.1979). The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993).

Here, the trier of fact apparently concluded that Foreman’s lumbar disc herniation was either caused or aggravated by the 1999 accident. That determination is supported by the record: Dr. Pearce, Dr. Gessner, Dr. Vogel all saw distinct differences in the size and position of the L-5, S-l herniation between plaintiffs 1994 and 1999 lumbar MRI studies; plaintiffs pain in his lower back and left leg had not resolved; plaintiffs continued to seek treatment; and examinations by several doctors and- diagnostic testing showed significant herniation and muscle spasm at the lumbar level.

At trial, Foreman reported that he has a “marked limp” that he did not have before the 1999 accident. He also testified that he has trouble walking, climbing stairs, and sitting for prolonged periods. He reported that he had to sell his two-story office building because he could not negotiate the stairs. He reported that his family relationships, particularly his wife and his youngest son, have been adversely affected. He reports that his marital relationship has suffered because he sleeps on the couch downstairs since his back bothers him when he sleeps in a bed. |1BHe reports that his relationship with his youngest son has suffered because Foreman cannot take his youngest son hunting like he did with his two older sons.

Foreman also reports that Dr. Gessner limited Foreman’s work hours after the 1999 accident. Further, Foreman reported that, after the 1999 accident, he had to refer several cases to other attorneys and split the attorney’s fee, which resulted in loss of earnings.

After review, we find no manifest error in the trial court’s determination. Nor do we do find the award is less than a reasonable trier of fact could assess for the effects of this particular injury to this particular plaintiff under these particular circumstances, so as to warrant an increase or decrease in the award. See Youn, 623 So.2d at 1261, and Hebert v. Old Republic Ins. Co., 01-355, p. 17 (La.App. 5 Cir. 1/29/02), 807 So.2d 1114, 1127. In conclusion, we find no merit in defendants’ assignments of error.

PLAINTIFF’S ASSIGNMENTS OF ERROR

In his brief, Foreman requests sanctions for frivolous appeal and appeals the trial court’s failure to award past loss of earnings. Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La. C.C.P. art.2082. Alternatively, an appellee who “desires to have the judgment modified, revised, or reversed in part” must file an answer to the appeal. La. C.C.P. art. 2133(A). An answer to an appeal must be filed “not later than fifteen days after the return day or the lodging of the record whichever is later.”

We note that the record was lodged with this Court on April 14, 2004. Further, in this case, the trial court set the return day as “45 days after the estimated costs are paid.” Although the record does not reflect the date that costs were paid, defendant-Babin’s Motion to Dismiss reveals that costs were paid on March 29, 2004. By order of the trial court, the return date was, thus, May 13, |u;2004. According to La. C.C.P. art. 2133(A), appellee’s answer to the appeal was to be filed not later than fifteen days after the later date, which was the return date of May 13, 2004. Foreman, thus, had until May 28, 2004 to file an answer. His answer was filed on June 14, 2004, which was untimely. Accordingly, we grant Babin’s Motion to Dismiss Answer. See also Badalamenti v. Jefferson Guar. Bank, 99-1371 (La.App. 5 Cir. 4/25/00), 759 So.2d 274, 277-278.

Furthermore, even if we were to reach the merits of Foreman’s answer with respect to defendant-USAA, we would not grant the requested relief. In his answer, Foreman appeals the trial court’s failure to award any past loss of income and future loss of earnings capacity. First, Foreman did not brief the future loss of earnings capacity claim on appeal. We consider as abandoned any specification which has not been briefed. U.R.C.A. Rule 2-12.4. We note also that the future loss of earnings claim was not litigated in the trial court. As a general rule, appellate courts will not consider issues raised for the first time in this court, which are not pleaded in the court below and which the district court has not addressed. Geiger v. State ex rel. Dept, of Health and Hosp., 01-2206 (La.4/12/02), 815 So.2d 80, 86.

Next, the loss of income issue was litigated; Foreman put on testimony and evidence claiming that, after this accident, his attorney fee in two cases had to be split with another attorney because he could not perform the necessary work. The trial court’s judgment, however, does not address Foreman’s loss of income. When a judgment is silent regarding an issue that was litigated, it is interpreted as a rejection of that claim. Klein v. BMW of North America, Inc., 97-871 (La.App. 5 Cir. 12/30/97), 705 So.2d 1200. Apparently, the trial judge found that Foreman did not bear his burden of proof on the loss of income claim. We would not disturb the trial court’s ruling on that issue.

|17FinaIly, Foreman seeks “sanctions in the form of attorney’s fees and costs for frivolous appeal.” Damages for a frivolous appeal are awarded pursuant to La. C.C.P. art. 2164, which states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

The courts have been very reluctant to grant damages under this article as it is penal in nature and must be strictly construed. Guarantee Systems Const. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98), 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. Although a successful appeal is by definition non-frivolous, the converse is not true because appeals are favored. See Hellpenstell v. Bonnabel Hospital, 523 So.2d 887, 891 (La.App. 4 Cir.), writ denied, 531 So.2d 282 (La.1988). In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for delay or that appealing counsel does not sincerely believe in the view of law he advocates. Guarantee, 728 So.2d at 405.

Even though Babin and USAA’s arguments did not persuade this Court, we conclude that their arguments were not presented in bad faith solely for purposes of harassment or delay. We are also of the opinion that the arguments were presented in the spirit of zealous advocacy and cannot say that counsel did not sincerely believe the position they advocated. We conclude, therefore, that damages for frivolous appeal are not warranted.

In conclusion, we affirm the trial court’s award of general damages and special damages of future medical expenses. We also grant Babin’s Motion to Dismiss Answer. Costs of his appeal are taxed equally to both parties.

AFFIRMED; DEFENDANT’S MOTION TO DISMISS ANSWER GRANTED.

      . In 1994, Dr. Pearce reported moderate disc dehydration at C-2, C-3 and C-3, C-4; moderate disc dehydration with left paracentral disc herniation resulting in left neuroforami-nal encroachment at C-4, C-5; and prominent disc narrowing, moderate disc dehydration with prominent right paracentral disc herniation at C-6, C-7.

      . On March 19, 2003, Dr. Gessner writes a letter to Foreman that states, in pertinent part, "It is noted that in my office notes dates March 26, 1999 that I mentioned that he was having intermittent back pain. This was incorrect and Mr. Foreman was having only neck pain at that time.”

      . Dr. Whitecloud died prior to trial of this matter so his deposition, to which the parties stipulated, was offered into evidence.

      . Defendants relied on Alexander v. Ford, 03-887 (La.App. 5 Cir. 1/27/04), 866 So.2d 890; Fleming v. Smith, 93-488 (La.App. 5 Cir. 5/31/94), 638 So.2d 467; and Jones v. Sampey

        Brothers, 544 So.2d 1192 (La.App. 5 Cir.1989).