author: h STEVEN R. PLOTKIN, Judge.

text:
    Paulette NELSON and Watts M. Nelson v. LOUISIANA STADIUM AND EXPOSITION DISTRICT, FMG, Inc. and ABC Insurance Company.
    No. 2001-CA-1764.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 2002.

      Michael G. Calogero, Metairie, LA, and John H. Denenea, Jr., Shearman-Denenea, L.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    Rodney A. Seydel, Jr., Brynn M. Baiam-onte, Hoffman, Seigel, Seydel, Bienvenu, Centola & Cordes (APLC), New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, and Judge PATRICIA RIVET MURRAY).
   h STEVEN R. PLOTKIN, Judge.

This appeal involves a premise liability action filed by plaintiff, Paulette Nelson, against defendants, Louisiana Stadium and Exposition District and SMG (collectively “Superdome”), for personal injuries sustained as a result of a slip and fall. For reasons discussed below, we affirm the judgment of the trial court in all respects-.

Facts and Proceedings Below

This appeal involves a slip and fall in the parking area of the Louisiana Superdome that occurred on January 7, 2000 at approximately 7:00 pm. The plaintiff and some friends were attending an ice skating show in the arena, and, at the time of the accident, were heading toward the arena. The plaintiff, after ascending some stairs in the parking area of the Superdome, tripped over a small metal black box that was bolted into the concrete floor of the parking area. Plaintiff sustained a fracture of her right arm as a result of the fall.

Specifically, plaintiff testified that they were unfamiliar with the parking area as well as the proper entrance to the arena from the parking area and that they were looking for the path to the arena from the dome. Plaintiff testified that she bwas ascending the stairs on the right side holding on to the right rail. The plaintiff testified that when she reached the top level of the parking area, she and her group stopped to determine where they were going. Plaintiff, being at the top of the stairs, then attempted to step backwards to allow some people who were behind her to pass. As she backed up, she tripped over the metal box (Plaintiff attempted to testify that she sidestepped over the box, but later admitted that she had backed up).

The metal box over which the plaintiff fell was 1' (length) by 1' (width) by 6" (height). It was located approximately 1 and /£ to 2 feet back from the edge of the top step and approximately 6 inches to the right of the right stair rail. The box was painted black. Superdome official Bryan Brocato testified that, at the time, the box had no utility, but was placed there to accommodate future electrical circuitry or piping. Additionally, Mr. Brocato stated that there were other such boxes similarly situated near stairwells around the parking area of the Superdome. He testified that other boxes were painted yellow and some had three-foot long poles protruding from the tops of the boxes, particularly in the area of the heliport.

As a result of the accident, plaintiff sustained a non-displaced fracture of the radial head (near the elbow) of her right arm. At the time of the accident, plaintiff did not seek medical attention and attended the show at the arena. She also did not seek medical attention until almost two weeks after the accident. Plaintiff also works in the collection department for a court reporting service and stated that she was not required to miss work as a result of this accident, although she states that the injuries hindered her job duties. Plaintiff saw two physicians. First, plaintiff saw general practitioner named Dr. Robert Songy on January 19, 2000. She then saw an orthopedist named Dr. Warren Bourgeois, initially on January 21, 2000 and |atwo more times in February and in March. She was treated conservatively and kept in a sling for approximately 5 weeks. She was treated for approximately two months. Plaintiff states that she has fully recovered but that she has residual pain in performing some of her daily activities.

The ad hoc district court judge, Mickey' Landry, found in favor of the plaintiff. Judge Landry, applying the merchant liability statute, La. R.S. 9:2800.6, held that the Superdome was liable for the injuries sustained by the plaintiff. The judge also found the plaintiff comparatively at fault and assessed fault at 80% for the Super-dome and 20% for the plaintiff. The judge also assessed plaintiffs damages in the amount of $23,319.00 ($22,500 in general damages, $819 in medicals). With the 20% reduction, the court awarded $18,655.20.

The defendants appeal, raising the following issues: 1) that the trial court improperly assessed liability against the Superdome; 2) that, notwithstanding a finding of liability, the trial court improperly failed to assign the majority of comparative fault on the plaintiff; and 3) that the trial court’s assessment of plaintiffs general damages was excessive.

Law and Analysis

Based upon our review of the arguments presented, the record of the court below and the law, we affirm the trial court’s determination that the Superdome is liable for the injuries of the plaintiff and the trial court’s assignment of fault of the Super-dome at 80% and the plaintiff at 20%. However, we find that the trial court did not abuse its vast discretion in assessing plaintiffs damages at $22,500.

| ¿Liability in General

In their first assignment of error, defendants argue that the trial court erred is assessing any liability on the part of the Superdome. On this assignment, defendants argue that the condition was open and obvious, noting the different color of the box, adequate lighting and the absence of a history of accidents; and that plaintiffs negligence was the sole cause of plaintiffs injuries.

Louisiana Revised Statutes, Title 9, Section 2800 and Article 2317.1 of the Louisiana Civil Code govern recovery in this particular case. Maldonado v. Louisiana Swperdome Com’n, 95-2490 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448. The elements of Article 2317.1, after the 1996 amendments, are essentially identical to those of Section 9:2800/ Article 2317. states as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice or defect, only upon a showing that he know or, in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damages could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art. 2317.1. Essentially, Article 2317.1 requires that the plaintiff prove the following: (1) the thing which caused damages was in the control or custody of the defendant; (2) the thing had a defect that created an unreasonable risk of harm; (3) the injuries were caused by the defect; and (4) the defendant had actual or constructive knowledge of the defect. Id.

15The condition at issue in this case is a fixed, permanent object on the parking area surface, which condition has existed since the construction of the parking area. As such, the only question regarding liability of the Superdome is whether the box in question constituted an unreasonable risk of harm.

Unreasonably Dangerous Condition

Article 2317.1 requires that plaintiff prove the existence of an unreasonably dangerous condition. La. C.C. art. 2317.1. The determination as to whether a condition is unreasonably dangerous is one that is made by the court based .upon the facts and circumstances of each case. Pitre v. Louisiana Tech Univ., 95-1466, p. 9 (La.5/10/96), 673 So.2d 585, 590; Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984).

Whether a particular risk is unreasonable is a difficult question, which requires a balance of the intended benefit of the thing with its potential for harm and the cost of prevention. Pitre, 95-1466 at p. 9, 673 So.2d at 590; Socorro v. City of New Orleans, 579 So.2d 931, 939 (La.1991). In making this determination in negligence actions, the “obviousness” and “apparentness” of the complained of condition have historically been taken into consideration. Pitre, 95-1466 at p. 9, 673 So.2d at 590. The duty of a landowner is not to insure against the possibility of an accident on his premises, but to act as a reasonable person in view of the probability of injury to others. Pitre, 95-1466 at pp. 9-10, 673 So.2d at 590 (citing Shelton v. Aetna Cas. & Sur. Co:, 334 So.2d 406, 410 (La.1976)).

In' analyzing whether the condition in that case constituted an unreasonable risk of harm, the Louisiana Supreme Court examined four major factors involved in making such a determination: (1) the utility of the complained of condition; (2) | ¿the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the custodian’s cost of preventing the harm; and (4) the nature of plaintiffs activity in terms of its social utility or whether it is dangerous by nature. Pitre, 95-1466 at pp. 12-17, 673 So.2d at 591-94.

Given the circumstances of this case, the black box, permanently bolted near the stairway of the Superdome parking lot, constituted an unreasonably dangerous condition. First of all, as testified to by Mr. Brocato, the box in question served no purpose. The box was one in a series of similar such boxes constructed to house wiring and piping for future constructions that were never built. Thus, the box in question was of limited, if any, utility.

Next, the likelihood and magnitude of injury presented by this condition is substantial. A metal box permanently fixed to a floor presents a tripping hazard that has the potential to cause severe physical injury. In addition, the location of the -box in close vicinity to the stairwell places it in the area where people áre expected to walk.

Furthermore, notwithstanding the different color of the box or the apparent adequacy of the lighting, the circumstances indicate that this condition is not readily apparent. Importantly, the location is a stadium parking lot. Generally, patrons of a stadium are oftentimes unfamiliar with the surrounding area and are concentrating, at least in part, on the proper path to their destination, (i.e., stadium patrons often are looking for and at signs to guide them to their proper gates of entry, seats, etc.). In addition, a typical event at a stadium may create crowded conditions, sometimes extremely crowded conditions, that would further obscure small, fixed objects on the ground.

|7Third, the testimony of Mr. Brocato indicates that the cost of repair would not have been that great. Mr. Brocato’s testimony indicates that the Superdome had instituted remedial measures of painting the boxes bright colors and placing poles on the boxes themselves. While these measures are not, in and of themselves, indicia of liability as to the untreated boxes, they do indicate the relative ease in which such measures could be implemented. Furthermore, the Superdome would not seem to incur any significant costs by removing the boxes altogether.

Finally, the nature of plaintiffs activity was clearly a socially useful activity and not inherently dangerous. Specifically, plaintiff fell as she was moving out of the path of other stadium patrons. While plaintiff arguably could have executed this activity in a more prudent manner, the activity itself was clearly a reasonable one and not dangerous in nature.

Therefore, given the circumstances of this case, we find that the trial court correctly determined that the box in this instance was an unreasonably dangerous condition and affirm the judgment as to the issue of the liability of the Superdome.

Comparing Fault: Watson Factors

In the second assignment, defendants argue that, even if the trial court did not err in assessing liability against the Super-dome, that the court abused its discretion in assessing such a large percentage of fault against the Superdome. Again, the defendants argue that the condition was open and obvious and that the plaintiffs negligence in backing into the box, even if not the total cause of the accident, was such that it warranted much more than a 20% assessment of fault.

The issue of proper allotment of fault between multiple parties at fault is a question of fact; the findings of the lower court should not be disturbed unless they are clearly wrong or manifestly erroneous. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 972 (La.1985). In assessing the assignment of fault among parties, the trier of fact considers the following six factors: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) whether the capabilities of the actors were superior or inferior; (5) whether any extenuating circumstances required the actor to proceed without proper thought; and (6) the relationship between the actor’s conduct and the harm to the plaintiff. Maldonado v. Louisiana Superdome Com’n, 95-2490, pp. 9-10 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, 1093, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448 (citing Watson, 469 So.2d at 974).

The assignment of fault in this case is within the discretion of the trial court. The evidence does indicate inattentiveness on the part of the plaintiff, which the trial court took into account. Notwithstanding the inattentiveness of plaintiff, the evidence supports the trial court’s allocation of fault. First, plaintiff was unfamiliar with the area and was not proceeding in the face of a danger known to her. Further, plaintiffs action in “backing up” resulted from the reasonable action of attempting to clear a path for people coming up from behind.

The Superdome, as custodians of the parking lot, clearly can anticipate that its patrons will be unfamiliar with the parking area and that, at a given event, there will be large numbers of patrons in the parking area. As such, situations in which patrons, unfamiliar with the surroundings, will be required to move from the path of other patrons, are not unreasonable or unforeseeable situations.

| qA reasonable interpretation of the facts supports the proposition that the Super-dome bore the majority of fault both as to the nature of the conduct as well as the relationship to the damage. Accordingly, we find that the allocation of fault was within the discretion of the trial court and affirm the judgment on this issue. Quantum

In the final assignment, defendants argue that the assessment of plaintiffs general damages in the amount of $22,500.00 is excessive. The standard for appellate review is difficult to express and is generally non-specific. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). However, the discretion afforded the trial court has been characterized as “great, and even vast” so that an appellate court should rarely disturb an award of general damages. Id. An award of general damages should only be disturbed where the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular person under the particular circumstances. Id.

Plaintiff is a 62-year-old woman, right handed, who works in the collections department for a court reporting service. As a result of the accident, she sustained a non-displaced fracture of the radial head (near the elbow) of her right arm. Plaintiff did not seek medical treatment for almost two weeks post accident. She was treated for approximately two months and wore a sling for five weeks. During her treatment she missed no work, although both her work and her activities at home were severely hampered by the injury. Dr. Bourgeous’ notes indicate that plaintiff was “using [her] arm more than instructed.” At the end of treatment, plaintiff fully recovered in that she has no disability. Plaintiff has, however, |]ntestified to having considerable residual pain when performing certain daily activities.

Based on these factors, we cannot find that the general damage assessment constitutes an abuse of the vast discretion afforded to the trial court by the jurisprudence. We do note, however, that this award is unusually high and hovers just within the limits of that discretion. Nevertheless, the injury in this case involved a bone fracture; which, while relatively minor in this particular case, is, by its very nature, a substantial injury to an elderly individual. Due to the nature of this injury, the trial court was clearly entitled to give great weight to plaintiffs testimony regarding her pain and difficulty recovering from this injury. Further, the trial court assigned considerable weight to the plaintiffs advanced age and testimony regarding her residual pain. Given these factors, while this award is unusually high, we cannot say that it is abusively so. We therefore hold that the award is within the vast discretion of the trial court.

Conclusion

Accordingly, we hold that the trial court did not err in assessing liability on the part of the Superdome for the injuries of plaintiff or in assigning the percentages of fault in this case. We further hold that the trial court’s assessment of plaintiffs general damages at $22,500 does not constitute an abuse of the vast discretion of the trial court. The judgment is therefore affirmed.

AFFIRMED.

MURRAY, J., concurs in the result.

      . Section 9:2800 governs liability against public entities and places conditions on the application of Article 2317 against such entities. Section 9:2800 states that Article 2317 applies to public entities "for damages caused by buildings within [their] care or custody.” La. R.S. 9:2800(A). In all residual cases where Article 2317 would apply, Section 9:2800(B) further requires that the plaintiff establishes actual or constructive notice of the condition, a reasonable opportunity to repair the condition and a failure of defendant to do so. Id. As the 1996 amendments to Article 2317.1 have incorporated these requirements, Section 9:2800 has been rendered superfluous.


source: Caselaw Access Project

author: h LOVE, J.

license: Public Domain

text:
    STATE of Louisiana v. McKinley L. ABRAM.
    No. 2001-KA-1513.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 2002.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, Counsel for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr.
   h LOVE, J.

This case comes before us on remand from the Supreme Court of Louisiana. In our original opinion, following our decisions in State v. Everett, 99-1963 (La.App. 4 Cir. 9/27/00), 770 So.2d 466 and State v. Lewis, 00-0524 (LaApp. 4 Cir. 3/7/01), 782 So.2d 662, we held that since more than five years elapsed between Abram’s release from prison on March 22, 1985, and his arrest from the next felony on September 26, 1990, using an extended “cleansing period”, which was enacted after the prior offenses to link the prior offenses, would violate the ex post facto clause. This Court vacated the defendant’s adjudication and sentence as a fourth felony offender and remanded to the trial court for resen-tencing as a third felony offender.

The Louisiana Supreme Court granted writs, and remanded to this Court for consideration in light of its recent opinion, State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272.

The facts recited below are adapted from our original opinion:

McKinley L. Abram was convicted of simple burglary on May 7, 1998. He was sentenced as a fourth felony offender under La. R.S. 15:529.1 to life imprisonment without benefit of parole, probation, or suspension of sentence after a hearing on February 9, 1999. He appealed, and in an unpublished opinion, this Court affirmed his conviction and adjudication as a fourth felony offender but vacated his | ^sentence and remanded the case for resentencing. State v. Abram, 00-0413 (La.App. 4 Cir. 2/28/01), 786 So.2d 984.
At his resentencing on March 27, 2001, even though the defendant’s adjudication as a fourth felony offender was not at issue, the defense attorney, noting that this Court had recently handed down State v. Everett, 99-1863 (La.App. 4 Cir. 9/27/00), 770 So.2d 466, argued that under Everett the defendant should not be sentenced as a fourth felony offender. The judge looked at the record and determined that the ten-year cleansing period was long enough to link the offenses, and he also noted that Everett was on writs to the Supreme Court. The defendant was then sentenced as a fourth felony offender to thirty years at hard labor.
McKinley Abram has four felony convictions: possession of talwin in violation of La. R.S. 40:969 in 1980; burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 in 1981; distribution of a false drug in violation of La. R.S. 40:971.1 in 1991; and the most recent, simple burglary of an auto in violation of La. R.S. 14:62 in 1998. He argued that the five-year cleansing period in effect in 1991 had elapsed between his release from his 1981 imprisonment and his 1991 offense.
The trial court did not accept the defendant’s reasoning that the appropriate cleansing period was that of 1990, the time of the next offense. The court held instead that the proper cleansing period was that existing at the time of the instant multiple bill proceeding, and the period in 2001 was ten years. Because ten years had not elapsed between his 1985 release from prison and his 1990 offense, the defendant could be sentenced as a fourth felony offender.

In State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272, the Supreme Court examined the Habitual Offender Law and interpreted how previous offenses are applied for a multiple bill.

The purpose of the Habitual Offender Law is to deter and punish recidivism. State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677. To this end, subsection (A) of the statute sets out enhanced penalties to be imposed on persons who have been convicted of a felony and thereafter commit subsequent felonies. The statute provides the penalties after identifying the number of felonies committed by stating, for example, “If the second felony is such that...” and “If the third felony is such that....”
Subsection (C), however, provides that “[tjhis Section,” i.e., the Habitual Offender Law, “shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions.... and the time of the commission of the last felony for which he has been convicted.” We interpret this section to mean that in order to determine whether the Habitual Offender Law applies at all to 1 ^enhance a defendant’s sentence after conviction of a subsequent felony, we must look to that time period between defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony. If that time period encompasses more than ten years, then the Habitual Offender Law is inapplicable to defendant’s case and he cannot be sentenced as anything other than a first offender. If, on the other hand, ten years or less have elapsed between the defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony, then the Habitual Offender Law is applicable and subsection (A) is employed to determine the appropriate sentence. Under subsection (A), defendant’s felony convictions are simply counted, either second, third, or fourth or subsequent, and the applicable penalty is imposed .... [S]ubsection (C) is concerned only with that period of time between the expiration of the sentence for the last previous felony conviction and the commission of the last felony. It is only that time period which the legislature has made relevant to determine whether defendant will be sentenced under the Habitual Offender Law.

(Emphasis Added).

Everett, 00-2998, pp. 7-8, 816 So.2d at 1276-1277.

Applying this interpretation of the Habitual Offender Law to the instant case we find that Abram is subject to.sentencing as a fourth felony offender. The fact that more than five years had elapsed between Abram’s release from his 1981 conviction for burglary, on March 22, 1985, and his 1991 conviction for distribution of a false drug, is irrelevant. The relevant time period to consider, when sentencing under a multiple bill, is between the instant offense and the one immediately preceding it. In this case, the applicable “cleansing period” under the 1995 amendment to La. R.S. 15:529.1 which is ten years, had not elapsed between Abram’s previous conviction in 1991 for and the instant 1998 conviction for simple burglary. Since it is now established that Abram qualifies to be sentenced as a habitual offender under the statute, all of his previous offenses are counted, without regard to the time periods between them.

j4In light of our finding that Abram must be sentenced as a fourth felony offender, and the fact that the trial court has previously sentenced the defendant as a fourth felony offender to thirty years in this case, bearing docket number 2001-K-1513 on the docket of this Court, we reinstate defendant’s sentence.

SENTENCE REINSTATED.

      . Under La. R.S. 15:529.1, five years was the "cleansing period” in effect at the time of Abram's 1991 conviction.


author: J^LOVE, J.

text:
    Michael S. RAYBORN v. DIAMOND OFFSHORE COMPANY and Walter Oil & Gas Corporation
    No. 2002-CA-0084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 2002.

      Timothy J. Young, Robert J. Young, Jr., Young, Richaud & Myers, New Orleans, Counsel for Plaintiff/Appellee.
    Nelson W. Wagar, III, Jason P. Foote, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, LLP, Metairie, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr.)
   J^LOVE, J.

This case involves an accident on a Diamond Offshore Company rig, where Michael Rayborn was hit in the face and eyes with hydraulic fluid from a hose that burst near where he was working. Michael Ray-born filed suit against Diamond Offshore Company and Walter Oil and Gas Corporation, to determine the amount of damages for the injury to his right eye. The jury awarded Michael Rayborn $829,000 in general damages, $46,000 in past ■ lost wages, and $125,000 in future lost earnings/earning capacity. For the following reasons, we amend the judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On September 16, 1998, Michael Ray-born (“Rayborn”) was employed by Diamond Offshore Company (“Diamond”) as a floor hand aboard the MODU OCEAN TOWER. Rayborn was injured when a hose containing hydraulic fluid ruptured, spraying him in the face and eyes. He filed this action against the defendants, Diamond, and Walter Oil and Gas Corporation, the owner of the offshore lease.

| ^Rayborn was treated immediately after the accident by the crew medic, who rinsed his eyes with saline and then transported him to the University of Texas Hospital— Galveston Branch for additional treatment. Dr. Dawn Buckingham attended to Ray-born’s eye injuries. She flushed his eyes with saline for twc hours, applied an eye patch and prescribed pain medication. Rayborn returned to the rig for the final day of his hitch but rested the entire time. He was scheduled to report back to Dr. Buckingham the next day for a follow-up treatment, but instead Rayborn drove home to Mississippi. Rayborn did not follow up with a doctor during the entire two-week period that he was ashore after the accident. Rayborn continued to work his normal schedule offshore and was promoted to the position of derrick man when he returned after this incident. He continued to work fourteen-day hitches offshore until January of 1999.

Since the accident, Rayborn has seen numerous doctors regarding his right eye; however, none detected any damage to the eye that would explain Rayborn’s complaints of pain, sensitivity to light, blurriness, or partial vision loss. In September 2000, Rayborn was referred to Dr. David Mielke, a psychiatrist. Dr. Mielke diagnosed Rayborn with conversion disorder, a psychological disorder where a patient believes and experiences the effects of damage to a specific body part even though there is no physical evidence of the injury. Dr. John Thompson, another psychiatrist that evaluated Rayborn’s condition in January 2001, attributed Rayborn’s complaints to malingering or exaggeration.

Defendants admitted liability for the injuries Rayborn sustained due to the ruptured hose, and offered judgment to the plaintiff prior to trial. The nature and extent of Rayborn’s eye injuries and the amount of his damages were the only issues at trial.

|aA three-day jury trial was held. The jury returned a verdict in favor of Ray-born, awarding him $829,000 in general damages, $46,000 in past lost wages, and $125,000 in future loss of earnings/earning capacity, for a total award of $1,000,000.

DISCUSSION

In its first assignment of error, Defendants argue that the jury committed manifest error by awarding Rayborn $829,000 in general damages.

The various doctors who evaluated the condition of Rayborn’s eye provided, at trial, extensive testimony as to their findings.

Dr. Dawn Buckingham

Dr. Dawn Buckingham was the first physician to attend Rayborn after the accident offshore on the morning of September 16,1998. At the time Dr. Buckingham was a resident in ophthalmology at the University of Texas Hospital at Galveston. Dr. Buckingham noted that Rayborn had an elevated pH level of 8.0-8.4 in his eye, and realizing that further damage could occur, she flushed his eyes out for two hours with saline, after which his eye pH was found normal; she applied medication and an eye patch. She found his visual acuity at 20/80 that pin holed to 20/60, normal pressure, normal papillary reaction, and two areas of patching with a slight amount of corneal edema in the right eye and diffuse swelling in the left eye cornea, but the remainder of Ray-born’s exam was normal. Dr. Buckingham testified to the following:

Q. In simple English, what was wrong with his eye when you saw it?
A. It was a little red, and he had a slight corneal abrasion and a little bit of swelling of his right cornea.

|4She further testified that she felt that it was superficial damage, and found that the abrasion was not directly in Rayborn’s line of slight. Dr. Buckingham found no injury to optic nerve or other part of the eye. She testified that she did not feel it was a serious injury. Dr. Buckingham requested that Rayborn return to the hospital after his hitch. Rayborn testified that he did return for the appointment but that he could not get in to see Dr. Buckingham, so he left and drove home to Mississippi with one eye. Dr. Buckingham never saw him again.

Rayborn complained to his safety supervisor, Herb Preteus, Jr., that his eye was bothering him in October of 1998. According to Preteus this was the only occasion that Rayborn made a formal complaint about his right eye while working for Diamond. Preteus made a report of Ray-born’s complaints to David Ellingburgh in Diamond’s claims department on October 19, 1998. Ellingburgh sent Rayborn to see Dr. Richard Wei at the Westbank Surgical Clinic.

Dr. Richard Wei

Dr. Richard Wei, an occupational medicine specialist, met with Rayborn on October 20, 1998. Dr. Wei in his examination found no physical abnormality in Ray-born’s right eye. Dr. Wei found the extra-articular muscles intact, the pupils reactive to light, clear cilia and cornea, and no damage or swelling to fundus area. Nevertheless, Rayborn complained to Dr. Wei that he was experiencing a decreased field of vision in his right eye. Puzzled as to why Rayborn was complaining of visual field loss when his external components were normal, Dr. Wei referred Rayborn to Dr. Owen Leftwich,

Dr. Owen Leftwich

Dr. Owen Leftwich, a specialist in ophthalmology, also met with Rayborn on October 20, 1998. Rayborn complained again of irritation and poor vision. When | sDr. Leftwich asked Rayborn to read the eye chart, Rayborn stated he was unable to see the large “E” on the board with his right eye. Dr. Leftwich then conducted a complete eye exam. He also found Ray-born’s pupil response equal. In a split lamp examination, he found no abnormality in the cornea or the back of the eye. Dr. Leftwich testified Rayborn’s depth perception test was abnormal but that it did not indicate a problem that would prevent Rayborn from seeing the big “E”. Dr. Leftwich further testified:

Q. Were you able to explain, at all, from a medical scientific point of view, the complaints that the patient had of not being able to see?
A. Not on an organic basis, which means a chemical or anatomical basis.

Dr. Leftwich stated, “[H]e did have some redness to the eye. And, so, I treated him with some topical anti-inflammatory drops.” Dr. Leftwich elaborated that the redness he observed in Rayborn’s eye was not specific, and could have been from a variety of causes. Further, he could not relate the accident in September to the redness he observed that day.

Dr. Larry Parker

Dr. Larry Parker, a neuro-ophthalmologist evaluated Rayborn on January 26, 1999. Dr. Parker found Rayborn’s cornea had healed. Rayborn’s subjective visual acuity was 20/200 in his right eye and 20/20 in the left eye. Upon examination Dr. Parker found Rayborn’s pupils normal and reactive, his eyes were tracking together, and found no optic nerve problems. Dr. Parker observed that Rayborn had tunneling of the visual field, indicating a functional or non-organic problem. He performed a Goldman Field test and found Rayborn showed a “bizarrely constricted field” not similar to physical problem. Dr. Parker also found that |fiRayborn’s degree of visual field loss varied with different tests, which to him suggests a functional disorder, not related to any actual damage of the eye.

Dr. Andrew Lawton

Dr. Andrew Lawton attended Rayborn on March 8, 1999. Dr. Lawton is an ophthalmologist and a specialist in neuro-ophthalmology. He found using a four-diopter vertical prism that Rayborn had visual acuity of 20/20 in his right eye. Dr. Lawton stated, “I found that when he had both eyes open and he wasn’t aware of it, but was using both eyes independently, he could read 20/20 with his right eye.” Dr. Lawton found Rayborn’s pupils reacted normally and equally.

Dr. Howard Katz

Dr. Howard Katz, a specialist in physical medicine and rehabilitation, saw Rayborn on May 9, 1999, for his first visit. Ray-born complained to Dr. Katz of constant headaches that were continuous for seven months, right eye matting during sleep, seeing purple spots with a yellow ring surrounding it, shadow movement, photo-phobia, and a lack of vision in his right eye.

L Dr. David Mielke

Dr. Katz found Rayborn’s right eye did not blink on confrontation, but found “pupils equally reactive to light and accommodation.” He also performed an MRI that was normal. Dr. Katz then gave Rayborn an injection of Imitrex for his headaches. On September 21, 1999, Rayborn had a second visit with Dr. Katz. He was still complaining of headaches but said they were better. Dr. Katz assessed Rayborn “did have right eye problems, that it appeared to be functional in nature, that he has post traumatic headaches and chronic daily headaches.”

Dr. Mielke, a psychiatrist, had three sessions with Rayborn, each lasting an hour, in September, October, and December of 2000. Dr. Mielke ordered various psychological tests, including a MMPI, to be performed on Rayborn. The psychologist administering the tests, Dr. Griffen, found Rayborn suffered from a conversion or adjustment disorder. Dr. Mielke took these results and concluded Rayborn was not malingering. He asserted the psychological stressor that caused a conversion reaction in Rayborn was getting sprayed in the face, pain, not being able to see, the boat ride to the hospital in Galveston, and hearing his colleagues talking about his possible third degree burns while he was incapacitated. Dr. Mielke said for most people conversion reaction is short lived, and after two years it is considered severe, and may never go away.

Dr. John Thompson '

Dr. John Thompson, a psychiatrist who specializes in forensic psychology and addiction psychology evaluated Rayborn in January of 2001. He described somatic disorders where the “patient manifests physical signs and symptoms, but the medical evidence for those physical sign and symptoms and limited or absent.” Malingering, Dr. Thompson describes, as when a patient in essence makes symptoms up. Dr. Thompson’s opinion was that Ray-born’s situation was “more consistent with exaggerating the symptoms, or making the symptoms up, than it would be with an actual conversion disorder, where he really didn’t understand why he was having these symptoms or what was the driving force behind them.”

The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. Sommer v. State of Louisiana, Dep’t of Transp. and Dev., 97-1929, p. 17 (La.App. 4 Cir. 3/29/00) 758 So.2d 923, 934-935. In effect the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Id. (citing Moore v. Healthcare Elmwood, Inc. 582 So.2d 871 (La.App. 5th Cir.1991)). Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Moreover, when findings are based on determinations regarding the credibility of witnesses, the manifest error standard requires that great deference be afforded -to the trier of fact’s findings. Id.

The jury was presented with evidence from various doctors about the condition of Rayborn’s eye, two psychiatrists who differed in their opinions as to whether Rayborn’s complaints about his eye had a psychological basis, and Rayborn himself. The jury, hearing the testimony of Dr. Mielke and Dr. Thompson reasonably made the credibility determination that Dr. Mielke’s opinion was more accurate with regard to Rayborn. We cannot, therefore, find that the jury committed manifest error in finding that Rayborn suffered an injury.

We find the general damages award is so high in proportion to the injury that it shocks the conscience. There is no evidence that Rayborn suffered permanent injury to his eye, even crediting the jury’s apparent determination that he suffers from conversion disorder, to justify an award of $829,000 in general damages.

After deciding that the trial court abused its discretion, this Court is constrained to lowering the award to the highest point reasonable, within the discretion of the trier of fact. See Clement v. Griffin, 91-1664, p. 42 (La.App. 4 Cir. 3/3/94), 634 So.2d 412, 442. General damages do not have a common denominator, but are decided on a case-by-case basis. Coscino v. Wolfley, 96-0702 (La.App. 4 Cir. 6/4/97), 696 So.2d 257. Therefore, for the purposes of this case |aoidy, we must construe the highest award reasonable. Considering the facts and circumstances particular to Rayborn, we conclude that an award of $50,000 in general damages is the highest amount the jury could have reasonably awarded Rayborn for the conversion disorder. We further conclude that $250,000 in general damages is the highest amount the jury could have reasonably awarded Rayborn for the initial injury to his eyes, taking into account the extreme stress he experienced as a result of being hit in the eye with high pressure hydraulic fluid and the fear associated with the possibility of permanent blindness. Therefore Rayborn is entitled to a total general damages award of $300,000.

In its second and third assignments of error, Defendants argue that the jury committed manifest error by awarding Ray-born $125,000 in future loss of earnings/earning capacity and $46,000 in past lost wages.

Lost earnings need not be proven in every case with mathematical certainty; however, the law requires such proof as reasonably establishes the claim. Ploger v. Reese, 2001-2243, p. 9 (La.App. 4 car. 5/22/02), 819 So.2d 1114, 1120. This may consist of the plaintiffs own testimony. Id. This Court consistently applies the manifest error standard to judge the fact finder’s conclusions respecting lost wages. Id. at p. 12, 819 So.2d at 1121.

Nathaniel Fentress, a vocational rehabilitation counselor, testified that after reviewing Rayborn’s various medical records in his opinion Rayborn should not continue to work offshore. He further testified that given Rayborn’s educational level, combined with his condition, he would be extremely limited in his employment options. Nathaniel Fentress was the only vocational rehabilitation counselor to testify at trial.

|1nDr. George Randolph Rice, a professor of economics at LSU, made an calculation of Rayborn’s projected past and future lost earnings and benefits based on Rayborn’s pre-accident wages of approximately $37,000 per year, and Rayborn’s testimony that he could only get employment paying $8 per hour, assuming that Rayborn could not return to work offshore. He estimated Rayborn lost $35,453 in past earnings and would sustain $250,063 in future lost earnings.

Our review of the record reveals no evidence to support the jury’s award of $46,000 to Rayborn for past-lost wages. We find that the jury committed manifest error in its determination. Our review of the record reveals the evidence supports Dr. George Rice’s estimation that Rayborn lost $35,453. Therefore we reduce the jury’s award of $46,000 for past-lost wages to $35,453.

Given the medical evidence presented at trial, and the uncontroverted testimony of Nathaniel Fentress and Dr. Rice, we find the jury’s conclusions on Rayborn’s future lost earnings/earning capacity were reasonable. The jury could have reasonably found that the injury to Rayborn’s eye and subsequent conversion disorder would prevent him from working offshore again, and as such he would never be able to earn again what he did while working offshore. We find, therefore, the jury did not commit manifest error in awarding Rayborn $125,000 in future lost earnings/earning capacity.

CONCLUSION

We find that the jury was unreasonable in its award of general damages. We award Rayborn $300,000 in general damages, and affirm the jury’s award of ^$125,000 for future loss of earnings/earning capacity and reduce the jury award for past lost wages to $35,453, for a total award of $460,453.

AFFIRMED AS AMENDED.

      . A portion of Dr. Dawn Buckingham’s deposition was read into the record in lieu of testimony.

      . Dr. Larry Parker's deposition was read into the record in lieu of testimony.

      . Dr. Andrew Lawton's deposition was read into the record in lieu of testimony.

      . Dr. Howard Katz's deposition was read into the record in lieu of testimony.

      . Nathaniel Fentress’s video deposition was presented at trial.


text:
    Carrie Whitaker CARONNA, et al. v. Barry J. CURRY, et al.
    No. 02-CA-709.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.
    Rehearing Denied Jan. 13, 2003.
    Robert R. Faucheaux, Jr., Attorney & Counselor at Law, LaPlace, LA, for Plaintiff-Appellant.
    Richard P. Ieyoub, Attorney General, Stephen F. Babin, Assistant Attorney General, New Orleans, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Carrie Whitaker Caronna, plaintiff-appellant, from a summary judgment dismissing the State of Louisiana, through the Department of Transportation and Development, defendant-appellee, from this wrongful death action. For the following reasons we affirm that judgment.

The facts of the accident are as follows. On February 10, 1983, at about 7:20 PM, plaintiffs husband was killed when he was struck by an automobile driven by Barry Curry, on the two lane River Road in St. Charles Parish. Curry related the facts of the accident in his deposition. He said that he was driving along and suddenly noticed a person running down the road in his lane of travel. He said that this person was in dark clothes and was barefooted, and that the only reason he saw him was because of the white soles of his feet. He said that he moved over into the oncoming lane and flashed his high-beam lights a few times. However, a car was approaching in the oncoming lane so he had to move back into his proper lane. He was able to get around the running person, but as he pulled over into his lane he hit a second person whom he did not see until impact. He said that he was not yet completely back over into his lane when the accident occurred.

| oDuring the almost twenty years of this litigation plaintiffs claims against all parties were resolved except for those against the State through DOTD. The State moved for summary judgment and after a hearing of April 12, 2002, that motion was granted. Plaintiff now appeals that judgment.

Summary judgment is appropriate when there are no issues of material fact outstanding and when the moving party is entitled to judgment as a matter of law. The controlling law in this case is found in Shafouk Nor El Din Hamza v. Bourgeois, 493 So.2d 112 (La.App. 5th Cir.1986). The facts of these two cases are identical. There the decedent was walking on the same road as that involved in the present action, and was killed when struck by an automobile. In discussing the applicable law, the Shafouk court concluded that the legal cause of decedent’s accident was his walking at night on a traveled portion of the unlit highway with his back to traffic. While there was an alternative factual scenario for the accident, i.e. that Shafouk was on the shoulder of the road, the court pointed out that even were that the case, then the driver’s leaving the roadway and hitting him on the shoulder would have been the legal cause of the damages.

Here, the only evidence as to what happened is the deposition testimony of Barry who said that he had not yet gotten back into his proper lane after swerving into the oncoming lane to avoid the first pedestrian when he struck the decedent. Thus, the decedent must have been well into the traveled portion of the roadway when hit. There was thus nothing done or not done by the DOTD which was causally related to this accident. In this circumstance there is no legal theory which would render it liable for damages here, and summary judgment was therefore proper.

Plaintiff urges to the contrary that the DOTD had a duty to install a sidewalk or other place along the road for pedestrian traffic. However, it was undisputed |4that decedent could easily have walked in safety on the levee next to the road, but chose not to do so.

For the foregoing reasons the summary judgment in favor of State through DOTD dismissing plaintiffs suit against it is hereby affirmed.

AFFIRMED.


author: I «MARION F. EDWARDS, Judge.

text:
    BELL MARINE SERVICES, INC. v. TRAVER OIL COMPANY, et al.
    No. 02-CA-0611.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.
    Rehearing Denied Jan. 7, 2003.

      Michael P. Ciaccio, Gretna, LA, and John A. Seialdone, New Orleans, LA, for Appellant.
    Kevin O. Larmann, Jacqueline Romero, Metairie, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   I «MARION F. EDWARDS, Judge.

Appellant, Pearl River Navigation Company (“Pearl”), appeals a judgment of the district court in favor of appellee, Bell Marine Services Inc. (“Bell”), in the amount of $15,806.25. We affirm.

Bell filed suit in open account against Traver Oil Company Inc. (“Traver”), Pearl and Allen L. Warriner, the owner of Pearl. The petition alleged that from December 15,1998 through December 21, 1998, and January 5, 1999, through January 8, 1999, Bell was engaged by Pearl and/or Warri-ner to perform tugboat towing and other services on a production platform operated by Traver. According to the pleading, Pearl represented that Traver would pay for the services rendered and requested that Bell invoice Traver directly. Demand was made for the sum of $15,806.25. The petition urged that Pearl and/or Warriner misrepresented Traver’s responsibility for payment, and these actions also constituted a breach of contract by both Pearl and Traver.

Prior to trial on the merits, Warriner was dismissed from the proceedings. Following trial, the trial court ruled in favor of Bell and against Pearl in the amount | ^prayed for, plus attorney fees, costs, and interest from the date of demand. Pearl appeals.

At trial, Kelly Bell, who was part-owner along with her husband of the now-defunct Bell Marine, testified that Allen Warriner of Pearl River Navigation hired the company for the job in question. Although she did not speak with Warriner personally, she was present during telephone calls between him and her husband. The total of the first invoice, dated December 15-21, 1998, was for $11,615.00. An undated, handwritten notation on that invoice states: “Bill directly to Traver Oil & pay Allen $10.00 commission.” Initially, Bell intended to bill Pearl, as they had done in the past. However, after the job began, Warriner told Bell it “might have better luck” if Traver were directly billed, but copies of the invoices were to be sent to him (Warriner). Mrs. Bell sent a second invoice to Traver for $13,165.00, for the same period of time and units of work. The difference in the two amounts was explained by Mrs. Bell as a type of commission to Warriner. A third invoice for services from January 5-8, 1999, and dated January 8, 1999 in the amount of $7,641.25 was also introduced into evidence. Normally, only one invoice would have been generated, but after the first phase, Bell returned to work at Warriner’s request.

Pearl made a partial payment of $5,000.00 on the Traver account, and Bell sent Pearl a check representing Warriner’s commission on that sum. Other invoices, involving other jobs, were introduced at trial. These invoices evidenced that when Bell did a job for Pearl, Pearl was billed and paid the invoices. On one other occasion, Warriner requested that Bell forward an invoice for a customer to Pearl, to be included in Pearl’s invoice to its client. This invoice was never sent to Pearl’s client directly, and Warriner paid that particular job. Mrs. Bell was not aware of any occasions on which Bell billed customers in lieu of billing Pearl directly.

|4In the present matter, demand notices were sent to both Pearl and .Travers. On direct questioning by the Court, Mrs. Bell was emphatic that Bell was hired by War-riner and Pearl River, and that Bell did not speak with Traver until midway through the job.

Mr. Bell testified that Warriner discussed the job with him, informing him of some of the details. Warriner had previously acted as a broker for Bell on occasion, when Bell would directly bill the other company and pay Warriner a commission; this commission work was customary in the industry.

“Whenever I was working for him we were always working for somebody else. Very seldom did I do work directly for Allen. It was always part of a package. I work for Allen and he had a contract with somebody to do a certain job.”

On this particular job, Bell would operate a crane owned by Pearl, along with a barge with other equipment on it. Pearl was providing a service to Traver, setting and holding coil tubing, and hired Bell’s boat to push the barge. At that time, there was no discussion as to who would pay the bill. Warriner did not tell him that Traver would pay the bill, or that Traver was having financial difficulties. Pearl did not direct the day-to-day operations, although Bell would call Warriner if there were problems with the equipment. Traver, or other companies on the job working for Traver, usually directed Bell.

At one point, the weather became an issue and Bell consulted with a representative of Traver about pulling out. Finally, Bell determined that it was unsafe to continue, and called Warriner to inform him the job was going to be shut down. After the first work period in December, Bell became concerned because he discovered that other contractors on the job had been pre-paid. Warriner told Bell that there was a better chance of getting paid sooner if Traver were billed directly, because Traver already owed Warriner money.

|fiAt some point, during the second phase of the job, he told Traver that he did not work for Pearl, and would be billing Traver directly. However, Bell testified that he was never a direct employee of any of the companies on this job, but was rather a contractor.

A letter of demand from Bell to Pearl in the amount of $15,806.25 was introduced into evidence.

Warriner testified that Traver contacted his company about providing a tug and a barge, and a crane barge to carry coil tubing to a job in Lake Ponchartrain. In the first phase, Pearl used its own boat, but later did not have a tug available. At that point, Warriner contacted Bell to do the towing. At the beginning, Warriner told Bell that it would be better to bill Traver directly, because Bells’ rate was higher than Pearl’s. Warriner was working for $100.00 per hour, and Bell’s boat, including a commission to Pearl, was $145.00 per hour. Nobody at Traver hired Bell, who would not have been on the job except for Pearl’s request. Warriner knew before hiring Bell that Traver had been slow in paying bills. Pearl was not paid for the Traver job, and did not bill Traver for any of the work done by Bell.

Warriner had brokered jobs for Bell before, with other companies, for which he was paid a commission. After completion of the Traver job, Pearl gave Bell Marine a check for $5000.00, and was “helping out” Bell, which was short on capital, by advancing funds before either was paid for the Traver job. Bell would repay when they were paid directly by Traver. Warri-ner never discussed anything with Mrs. Bell, and did not discuss the matter in detail with Mr. Bell: “He just needed some money.” He never asked Bell to repay the loan, but rather: “I trust that he will if he ever gets paid on this job.” The check, introduced into evidence, has only the notation “Traver Acct.” Warriner had previously advanced Bell money on invoices before they were paid, “like a loan on receivables.” Pearl did | finot direct the day-to-day operations on the Traver job, and had told Bell to do whatever they need done, to “work with the customer.”

The court found that Bell was hired by Warriner to do a job that his company could not perform, and that he was hired by Pearl to move its barge. The court determined that Bell was a subcontractor of Pearl. On appeal, Pearl urges that the trial court erred as a matter of law in concluding that it was responsible for the work conducted by Bell. Pearl urges that it acted as a broker between Bell and Traver, in return for which Bell paid Pearl a small commission consistent with their pri- or practice.

It appears from the evidence that the relationship between Bell and Peari/Warri-ner was irregular, or inconsistent. At times, Warriner acted as an agent/broker and at other times, as a general contractor. On the evidence before us, we cannot say that the trial court was clearly wrong in characterizing the association in the present instance to be one of contractor/subcontractor.

All parties agree that Traver contracted with Pearl to provide a tug and barges for Traver Oil. When Pearl’s tug became unavailable, Warriner contacted Bell to provide the boat and services. The initial invoice was billed to Pearl. Both of the Bells testified that they were told to bill Traver directly only after completing the first phase of the job. Mr. and Mrs. Bell emphasized that the $5000.00 check from Pearl was a partial payment for the Traver job. The check itself denotes it is for the “Traver Acct”, and the amount demanded by Bell is the total of the two invoices minus five thousand dollars. We conclude that the check was, indeed, a partial payment by Pearl for sums due to Bell, rather than a loan or advance. Pearl cites a Fourth Circuit case in support of its position that as a broker, it was not obligated to pay Bell. In that case, the defendant Austral contracted with Sanders, a non-party, to provide a marine package. Unsatisfied |7with the tug Sanders supplied, Austral requested Sanders to supply a more powerful tugboat and agreed to compensate the difference in cost. Sanders contacted Terrebonne, which provided the tug. After Sanders filed for bankruptcy, Terrebonne requested Austral for permission to bill them directly, which Austral refused. Nonetheless, Terrebonne did directly bill Austral. Sanders also billed Austral, and based on its contract, Austral paid Sanders. The court found there was no contract between Terrebonne and Austral, and determined that Terrebonne rendered its services at the request of and for the benefit of Sanders. The invoice sued upon was an obligation of Sanders, which was solely responsible.

We do not find Terrebonne applicable, and it is distinguishable on its facts. In the present case, Pearl contracted with Traver to supply, among other things, a tugboat, and later arranged with Bell to replace an unavailable tug, in order to complete its agreement. Although it appears that Bell and Warriner enjoyed an ambiguous arrangement, Warriner’s suggestion of convenience, that Bell bill Traver directly, does not change the nature of Bell’s relationship with Pearl. We find no manifest error in the judgment of the trial court that Bell acted as a sub-contractor.

Pearl also argues that the court erred in assessing the full value of the invoices plus attorney fees and costs when Bell contracted directly with Traver for additional services and included these charges as part of its demand against Pearl. However, Pearl did not produce any evidence supporting its claim that Traver contracted directly with Bell. This assignment of error is without merit.

For the foregoing reasons, the judgment is affirmed. Costs are taxed to appellant.

AFFIRMED.

      . Terrebonne Fuel & Lube, Inc. v. Austral Oil Co. Inc., 531 So.2d 1156 (La.App. 4th Cir. 1988).


author: | .MARION F. EDWARDS, Judge.

text:
    Ronald HARRISON, Individually, and on behalf of Doris Harrison and His Minor Child, Avery Doyle Harrison v. T. Richard SMITH, M.D. Meadowcrest Hospital, Dr. Wayne Grundmeyer and the Louisiana Patients Compensation Fund.
    No. 02-CA-477.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.
    Rehearing Denied Jan. 7, 2003.

      Jacqueline G. Griffith, Charles Owen Taylor, Lydia Habliston Toso, New Orleans, LA, for Appellant.

      Lawrence D. Wiedemann, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLÁ, MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .MARION F. EDWARDS, Judge.

Defendant, the Louisiana Patient’s Compensation Fund (“PCF”) appeals a judgment of the district court in favor of the plaintiff, Ronald Harrison, in the amount of $439,915.00. We affirm.

The underlying facts which give rise to the present case, have been summarized by this court as follows:

This matter involves a medical malpractice claim by Ronald Harrison for the death of his wife, Doris Harrison, and his minor child, Avery Doyle Harrison.
Doris Harrison, a prenatal patient of Dr. T. Richard Smith, was admitted to Meadowcrest Hospital in labor at 12:10 a.m. on September 22, 1989. Prior to [95-517 La.App. 5 Cir. 2] this, Mrs. Harrison had informed Dr. Smith that she and her husband were Jehovah’s Witnesses and did not wish any blood products to be used at the time of the delivery of their child. Dr. Smith was called by the nurse on the delivery unit 30 minutes after the patient arrived, but he did not immediately proceed to the hospital.
At 9:45 a.m., Mrs. Harrison’s fetal heart monitor ceased reflecting a heartbeat for her unborn child, and the nursing staff asked Dr. Wayne Grundmeyer to deliver the baby. At 9:53 a.m., Dr. Grundmeyer opened the patient and delivered a male infant with the umbilical cord tightly wrapped around his neck. Dr. Grundmeyer had begun to close the patient when Dr. Smith arrived and took over.
At this point, Dr. Smith determined it was necessary to perform further surgery on Mrs. Harrison’s huterus. While the surgery was being performed, Mr. and Mrs. Harrison both vehemently refused the use of any blood and/or blood products.
After the surgery, in the recovery room, Mrs. Harrison’s condition began to worsen and she eventually died. An autopsy revealed the cause of death to be anemia and hypovolemia, which is a decrease in the amount of circulating blood.
The baby, Avery Doyle Harrison, died on October, 14, 1989, 21 days following his birth, from complications resulting from the umbilical cord that was wrapped around his neck.

Ronald Harrison filed a medical malpractice claim and thereafter a suit against Dr. Grundmeyer, Meadowcrest, and Dr. Smith in 1992. In the petition, Harrison alleged that Dr. Smith was negligent in failing to adequately respond to the calls from the nursing staff regarding the deterioration of the mother and fetus, and in electing to perform an unnecessary procedure after his arrival. Pursuant to La. R.S. 40:1299.44(0(5), on May 19, 1994, plaintiff reached a court-approved settlement with Dr. Smith and his insurer, in the amount of $100,000.00. Mr. Harrison, in this settlement related to the claim for Doris, reserved his rights against the Louisiana Patient’s Compensation Fund for the full amount of damages recoverable. Also on May 19, 1994 Harrison reached a court-approved settlement with all involved parties regarding his claims on behalf of his minor child, Avery Doyle Harrison, in the amount of $40,000.00.

On October 21, 1994, Harrison filed a motion for summary judgment predicated on the fact that, under La. R.S. 40:1299.44(0(5), the $100,000.00 payment constituted an admission of liability by the health-care provider. Harrison further alleged there were no genuine issues of material fact which could result in a judgment against PCF in an amount less than the $400,000.00 allowed by the medical malpractice cap, plus medical expenses.

l40n December 13, 1994, the district court judge granted Harrison’s motion for summary judgment and entered judgment against PCF in the sum of $400,000.00, the amount allowed by the cap, and $62,515.04 in past medical expenses together with legal interest. On January 30, 1996 this Court rendered a decision vacating the trial court judgment and remanding the case to the District Court. The Supreme Court denied writs.

Subsequent to these decisions, in May of 1996, Harrison filed a Motion for Partial Summary Judgment, seeking the immediate payment of all medical costs associated with the treatment of both Doris Harrison and Avery Doyle Harrison, $11,238.68 and $51,278.35 respectively. On August 20, 1996 the trial court granted the partial summary judgment.

In September, 1996 Harrison filed another Motion for Summary Judgment, once more seeking to be awarded the statutory maximum of $400,000.00 in damages. He based this motion on a then-recent decision of the Louisiana Supreme Court. On November 14, the trial court granted summary judgment and awarded Harrison $400,000.00 plus costs and interest.

On appeal, this court reversed that judgment, again finding these damages were not susceptible to summary judgment. We also amended the September judgment to exclude the medical expenses of Avery Harrison, finding that Mr. Harrison was barred by the settlement from asking for any further damages.

Mr. Harrison took writs to the Supreme Court, which reversed the portion of our opinion amending the partial summary judgment and excluding Avery’s medical expenses, directing the district court as follows:

Contested issues of fact appear to make a determination of whether and/or under what circumstances plaintiff is | ^entitled to pursue a claim relative to the medical treatment rendered to Avery Doyle Harrison inappropriate for resolution by summary judgment. In connection with the trial on the merits of plaintiffs claims, the trial court is directed to receive evidence on and to determine the following issues, either prior to trial or at the trial on the merits:
1. Whether liability is deemed admitted and plaintiff is entitled to pursue a claim to recover one maximum award of up to $500,000 in damages from the Louisiana Patient’s Compensation Fund (subject to credit for settlements paid) for the medical treatment and deaths of both Avery Doyle Harrison and Doris Harrison, plus medical expenses incurred; or
2. Whether plaintiff is entitled to pursue claims to recover two maximum awards of up to $500,000 each, plus medical expenses incurred, from the Louisiana Patient’s Compensation Fund in connection with the treatment of Avery Doyle Harrison and Doris Harrison (subject to credit for settlements paid) but with plaintiff being required to prove liability as to the claim relative to Avery Doyle Harrison; or
3. Whether any and all claims plaintiff may have against the Louisiana Patient’s Compensation Fund relative to the medical treatment of Avery Doyle Harrison are precluded by the settlement agreement entered into by Ronald Harrison, Individually and on behalf of his minor child, Avery Doyle Harrison; and
4. The extent to which the Louisiana Patient’s Compensation fund was a party to, ratified, or is otherwise estopped to complain of any agreements the court may find were made relative to the settlement agreements entered into by the plaintiff.
The parties may appeal the ruling of the trial court on these issues after a judgment on the merits.

On remand, the trial court requested submission of memoranda on these issues and issued an advisory opinion in 1997. In August, 2000, Mr. Harrison filed a Rule to Show Cause why the advisory judgment should not be formally entered as the judgment in the record. In response, PCF filed an opposition and an Exception of Res Judicata. On October 20, 2000, a judgment was issued finding | fithat liability was deemed admitted as it pertained to the treatment of Mrs. Harrison, and that Mr. Harrison was entitled to pursue claims to recover two maximum awards of $500,000.00 each in damages from the PCF in connection with the medical treatment and death of Avery and Doris Harrison, plus medical expenses, but requiring Mr. Harrison to prove liability as to the claim relative to Avery. The PCF was further estopped from asserting as a defense the fact that in the settlement agreement regarding Avery, a reservation of rights to proceed against PCF was not included. No appeal was taken from this judgment. In November of 2000, the trial court also denied PCF’s exception.

In October 2001, the trial court heard various Motions in Limine, including Harrison’s motion to exclude any allegations or references to “plaintiffs contributory negligence.” In that judgment, the trial court found that the health care provider was one hundred percent at fault, refusing to relitigate liability or causation. The Court stated:

This is not the type of multiple injury case where the Court must distinguish between the original or apparent harm which the admission of liability encompasses a secondary harm. Here, there is no secondary harm to consider.

The quantum claims for Avery and Doris Harrison were bifurcated for trial. The claims for Doris were tried on October 29, 2001, following which trial the district court granted judgment in the amount of $439,915.00 plus interest, subject to the $100,000.00 credit. The claim on behalf of Avery was later settled. The PCF has appealed.

On appeal, PCF alleges that it was manifestly erroneous for the trial court to exclude all evidence of liability; that it was erroneous for the trial court to exclude evidence regarding consent forms releasing Dr. Smith from all liability for damages related to the refusal of Doris and Ronald Harrison to accept blood 17products, and that it was erroneous for the trial court to exclude evidence of comparative fault of the Harrisons, and to reduce damages proportionately.

Addressing the first issue as to whether it was manifestly erroneous for the trial court to exclude all evidence of liability, we note that the release agreement (regarding the claims on behalf of Doris) stated that the payment was “not an admission of liability or negligence, that this release shall in no way be construed as a determination of the negligence or freedom from negligence of any persons involved and that this release may in no way be construed to reheve me from any liability which I may have to any person, including those released hereunder as a result of my acts or omissions in connection with the subject injury.” The PCF urges that the agreement was a binding contract to settle the litigation and that absent fraud or misrepresentation, the agreement controls. In other words, according to the PCF, parties to an La. R.S. 40:1299.44(0(5) settlement can contractually abrogate the statutory admission of liability. The PCF avers that because a settlement agreement, or compromise, has the legal efficacy of a judgment under La. C.C. Art. 3078, it can form the basis of a plea of res judicata.

Under La. R.S. 40:1299.44(0(5), if the insurer of a health care provider has agreed to settle its liability on a claim against its insured and the claimant is demanding an amount in excess thereof from the patient’s compensation fund for a complete and final release, the liability of the healthcare provider is deemed admitted and established where the insurer has paid its policy limits of one hundred thousand dollars.

We do not determine at this time whether Dr. Smith or his insurer could have properly included this negation of liability clause into the agreement, nor do we address its effect as to the physician or insurer. Rather, it is clear that the settlement agreement, insofar as it purports to negate a determination of liability on the part of Dr. Smith, cannot alter the legislatively created status of the Fund. The |SPCF is more in the nature of a statutory intervenor than a defendant. It is the payment of the $100,000.00 by a qualified health care provider, which triggers the admission of liability provision of the act, and not the position of that provider vis-a-vis the malpractice victim.

Once the qualified health care provider (or its insurer) pays $100,000 to a medical malpractice victim, the admission of liability provision of R.S. 40:1299.44(0(5) is triggered and the only contested issue remaining between the victim and the Patient’s Compensation Fund is the amount of the victim’s damages in excess of the amount already paid. Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365, 372; Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. den., 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525; McCrory, 686 So.2d at 1063.

Regarding a plea of res judicata available to the PCF, this court has previously stated:

We agree with the Fourth Circuit decisions in Rey[ v. St. Paul Fire and Marine Ins. Co., 665 So.2d 109 (La.App. 4 Cir. 1995)] and Miller, and find that the PFC does not have the right to raise the exception of prescription, and further is not entitled to raise any exceptions after the limitation of liability has been satisfied. The statutes and jurisprudence are clear that such payment is an admission of liability. The PCF does not stand in the shoes of the Defendant. It is a creature of the legislature created solely to pay the excess damages to an injured plaintiff who can prove that his excess damages were caused by the health care provider’s malpractice. To allow it to raise exceptions after the payment would be to permit it to raise defenses only given to a Defendant, which it is not. See: McCrory, 686 So.2d at 1064.

As created by the Legislature and interpreted by the jurisprudence:

the Fund has two choices: either agree to the amount demanded or litigate the sole issue of the claimant’s damages. If it chooses not to pay the demanded amount, then subparagraph |9(C)(3) allows the Fund to file written objections “to the amount demanded” and thereby force the litigation of the claimant’s damages. * * * In the latter instance, the only issue to be litigated is the quantum of the claimant’s damages.

Even if the contract is the law between the parties, the PCF was not a party to the compromise. Moreover, the release specifically reserved all rights to recover against the PCF “as legally owed”. Such rights clearly include the statutory admission. This assignment of error is without merit.

In its second and third assignments of error, the PCF urges that the court erred in excluding evidence of victim fault, specifically, medical consent forms signed by Mr. and Mrs. Harrison. The Harrisons were of the Jehovah’s Witness faith, and in September of 1989, Doris Harrison signed a “Refusal to Permit Blood Transfusion”, requesting that no blood or blood derivatives be administered to her. Mr. Harrison also signed such a form. The PCF argues that such forms, which purported to release the physician and hospital from liability, are contracts and thus Dr. Smith was released from all liability related to the refusal to accept 'blood. In so doing, the PCF is yet again attempting to wrest itself out of its statutorily imposed liability. At least insofar as the PCF is concerned, liability has been admitted, and the only contested issue is the amount of the victim’s damages.

The PCF also argues that the court erred in not considering the comparative fault of the Harrisons, who continued to refuse transfusions while at the hospital, after Mrs. Harrison’s surgery.

In litigating the issue of damages, the Supreme Court has required a plaintiff to prove his damages in excess of $100,000.00. In so doing, it has now been | mdetermined that the PCF may present evidence before the jury that victim or third-party fault caused any of the excess damages.

Although payment of $ 100,000 in settlement establishes proof of liability for the malpractice and for damages of at least $ 100,000 resulting from the malpractice, at the trial against the Fund, the plaintiff has the burden of proving that the admitted malpractice caused damages in excess of $ 100,000. Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97), 699 So.2d 365. Accordingly, that portion of the trial court’s judgment prohibiting the PCF from arguing or presenting evidence before the jury that victim or third-party fault caused any of the damages in this case is reversed.

Conner requires the trier of fact to consider evidence of victim or third party fault in the trial of excess damages, i.e. whether this victim or third party fault contributed to claimed damages over $100,000.00.

The PCF argues that the Harrisons were clearly aware of the significance of their refusal to accept a blood transfusion, and urges that this was victim fault and the direct cause of Mrs. Harrison’s death. As we view the evidence of record, there is no question but that Mrs. Harrison died due to a lack of blood, and this fact does not appear to have been put at issue; neither is there any question that both Mr. and Mrs. Harrison refused any blood replacement or transfusion. At the trial for damages, the medical consent forms were proffered, along with depositions of several doctors on the medical review panel.

We find the argument of the PCF, that the trial court should have considered the release forms and evidence as to Mr. Harrison’s continuing rejection of blood transfusions, is specious at best, since the issue has already been determined in the trial court. This case has been before the court since 1992, and from the outset, the PCF has raised that defense. As early as 1994, a pre-trial order submitted by the PCF urged the comparative negligence of the Harrisons. Moreover, the PCF |nalleges in brief that the settlement with Dr. Smith confected in 1994, containing the clause (discussed above) that the payment was not to be construed as an admission of liability, was “in exchange for the plaintiffs’ refusal to accept blood and became the law of the case.” The matter was argued in the earlier hearings on summary judgment.

In its judgment of October 17, 2001, the trial court found that the settling health care provider was one hundred per cent at fault for Mrs. Harrison’s death, stating that there was no secondary harm to consider. Under the facts and evidence presented, the secondary harm to which the judgment refers can only be “victim fault.” It is clear from the record that the trial court had before it the issue and evidence of the various releases, and considered and rejected that defense by finding the health care provider completely at fault. Considering all the evidence in the records before us, we find no error in that determination.

Because of the preceding judgments, appeals, and various motions of the parties, we find the procedural posture of the case is somewhat unusual. Nevertheless, the court heard the matter in segments and in so doing, determined prior to the October 29 hearing that there was no victim fault. Thus, refusal to admit evidence on this point at that latter hearing was not error. These assignments of error are without merit.

For the foregoing reasons we affirm the judgment of the district court in favor of Ronald Harrison in the amount of $451,153.68, plus interest and costs. Costs of this appeal are taxed to the Louisiana Patient’s Compensation Fund.

AFFIRMED.

      . Smith v. Harrison, 95-517 (La.App. 5 Cir. 1/30/96), 669 So.2d 3, 4.

      . Id.

      . Bijou v. Alton Ochsner Medical Foundation, 95-3074 (La.9/5/96), 679 So.2d 893.

      . Harrison v. Smith 96-1005 (La.App. 5 Cir. 4/29/97), 694 So.2d 1090.

      . Harrison v. Smith 97-1402 (La.10/3/97), 701 So.2d 182.

      . Id.

        . Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. den., 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525; Mumphrey v. Gessner, 581 So.2d 357 (La.App. 4 Cir.1991).

      . Id.

      . McGrath v. Excel Home Care, Inc., 01-1270 (La.App. 5 Cir. 3/26/02), 810 So.2d 1283, 1287.

      . Id., at 1288.

      . Castillo v. Montelepre, Inc., 999 F.2d 931, 935 (5th Cir.1993); see also McCrory v. Jefferson Parish Hosp. Service Dist. No. 2, 96-624 (La.App. 5 Cir. 12/30/96), 686 So.2d 1060.

      . Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97), 699 So.2d 365.

        . Conner v. Stelly, 02-280 (La.1/30/02); 807 So.2d 827. Also Barbara Hall et ux. v. Brookshire Brothers Limited, Louisiana Patient's Compensation Fund, 2001-1506 (La.App. 3 Cir, 08/21/02); 831 So.2d 1010.

      . Conner v. Stelly, supra.