author: SAUNDERS, Judge.

text:
    Calvin RABALAIS and Merion Rabalais v. Lloyd A. NASH, Jr., et al.
    No. 05-937.
    Court of Appeal of Louisiana, Third Circuit.
    March 29, 2006.

      Larry Alan Stewart, Stafford, Stewart, & Potter, Alexandria, LA, for Defendants/Appellees State Farm Mutual Automobile Insurance Company, Avoyelles Glass of Bunkie, Earl Guillory.
    Henry Dupont Heck Olinde, Jr., James D. Prescott, III, Couhig Partners L.L.C., Baton Rouge, LA, for Defendants/Appel-lees Lloyd A. Nash, Jr., City of Marksville through the Marksville City Fire Department, American Alternative Insurance Company.
    Brian M. Caubarreaux, Derrick G. Earles, Brian Caubarreaux & Associates, Marksville, LA, for Plaintiffs/Appellants Calvin Rabalais and Merion Rabalais.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and OSWALD A. DECUIR, Judges.
   SAUNDERS, Judge.

liThe plaintiff, Calvin Rabalais, appeals an adverse judgment assessing 100% of the fault to him in a collision between his vehicle and a Marksville Fire Department vehicle which was returning to a fire still in progress.

We reverse the judgment rendered pursuant to a jury verdict.

ISSUES

Did the jury commit manifest error in concluding that La.R.S. 32:24 concerning emergency vehicles applied to the facts of this case? Was the jury reasonable, or did it commit manifest error in assigning 100% fault against the plaintiff?

FACTS

On June 12, 2002, Mr. Rabalais was attempting to make a left hand turn onto Louisiana Highway One in Marksville, Louisiana. Louisiana Highway One is a two lane, north-south highway with a general turning lane in between the two lanes of traffic. Mr. Rabalais was leaving the parking lot of an auto repair shop located on the west side of south-bound Highway One. Mr. Rabalais wanted to travel north, meaning that he had to cross the southbound lane of traffic, the turning lane, and then turn left into the northbound lane of Highway One. Approximately 60-90 minutes before Mr. Rabalais was attempting to make his lefthand turn, the Marksville Fire Department began fighting a fire at the Jen-Re Plastics Plant located on the west side of south-bound Highway One, approximately one-half mile south of the auto repair shop. The fire required the assistance of a number of neighboring fire departments as it was quite large, and the Marksville Fire Department was unable to control the blaze on its own. Due to the size of the fire, traffic on Highway One south bound was | ¡mostly stopped, moving bumper to bumper at best.

Because the traffic was so congested on the southbound lane of Highway One directly in front of the auto repair shop, Mr. Rabalais’ vision of traffic in the turning lane was obscured. Witnesses report that Mr. Rabalais pulled out into the stop-and-go traffic of the southbound lane, and continued to proceed forward without stopping before entering the center turning lane. Mr. Rabalais said that at the time his vehicle was entering the turning lane he was looking to his right in anticipation of his lefthand turn into the northbound lane of Highway One.

At the same time, defendant Captain Lloyd Nash of the Marksville Fire Department was traveling south in the turning lane of Highway One, returning to the Jen-Re Plastics Plant fire in a Marksville Fire Department pick-up truck. The truck was red, marked with the fire department name and logo, and had a bank of emergency lights on top of the cab. Almost all witnesses reported seeing the pick-up truck’s emergency lights, and many reported hearing the truck’s sirens. As Mr. Rabalais pulled out into the turning lane, Captain Nash struck Mr. Raba-lais’ vehicle directly behind the driver’s door, resulting in serious injury to Mr. Rabalais.

Mr. Rabalais filed a petition for damages against Captain Nash, the City of Marksville through the Marksville Fire Department, and the fire department’s insurance carrier. After a trial by jury, a verdict was rendered finding Mr. Rabalais to be 100% at fault for the accident. Mr. Rabalais filed a timely Motion for Judgment Notwithstanding the Verdict and/or Motion for New Trial. This combined motion | Swas denied by the trial court judge.

LAW AND DISCUSSION

Standard of Review

It is well established that an appellate court cannot overturn the factual findings of a trial court unless, after careful review of the record as a whole, the appellate court finds that the factual conclusions of the trier of fact were manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate standard of review is both constitutionally based and jurisprudentially refined.

This state’s appellate review standard, which is constitutionally based and juris-prudentially driven, is that a court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Accordingly, appellate courts are charged with a duty to affirm the trial court’s decision absent an error of law or a factual finding which is manifestly erroneous or clearly wrong.

Stobart v. State Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

If there is conflict in the testimony, the appellate court cannot substitute its own judgment. The appellate court can only review the record as a whole to ensure that the judgment of the trial court was reasonable. “[T]he 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. at 882. (Citations omitted.)

[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s ■ choice between them cannot be manifestly erroneous or clearly wrong.

Rosell, Id at 844. (Citations omitted.)

14ApplicabiIity of La.R.S. 32:24

Mr. Rabalais argues that the jury was unreasonable in deciding that the emergency vehicle statute applied to Captain Nash because it is inapplicable upon the return from an emergency. If applicable, the emergency vehicle statute would afford Captain Nash the right to disregard certain vehicle operation and traffic rules while operating an emergency vehicle that is responding to a fire in progress. We find the statute to be inapplicable to the instant case, however, for different reasons. The statute, La.R.S. 32:24, reads as follows:

§ 24. Emergency vehicles; exceptions
A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such | ^vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

The question to be determined on appeal is whether there was credible evidence and testimony in the record such that it was reasonable for the jury to conclude that the statute was applicable to Captain Nash’s actions in this case. It is well settled that a statute or law in derogation of a common or a natural right is stricti juris. Refractory Construction, Inc. v. Cities Service Oil Co., 278 So.2d 510 (La.App. 3 Cir.1973). In describing the principle of stricti juris, the Louisiana Supreme Court stated in Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097 (La.1990):

The rule that statutes in derogation of a natural or common right are to be strictly interpreted is now generally recognized as being a corollary of the rule that statutes in derogation of the common law are to be interpreted strictly. The rile is so well settled that it must be presumed that the legislature acted with full knowledge of the strict interpretation of statutes of this nature.
For the purpose of this rule, “common law” should be understood to carry its broadest meaning, i.e., the existing body of law rather than the narrower definition of an ancient body of Anglo-American judge-made principles.

Id. at 1100.

The court in the Monteville case found that Recreational Use Statutes granted special | r“immunities or advantages” to a certain class of people against the general public. Id. at 1101. It explained, “It is an established principle that legislative grants of such rights, powers, privileges, immunities or benefits as against the general public, as distinguished from a right against some other party, should be construed strictly against the claim of the grantee.” Id.

Much like the recreational use statutes, La.R.S. 32:24 grants special privileges to drivers of emergency vehicles not granted to the general public. Therefore, it must be strictly construed. Id. The Monteville court stated, “[T]his rule is so well settled that it must be presumed that the legislature acted with full knowledge of the strict interpretation of statutes of this nature.” Id. Further, La.Civ.Code art. 15 states, “When the language of the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”

The statute clearly provides that the driver of an authorized emergency vehicle may: 1) park or stand, irrespective traffic regulations; 2) proceed past a red or stop signal, but only after slowing down or stopping as necessary; 3) exceed the maximum speed limit, as long as life and property are not endangered; and 4) “disregard regulations governing the movement or turning in specified directions.” La. R.S. 32:24. At the time of the collision, there was a large fire at the Jen-Re Plastics Plant, and Captain Nash was driving an authorized emergency vehicle en route to the scene of the fire. However, Captain Nash’s actions are not covered by La.R.S. 32:24. He was not parking or standing, nor was he proceeding past a red or stop signal at the time of the accident. He did not exceed the speed limit. He did not drive the wrong |7way down a one way street, nor did his actions involve turning. At the time of the collision, Captain Nash was driving down the center turn lane of a state highway, an exception not enumerated in La.R.S. 32:24. Because it must be strictly construed, the list of exceptions granted to drivers of authorized emergency automobiles is exclusive, not illustrative. See Pellegrini v. Crellin, 95-2654 (La.App. 4 Cir. 5/8/96), 674 So.2d 463, writ denied, 96-1592 (La.6/27/97), 696 So.2d 991. Nowhere in the statute does it provide that the driver of an emergency vehicle may violate highway regulations and drive in the center turn lane. Therefore, Captain Nash’s actions were not granted exception under La.R.S. 32:24, and the statute is inapplicable in this case. We find that the jury was manifestly erroneous in applying La.R.S. 32:24 to Captain Nash’s actions. Accordingly, we reverse the judgment of the jury in its application of the statute.

DUTY-RISK ANALYSIS

In Ferrel v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745, (citing Rosell, Id.), this court explained, “when the court of appeal finds that a reversible error ... was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment on the merits.” In this case, the trial court committed reversible error by applying La.R.S. 32:24. Therefore, we must conduct a de novo review of the record and render a judgment on the merits.

Appellants argue that Captain Nash acted unreasonably under the circumstances and that his actions amounted to negligence. Louisiana courts utilize the duty-risk analysis to evaluate a party’s alleged negligence. Mathieu v. Imperial Toy Corp., 940952 (La.11/30/94), 646 So.2d 318. In employing the duty-risk analysis, a plaintiff must prove: (l)the defendant owed a duty of care to the plaintiff, (2) that requisite duty was breached by the defendant, (3) the conduct in question was the cause in fact of the harm or injury, and (4) the risk of the harm caused was within the scope of the protection afforded by the duty breached. Id. In order for a plaintiff to recover damages for negligence, the plaintiff must answer each of the four above inquiries in the affirmative. Id.

DUTY, BREACH OF DUTY, & SCOPE OF RISK

In applying the duty-risk analysis, the court must determine that a duty exists and that the duty protects against the risk involved. The Louisiana Highway Regulatory Act provides uniform traffic regulations that “govern the operation of vehicles and pedestrians upon all highways within this state and other areas specifically set forth.” La.R.S. 32:21. The Louisiana Highway Regulatory Act applies in this case, as the collision occurred on Highway One, a state highway. Contained in the Act is La.R.S. 32:82, which states in pertinent part:

§ 82. Driving on divided highways A. Whenever any highway has been divided into two roadways by a median, physical barrier, or clearly indicated dividing section so construed as to impede vehicular traffic, every vehicle shall be driven upon the right hand of the roadway and no vehicle shall be driven over, across or within the median, barrier or section, except through an approved opening or at a cross over or intersection established under authority of this Chapter.
B. No vehicle shall cross the painted continuous centerline of any multiple lane highway, except for the purpose of making a turn.

Violation of a statute amounts to negligence per se. Coleman v. Douglas Public Service, 423 So.2d 1205 (La.App. 4 Cir.1982), writ denied, 429 So.2d 153 (La. 1983); Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970). Defendants assert that Captain Nash’s actions were granted exception under La.R.S. 32:24. However, as discussed earlier, we do not find La.R.S. 32:24 to be applicable in this case.

The Appellants’ expert witness, Mr. Ronald Jones, testified as to the propriety of driving in the center turn lane of a highway. He stated that the center turn lane is not engineered for driving and that it is marked as a no passing lane.

In Miller v. Keal, 29,564 (La.App. 2 Cir. 5/7/97), 694 So.2d 569, writ denied, 97-1751 (La.10/13/97), 703 So.2d 620, the defendant was driving his car in the center turn lane when he struck the plaintiff. The plaintiff had been attempting to turn left across heavily backed-up traffic. As she entered the center turn lane, the defendant’s car collided with hers. The defendant in the Miller case was cited with a violation of a city ordinance very similar to La.R.S. 32:82. The ordinance prohibited “driving over a ‘divided space’ between a divided roadway that is not open to traffic by appropriate marking.” Id. at 571. We hold that Captain Nash was in violation of La.R.S. 32:82, as he was driving in the center lane of the divided highway intended for turning only.

A duty existed on the part of Captain Nash to follow the Highway Regulatory Act. Clearly, this duty was imposed to protect against the risk of collisions such as the one at issue in this case. Captain Nash breached this duty by failing to abide by La.R.S. 32:82 and driving in the center lane of Highway One.

CAUSE IN FACT

The Louisiana Supreme Court expressed how a plaintiff may prove cause in fact in St. Hill v. Tabor, 542 So.2d 499 (La.1989). The court stated, “If the Plaintiff can show he probably would not have suffered damages, absent Defendant’s conduct, he has [proved] cause in fact.” Id. at 502, quoting Gibson v. Faubion Truck Lines, Inc., 427 So.2d 68, 71 (La.App. 4 Cir.1983). There is no question that but for Captain Nash driving in the center lane, the accident would not have occurred. We find that Captain Nash’s actions were a cause in fact of the accident and the resulting injuries.

INJURY

Mr. Rabalais suffered serious injuries as a result of the automobile collision. He was knocked unconscious and sustained a concussion, bruises to his head and shoulders, and several lacerations. Ultimately, he was diagnosed with perched facets bilaterally with torn ligaments and instability at C5-6. Due to the seriousness of the injury, he had to undergo an emergency posterior cervical instrumented fusion at C5-6 with bone graft. Mr. Rabalais continues to suffer from permanent pain and stiffness in his cervical spine and his daily activities are limited as a result of his injuries.

ALLOCATION OF FAULT

Louisiana uses comparative fault, enumerated in La.Civ.Code art. 2323, to allocate fault among the parties. In this case, we find that both Captain Nash and Mr. Rabalais were at fault for the collision. At the time of the accident, Mr. Rabalais was making a left turn across traffic. He had a duty to ascertain that the turn could be made safely and without danger to oncoming traffic. Washington Fire and Marine Ins. Co. v. Firemen’s Ins. Co., 232 La. 379, 94 So.2d 295 (1957); Desormeaux v. Continental Ins. Co., 153 So.2d 128 (La. App. 3 Cir.1963). Several witnesses testified that Mr. Rabalais did not look to his left to ensure that the way was clear for him to enter the toning lane.

It is well settled that a motorist who attempts to make a left turn from a public highway is required to ascertain in advance that the way is clear and that the turn can be made safely and without endangering overtaking or oncoming traffic. Failure to do so constitutes negligence.

Cassity v. Williams, 373 So.2d 586, 591 (La.App. 3 Cir.1979).

However, under Louisiana’s comparative fault scheme, a plaintiffs negligence does not defeat his cause of action; his recovery will be reduced by the amount of fault allocated to him by the court. Therefore, although Mr. Rabalais’ actions constituted negligence, he may still have an action against Captain Nash for his percentage of fault. As discussed earlier, we have determined that Captain Nash’s actions also constituted negligence. He clearly violated La.R.S. 32:82 by driving in the center turn lane of a public highway.

Having determined that both Captain Nash and Mr. Rabalais were negligent, we must allocate fault between them. The Louisiana Supreme Court set out the factors to be considered when allocating fault among the parties in Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985). The factors that may influence the amount of fault allocated in-elude: (1) whether the conduct resulted from an 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) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson, 469 So.2d at 974.

As to the first factor, Captain Nash testified that he never even considered that someone would pull into the center turn lane, although he had seen cars perform this maneuver many times in the past. Certainly it was foreseeable that a car would enter the turn lane. Mr. Rabalais proceeded blindly into the center turn lane, relying on others to “wave” him on. Both Captain Nash and Mr. Rabalais should' have been aware of the dangerous nature of their actions. As to the second factor, Captain | ^Nash’s actions put the drivers on Highway One at risk. He not only endangered those drivers who would potentially enter the turning lane, but also others in the vicinity of the collision. Mr. Rabalais’ actions created a risk for those around him and for any oncoming traffic by turning left across traffic without first ensuring that it was safe for him to proceed. As to the third, fourth and fifth factors, Captain Nash was returning to the scene of the fire. However, at the time of the collision, the urgency was diminished. The Marksville Fire Department had responded to the initial call and was on the scene, attempting to control the blaze. Several other fire departments had also responded to the call to assist them. Nash, on his third trip back to the scene of the fire, was escorting a pumper truck back to the scene of the fire in case the fire department had to draft water out of the pond. There is some dispute as to why the truck was brought back. Appel-lees argue that the truck was also brought back because it contained extra air packs and monitors that may have been needed by the firefighters. However, it is clear that the pumper truck was being brought in as a safety precaution.

In applying the Watson factors to the instant case, we conclude that an equal allocation of fault to Captain Nash and Mr. Rabalais is appropriate. Accordingly, we reverse the decision of the trial court in allocating 100% of fault to Mr. Rabalais, and we reallocate 50% of fault to Captain Nash and 50% of fault to Mr. Rabalais.

DAMAGES

As a result of the accident, Mr. Rabalais sustained serious injuries. Upon impact, Mr. Rabalais was thrown to the passenger side of his vehicle and was knocked unconscious. He was taken to the hospital where he was kept overnight for observation. While at the hospital, a cat scan and an x-ray were taken, and Mr. Rabalais was diagnosed with a bruised neck. After two weeks, the pain in his neck | iShad become so unbearable that he went to the emergency room at St. Francis Cabrini Hospital where he was again told that his neck was badly bruised. After another week of continuous pain, Mr. Ra-balais went to see Dr. Blanda at the Lafayette Bone and Joint Clinic. Dr. Blanda took four x-rays of Mr. Rabalais’ neck area and determined that a cervical fusion was necessary. Mr. Rabalais was admitted to the hospital that night and underwent surgical cervical fusion the following day. Due to his injury and resulting surgery, he spent four days in the hospital and incurred $35,335.05 in medical expenses.

Although Mr. Rabalais’ surgery was a success, he continues to suffer from the injuries incurred as a result of the accident. Mr. Rabalais has experienced a significant loss of range of motion, and experiences stiffness in his neck. As a result, he can no longer drive. His other daily activities have been affected as well. He can no longer garden nor can he fish as he used to. Mr. Rabalais also claims that he has suffered from depression due to the effects of the injury on his daily activities.

After a thorough review of the record, we conclude that Mr. Rabalais’ injuries warrant an award of $125,000.00. However, because we have found Mr. Rabalais to be 50% at fault for the accident, his recovery is reduced to $62,500.00. Further, we award Mr. Rabalais 50% of the $35,335.05 of his past medical expenses.

Additionally, Mrs. Merion Ra-balais asserts a loss of consortium claim in this case. “The compensable elements of a damage in a loss of consortium claim are loss of society, sex, service, and support. ‘Society’ is broader than loss of sexual relations. It includes general love, companionship, and affection that the spouse loses as a result of the injury. ‘Service’ is the uncompensated work around the house or educational help with the children which will, as a result of the injury, have to be obtained from another source and at some price.” Roberts v. State, 00-778 (La.App. 3 Cir. 11/2/00), 776 So.2d 519, writ denied 00-3307 (La.2/2/01), 784 So.2d 8. Mr. and Mrs. Rabalais |uhave been married for fifty-two years. Mrs. Rabalais has been struggling with blindness for several years. Therefore, before the accident, Mr. Rabalais took care of most of the house work including the cooking, the cleaning and all business matters such as paying the bills. When the accident occurred, Mrs. Rabalais was forced to use her sick leave and vacation time from work in order to care for her husband and assist him in daily activities such as dressing and bathing. Mrs. Rabalais has clearly experienced a loss of service as a result of her husband’s injury. Because of her sight impairment, she depended on Mr. Rabalais to complete the chores in and around the house and to assist her with every day tasks. Mr. Rabalais can no longer aid her in the same capacity; instead it is she who must aid him. Because of his pain and his inability to rotate his neck, Mr. Rabalais cannot drive or even ride a riding lawn mower to mow their one and one-half acre lot. Mrs. Rabalais has also testified that she and her husband’s relationship has somewhat diminished since the accident due to his suffering.

After a de novo review considering the nature of Mr. Rabalais’ injuries and the effect they have had on his relationship with his wife, we award Mrs. Rabalais $25,000.00 in loss of consortium damages which we reduce by 50% due to the comparative fault of Mr. Rabalais.

CONCLUSION

The judgment of a jury as to the relative fault of each party cannot be overturned on appeal absent a finding of manifest error or that the jury was clearly wrong. There were no facts and evidence in the record to support the jury’s finding that the applicability of the Louisiana Emergency Vehicle Statute, La.R.S. 32:24, was appropriate. Accordingly, finding manifest error, we reverse the decision of the trial court and allocate 50% of the fault to Captain Nash and the Marksville Fire Department and 50% of the fault to Mr. Rabalais.

1 ^Accordingly, we award Mr. Rabalais $62,500.00 in general damages and $17,667.53 in past medical expenses. Further, we award Mrs. Merion Rabalais $12,500.00 for loss of consortium.

Appellee, Captain Lloyd Nash and the Marksville Fire Department, are cast with all costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART.

THIBODEAUX, Chief Judge, concurs.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Joseph Lionel MELANCON, et al. v. LAFAYETTE INSURANCE COMPANY, et al.
    No. 05-762.
    Court of Appeal of Louisiana, Third Circuit.
    March 29, 2006.

      Patrick C. Morrow, Sr., James S. Gates, Morrow, Morrow, Ryan & Bassett, Opel-ousas, Louisiana, for Plaintiffs/Appel-lees/Appellants, Joseph Lionel Melancon, Bernita Norman Melancon.
    David A. Hurlburt, George D. Ernest, III, Hurlburt, Privat & Monrose, Lafayette, Louisiana, for Defendants/Appellees, T & J Ford Mercury, Sentry Select Insurance Company.
    Howard B. Kaplan, Bernard, Cassisa, Elliott and Davis, Metairie, Louisiana, for Defendants/Appellants/Appellees, Lafayette Insurance Company, Robert C. Ar-doin, Evangeline Gas Company, Inc.
    Kraig T. Strenge, Lafayette, Louisiana, for Defendants/Appellants/Appellees, Evangeline Gas Company, Inc., Robert C. Ardoin, Lafayette Insurance Company.
    Leah B. Guilbeau, John E. Ortego & Associates, Lafayette, Louisiana, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Darrell R. Sims, Law Offices of Keith S. Giardina, Baton Rouge, Louisiana, for In-tervenor/Appellee, Liberty Mutual Insurance Company, United Parcel Service.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

|, Plaintiffs and Defendants appeal in this personal injury action. We affirm.

Facts

On February 13, 2002, Robert Ardoin backed into a UPS truck parked in the parking lot of T & J Ford-Mercury, Inc. (T & J Ford) in Ville Platte, causing the driver-deliveryman, Lionel Melancon, to fall from the truck onto the ground and injure himself. Mr. Melancon injured his right hand, back, and right leg when he fell. Mr. Melancon and his wife sued T & J Ford, Mr. Ardoin, his employer, Evangeline Gas Company, and its liability insurer, Lafayette Insurance Company, for damages they suffered as a result of Mr. Me-lancon’s injuries. Mr. Ardoin, Evangeline Gas Company, and Lafayette Insurance Company (hereinafter collectively referred to as Defendants) answered the Melan-cons’ petition, alleging affirmative defenses of negligence on the part Mr. Melancon and T & J Ford.

The matter was tried before a jury for four days from August 16, 2004 through August 19, 2004. When Plaintiffs rested their case, T & J Ford moved for a directed verdict, which the trial court granted. After deliberating, the jury returned a verdict in favor of the Melancons against Defendants, assessing 100% fault to Defendants and awarding the Melancons the following damages:

Mr. Melancon
Past pain, suffering and mental anguish $ 137,600.00
Future pain, suffering and mental anguish $ 137,600.00
Disfigurement and physical disability $ 137,500.00
Loss of enjoyment of life $ 137,600.00
Past medical expenses $ 41,181.00
Future medical expenses $ 257,000.00
Past loss of earnings $ 170,000.00
Future loss of earnings/loss of earning capacity $ 755,000.00
12Mrs. Melancon
Loss of consortium, love, companionship, affection, and sendees of Mr. Melancon $ 10,000.00

Defendants assign eight errors; Plaintiffs assign three errors. For the following reasons, we affirm both the trial court’s grant of directed verdict in favor of T & J Ford and the jury’s verdict.

Issues

Defendants assign the following errors:

1. The trial court erred in allowing Glen Hebert to testify as to medical treatment and costs which were not disclosed prior to trial.
2. The trial court committed legal error in failing to allow evidence of actual medical bills which would directly affect the calculation of future medical expenses.
3. The jury was clearly wrong in
awarding $257,000.00 in future medical expenses.
4. The trial court was wrong to award amounts of medical bills that were not actually paid.
5. The jury was clearly wrong in
awarding $550,000.00 in general damages for a one-level laminecto-my.
6. The trial court committed legal error in granting a directed verdict in favor of T & J Ford.
7. The trial court committed legal error in jury selection which directly affected the verdict in this case.
8. The trial court improperly allowed Plaintiffs to advise the jury that assigning fault to Mr. Melancon would reduce his recovery.

Plaintiffs assign three errors:

1. The jury’s award of $170,000.00 for past loss of earnings was manifestly erroneous.
[s2. The jury’s award of $755,000.00 for future loss of earnings/loss of earning capacity was manifestly erroneous.
3. The jury’s award of $10,000.00 to Bernita Melancon for the loss of her husband’s consortium was abusively low.

Standard of Review

The jury’s verdict is reviewed for manifest error; if there is a reasonable basis in the record for the jury’s determination, we must affirm the verdict even if we would have made a different finding. Guidry v. Dwight Manuel, Inc., 04-2031 (La.11/17/04), 887 So.2d 456. The trial court’s grant of directed verdict is subject to a de novo review. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90.

Discussion

Background

Mr. Melancon married Bernita, his grade-school classmate, shortly after they graduated from high school. They have been married for thirty years and have three adult children and three grandchildren. Mr. Melancon worked for UPS for nineteen years and eleven months before his accident. At the time of his accident, he was earning $23.82 per hour together with generous fringe benefits. He is a member of the Teamster’s Union. The Union’s employment contract with UPS guarantees its members annual wage increases and provides them one of the best fringe benefits packages in the nation.

The evidence established that Mr. Me-lancon has always been a hard-working individual, who enjoys his work and always does more than is expected of him. He is devoted to his wife and family and has always been involved in his children’s activities. He is committed to his church and community and enjoys helping others. The injuries from this accident have seriously impacted him and his family.

|4Mr. Melancon testified that he was preparing to step out of his truck with packages in his hand to deliver to T & J Ford when Mr. Ardoin backed into his truck. He fell forward, out of his truck; he broke his fall by placing his right hand on the sidewalk adjacent to his truck. He landed with his feet in his truck and his upper torso on the sidewalk. Initially, he did not believe he was injured, and he completed his work that day. Two days later, he went to Dr. Eric Chatman, an internist, who diagnosed a ruptured disc at L5-S1 on the right side. Dr. Chatman referred Mr. Melancon to Dr. John Cobb, an orthopedic surgeon. Dr. Chatman continues to assist in Mr. Melancon’s medical management. He testified that Mr. Melancon needs continuing medical treatment and that, in his opinion, Mr. Melancon is permanently and totally disabled.

Dr. Cobb performed a laminectomy/dis-cectomy at L5-S1 on the right with a decompression of the L5 nerve on the right on September 12, 2002. He has recommended a fusion at L5-S1 to stabilize movement in Mr. Melancon’s back which resulted from the laminectomy. During his trial deposition, Dr. Cobb recommended that a dorsal column stimulator might alleviate some of Mr. Melancon’s pain.

After the surgery, Mr. Melancon continued to suffer radicular pain down his right leg. Dr. Cobb referred him to Dr. Daniel Hodges, a physical medicine and rehabilitation physician, for management of Mr. Melancon’s continuing pain. An EMG/ Nerve Conduction Study revealed damage to the L5-S1 nerve on the right, explaining Mr. Melancon’s continued neuropathic pain in his right leg. Dr. Hodges testified that even with a fusion, Mr. Melancon would have some degree of low grade, neuropathic pain down his right leg.

|KOn direct examination, Dr. Hodges testified that he considered Mr. Melancon permanently disabled. However, he testified on cross-examination that a fusion, as recommended by Dr. Cobb, could possibly help Mr. Melancon by stabilizing his back and his pain. He explained that, if Mr. Melancon is able to achieve a consistent pain level at three or four with surgery, instead of the undulating pain he now suffers, he could look at light-duty employment. Dr. Hodges also testified that a dorsal column stimulator might relieve some of Mr. Melancon’s neuropathic pain. He related that, in his experience, 60-80% of his patients have moderate relief with a dorsal column stimulator and that some of those patients can go back to work; some cannot. He further testified that Mr. Me-lancon would need continuing treatment for his chronic pain.

As a result of his injuries and his inability to return to work, Mr. Melancon began showing signs of depression. Dr. Cobb referred him to Michael Berard, Ph.D., a clinical psychologist. Dr. Berard diagnosed Mr. Melancon with adjustment disorder, anxiety, depression, chronic pain, and erectile dysfunction. He has been distressed about how his wife and youngest son are being affected by changes resulting from his injuries. He worries that he is not providing for them as he should. It caused him great concern that his youngest son was not able to live away from home to attend college. He is frequently agitated and anxious, and he feels guilty when his agitation and aggravation causes him to lash out at his family in anger. Dr. Berard testified that as long as Mr. Melancon’s pain is unresolved he will continue to need psychological treatment, at least once a month, and psychiatric drugs.

| RGlen Hebert’s Testimony

Defendants objected to testimony by Glen Hebert, Mr. Melancon’s vocational rehabilitation counselor, regarding the cost and replacement of a dorsal column stimulator for treatment of Mr. Melancon’s continued pain. Mr. Hebert’s testimony was predicated on Dr. Cobb’s deposition trial testimony. As indicated above, Dr. Cobb did not present the use of a dorsal column stimulator as a potential mode of treatment for Mr. Melancon until his trial deposition, which was taken the Friday before the Tuesday trial in this matter.

The trial court allowed Mr. Hebert to testify over Defendants’ objection on this issue. Mr. Hebert opined that the dorsal column stimulator would cost $80,000.00, as opposed to Dr. Cobb’s testimony that it would cost $25,000.00, explaining that $25,000.00 was for the stimulator unit only. He identified additional necessary costs associated with the stimulator: electronic leads, $10,000.00; the surgeon’s fee for installation, $10,000.00; and the hospital charge for the procedure, $30,000.00. Mr. Hebert was also allowed to testify that the stimulator would have to be replaced every three years, at a cost of $25,000.00 plus $10,000.00 for installation, even though Dr. Cobb gave no testimony regarding replacement.

We agree with the trial court that dorsal column stimulators are within Mr. Hebert’s expertise as a vocational rehabilitation expert. Mr. Hebert testified that he had 100 clients who had used a dorsal column stimulator, and therefore, was very familiar with the cost of the stimulators, as well as the need to replace the stimulators over time. This knowledge and familiarity qualified him to testify on the issues of cost and replacement need.

17Defendants also complain that Mr. Hebert based his testimony on periodical articles that were not provided to them before trial but were faxed to the trial court during Mr. Hebert’s testimony. The trial court allowed Mr. Hebert’s testimony regarding the periodical articles, finding that Defendants had sufficient time to present the information to their expert witness in order for him to prepare his trial testimony. Mr. Hebert testified on Tuesday, August 17, 2004; the trial court concluded court for the day following Mr. Hebert’s direct testimony in order to allow Defendants’ counsel time to consult with his expert and prepare for cross-examination of him in light of the information elicited during direct-examination.

Defendants contend Williams v. General Motors Corp., 93-287 (La.App. 4 Cir. 2/11/94), 639 So.2d 275, writs denied, 94-1896, 94-1898 (La.11/11/94), 644 So.2d 387-88, where the court found error with the trial court’s allowance of expert trial testimony which presented a new theory of liability in a products liability case, requires that we find error with the trial court’s rulings on Mr. Hebert’s testimony.

The new testimony presented in this case is not of the same nature or magnitude as that in Williams. A vocational rehabilitation counselor would be expected to be familiar with the costs and necessity of replacement of medical equipment, such as a dorsal column stimulator. Further, while a vocational rehabilitation expert may not be familiar with the specific periodical articles relied on by Mr. Hebert, the topic is one that such an expert would be expected to have knowledge of in order to rebut the information contained therein. Additionally, Defendants had time to present the additional information obtained from Mr. Hebert to their vocational rehabilitation expert, who did not testify until Thursday, August 19, 2004, in time for him to prepare rebuttal testimony on these issues. We | sfind no error with either of the trial court’s decisions regarding Mr. Hebert’s testimony.

Medical Expenses and Bills

Plaintiffs filed a motion in limine, seeking to prohibit Defendants from referring to payment of Mr. Melancon’s medical expenses by collateral sources during trial, which the trial court granted. Defendants argue this prohibition resulted in an award of inflated future medical expenses.

Mr. Melancon’s medical expenses were paid by UPS’s workers’ compensation carrier because Mr. Melancon was injured while in the course and scope of his employment with the company. Plaintiffs point to La.Code Evid. art. 414, which prohibits the admission of evidence of the payment of workers’ compensation benefits to a jury in this situation, arguing the trial court properly denied Defendants’ motion. Workers’ compensation benefits include medical benefits. La.R.S. 23:1201 and 23:1203. Therefore, the trial court did not err in denying Defendants’ request to introduce evidence of the actual amount paid for Mr. Melancon’s medical expenses.

Defendants also argue the jury’s award of medical expenses that were billed but not actually paid is in contravention of Bozeman v. State, 03-1016 (La.7/2/04), 879 So.2d 692. The decision in Bozeman is not at odds with La.Code Evid. art. 414. In Bozeman, the supreme court held that the collateral source rule was not violated when a plaintiff whose medical expenses had been paid by Medicaid, a free medical service, was not allowed to recover those expenses from the defendant-tortfeasor because she had not paid any consideration for the service. The collateral source rule prohibits the introduction of evidence that a plaintiff benefited from payment of medical expenses by a source independent of the tortfeasor’s assistance or | scontribution, here Mr. Melancon’s workers’ compensation carrier. LeBlanc v. Acadian Ambulance Serv., Inc., 99-271 (La.App. 3 Cir. 10/13/99), 746 So.2d 665. Workers’ compensation is social legislation through which “employees and employers surrender certain advantages in exchange for others which are more valuable to both parties and society.” Deshotel v. Guichard Operating Co., Inc., 03-3511, p. 7 (La.12/20/04), 916 So.2d 72, 77. The employee waives the right to sue his employer for damages, if he is injured in the course and scope of his employment, in exchange for receiving workers’ compensation benefits, and the employer limits his financial liability for such injuries in exchange for paying workers’ compensation benefits. Hence, employees like Mr. Me-lancon have given consideration for the workers’ compensation afforded them by law.

The trial court did not err in refusing to allow the introduction of evidence that the medical expenses actually paid were less than the amounts stated on the medical bills introduced into evidence.

Future Medical Expenses

The jury awarded $257,000.00 in future medical expenses. Defendants argue this award was error because: 1) Mr. Melancon testified that he will not undergo back surgery or utilize a dorsal column stimulator as recommended by Dr. Cobb and 2) his healthcare providers, while testifying that he would need additional future medical treatment, did not estimate the cost of the future medical services and medications he would require.

Future medical expenses are a component of special damages and must be proven by a preponderance of the evidence. Basco v. Liberty Mut. Ins. Co., 05-143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660. To recover future medical expenses, the Implaintiff must present medical testimony to show that it is more probable than not that future medical treatment is indicated and the probable cost of the treatment. Id. Nevertheless, the supreme court has held that an award of future medical expenses can be made where the record establishes the need for future medical treatment and evidence of past medical expenses and other evidence allows the court to determine “a minimum amount that reasonable minds could not disagree will be required.” Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La. 1992). Based on the entirety of the evidence, we find no error with the jury’s award.

Douglas Womack, Ph.D., the Melancons’ economist, calculated Mr. Melancon’s future prescription costs and doctor visits alone as $257,216.00. He utilized past prescription costs of $800.00 per month, past doctor visit charges of $150.00 per month, Mr. Melancon’s life expectancy, a growth rate, and a discount rate for this calculation. He calculated the expense for a fusion, a dorsal column stimulator, and replacement of a dorsal column stimulator separately. In regard to these latter expenses, we observe that Mr. Melancon did not testify he would never have a fusion or a dorsal column stimulator. Instead, he testified that he would have one of these procedures only as a last resort.

It was within the jury’s prerogative to award any amount of future medical expenses substantiated by the evidence. It appears from the award that the jury awarded expenses for future prescriptions and doctor visits; however, it may have been a combination of prescriptions, doctor visits, a fusion, and/or a dorsal stimulator. In any event, the award is substantiated by the evidence.

|^General Damages

Defendants next contend the jury was clearly wrong in awarding $550,000.00 in general damages for a one-level laminectomy, which resulted in associated depression and sexual dysfunction. When reviewing general damage awards, our role is to review the exercise of the discretion by the trier of fact, not to decide what we consider to be an appropriate award. 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). If there is no clear abuse of discretion in the jury’s awards, the awards must stand. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

We find no abuse of discretion in the jury’s general damage awards. Defendants understate the extent of Mr. Melan-con’s injuries. Not only did he have a disc injury at L5-S1 which required a laminec-tomy, he now has permanent nerve damage, which has resulted in continuing neu-ropathic pain down his right leg. He also suffers from depression and sexual dysfunction.

Mr. Melancon and Mrs. Melancon testified at length regarding the effect his injuries have had on him and their family. Their testimony was substantiated by his physicians, who expect Mr. Melancon to continue to suffer pain and the associated anxiety and depression. The jury had the opportunity to observe Mr. Melancon as he testified regarding his injuries, his pain and suffering, and how he has been affected by it all and to compare his testimony with the testimony of his physicians, his wife, and his supervisors. The jury also viewed a video prepared by Defendants, intended to impeach Mr. Melancon’s claims regarding the extent of his injuries and the effect his injuries have had on him.

hijClearly, the jury believed Mr. Melan-con’s description of his injuries, his continuing pain and limitations, and the physical, emotional, social, and financial impact they have had on him and that he will continue to suffer pain and limitations into the future. We find no abuse in the jury’s awards.

Directed Verdict

Pursuant to La.Code Civ.P. art. 1810, a party can move for a directed verdict “at the close of the evidence offered by an opponent.” At the close of Plaintiffs’ case, T & J Ford moved for a directed verdict, which the trial court granted. Defendants argue this was error.

Article 1810 does not establish a standard for the grant of a directed verdict, but these standards have been jur-isprudentially established. In Carter v. Western Kraft Paper Mill, 94-524, pp. 4-5 (La.App. 3 Cir. 11/2/94), 649 So.2d 541, 544 (citations omitted), this court outlined the applicable rules:

[A] directed verdict should only be granted when the facts and inferences point so strongly in favor of one party that the court believes reasonable people could not reach a contrary verdict. It is appropriate, not when there is a preponderance of evidence, but only when the evidence overwhelmingly points to one conclusion. The propriety of granting a directed verdict must be evaluated in light of the substantive law underpinning the plaintiffs claims.
Under the foregoing legal principles the question is not whether in our view the plaintiff has proven his case against defendants by a preponderance of the evidence, but rather, whether, upon viewing the evidence submitted, we conclude that reasonable people could not have reached a verdict in favor of the plaintiff against the defendants....
Questions of credibility should not be resolved by a directed verdict. Making credibility evaluations is one of the primary duties of a jury and the trial court may not take this duty from the jury unless the party opposing the directed verdict has failed to produce sufficient evidence upon which reasonable and fair-minded persons could disagree. Evaluations of credibility play no part in reaching a decision on a motion for directed verdict.

| ^To affirm the trial court’s grant of directed verdict, we must conclude that reasonable people could not have concluded that T & J Ford had a duty to mark its parking lot, that it failed to do so, and that the failure to do so contributed to the accident.

As noted by T & J Ford, only Plaintiffs sued T & J Ford. Defendants alleged fault on the part of T & J Ford as an affirmative defense, but did not file a claim against it. Plaintiffs did not present any evidence at trial that would establish fault on the part of T & J Ford.

Defendants contend the trial court deprived them of the opportunity to present evidence on this issue to establish third-party fault. Three witnesses testified during the trial regarding T & J Ford’s parking lot: Mr. Melancon; Mr. Lamke, a T & J Ford employee; and Mr. Ardoin, who testified during Plaintiffs’ case and Defendants’ case. Mr. Ardoin’s testimony after the directed verdict was granted did not present any facts that had not been addressed during his testimony in Plaintiffs’ case. The testimony of these witnesses did not require a credibility determination by the trial court.

Mr. Ardoin testified that he did not see the UPS truck behind him before striking it. He also testified that he looked only in his left rear-view mirror as he backed from his parking space; he did not look in his center rear-view mirror or his right rear-view mirror, nor did he look behind him through the “back glass” of his truck. He acknowledged that he knew trucks regularly parked where Mr. Melancon parked his UPS truck the day of the accident, that nothing blocked his view of the UPS truck, and that he had a habit of not looking behind him through the “back glass” of his truck when backing his vehicle. After the accident, Mr. Ardoin backed out of his parking space, while Mr. Melancon’s truck remained in its original location, | uwithout incident and left T & J Ford. Mr. Melan-con testified that Mr. Ardoin was parked where he could have driven forward, instead of backing up, when leaving T & J Ford.

Pursuant to La.R.S. 32:281(A), a driver must not back his vehicle unless he can do so safely and without interfering with traffic. The driver of a backing vehicle has a high duty of care to determine whether he can back his vehicle safely. Andrews v. Mosley Well Serv., 514 So.2d 491 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987). This principle applies to a determination of negligence when an accident occurs on private premises. Francis v. Commercial Union Ins. Co., 594 So.2d 1025 (La.App. 3 Cir.1992). There is no evidence that anything other than Mr. Ardoin’s inattentiveness caused this accident. We find no error with the trial court’s grant of the directed verdict.

Defendants cite the case of Sullivan v. Gulf States Utilities Co., 382 So.2d 184 (La.App. 1 Cir.), writ denied, 384 So.2d 447 (La.1980), in support of their argument that T & J Ford had a duty to monitor its parking lot and that its failure to do so contributed to the accident. In Sullivan, a number of concrete piers, two feet above ground level and four and a half feet in diameter, were constructed in a parking lot. Plaintiff was injured when he struck one of the piers as he left the parking lot at approximately 10:00 p.m. Barricades had initially been placed in front of the pier in question. However, they had been removed prior to the accident. At the time of the accident, the pier was not marked, painted, or barricaded. The evidence indicated that the pier’s grayish col- or blended almost imperceptibly into the aging asphalt that covered the parking lot. The trial court found the defendants were negligent for failing to place warning devices around the pier.

| 1fiThe facts presented in Sullivan are not analogous to the facts presented here. Defendants do not contend obstructions in the driving lane of T & J Ford’s parking lot caused this accident. They contend that T & J Ford had a duty to regulate and monitor the parking in its parking lot and that the jury was presented with a reasonable factual basis to find T & J Ford negligent and assess it with fault for Mr. Ardoin’s backing into Mr. Melancon. Plaintiffs did not present such evidence in their case, and Defendants did not have a witness listed on their witness list qualified to present such evidence.

We have reviewed the record and find no basis for reasonable people to reach a verdict in favor of Plaintiffs against T & J Ford. Accordingly, we find no error with the trial court’s grant of a directed verdict in favor of T & J Ford.

Jury Selection

Defendants contend the trial court committed reversible error when it denied their challenges for cause of three potential jurors. Defendants allege they had to use three of their four peremptory challenges to strike these three potential jurors. However, they only used two of their four peremptory challenges to eliminate two of the three potential jurors because T & J Ford struck the third juror who was also objectionable to Defendants. For this reason, we need not address Defendants’ complaints concerning this third potential juror. Defendants exhausted all of their peremptory challenges before jury selection was complete.

Mary Margaret Jolivette was one of the potential jurors Defendants challenged for cause. Ms. Jolivette testified that she knows the Melancons and has for a long time. She described them as “good dear friends” and “friends in the Lord.” She also testified that she would be “honest” and judge the case by “looking at the evidence.” |1fiShe had no knowledge of the lawsuit; she knew Mr. Melancon had been injured while working for UPS but nothing else.

Elizabeth Carmouche, the other potential juror challenged for cause and struck by Defendants, testified that she and her husband are close friends with the Melancons and that Mrs. Melancon is her husband’s first cousin. Ms. Carmouche also testified that, while she knew Mr. Melancon had been involved in an accident, she did not know anything about the lawsuit until she entered the courtroom for jury selection. She testified that her friendship and familial relationship would not influence her decision in this case, stating “I have to be fair.”

“A juror may be challenged for cause ... [w]hen the relations whether by blood, marriage, employment, friendship, or enmity between the juror and any party ... are such that it must be reasonably believed that they would influence the juror in coming to a verdict.” La. Code Civ.P art. 1765.

A refusal by a trial judge to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. “[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.”

State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281 (citations omitted); see also Simms v. Progressive Ins. Co., 38,804 (La.App. 2 Cir. 9/29/04), 883 So.2d 473, writ denied, 04-2871 (La.1/28/05), 893 So.2d 78.

The trial court found that Ms. Car-mouche and Ms. Jolivette had been rehabilitated because they testified that the evidence in the case would govern their 117decisions therein, not their relationships with Plaintiffs. We find no abuse in the trial court’s refusal to excuse these jurors.

Closing Argument Error

Defendants’ last assignment of error is that the trial court improperly allowed Plaintiffs to advise the jury that assigning fault to Mr. Melancon would reduce his recovery. They contend that plaintiffs are not allowed to relate this information to juries and that these comments had a direct effect on the jury’s determination that Mr. Melancon was not at fault.

“The trial judge has great discretion in regulating and controlling the opening and closing arguments to a jury within proper bounds. The rulings of the trial court in controlling and regulating the arguments of counsel will not be reversed unless they constitute an abuse of his much discretion.” Guidry v. Boston Old Colony Ins. Co., 540 So.2d 543, 546 (La. App. 3 Cir.), writ denied, 543 So.2d 7 (La.1989). As noted by Defendants, improper statements by counsel must have influenced the jury and contributed to its verdict to constitute reversible error. State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, cert. denied, — U.S. -, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

The trial court instructed the jury on contributory negligence and comparative fault. We believe implicit in these instructions and the verdict form is the fact that the percentage of fault assigned to Defendants determines their obligation to the Melancons and that any fault assigned to the Melancons reduces their recovery. Therefore, we find no error with the trial court’s allowance of the comment.

Furthermore, the jury was provided with sufficient evidence to determine that Mr. Ardoin’s failure to maintain a proper lookout when he backed from his parking space was the sole cause of this accident. In light of the evidence, we cannot say that |1sthe comment at issue influenced the jury or contributed to its verdict. Therefore, even if the trial court committed error in allowing the statement, it was not reversible error.

Past Loss of Earnings

In their first assignment of error, Plaintiffs argue the jury’s award of $170,000.00 for past loss of earnings was manifestly erroneous. Damages for past lost wages can be calculated with mathematical certainty from the proof submitted at trial. Sengsouly v. Allstate Ins. Co., 99-22 (La.App. 3 Cir. 6/9/99), 744 So.2d 649, writ denied, 99-2526 (La.11/19/99), 749 So.2d 677. Therefore, the record must provide a factual basis for the award. Myers v. Broussard, 96-1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88.

Dr. Womack calculated Mr. Melancon’s past loss of earnings from the date of the accident to trial as $173,623.00, plus fringe benefits in the amount of $57,650.00 for a total of $228,273.00. Dr. Boudreaux calculated his past loss of earnings as $164,403.00, if he could not return to work, and testified that ten to twelve percent should be added to that amount for fringe benefits. Adding ten percent results in a total of $180,843.30 for past loss of earnings, according to Dr. Boudreaux’s testimony.

Dr. Boudreaux also testified that Mr. Melancon’s past loss of earnings were within a range of $101,000.00 to $122,000.00, if he could have returned to light-duty work making $8.00, $10.00, or $12.00 per hour in November 2003. These calculations were based on Dr. Cobb’s testimony that Mr. Melancon could perform light-duty work beginning in October or November of 2003 and on the testimony of John Grimes, Ph.D., Defendants’ vocational rehabilitation counselor, regarding jobs Mr. Melancon could perform in that range and wages he could earn at such jobs. As [19noted by Plaintiffs, Dr. Cobb deferred to Dr. Hodges on the issue of neuropathic pain caused by his injured L5-S1 nerve. However, Dr. Hodges testified that a fusion might stabilize Mr. Melancon’s neuro-pathic pain and allow him to return to work.

Pursuant to Dr. Hodge’s testimony, the jury could have determined that, if Mr. Melancon had had a fusion, he could have returned to some form of light-duty work prior to trial. In connection therewith, Dr. Boudreaux’s calculations provide a reasonable basis for the jury’s award of $170,000.00 for past loss of earnings. Therefore, we find no error with the award.

Future Loss of EarningsILoss of Earning Capacity

Plaintiffs urge that the jury’s award of $755,000.00 for future loss of earnings/loss of earning capacity was manifestly erroneous. They contend the award should be $1,510,392.00. Defendants argue the factual, medical, and expert evidence provided a reasonable basis for the jury’s award; therefore, it is not clearly wrong and cannot be reversed.

Loss of future wages awards, like general damage awards, are “inherently speculative and intrinsically insusceptible of being calculated with mathematical certainty.” Myers v. Burger King Corp., 92-400, 93-1626, p. 14 (La.App. 4 Cir. 5/26/94), 638 So.2d 369, 379. The loss of future earnings need not be proven with mathematical certainty, but only by such proof as reasonably establishes the plaintiffs claim. Veazey v. State Farm Mut. Auto. Ins., 587 So.2d 5 (La.App. 3 Cir. 1991). Factors to consider in determining an award for future loss of income include the plaintiffs physical condition before the injury, his work history, work consistency, the amount he probably would have earned absent the injury complained of, and the probability that he would have continued to earn wages for the remainder | a0of his work life. LeBlanc v. Steptore, 98-808 (La.App. 3 Cir. 12/9/98), 723 So.2d 1056, writ denied, 99-87 (La.3/12/99), 739 So.2d 772.

Dr. Womack calculated Mr. Melancon’s loss of future earnings as $1,150,854.00. This calculation assumes that Mr. Melan-con will never be able to return to work and that he would have worked until age sixty-six, if he had not been injured. Pursuant to UPS’s union contract, Dr. Wom-ack calculated Mr. Melancon’s future lost fringe benefits as 33% of his future lost wages, or $359,538.00, for a total loss of $1,510,392.00.

Dr. Boudreaux calculated Mr. Melan-con’s loss of earnings based on a work-life expectancy of 10.29 years, pursuant to Bureau of Labor Statistics. He did not use Mr. Melancon’s personal projected retirement age of sixty-six because no studies have followed individuals, like Mr. Melan-con, to determine if they actually retire when they intend, rather than the age reflected by Bureau of Labor Statistics.

Dr. Boudreaux presented three sets of calculations for Mr. Melancon’s loss of future earnings, all of which assume he will return to work one year following the trial. His calculations presented a low, medium, and high wage, based on assumptions that Mr. Melancon would return to work earning $8.00 per hour, $10.00 per hour, and $12.00 per hour. Pursuant to Dr. Bou-dreaux’s calculations, Mr. Melancon’s lowest loss of future earnings will be $368,000.00 and his greatest loss will be $443,878.00, exclusive of fringe benefits. Dr. Boudreaux testified that, if Mr. Melan-con did return to full-time work, there is an 85% chance that he would have group medical insurance coverage and his future lost fringe benefits would be 10% to 12% of his future lost earnings. Dr. Boudreaux agreed with Dr. Womack’s calculations of Mr. Melancon’s Lfloss of future earnings and fringe benefits, assuming Mr. Melan-con can never return to work and would have worked until sixty-six.

Pointing to Dr. Hodges’ and Dr. Chat-man’s testimony that Mr. Melancon is totally and permanently disabled and cannot return to work, Plaintiffs argue it was error for the jury to award anything less than the $1,510,000.00 Dr. Womack calculated. This argument does not take into account Dr. Cobb’s recommendation of a fusion and/or dorsal column stimulator to stabilize Mr. Melancon’s back and Dr. Hodge’s testimony that a fusion and/or the dorsal column stimulator may stabilize his pain to such an extent that he can.return to light-duty employment.

Based on Dr. Cobb’s and Dr. Hodge’s testimony, Dr. Grimes outlined various positions he believes Mr. Melancon could perform with his existing skills, which would allow him to earn $6.00 to $12.00 per hour. Dr. Grimes testified that the best indicator of whether Mr. Melancon would return to work was his twenty-year work history. He further testified that he strongly believes Mr. Melancon will return to work if released by his physicians.

The jury was presented with differing expert opinions on Mr. Melancon’s ability to return to work and his loss of future earnings. Dr. Cobb, Dr. Chatman, and especially, Dr. Hodges discussed Mr. Melan-con’s current status and the likelihood that a fusion and/or a dorsal column stimulator could stabilize and/or reduce his pain such that he could return to work in the future. The jurors had the opportunity to consider this testimony together with Mr. Melan-con’s testimony that he likes to work and wants to work and Mrs. Melancon’s testimony that he is a workacholic. Based on the evidence, we cannot say that the jury’s award of $755,000.00 for loss of future earnings is not supported by the record.

122Boss of Consortium,

In their last assignment of error, Plaintiffs argue the jury’s award of $10,000.00 to Mrs. Melancon for the loss of her husband’s consortium was abusively low.

Loss of consortium is more than just a loss of general overall happiness, it also includes love and affection, society and companionship, sexual relations, the right of performance of material services, the right of support, aid, and assistance, and felicity. The trier of fact is given much discretion in awards for loss of consortium and will not be overturned on appeal in the absence of manifest error.

Bellard v. S. Cent. Bell Tel. Co., 96-1426, p. 21 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 707 (citations omitted), writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202.

Mrs. Melancon’s trial testimony centered on Mr. Melancon: what he was like before the accident and how the accident has affected him. She also testified about activities they did before the accident that they do not do now and acknowledged that his injuries have affected their sexual intimacy. While we find the award on the low-end of the range for loss of consortium in a case of this nature, we find no manifest error in the jury’s award.

Disposition

For the foregoing reasons, the judgment is affirmed. All costs are assessed to Defendants, Robert Ardoin, Evangeline Gas Company, and Lafayette Insurance Company.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Gary OREMAN v. Eleanor Deutsch OREMAN.
    No. 05-CA-955.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 31, 2006.
    Rehearing Denied May 1, 2006.

      William H. Cook, Jr., Attorney at Law, New Orleans, Louisiana, for PlaintiffiAp-pellant.
    David M. Prados, Robert C. Lowe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|PIn this domestic case, Eleanor Deutsch Oreman seeks to partition certain community property of her former spouse, Gary Oreman. From a judgment rendered by the trial court on April 18, 2005, Gary Oreman has filed this appeal and Eleanor Oreman has answered that appeal. For the reasons more fully discussed herein, we vacate the trial court’s judgment and reinstate the court’s original judgment.

FACTS AND PROCEDURAL HISTORY

The record in this case indicates that the parties obtained a judgment of divorce on July 2, 1996 and that they executed a consent judgment of partition of community property on September 30, 1996. Several years later, on June 14, 2004, Eleanor Oreman filed a Petition for Supplemental Partition of Unpartitioned Community Property seeking partition of the 13retirement/annuity plan of Gary Oreman. Gary Oreman answered this petition and also filed a reconventional demand against Eleanor Oreman on the basis that all community property had been previously partitioned by the 1996 consent judgment. This matter was tried on January 18, 2005, and both parties submitted post-trial mem-oranda.

The record before us contains two judgments on the issues presented at trial. The first judgment was rendered and signed on February 14, 2005, and is entitled “Court Order Acceptable for Processing.” It provides in part:

IT IS ORDERED, ADJUDGED AND DECREED that Eleanor Deutsch Oreman, the Foremer Spouse of Gray Oreman, shall receive benefits from Gary Oreman’s Civil Service Retirement System (CSRS) Benefits (sometimes referred to hereafter as the “Plan”) in accordance with the term hereof ...
JUDGMENT READ, RENDERED AND SIGNED, in Open Court, at Gret-na, Louisiana, this 14 day of February, 2005.

This judgment provides that it was rendered in connection with and incidental to the parties’ divorce and partition of their community property. The terms of this judgment state that Eleanor Oreman was to beginning receiving 45% of the monthly annuity received by Gary Oreman as retirement benefits with a provision for cost of living adjustments. The record does not show that notice of this judgment was given to the parties as required by La. C.C.P. art.1913.

The second judgment was rendered and signed on April 18, 2005 and refers to the terms of a consent judgment entered into the parties on the same|4date. The terms of the April judgment are similar to the February judgment in that it provides that it was rendered in connection with and incidental to the parties’ divorce and partition of their community property. However, the terms of the second judgment differ considerably from the first judgment in that it states that Eleanor Oreman was to beginning receiving 50% of the monthly annuity received by Gary Oreman as retirement benefits with a provision for cost of living adjustments. In addition, this second judgment contains provisions which grant to Eleanor Oreman a survivor annuity, as well as life and health insurance benefits, none of which were contained in the first judgment.

Notice of the April 18, 2005 judgment was mailed to all parties on April 21, 2005, and on June 22, 2005 Gary Oreman filed a motion and order for devolutive appeal of this judgment. Eleanor subsequently filed an answer to the appeal seeking modification of the April 18, 2005 judgment.

In his brief filed in this Court, appellant makes reference to the existence of the two judgments which are contained in the record, but assumes that the trial court had the power on his own motion to grant a new trial and change the judgment. However, there is nothing in the record to indicate that the trial court moved for or granted a new trial as provided by La. C.C.P. art.1971. Rather, the record shows that two judgments were rendered and signed in this case, and that the second judgment substantially changes the substance of the first judgment.

| .LAW AND DISCUSSION

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or-final. La. C.C.P. art. 1841. A judgment that determines the merits in whole or in part is a final judgment. Id. Every final judgment shall be signed by the judge. La. C.C.P. art.1911. A final judgment shall be identified as such by appropriate language. La. C.C.P. art.1918.

La. C.C.P. art.1951 provides that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party to alter the phraseology of the judgment, but not the substance; or to correct errors of calculation. The Louisiana Supreme Court has considered the effect of the rendering of two judgments in Bourgeois v. Kost, 02-2785 (La.5/20/03), 846 So.2d 692, 696, as follows:

It is well settled under our jurisprudence that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. The trial judge cannot, on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error. Without a specific statutory grant of authority, the trial court is limited to the general authorization for amending final judgments provided in La. C.C.P. art.1951. As stated above, this article limits the amendment of judgments to the correction of errors in calculation and alteration of phraseology, but does not authorize a trial court to make substantive amendments to final judgments. Courts have uniformly held substantive amendments to judgments made without recourse to the proper procedures, i.e. by way of a timely motion for a new trial or by appeal, to be absolute nullities.

See also, Modere v. St. John the Baptist, 04-1036 (La.App. 5 Cir. 3/1/05), 900 So.2d 73; Percle v. Morrow, 04-1076 (La.App. 5 Cir. 2/15/05), 897 So.2d 760.

| fiLouisiana jurisprudence further provides that when a trial judge signs a judgment and then signs another, the second judgment is an absolute nullity and without legal effect. The usual remedy applied by an appellate court that finds an amendment made of substance in a judgment is to annul and set aside the amending judgment and reinstate the original judgment. Hebert v. Blue’s Auto and Truck Parts, 00-2154 (La.App. 1 Cir. 12/28/01), 804 So.2d 953, 956, writ denied, 02-0272 (La.3/28/02), 812 So.2d 635; Magill v. State, Dept. of Public Safety and Corrections, 27,802 (La.App. 2 Cir. 1/24/96), 666 So.2d 1260, 1263; McGee v. Wilkinson, 03-1178 (La.App. 1 Cir. 4/2/04), 878 So.2d 552, 554; Alliance for Good Government, Inc. v. Jefferson Alliance for Good Government, Inc., 96-309, (La.App. 5 Cir. 10/16/96), 683 So.2d 836, 839.

In the present case, the first judgment dated February 14, 2005 was signed by the trial judge and appears in all respects to be a valid judgment of the court. Although notice was not sent to the parties, the judgment nevertheless remains a final judgment. The February 14, 2005 judgment was determinative of the rights of the parties and must be considered a final judgment. It is unclear from the record why the trial judge then signed a second judgment in this matter. The record does not contain a motion to alter the judgment either by the trial court or one of the parties.

Nevertheless, the second judgment signed on April 18, 2005 substantially differs from the first judgment in several respects, and the Code of Civil Procedure provides only a limited means of correcting errors of substance in a final judgment. Since this second judgment grants to plaintiff additional relief, we hold that it clearly alters the substance of the first judgment in violation of the prohibition contained in La. C.C.P. art.1951, |7and, absent any agreement to amend which is not present in this case, renders this second judgment null and void.

For the foregoing reasons, we hold the judgment dated April 18, 2005 is an improper substantive amendment to the original judgment rendered and signed on February 14, 2005. The trial judge was without authority to substantively amend the original judgment, and the second judgment is therefore an absolute nullity. We will therefore not consider the merits of the arguments raised by this appeal. Rather, we vacate the April 18, 2005 judgment from which this appeal is taken, and we hereby reinstate the February 14, 2005 judgment as the final judgment of the trial court in this matter. Costs of this appeal are to be divided equally between the parties.

VACATED AND JUDGMENT REINSTATED.

      .La. C.C.P. art. 1913(A) provides: Exceptas otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.

      . We note that the record fails to contain any evidence of the existence of a consent judgment entered between the parties on this date.

      . This article provides in part: "A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.”

      . We note that as notice of this judgment was not mailed in accordance with La. C.C.P. art. 1913A, delays for applying for a motion for new trial have not commenced. See, La. C.C.P.art. 1974.