author: PARRO, J. McCLENDON, J., GUIDRY, J.,

text:
    Jane DOE Individually and on behalf of her minor children including Mary Doe v. EAST BATON ROUGE PARISH SCHOOL BOARD, J.K. Haynes Elementary Charter School, ABC Insurance Company, and DEF Insurance Company.
    No. 2006 CA 1966.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Writ Denied March 28, 2008.

      David L. Bateman, Baton Rouge, LA, for Plaintiff-Appellant, Jane Doe, individually and on behalf of her minor children, including Mary Doe.
    Gus A. Fritchie, III, Edward W. Trapo-lin, New Orleans, LA, for Defendant-Ap-pellee, J.K. Haynes Elementary Charter School.
    Harold J. Adkins, Alejandro R. Perkins, Baton Rouge, LA, for Defendant-Appellee, East Baton Rouge Parish School Board.
    Before PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

|2The plaintiff appeals the judgment of the trial court entered in conformity with the special verdict of the jury, challenging certain legal rulings by the trial court, contesting the jury’s allocation of fault, and seeking an increase in the amount of damages awarded by the jury. For the reasons that follow, we affirm.

factual and procedural HISTORY

This matter involves the sexual assault of a young girl by one of her fellow students on a school bus. At the time of the assault, the victim, J.Y., was an eight-year-old third-grade student at J.K. Haynes Elementary Charter School (Haynes Elementary). The other student involved in the incident, H.B., was a twelve-year-old boy in the fifth grade at Haynes Elementary. According to the testimony.at trial, H.B. was much larger than J.Y. and many of the other students. The assault occurred on a school bus owned, staffed, and maintained by the East Baton Rouge Parish School Board (School Board).

According to the procedure established by the School Board, the buses carrying students from the various schools were to enter a transfer point and park in a line next to each other. Across from these buses was to be a line of empty buses. Once all of the buses had arrived from the different schools, a School Board employee would signal the students to exit their buses and transfer to one of the empty buses. After all of the students had changed buses, the newly filled buses would take the students to their homes. Because all of the buses do not arrive at the transfer point at the same time, the students were required to remain on their original buses until all of the buses had arrived. As a result, some students may remain on these buses for twenty to thirty minutes before being allowed to transfer to a new bus. During this time, School Board policy requires the students to remain seated in their seats on the buses. In addition, | sthe bus drivers are required to remain in their seats on the buses to supervise the students, except in a case of extreme emergency. Pursuant to the established procedure, Faye Hunt, the school bus driver employed by the School Board, picked up J.Y., H.B., and other students at Haynes Elementary in the school bus after school on May 9, 2002, and drove them to the transfer point on Lobdell Avenue in Baton Rouge.

J.Y. testified that on the date of the assault, she boarded the bus at Haynes Elementary and went to the last seat. She took out her homework and then lay down on the seat to save a seat for her younger sister, who also rode the bus. H.B. approached her and told her to push over and let him sit on the seat with her. According to J.Y., H.B. told her that when they arrived at the transfer point, she was going to perform an oral sex act on him. She responded that she would not do so., and when the bus arrived at the transfer point, J.Y. attempted to get out of the seat. However, H.B. physically blocked her path by getting on his knees and putting his hand on the seat in front of them. After JY. refused several times to perform the act, H.B. pulled down his pants. JY. testified that she eventually complied because she was afraid of H.B. According to J.Y., Ms. Hunt was not on the bus at the time of the assault, which took place over á ten-minute period in the back of the bus. JY. acknowledged that she did not tell Ms. Hunt about the assault after the fact, because she thought she would get into trouble.

Willis Fitzgerald, the transportation supervisor for the School Board, testified that the bus drivers are trained in the proper way to supervise the students while they wait at the transfer point. According to the procedure established by the School Board, the bus drivers are to remain seated in their seats, where they can supervise the students by using the seven mirrors placed in the front of the bus for that purpose. In addition, the drivers are taught to be aware of the possibility of sexual harassment on the bus. According to Mr. Fitzgerald, the School Board’s policy of having the bus drivers remain on the bus acts as a deterrent to inappropriate action by the students, but it also allows the driver to be in a position to stop an incident from occurring. Mr. Fitzgerald acknowledged that there had been a history of problems at the transfer point, and that there had been more than one thousand reports of physical and sexual altercations at |4the transfer point in the five years immediately preceding the assault on J.Y. He further testified that the School Board had hired additional security to deal with these issues.

Ms. Hunt testified that she had driven students from Haynes Elementary to the transfer point for approximately two or three years. She acknowledged that she had received training that included instruction regarding procedures at the transfer point. Nevertheless, Ms. Hunt testified that she would sometimes get off the bus to talk to the other drivers, even though she knew it was against the rules. She insisted that she had no recollection of the events on the date of the assault, and that she knew nothing about it until she received a subpoena to give her deposition two or three years after the assault. However, she conceded that if she had been sitting in her seat on the bus as required by the policy, she could have seen a student kneeling on a seat and pulling down his pants in the back of the bus, and that she would have-stopped the assault.

JY.’s mother filed suit, individually and on behalf of JY. and her younger sister, for damages arising out of the sexual assault. Named as defendants in the petition were the School Board, Haynes Elementary, and two fictitious insurance companies. The petition did not name H.B., H.B.’s parents, or Ms. Hunt as defendants.

After a trial, the jury returned a verdict allocating seventy-five percent of the fault for the assault to H.B. and twenty-five percent of the fault to the School Board. No fault was allocated to Haynes Elementary. The jury awarded past medical expenses of $2,900, as well as future medical expenses of $25,000. In addition, the jury awarded damages of $10,000 for past and future mental pain and suffering, as well as another $10,000 for loss of enjoyment of life. The jury did not award any damages for J.Y.’s alleged physical injuries or for her mother’s claim of loss of consortium. The trial court signed a judgment in accordance with the jury verdict on May 8, 2006. The plaintiff subsequently filed a motion for judgment notwithstanding the verdict or, alternatively, a new trial, which was denied by the trial court. This appeal by the plaintiff followed.

^DISCUSSION

Vicarious Liability

In her first assignment of error, the plaintiff contends that the trial court erred as a matter of law in not imposing vicarious liability on the defendants for negligent supervision under LSA-C.C. art. 2320, which provides, in pertinent part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.

Prior to trial, the trial court requested briefs on the issues of allocation of fault and vicarious liability. After reviewing these briefs and allowing the attorneys for the parties an opportunity to present oral argument, the trial court ruled that the jury would be allowed to allocate a percentage of fault to H.B. as an intentional tortfeasor who had not been named as a defendant in the suit. The trial court further ruled that the fault of the intentional tortfeasor would not be imputed to either defendant under the theory of vicarious liability. On appeal, the plaintiff does not contest the trial court’s determination that some fault must be apportioned to H.B.; rather, the plaintiff argues that the School Board and Haynes Elementary should be vicariously liable for the percentage of fault assigned to H.B.

As an initial matter, we note that the plaintiff has referred to the liability it seeks to impose on Haynes Elementary and the School Board for the fault of H.B. as vicarious liability under LSA-C.C. art. 2320. However, the Louisiana Supreme Court has held that LSA-C.C. art. 2320 is not a true “vicarious liability” statute, as it requires independent fault on the part of a school board in that the school board is only liable for damages caused by students under- their supervision when the school board, the teacher, or other school authorities might have prevented the act that caused the damages and have not done so. See Wallmuth v. Rapides Parish School Board, 01-1779 (La.4/3/02), 813 So.2d 341, 349. Specifically, Article 2320 provides that responsibility only attaches when the “employers” or “teachers ... might have prevented the act which | ficaused the damage, and have not done it.” Accordingly, we must first address .the independent liability of the School Board and Haynes Elementary.

Schools and school boards, through their employees or teachers, owe a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. See id. at 346. However, this duty does not make the school or school board the insurer óf the safety of the children. Constant supervision of all students is not possible or required for employees or teachers to discharge their duty to provide adequate supervision. Before liability can be imposed upon a school or school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Id. Further, the unreasonable risk of injury must be foreseeable, constructively or actually known, and preventable, if the requisite degree of supervision had been exercised. Frazer v. St. Tammany Parish School Board, 99-2017 (La.App. 1st Cir.12/22/00), 774 So.2d 1227, 1232, writ denied, 01-0233 (La.3/23/01), 787 So.2d 1001.

It is undisputed that some fault for the assault was allocated to the School Board. The assault took place on a bus owned and maintained by the School Board, while the students were under the supervision of Ms. Hunt, a School Board employee. Ms. Hunt acknowledged that she violated the rules established by her supervisors concerning the procedures at the transfer point, and she further acknowledged that she could have prevented the assault if she had been on. the bus as required. Moreover, the evidence in the record indicates that there had been numerous assaults at the transfer point in the five years immediately preceding the incident. The fault of the School Board may arise from its own acts or failures to act, or from the acts of its employees under the doctrine of re-spondeat superior. See Moreau v. Landry, 305 So.2d 671, 672 (La.App. 1st Cir.1974); LSA-C.C. art. 2320. Thus, the School Board was properly allocated a percentage of fault for the assault. .

We now turn to the question of whether the School Board is vicariously liable for the percentage of fault allocated to H.B., pursuant to the second paragraph of LSA-C.C. art. 2320. In support of her argument that the fault of H.B. should be imputed to the School Board, the plaintiff relies primarily on Vaughn v. Orleans Parish School Board, 01-0556 (La.App. 4th Cir.11/28/01), 802 So.2d 967, writ denied, 02-0005 (La.6/7/02), 818 So.2d 773, and Doe v. DeSoto Parish School Board, 39,779 (La.App. 2nd Cir.6/29/05), 907 So.2d 275, writ denied. 05-2020 (La.2/10/06), 924 So.2d 167.

In Vaughn, a boy in the second grade was sexually assaulted by a fellow student while the teacher was supervising the class. The victim’s parents filed suit against the teacher and the Orleans Parish School Board for negligent supervision. After trial, the trial court found that the teacher was negligent in her supervision of the students and awarded damages to the plaintiffs. No fault was assessed to the victim or the other students involved in the assault. The school board appealed, contending that the trial court erred in failing to assess the fault of all individuals involved in the incident. Vaughn, 802 So.2d at 968. The Fourth Circuit disagreed, finding that an allocation of fault among the students would have no practical effect. Specifically, the court found that no such allocation was necessary, because the teacher and her employer, the school board, were responsible for the damages caused by any fault of the students pursuant to LSA-C.C. art. 2320. See id. at 970.

In Doe, a sixteen-year-old girl was sexually assaulted by five members of the boys’ basketball team while she was a passenger on a school bus transporting her to and from a high school basketball game. In addition to the bus driver, the bus was ^transporting the victim, her twin sister, the members of the boys’ basketball team and their coach, the members of the girls’ basketball team and their coach, and various student assistants. Doe, 907 So.2d at 277. The school had a policy requiring the basketball coaches to sit between the boys and girls on all athletic trips. The policy apparently was implemented in response to prior incidents of sexual misconduct involving students of the school. Id. at 281-282. The coach of the girls’ team began the trip seated between the boys and girls as required by the policy; however, she eventually switched seats with the victim and sat in the front of the bus, in a seat across from the coach of the boys’ team. This switch placed the victim in a seat right in front of the boys’ team, where the assault occurred. Id. at 282. At trial, the jury found that the DeSoto Parish School Board was negligent in its supervision of the students and awarded damages to the plaintiffs, allocating one hundred percent of the fault to the school board and none to any of the five boys accused of the assault. Id. at 279. The school board appealed, asserting five assignments of error, including one assignment that the jury erred by not allocating any fault to the boys accused of the assault. However, relying on Vaughn, the Second Circuit held that allocating fault to the boys would have no practical effect under the facts and circumstances of the case. Id. at 283.

The trial court in the matter before this court declined to follow these cases, finding them in conflict with certain holdings of this court. In Bell v. Ayio, 97-0534 (La.App. 1st Cir.11/13/98), 731 So.2d 893, 895, April Bell was traveling on a school bus, when another student from her school threatened to beat her up. Ms. Bell informed the bus driver, Frank Ayio, of the threat. As a result, when the bus stopped at Cohn Elementary School, Mr. Ayio put Ms. Bell and the other student, Fatonya Richard, off the bus and advised a teacher to get a principal. Mr. Ayio then reboard-ed the bus to move it out of the way of the other buses attempting to drop off students. While he was moving the bus, Ms. Richard attacked Ms. Bell, causing her substantial injuries. Ms. Bell’s mother filed suit against Mr. Ayio and his employer, the West Baton Rouge | gParish School Board, but did not name Ms. Richard or her parents as defendants. After a trial on the merits, the trial court ruled in favor of the plaintiff, rendering judgment against Mr. Ayio and the school board. The defendants appealed, asserting several assignments of error.

In addressing the claims raised on appeal, this court determined that the trial court erred in failing to quantify the fault of Ms. Richard as required by LSA-C.C. art. 2823. Finding that this was legal error on the part of the trial court, this court subjected the liability issue to a de novo review of the record. Id. at 897. Based on that review, this court found that Mr. Ayio was negligent; however, this court further determined that Mr. Ayio’s fault was slight when compared to that of Ms. Richard. Accordingly, this court allocated eighty-five percent of the fault for Ms. Bell’s injuries to Ms. Richard and fifteen percent of the fault to Mr. Ayio, with the school board being vicariously hable for the fault of Mr. Ayio as its employee. Id. at 900.

Likewise, in Frazer, 774 So.2d at 1231-32, this court determined that a de novo review of the record was proper after finding that the trial court had erred in failing to compare the fault of all individuals involved in a physical altercation that occurred between several students immediately after they had disembarked from the school bus on their way home. After applying the de novo review, this court assessed twenty percent of the fault for the plaintiffs injuries to the school board as the result of its employee’s negligence. The remaining eighty percent of the fault was allocated to the plaintiff and the students who attacked him. Id. at 1233-34.

We note that Vaughn and Doe involve the issue of the vicarious liability of a school board for the actions of students under a teacher’s supervision. In contrast, the students in Bell and Frazer were under the supervision of non-teacher school employees. Because the matter currently before this court involves students under the supervision of a bus driver, a non-teacher, we find Vaughn and Doe inapplicable to this matter.

The issue of a school board’s vicarious liability was addressed by the supreme court in Wallmuth. In that case, the plaintiffs claimed that the school board was vicariously liable for the damage caused by three students who attacked another | instudent in the locker room after a physical education class. The supreme court ultimately determined that the school board was not vicariously liable for the fault of the students; however, this finding was based on the court’s determination that the school board was not independently liable for the attack, because the attack was unforeseeable and not preventable. The supreme court did leave open the possibility that the school board could be vicariously liable for the actions of students under the supervision of teachers in other circumstances. See Wallmuth, 813 So.2d at 349.

Nevertheless, after an analysis of the terms of LSA-C.C. art. 2320, we find that the School Board is not vicariously liable for the actions of H.B. under the facts and circumstances of this case. As noted previously, the relevant portion of Article 2820 arguably imposes liability on teachers for the damage caused by their students while under their supervision. The plaintiffs argument for imposing vicarious liability on the School Board for the fault of H.B. apparently is based upon an interpretation of Article 2320 that would impose the same liability as that of teachers on school bus drivers in their capacities as employees of the School Board. We disagree.

The starting point for the interpretation of any codal article is the language of the article itself. See Burnette v. Stalder, 00-2167 (La.6/29/01), 789 So.2d 573, 577. Generally, courts begin such an interpretation with the premise that legislation is the solemn expression of legislative will, and that the interpretation of a law involves a search for the legislature’s intent. LSA-C.C. art. 1; Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, 401. When a 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. LSA-C.C. art. 9. Moreover, the words of a law must be given their generally prevailing meaning. LSA-C.C. art. 11.

In light of these principles, we note that by its relevant terms, LSA-C.C. art. 2320 discusses the liability of teachers. Clearly, Ms. Hunt was employed as a bus driver J^and not as a teacher as that term is commonly understood. In addition, we note that Vaughn, Doe, and Wallmuth all involve incidents that occurred while the students were under the immediate supervision of teachers, not bus drivers. Accordingly, we find that the School Board is not vicariously liable for the fault of H.B. under the facts and circumstances of this case.

We next consider the liability of Haynes Elementary. At the time of the assault, the students were no longer on the campus of Haynes Elementary, as they had been transported to the transfer point in the school bus. Clearly, Haynes Elementary did not exert any control or supervision over its students once they had left the school campus. Moreover, the School Board owned and maintained the bus on which the incident occurred, and there is no evidence in the record to suggest that Haynes Elementary exercised any ■ control or authority over the buses, the bus drivers, or the procedures at the transfer point. Thus, we agree with the jury’s finding that no independent fault should be allocated to Haynes Elementary in this matter. Because no independent fault may be attributed to Haynes Elementary, the school cannot be vicariously liable for the fault of H.B. See Wallmuth, 813 So.2d at 349.

Common Carrier Doctrine

In her second assignment of error, the plaintiff argues that the trial court erred as a matter of law in not instructing the jury on the common carrier doctrine established in the jurisprudence. It is well settled in Louisiana jurisprudence that the owner and operator of a school bus is classified as a “common carrier,” owing a heightened standard of care to the passengers he or she undertakes to transport. Amos v. St. Martin Parish School Board, 00-808 (La.App. 3rd Cir.12/6/00), 773 So.2d 300, 302. |12As such, when an injury to a passenger occurs, the burden shifts to the defendant carrier to show that he or she was free of even the slightest negligence contributing to the resulting injury. Id.

At trial, the plaintiff requested that the trial court instruct the jury on the common carrier doctrine; however, the trial court declined. The trial court determined that at the time of the assault, the bus was stopped at the transfer point and was not performing its function of transporting passengers. According to the trial court, the bus and its driver were merely performing a baby-sitting function at that time. Thus, the court concluded that the common carrier doctrine was not applicable to the matter. On appeal, the plaintiff contends that the failure of the trial court to instruct the jury on the common carrier doctrine interdicted the jury’s factual findings on the issue of the allocation of fault. Thus, the plaintiff suggests that this court should review this issue de novo and allocate the majority of the fault for the assault to the defendants.

It is well settled in Louisiana jurisprudence that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Nicholas v. Allstate Insurance Company, 99-2522 (La.8/31/00), 765 So.2d 1017, 1023. The basis for this rule of law is that trial courts are given broad discretion in formulating jury instructions, and it is well accepted that a trial court judgment will not be reversed as long as the charge correctly states the substance of the law. Id. However, when the jury verdict is based on instructions that were faulty in a critical regard, the verdict is tainted and is not entitled to a presumption of regularity. Billiot v. Terrebonne Parish Sheriff's Office, 98-0246 (La.App. 1st Cir.2/19/99), 735 So.2d 17, 21, writ denied, 99-1376 (La.7/2/99), 747 So.2d 22. The general rule is that where an erroneous jury instruction is given that constitutes reversible error, the jury decision should be set aside, and the appellate court should undertake a de novo review of the record and implement its own judgment based on the evidence. Id. In a jury trial, the judge is not required to give the instructions submitted by either party; however, the trial judge is obligated to give instructions that properly reflect the law applicable in light of the pleadings and facts in each case. Adequate instructions are those that fairly and reasonably point out the issues | ^presented by the pleads ings and evidence and that provide correct principles of law for the jury’s application to the facts. Id. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Nicholas, 765 So.2d at 1023.

In this case, the trial court charged the jury on Louisiana’s law of liability, quoting LSA-C.C. art. 2315 and generally explaining that the plaintiff must prove all three essential elements of fault, causation, and damages by a preponderance of the evidence in order to prevail. The trial court further instructed the jury in accordance with LSA-C.C. art. 2323, stating that if the jury determined that the plaintiff had established her claims and damages, it was required to assess a degree or percentage of fault to all persons causing or contributing to the injury. The plaintiff contends that the failure of the trial court to instruct the jury on the common carrier doctrine improperly maintained the burden of proof on the plaintiff to prove the fault of the School Board, rather than shifting the burden to the School Board to absolve itself of fault in the incident. Without resolving the issue of whether the common carrier doctrine is applicable to the facts of this case, we determine that the failure of the trial court to instruct the jury on the doctrine does not constitute reversible error.

As discussed above, the common carrier doctrine merely establishes a shifting burden of proof on the issue of liability, such that the common carrier must demonstrate that it was free from even the slightest negligence or fault contributing to the plaintiffs injuries in order to absolve itself from liability. However, the doctrine does not impose a specific percentage or degree of fault on the common carrier, nor does it abrogate the requirement of LSA-C.C. art. 2323 that a percentage of fault be allocated to all persons causing or contributing to the injury. In this case, the jury clearly found that the School Board was at fault in the incident and that this fault was a legal cause of the injury to J.Y. Thus, the issues of fault and liability were decided in favor of the plaintiff regardless of which party bore the burden of proof. The plaintiffs objection is to the percentages of fault allocated to the respective tortfea-sors, which would not be 114affected by an instruction on the common carrier doctrine. Therefore, we find no merit in this assignment of error.

Allocation of Fault

After finding that both H.B. and the School Board were at fault in the incident and that the fault of each was a legal cause of J.Y.’s injuries, the jury allocated seventy-five percent of the fault to H.B. and twenty-five percent to the School Board. On appeal, the plaintiff contends that the jury was manifestly erroneous in allocating the majority of the fault to H.B. and suggests that this court should reallocate fault.

An appellate court may only reallocate fault if it finds the trial court was clearly wrong or manifestly erroneous in its allocation of fault. See Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607, 611. Pursuant to this standard, the two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Even though an appellate court may feel its own evaluations and inferences are as reasonable as the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Barham & Arceneaux v. Kozak, 02-2825 (La.App. 1st Cir.3/12/04), 874 So.2d 228, 240, writ denied, 04-0930 (La.6/4/04), 876 So.2d 87.

The evidence in the record supports the jury’s conclusion that the majority of the fault should rest-with H.B. J.Y. testified that H.B. began to threaten her shortly after they boarded the bus before they reached the transfer point. However,there is no evidence in the record to suggest that Ms. Hunt was aware of these threats at any time, and J.Y. testified that she never told Ms. Hunt about the threats or the assault. In fact, Ms. Hunt testified that she did not know about, the incident at all, until she was served with a subpoena several years later. -Further, the undisputed evidence in the record demonstrates that the School Board had no prior knowledge that H.B. might commit such an assault. Although the School Board’s employee, Ms. Hunt, certainly had the responsibility for supervising the students at the transfer point, the fault of Ms. Hunt |1sand the School Board is slight when compared to that of the intentional tortfea-sor, H.B. Accordingly, we find that the jury’s allocation of seventy-five percent of the fault to H.B. and twenty-five percent to the School Board is supported by the record and is not manifestly erroneous. Damages

After trial, the jury awarded J.Y. past medical expenses of $2,900, as well as future medical expenses of $25,000. In addition, the jury awarded damages of $10,000 for past and future mental pain and suffering, as well as another $10,000 for loss of enjoyment of life. However, the jury declined to award damages to JY. for physical pain and suffering or to J.Y.’s mother for loss of consortium. In her final assignment of error, the plaintiff contends that the jury erred: (1) in failing to award any amount to JY. for physical pain and suffering; (2) in awarding only $10,000 for past and future mental pain and suffering; (3) in awarding only $10,000 for loss of enjoyment of life; and (4) in not making any award to J.Y.’s mother for her loss of consortium.

The assessment of the appropriate amount of damages by a jury is a question of fact entitled to great deference on review. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific. Furthermore, the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when 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 plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The plaintiff first complains that the trial court erred in failing to make any award to JY. for physical pain and suffering, while, at the same time, making an award for future medical expenses. However, as the plaintiff concedes, such awards by a jury do not automatically require a reversal. Instead, when the jury has awarded special h (¡damages but has declined to award general damages, the reviewing court must determine whether the jury’s finding is so inconsistent as to constitute an abuse of discretion. Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838, 843-44.

The relevant testimony at trial focused largely on J.Y.’s emotional or mental response to the assault, rather than on any physical injuries she may have suffered. Dr. Alicia Pellegrin, a clinical psychologist who treated J.Y., testified that J.Y.’s mother had advised her that J.Y. had exhibited inappropriate emotional responses and significant fluctuations in mood since the incident. Dr. Pellegrin further testified that according to J.Y.’s mother, J.Y. had become withdrawn and secluded since the incident and had become less concerned with her hygiene. Based on the information from J.Y.’s mother, the reports of J.Y.’s teachers, and her own observations, Dr. Pellegrin determined that J.Y. was in denial concerning her emotional issues. According to Dr. Pellegrin, J.Y.’s behavior since the incident was suggestive of a compulsive problem that could be the early signs of a psychotic problem, a thought disorder, or an anxiety condition. Because J.Y. was in denial and not addressing the issues concerning the assault, Dr. Pelleg-rin opined that J.Y. would have emotional problems as she got older. Dr. Pellegrin testified that J.Y. would ultimately need to be treated by a therapist who had been specially trained to work with individuals who have experienced sexual trauma.

After a thorough review of the record, we do not find the jury’s finding to be so inconsistent as to be an abuse of discretion. While her mother testified that she took J.Y. to the doctor to get her tested for diseases after the incident, there is no evidence in the record that J.Y. contracted any disease or suffered any physical injury as a result of the assault. Rather, it is clear that the primary focus of the medical testimony at trial was on J.Y.’s future emotional or mental state, and not on any alleged physical injury. The jury reasonably could have concluded that J.Y. would need additional medical treatment to alleviate the emotional trauma she sustained as a result of the assault, without finding any physical pain and suffering. Accordingly, we find no error in the jury’s failure to award damages for physical pain and suffering.

The plaintiff also contends that the jury erred in failing to award J.Y.’s mother damages for loss of consortium, and that the jury’s award of damages for past and 117future mental pain and suffering and loss of enjoyment of life were abusively low. However, as noted above, the assessment of an appropriate amount of damages by a jury is a question of fact, and an appellate court should not disturb a jury’s award of general damages unless it is demonstrated that the award is ah abuse of the jury’s vast discretion in matters of quantum. After a thorough review of the record, we find no such abuse of discretion.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear its own costs of appeal.

AFFIRMED.

McCLENDON J. concurs and assigns reasons.

GUIDRY, J. dissents and assigns reasons.

McCLENDON, J.,

concurring.

|TI concur with the result reached by the majority given that the negligent supervision herein was by a bus driver as opposed to a teacher. I further find that the question of whether vicarious liability may be imposed on a school board for the intentional tortious acts of its students, under the direct supervision of a teacher, is a question that is not before us in this particular case. In addition, while I find the damage award to be low, I cannot say that it was a clear abuse of the vast discretion afforded the trier of fact.

GUIDRY, J.,

dissenting.

|4 respectfully dissent from the majority opinion on the issue of the school board’s vicarious liability for the tortious actions of its student. As a preliminary matter, I believe the majority errs in relying on Frazer v. St. Tammany Parish School Board, 99-2017 (La.App. 1st Cir.12/22/00), 774 So.2d 1227, writ denied, 01-0233 (La.3/23/01), 787 So.2d 1001 and Bell v. Ayio, 97-0534 (La.App. 1st Cir. 11/13/98), 731 So.2d 893, because the court in those cases only addressed the issue of a school board’s vicarious liability for the actions of its employees; it did not address the liability of a school board for the actions of its students. Accordingly, those cases are not controlling in the instant matter. Conversely, the court in Vaughn v. Orleans Parish School Board, 01-0556 (La.App. 4th Cir.11/28/01), 802 So.2d 967, writ denied, 02-0005 (La.6/7/02), 818 So.2d 773 and Doe v. DeSoto Parish School Board, 39,779 (La.App. 2nd Cir.6/29/05), 907 So.2d 275, writ denied, 05-2020 (La.2/10/06), 924 So.2d 167 did specifically address the liability of a school board for the actions of its students. Thus, Vaughn and Doe are applicable, or at least, persuasive authority herein.

| ^Furthermore, I believe that the majority improperly distinguishes between school board employees who are “teachers” and those who are not and, in so doing, fails to analyze the school board’s liability for the actions of its student under the second paragraph of LSA-C.C. art. 2320. In Wallmuth v. Rapides Parish School Board, 01-1779 (La.4/3/02), 813 So.2d 341, the supreme court noted, as follows:

[T]he correct standard of liability regarding the liability of a school board for the actions of its students under La. C.C. art. 2320 is as follows:
A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident... .Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. (Internal citations omitted.)(Emphasis added.)

Wallmuth, 813 So.2d at 346.

Significantly, in the body of the Wall-muth opinion, the supreme court only quotes the following portions of art. 2320:

Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the ... teachers or artisans, might have prevented the act which caused the damage, and have not done it.

In addition to alleging independent liability, the plaintiffs in Wallmuth also argued that the School Board was vicariously liable for the actions of its student launder LSA-CC art. 2320. Citing that particular article as authority, the supreme court expressly noted:

[T]he School Board is only hable for damages caused by students under their supervision when the school board, the teacher, or other school authorities “might have prevented the act which caused the damages and have not done so.” (Emphasis added.)

Wallmuth, 813 So.2d at 349. Immediately following the foregoing quote and citation is a footnote, specifically footnote 8, which provides as follows:

Although the language of La. C.C. art. 2320 technically applies as well to the employer-employee relationship, Louisiana courts have not given effect to the “might have prevented” language since 1906. See Weaver v. W.L. Goulden Logging Co., 116 La. 468, 40 So. 798 (1906). The judicial interpretation of La. C.C. art. 2320 as it applies to employers and employees has been codified by La. R.S. 9:3921 (1991), which provides in part: “notwithstanding any provision in Title III of Code Book III of Title 9 of La. Rev.Stat. of 1950 to the contrary, every master or employer is answerable for the damage occasioned by his servant or employee in the exercise of the functions in which they are employed.” No such treatment has been given to the teacher-student relationship outside of the strict language of La. C.C. art. 2320.

Wallmuth, 813 So.2d at 349 n. 8.

Thus it is apparent that the supreme court determines the vicarious liability of a school board for the actions of the students under its supervision under the second paragraph of LSA-C.C. art. 2320 pertaining to “teachers and artisans,” as does the jurisprudence cited throughout the majority opinion. However, this is inconsistent with the majority’s seeming position that the school board can only be vicariously liable for the acts of its employees under the first paragraph of LSA-C.C. art. 2320 and that only teachers, and not a school board, can be vicariously liable for the actions of its students under the second paragraph of LSA-C.C. art. 2320. Not only does this conclusion conflict with the precepts cited and relied upon as authority in the report, but the aforementioned test for determining the liability of a school board for the actions of its students is wholly different from the |/‘cause and scope of employment test” utilized under the first paragraph of LSA-C.C. art. 2320.

Based on Wallmuth and the pertinent body of jurisprudence, I believe the majority opinion incorrectly focuses on a school board employee’s status as a “teacher” as decisive for determining a school board’s vicarious liability for the actions of its students. However, as noted above, the jurisprudence makes no such distinction. Rather, the plain text of the second paragraph of Article 2320, while using the terms “teachers and artisans,” also employs the language “while under their superintendence.” Clearly, other school board employees can supervise students besides teachers. And I believe that it is this “superintending” element (i.e. supervising, exercising control over or managing students) that is the crucial distinction; not one’s status as a “teacher” or a “non-teacher.”

While it is true that a percentage of fault must be attributed to the intentionally tortious student, contrary to the analysis set forth in the opinion, the school board could and should be held vicariously liable for the tortious student’s fault under the particular facts of this case. See Wallmuth v. Rapides Parish School Board, 01-1779 (La.4/3/02), 813 So.2d 341, 346 n. 2; see also. Vaughn v. Orleans Parish School Board, 00-0556 (La.App. 4 Cir. 11/28/01) 802 So.2d 967. The record amply supports a finding that the occurrence was foreseeable, that there was a lack of supervision, and that there was a causal connection between the lack of supervision and the injury sustained by the plaintiff, ie. the school board employee could have prevented the injury if she had exercised proper supervision. Therefore, I respectfully dissent.

      . The petition refers to the victim as Mary Doe; however, the victim's real name was used throughout the trial. In this opinion, we will use only her initials to maintain her privacy.

      . As a charter school, Haynes Elementary is an independent public school under the control of its own board of directors rather than the East Baton Rouge Parish School Board. See LSA-R.S. 17:3991.

      .The School Board provided bus transportation to Haynes Elementary. See LSA-R.S. 17:3991(D) and LSA-R.S. 17:158.

      . The original trial in this matter ended in a mistrial when Dr. Maurice Haynes, the desig-nee for Haynes Elementary, died suddenly after the trial had begun.

      . The petition also stated a claim for loss of consortium on behalf of J.Y.'s sister; however, that claim was never presented to the jury.

      . The School Board has not appealed that portion of the judgment in accordance with the jury’s finding assessing it with twenty-five percent of the fault for the incident.

      . The special interrogatories presented to the jury simply asked whether the School Board was at fault in the incident and whether that fault was a legal cause of J.Y.’s injuries. Although Ms. Hunt was not named as a defendant, and her actions were not specifically mentioned in the special interrogatories, it is clear that the School Board's fault arises out of Ms. Hunt's failure to properly supervise the students at the transfer point. Accordingly, the School Board is vicariously liable for the fault of its employee pursuant to the first paragraph of LSA-C.C. art. 2320.

      . The relevant portion of LSA-C.C. art. 2320 provides that "[tjeachers ... are answerable for the damage caused by their scholars ... while under their superintendence.”

      . The school board also contended that the trial court erred in finding that the teacher had acted negligently in supervising the class. The Fourth Circuit upheld the trial court's finding of negligence. Vaughn, 802 So.2d at 969-70.

      . The coaches were dismissed without prejudice on the day the trial started. The parties stipulated that at all pertinent times, the coaches were acting in the course and scope of their employment with the DeSoto Parish School Board.

      . We note that the plaintiff contends the School Board is vicariously liable for the percentage of fault allocated to H.B., pursuant to the second paragraph of LSA-C.C. art. 2320. However, that particular provision seemingly implies that “teachers” could be vicariously liable for the damages caused by their students. Because that provision does not apply to the employer of the teacher, we question the rationale for imposing any such vicarious liability of a teacher on the School Board, especially since the employer is only liable for the percentage of fault independently attributable to its employee.

      . Indeed, in Doe, the bus driver was not named as a defendant in the suit, despite the fact that the incident occurred while the students were being transported on the bus under the supervision of the basketball coaches for the boys’ and girls’ teams.

      . This is distinguished from the School Board's vicarious liability for the negligence of its employee as discussed above.

      . The plaintiff has not specifically appealed the jury’s failure to allocate fault to Haynes Elementary. However, in her third assignment of error, the plaintiff generally asserts that fault should be reallocated to assess 100 percent of the fault to the defendants. Nevertheless, the majority of the argument in her brief to this court concerns the failures of the School Board, with little, if any, mention of the fault of Haynes Elementary. Because the plaintiff does at least generally raise the issue, and because the issue is important to the imposition of vicarious liability pursuant to LSA-C.C. art. 2320, we will briefly discuss the issue of the fault of Haynes Elementary.

      . The jury found no liability on the part of Haynes Elementary; however, the common carrier doctrine is inapplicable to the school, because it did not own or operate the school bus.

      . It is worthy of note that the majority apparently defines "teachers” broadly enough to encompass "coaches” who are not necessarily teachers per se.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    The SHERWOOD FOREST COUNTRY CLUB v. Elmer B. LITCHFIELD, as Sheriff and Ex Officio Tax Collector for East Baton Rouge Parish, and Brian Wilson, as Assessor of East Baton Rouge Parish.
    No. 2007 CA 0989.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Writ Granted April 25, 2008.

      Burgess E. McCranie, Jr., Mark E. Hanna, Eugene T. Rhee, Metairie, LA, for Plaintiff/Appellee, The Sherwood Forest Country Club.
    Brian A. Eddington, Baton Rouge, LA, for Defendant/Appellant, Brian Wilson, Assessor for East Baton Rouge Parish.
    Leu Anne Lester Greco, Baton Rouge, LA, for Defendant/Appellee, Sheriff Elmer B. Litchfield.
    Before GAIDRY, McDONALD, and McClendon, jj.
   McDonald, j.

| ¡¿Brian Wilson, in his capacity as Assessor for East Baton Rouge Parish (Assessor), appeals a summary judgment granted in favor of the plaintiff, Sherwood Forest Country Club (SFCC). For the reasons that follow, we affirm.

BACKGROUND

The facts in this case are uncontested. In December 2005, SFCC paid, under protest, ad valorem taxes in the amount of $21,100.38. On January 19, 2006, SFCC filed suit against the Assessor and Elmer B. Litchfield, the Sheriff of East Baton Rouge Parish, in his capacity as Ex-Officio Tax Collector for the parish (Sheriff Litch-field), seeking a refund of these taxes, as well as a declaration that it was exempt from ad valorem taxes as a fraternal organization pursuant to Article VII, section 21 of the Louisiana Constitution of 1974, which provides, in pertinent part:

In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
* * *
(B)(Z)(a)(i) Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax[.]

Thus, to obtain an exemption from ad valo-rem taxation pursuant to this provision, SFCC was required to demonstrate that: (1) it is a nonprofit corporation organized and operated exclusively for fraternal purposes; (2) no part of its net earnings benefit any private shareholder; and (3) it has been declared exempt from federal and state income tax.

On September 15, 2006, SFCC filed a motion for summary judgment. In ^support of this motion, SFCC submitted various affidavits and other documentary evidence to support its claim that it met all of the above criteria, The Assessor did not submit any evidence to contradict these claims. Moreover, the Assessor did not contest SFCC’s status as a nonprofit corporation that had been declared exempt from income tax or SFCC’s claim that no portion of its net earnings inured to the benefit of any private shareholder. Thus, the sole remaining issue before the trial court was whether SFCC was operated exclusively for fraternal purposes.

After a hearing, the trial court granted the motion and signed a judgment finding that the ad valorem tax had been assessed and collected illegally from SFCC. The judgment further ordered Sheriff Litch-field to refund the taxes SFCC had paid under protest, plus interest. Finally, the judgment declared SFCC to be exempt from ad valorem taxation. This appeal by the Assessor followed.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Department Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2003-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

As noted above, the facts in this matter are undisputed. The sole issue before this court is whether SFCC was operated exclusively for fraternal purposes within the meaning of the exemption granted by Article VII, section 21(B) of the Louisiana Constitution of 1974. According to its restated articles of incorporation, SFCC is “organized to own, operate and maintain a country club house and grounds, a golf course, tennis courts and swimming pools, and to provide other Informs of recreation, amusement and entertainment as country clubs usually provide.” Furthermore, in his affidavit, G. William Abraham, the president of SFCC, asserted that the property owned by SFCC is not used for any commercial purpose unrelated to SFCC’s fraternal purposes and activities.

There is no dispute as to the types of activities provided by SFCC for its members. Nevertheless, the parties disagree as to the characterization of those activities. Specifically, the Assessor contends on appeal that SFCC is not operated exclusively for fraternal purposes because, as provided in its restated articles of incorporation, it operates its facilities for the purpose of providing recreation, amusement, and entertainment to its members. According to the Assessor, the exemption from ad valorem tax granted by Article VII, section 21(B) of the Louisiana Constitution of 1974 does not apply to organizations operated for those purposes; therefore, the exemption is inapplicable.

Louisiana courts have consistently held that constitutional and statutory grants of exemption from taxation must be strictly construed in favor of the taxing body and against the taxpayer desiring the exemption. A tax exemption, being an exceptional privilege, must be expressly and clearly conferred in plain terms and must be unequivocally and affirmatively established by the taxpayer. See Willis-Knighton Medical Center v. Caddo-Shreveport Sales and Use Tax Commission, 2004-0473, p. 37 (La.4/1/05), 903 So.2d 1071, 1094.

Constitutional provisions are to be construed and interpreted by the same rules as are other laws. Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587, p. 4 (La.3/2/99), 728 So.2d 1254, 1258. Generally, courts begin such an interpretation with the premise that legislation is the solemn expression of legislative will, and that the interpretation of a law involves a search for the legislature’s intent. LSA-C.C. art. 1; Falgout v. Dealers Truck Equipment Co., 98-3150, p. 2 (La.10/19/99), 748 So.2d 399, 401. When a law is |sclear 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. LSA-C.C. art. 9. Moreover, the words of a law must be given their generally prevailing meaning. LSA-C.C. art. 11.

In light of these provisions, we note that the constitutional article does not define the term “fraternal.” Furthermore, we have been unable to find any statutory or jurisprudential authority defining “fraternal” in the context of this constitutional provision. Thus, we must look elsewhere for the “generally prevailing meaning” of the term.

The term “fraternal” is defined in Black’s Law Dictionary, 594 (5th ed.1979) as “[bjrotherly; relating or belonging to a fraternity or an association of persons formed for mutual aid and benefit, but not for profit.” The term “fraternity” is further defined in Webster’s II New College Dictionary, 485 (1995) as “[a] body of people associated for a common interest or purpose” and “[a] group of people united by similar backgrounds, interests, or occupations.”

In light of these definitions, it is clear that SFCC is operated exclusively for fraternal purposes. SFCC is a body of people associated for mutual benefit or for a common interest or purpose, but not for profit. It is true that some of the activities that take place at SFCC, such as golf or tennis, are recreational in nature; however, such a characterization does not preclude these activities from also being fraternal in nature, as they are activities shared by a group of people associated for a common interest or purpose. Moreover, other activities, such as dining with | ¿friends at the country club’s restaurant or sitting by the swimming pools, are clearly fraternal, but they cannot be considered recreational, as that term is generally understood.

After a de novo review of the record, we find no error in the judgment of the trial court. Accordingly, the judgment of the trial court is affirmed. All costs of this appeal in the amount of $591.00 are assessed to Brian Wilson, in his capacity as Assessor for East Baton Rouge Parish.

AFFIRMED.

      . Prior to filing an answer to the petition, Sheriff Litchfield filed a peremptory exception raising the objections of no right of action, no cause of action, and prescription. The exception was originally set for hearing on April 24, 2006; however, the matter was passed and reassigned for hearing on May 22, 2006. There is no indication in the record that the exception was ever addressed, and those issues are not before this court. Sheriff Litchfield has not appealed the judgment of the trial court or filed a brief in this court.

      . The meaning of the term "fraternal organization” was addressed in Cole-Miers Post 3619 V.F.W. of Deridder v. State, Department of Revenue & Taxation, Office of Alcoholic Beverage Control, 98-1879 (La.App. 3 Cir. 7/14/99), 747 So.2d 598, reversed on other grounds, 99-2215 (La. 1/19/00), 765 So.2d 312. In that case, the third circuit looked to Black’s Law Dictionary (4th ed.1951) to determine the meaning of the term "fraternal organization” within the context of LSA-R.S. 26:81(E), which exempted fraternal organizations from certain prohibitions concerning the issuance of liquor licenses. In reliance on Black's Law Dictionary, the third circuit determined that the plaintiff qualified as a “fraternal organization” within the meaning of the statute. Cole-Miers, 98-1879 at pp. 5-6, 747 So.2d at 601 -602.

      . The term "recreation” is defined in Webster’s II New College Dictionary, 927 (1995) as “[rjefreshment of one's mind or body after work through an amusing or stimulating activity.” The entry goes further to explain that recreation "implies something that restores one’s strength, spirits, or vitality.”


author: DOWNING, J. WELCH, J., PETTIGREW, J.,

text:
    Bobbie BOUQUET and James W. Bouquet, Jr. v. WAL-MART STORES, INC.
    No. 2006 CA 1811.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2007.
    Writ Denied April 4, 2008.
    Rehearing Granted Jan. 10, 2008.

      Peyton P. Murphy, Lewis Unglesby, Baton Rouge, LA, for Plaintiffs-Appellants Bobbie and James W. Bouquet, Jr.
    Mark D. Plaisance, Baker, LA, Appellate for Plaintiffs-Appellants Bobbie and James W. Bouquet, Jr.
    Roy C. Beard, Sidney J. Hardy, Metair-ie, LA for Defendant-Appellee Wal-Mart Louisiana, L.L.C.
    Before GUIDRY, PETTIGREW, DOWNING, HUGHES and WELCH, JJ.
   DOWNING, J.

12This is an action for personal injuries sustained by the plaintiff, a store patron, who claimed to have sustained injury when she slipped and fell while shopping at defendant’s store. Following a trial by jury, plaintiff was awarded $115,000.00 in general damages, $110,000.00 in future medical expenses, and $143,766.30 in past medical expenses. Plaintiffs husband also received an award of $15,000.00 for his loss of consortium. The trial court thereafter denied plaintiffs’ motions for additur, JNOV, and in the alternative, for a new trial. Plaintiffs have appealed. For the reasons that follow, we reverse.

FACTS

On August 26, 2002, plaintiff, Bobbie Bouquet, was a patron of the Wal-Mart store located at 14740 Plank Road in Baker, Louisiana. As Mrs. Bouquet was walking through the pet department of the aforementioned store, she allegedly slipped and fell due to water on the floor in front of the fish aquariums. According to the testimony of Mrs. Bouquet, her right foot slipped and she fell to the floor on her buttocks. Following her fall, Mrs. Bouquet claimed to have noticed paper towels on the floor, as if someone had previously attempted to wipe up the water.

After reporting the accident to store personnel, Mrs. Bouquet and her husband, James W. Bouquet, Jr. (also a plaintiff herein), continued along their planned journey to their daughter’s home in Kent-wood, Louisiana. Several hours after arriving at her daughter’s home, Mrs. Bouquet testified that her back pain increased and she sought treatment at the emergency room of Lallie Kemp Hospital. After filling out the necessary paperwork, Mrs. Bouquet claimed that she was required to wait approximately eight hours until she left the hospital without seeing a doctor.

Mrs. Bouquet testified that she traveled to Baton Rouge the following day and sought treatment at the walk-in clinic at Earl K. Long Medical Center. Personnel at the hospital took x-rays of Mrs. Bouquet’s left knee and lumbar spine, and prescribed a muscle relaxant together with anti-inflammatory |smedication. On September 4, '2002, Mrs. Bouquet sought treatment from Dr. Charles K. Angelo, Jr., a family practitioner in Donaldsonville, Louisiana. At this point, Mrs. Bouquet testified that she obtained an attorney, and was referred on September 12, 2002, to the care of Dr. F. Allen Johnston, an orthopedic surgeon in Baton Rouge, Louisiana. Dr. Johnston treated Mrs. Bouquet conservatively, prescribing anti-inflammatory medication and physical therapy. When Mrs. Bouquet returned to Dr. Johnston on October 31, 2002, with continued complaints of unremitting pain in her lower back, Dr. Johnston ordered an MRI. The results of the MRI suggested degenerative problems between Mrs. Bouquet’s fourth and fifth vertebrae. Dr. Johnston thereafter scheduled Mrs. Bouquet to undergo one, then later a second, epidural steroid injection, in an effort to alleviate the irritation in the nerve root and lessen the pain radiating down her leg.

When the epidural steroid injections failed to diminish Mrs. Bouquet’s complaints of pain in her lower back, Dr. Johnston referred Mrs. Bouquet to a fellow orthopedic surgeon, Dr. Jorge Isaza, for a surgical evaluation. Dr. Isaza began treating Mrs. Bouquet on February 21, 2003. Dr. Isaza reviewed Mrs. Bouquet’s medical records and ordered additional testing, including a lumbar myelogram, in an attempt to diagnose Mrs. Bouquet’s ongoing complaints of lower back pain. At trial, Dr. Isaza conceded that many of the findings that he observed (i.e., lumbar os-teophytes, narrowing of the disc space, foraminal stenosis, and facet hypotrophy) were degenerative conditions that predated Mrs. Bouquet’s fall at Wal-Mart. Based upon these findings, Dr. Isaza performed a lumbar fusion at the L4-5 level on May 10, 2004.

Dr. Isaza referred Mrs. Bouquet to Dr. John E. Clark, a Baton Rouge physician, specializing in physical medicine, rehabilitation, and pain management. Dr. Clark initially saw Mrs. Bouquet prior to her surgery in August 2003, and attempted, through pain management techniques, to obviate the need for surgery. Unfortunately, Dr. Clark was unable to alleviate Mrs. Bouquet’s pain. Following the surgery performed by Dr. Isaza, Mrs. Bouquet no longer Rcomplained of pain in her leg, but continued to express complaints of pain in her lower back and- buttocks. Dr. Clark. continued to treat Mrs. Bouquet with narcotic pain medications, antidepressants, muscle relaxants, and a series of steroid injections.

Mrs. Bouquet also saw Dr. Robert Davis, a psychologist, who diagnosed her with clinical depression and psychosis associated with her physical pain and limitations. Prior to trial, Mrs. Bouquet also saw Dr. J. Michael Burdine, a board-certified pain .management specialist, who testified via deposition that his office had provided Mrs. Bouquet with routine literature regarding further treatment options that might help to lessen her pain. These treatment options included implantation of a spinal cord stimulator, intrathecal infusion device, or possibly, additional lumbar surgery at some point in the future.

ACTION OF THE TRIAL COURT

On July 10, 2003, Mr. and Mrs. Bouquet (hereinafter referred to collectively as “plaintiffs”) filed suit in East Baton Rouge Parish, naming Wal-Mart Stores, Inc. (“Wal-Mart”) as a defendant. Wal-Mart later responded to the petition filed by plaintiffs, generally denying the’allegations contained therein, and asserted a third party demand against Feather & Fin Ranch (hereinafter “Feather & Fin”), and its insurer, Travelers Property Casualty Company of America (hereinafter “Travelers”). Wal-Mart claimed that at the time of Mrs. Bouquet’s alleged accident, Feather & Fin was providing maintenance service to Wal-Mart’s aquariums and related appurtenances in accordance with a vendor’s agreement executed by representatives of Feather & Fin and Wal-Mart.

On December 1, 2004, plaintiffs filed an amended and supplemental petition, naming Feather & Fin and Travelers as additional defendants therein. Wal-Mart and plaintiffs later moved to dismiss their claims against Feather & Fin and Travelers on March 29, 2005 and April 4, 2005, respectively.

This matter ultimately proceeded to a trial by jury on January 31, 2006 through February 2, 2006. After listening to the evidence presented and the | r,charges of the trial court, the jury returned a verdict in favor of plaintiffs and against the defendant, Wal-Mart. The jury awarded to Mrs. Bouquet the following sums:

Past medical expenses.$ 143,766.30
Future medical expenses.$ 110,000.00
Physical pain and suffering (past and future)$ 60,000.00
Mental pain and suffering (past and future)... $ 50,000.00
Loss of enjoyment of life.$ 15,000.00
TOTAL.$368,766.30

In addition, the jury awarded to Mr. Bouquet the following sum:

Loss of consortium.$ 15,000.00

Believing that the amounts awarded by the jury were unreasonably low, plaintiffs thereafter filed a Rule for Additur, a Motion for JNOV, and in the alternative, for a New Trial. At the conclusion of a hearing held on May 22, 2006, the trial court rendered a judgment in open court denying the plaintiffs’ motions. Plaintiffs thereafter appealed.

ISSUES PRESENTED FOR REVIEW

In connection with their appeal in this matter, the plaintiffs present the following issues for review and consideration by this court:

1. Is a jury award of $115,000 in general damages unreasonable when the plaintiff has a lumbar disc fusion, has nearly all of her movements restricted, and must take medicine the remainder of her life to make her pain tolerable?
2. When expert testimony demonstrates that future medical treatment is necessary and that the present value of future medical expenses is no less than $310,338 and maybe as high as $472,404, does a jury commit error by awarding only $110,000?
3.When the spouse of an injured party must perform all household duties, has no intimate relations with his injured spouse, and must assist that spouse with her personal hygiene, does a jury commit error by awarding only $15,000 in consortium damages?

STANDARD OF REVIEW

In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the trier of fact. La. Civ.Code art. 2324.1. The standard for appellate review of general damage awards is set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein |8the Louisiana Supreme Court stated that “the discretion vested in the trier of fact is ‘great,’ and even vast, so that the appellate court should rarely disturb an award of general damages.” The appellate court’s initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Youn, 623 So.2d at 1260. The role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Millican v. Ponds, 99-1052, p. 6 (La.App. 1 Cir. 6/23/00), 762 So.2d 1188, 1192. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration. Youn, 623 So.2d at 1260.

ANALYSIS

The issues raised by the plaintiffs in this appeal challenge the adequacy of the quantum of damages awarded by the jury.

Based upon a thorough review of evidence before us, we find that the jury abused its discretion by awarding an inadequate award of only $115,000.00 in general damages. Once it is determined that there has been an abuse of discretion then we must determine the lowest point which is reasonably within the discretion of the jury. A review of prior damage awards for comparable injuries indicates that the lowest reasonable award of general damages that was with the jury’s discretion would have been $200,000.00. See Use’ v. Use’, 94-0972, p. 15 (La.App. 1 Cir. 4/7/95), 654 So.2d 1355, 1366, and Cheramie v. Contract Haulers, Inc., 98-1399, p. 7 (La.App. 1 Cir. 9/24/99), 754 So.2d 987, 991.

|7We do not find that the jury abused its discretion in the award of future medicals nor do we find that the jury abused its discretion in the award of consortium to James W. Bouquet, Jr.

DECREE

For the reasons above, we increase the general damages award of Bobbie Bouquet from $115,000.00 to $200,000.00. In all other awards, we affirm the trial court.

AMENDED AND AFFIRMED AS AMENDED.

GUIDRY, P., concurs in-the result.

WELCH J., concurs and dissents for reasons assigned.

PETTIGREW, J., dissents and assigns reasons.

WELCH, J.,

concurring in part and dissenting in part.

Li agree with the majority that the jury abused its discretion by awarding only $115,000 in general damages and that the judgment should be amended to reflect a general damage award of $200,000, the lowest award reasonably within the jury’s discretion. However, I believe that the jury also abused its discretion in the award of future medical expenses to Mrs. Bouquet and in the award of loss of consortium to Mr. Bouquet. Therefore, I respectfully dissent in part.

The jury awarded Mrs. Bouquet the sum of $110,000 for future medical expenses. Mrs. Bouquet contends that the jury’s award was erroneous and an abuse of discretion because the uncontradicted evidence at trial demonstrated that ,she will incur approximately $310,338 to $472,404 in future medical expenses during her lifetime.

Future medical expenses must be established with some degree of certainty. Hymel v. HMO of Louisiana, Inc., 2006-0042, p. 26 (La.App. 1st Cir.11/15/06), 951 So.2d 187, 206, writ denied, 2006-2938 (La.2/16/07), 949 So.2d 425. However, an award for future medical expenses is by nature somewhat speculative. Id. An award for future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. Id. In such a case, the court should award all future medical expenses that the medical evidence establishes that the plaintiff, more probable than not, will be required to incur. Id. An appellate court should not set aside an award for future medical expenses 12absent an abuse of the trier of fact’s discretion. Id.

The evidence in the record established that as a result of Mrs. Bouquet’s injuries to her spine, she will require pain medication and medical treatment for the remainder of her life. The testimony of Mrs. Bouquet’s treating physicians established that Mrs. Bouquet is currently prescribed the prescription drug oxycodone. Mrs. Bouquet’s physicians further explained that Mrs. Bouquet will have to take this drug on a daily basis until she becomes tolerant of the medication, at which point she will need either intrathecal drug therapy or another surgery.

According to Randy Rice, Ph.D., Mrs. Bouquet’s expert in economics, the present day value of Mrs. Bouquet’s total future medical expenses was computed to be approximately $310,338 (if Mrs. Bouquet was placed on intrathecal drug therapy and has a future surgery) or $472,404 (if Mrs. Bouquet remained on medication for the remainder of her life). Dr. Rice’s projections were based upon the life care plan prepared on behalf of Mrs. Bouquet by Stephanie Chalfin, a vocational rehabilitation consultant and life care planner, and on the assumption that Mrs. Bouquet’s remaining life expectancy was approximately 27.22 years according to the life expectancy tables published by the National Center for Health Statistics. This evidence was uncontradicted.

Therefore, based upon my review of the record, I believe that the jury abused its discretion in awarding Mrs. Bouquet only $110,000 in future medical expenses, a sum that would not even cover half of Mrs. Bouquet’s projected future medical expenses and was apparently based on a hypothetical (and speculative) suggestion during the defendant’s cross examination of Dr. Rice that Mrs. Bouquet’s remaining life expectancy was limited to 17.22 years. But, since the defendant did not present any evidence — expert or otherwise — to contradict Dr. Rice’s findings or to suggest that Mrs. Bouquet’s life span was less than the normal |slife expectancy established by Dr. Rice, there was no factual basis in the record for such an award by the jury, and therefore, an award of $110,000 was not reasonably within the jury’s discretion. Rather, the uncontradicted evidence in the record established that Mrs. Bouquet will, more likely than not, incur future medical expenses between $310,338 to $472,404, and therefore an award of $310,338 was the lowest amount reasonably within the jury’s discretion under the facts of this case. Accordingly, I would also amend the trial court’s judgment insofar as it awarded the plaintiff $110,000 in future medical expenses, and I would raise that award to $310,338.

I also believe that the jury’s award of only $15,000 to Mr. Bouquet for his loss of consortium claim was an abuse of discretion. The claim for loss of consortium is broken down into several components including loss of love and affection, society and companionship, sexual relations, the right of performance of material services, right of support, aid and assistance, and felicity. Frazer v. St. Tammany Parish School Board, 99-2017, p. 11 (La.App.12/22/00), 774 So.2d 1227, 1235, writ denied, 2001-0233 (La.3/23/01), 787 So. 2d 1001. Proof of any of these elements is sufficient for an award of consortium. Id. Since loss of consortium is a type of general damages, the trier of fact (in this ease the jury) has much discretion in assessing loss of consortium damages. Jones v. Harris, 2004-0965, p. 23 (La.App. 4th Cir.2/2/05), 896 So.2d 237, 251.

In this case, Mr. Bouquet testified that he has also been affected by Mrs. Bouquet’s injuries. At the time of trial, the Bouquets had been married for thirty-eight years. Mr. Bouquet testified that since the accident, Mrs. Bouquet is always on medication and is practically bedridden, he is unable to have a sexual relationship with her, and they are no longer socially active. Mr. Bouquet also testified that before the accident, he and Mrs. Bouquet enjoyed spending time | together outside fishing, crawfishing, and boating; but now, they are no longer able to do so. Mr. Bouquet explained that he is now primarily responsible for all of the cooking, cleaning, housework, and driving. And, he must also attend to his wife’s personal hygiene needs, such as washing her hair and shaving her legs.

I believe that it is clear from the record that Mr. Bouquet demonstrated extensive loss of society and companionship and loss of happiness in his marriage as a result of Mrs. Bouquet’s accident, and therefore, an award of only $15,000 was an abuse of discretion. An examination of the jurisprudence leads me to believe that the lowest loss of consortium award appropriate under the particular circumstances of this case is $40,000. See Jones, 2004-0965 at p. 24, 896 So.2d at 251; Runnels v. Esteves, 550 So.2d 1225 (La.App. 4th Cir. 1989); and Linnear v. CenterPoint Energy Entex/Reliant Energy, 41,171, p. 15 (La.App. 2nd Cir.8/4/06), 945 So.2d 1, 22, reversed on other grounds, 2006-3030 (La.9/5/07), 966 So.2d 36. Accordingly, I would also amend the trial court’s judgment insofar as it awarded Mr. Bouquet $15,000 in loss of consortium and I would raise that award to $40,000.

PETTIGREW, J.,

dissenting.

hi respectfully dissent.

The majority is rejecting the jury’s reasonable evaluations of credibility and reasonable inferences of fact and impermissi-bly substituting its own evaluations and inferences. For the reasons that follow, I would affirm the judgment of the trial court.

The issues raised by the plaintiffs in this appeal challenge the adequacy of the quantum of damages awarded by the jury. Through my review of the record in this matter, I find testimony and documentary evidence that calls into question Mrs. Bouquet’s credibility with respect to the level of pain she experienced, both prior to and following surgery; the extent of her disability; and her need for high doses of narcotic pain medication. In addition, the record before this court presents many different possibilities with respect to future medical treatment; however, the record fails to demonstrate that Mrs. Bouquet will necessarily require or likely elect to undergo the treatment options available. Finally, it is clear from the record that Mrs. Bouquet’s activities were restricted prior to this accident by the fact that she had been diagnosed as suffering from sar-coid, a condition characterized by an inflammation of the lungs, as well as emphysema, an ongoing destruction of the lung. These conditions caused Mrs. Bouquet to experience extreme shortness of breath that worsened upon exertion and were responsible in part for her award of Social Security Disability benefits on March 23, 2001. Thus, it is clear that even prior to the accident at Wal-Mart, Mrs. Bouquet was not in perfect health arid could not participate in many of the outdoor activities that she and her husband once enjoyed.

Based upon a thorough review of the evidence before this court, I find no abuse of discretion with respect to the jury’s award of $115,000.00 in general damages, 12$110,000.00 in future medical expenses, and $15,000.00 as damages for Mr. Bouquet’s loss of consortium. While these damage awards may, in the opinion of some, fall on the low side, said awards are not so low as to constitute an abuse of the trial court’s vast discretion. Given the particular circumstances presented by the facts of this case, I cannot say that the amounts awarded by the jury fall below that which a reasonable trier of fact could assess. See Youn v. Maritime Overseas Corp., 628 So.2d 1257, 1261 (La.1993), cert. denied,, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

In disturbing the damage awards made by the jury, the majority plainly substituted its own evaluation of the record for the reasonable evaluations of credibility and reasonable inferences of fact made by the jury. Accordingly, I respectfully dissent.

      . During the course of the trial, the parties agreed, with permission from the court, to orally amend the record to reflect the proper name of the defendant in this case, Wal-Mart Louisiana, LLC.