author: GASKINS, J.

text:
    Jefferi RYALS and Willie Tatum, Jr., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Ashley N. Shively, Travis Grace and Greg Whitaker, Defendants-Appellees.
    No. 42,351-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      J. Antonio Tramontana, for Plaintiffs-Appellants.
    Hayes, Harkey, Smith & Cascio by John C. Roa, Monroe, for Defendants-Appel-lees, State Farm Mutual Automobile Insurance Co. and Ashley Shively.
    Nelson, Zentner, Sartor & Snellings, LLC by Thomas G. Zentner, Jr., Monroe, for Defendant-Appellee, Travis Grace.
    Montgomery, Barnett, Brown, Hammond & Mintz, L.L.P. by Christopher E. Carey, New Orleans, for Defendant-Ap-pellee, Beacon One Insurance Company.
    Hudson, Potts & Bernstein, L.L.P. by D. Brian Allen, Monroe, for Defendant-Ap-pellee, DMJ Properties, LLC, d/b/a Cypress Landing.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

hThe parents of a deceased occupant involved in a one-car accident appeal from a trial court ruling granting summary judgment in favor of the surviving occupant and. the car’s insurer on the basis that the deceased occupant was driving at the time of the accident. We reverse and remand.

FACTS'

In the late night hours of June 5, 2002, or the early morning hours of June 6, 2002, 16-year-old Jodi Tatum and 19-year-old Ashley Shively were in a one-car accident while traveling on Louisiana Highway 128 in Tensas Parish. The car, a 2001 Pontiac Grand Am which was owned by Jodi’s grandmother, Odelle Tatum, rolled over several times. Jodi was ejected from the vehicle and sustained injuries, including a crushed pelvis, which were ultimately fatal. Ashley was found in the passenger seat; she survived her injuries but had no memory of the accident or the events immediately before it.

On June 4, 2003, Jodi’s parents, Jefferi Ryals and Willie Tatum, Jr., filed suit in Franklin Parish against Ashley, who they alleged was driving at the time of the accident, and State Farm Mutual Automobile Insurance Company, which provided insurance for the vehicle. Also sued were Travis Grace and Greg Whitaker, adults who allegedly supplied the girls, both of whom were under the legal drinking age, with alcohol during the day of June 5, 2002, while boating on Lake Bruin. The plaintiffs further alleged that Ashley gave Jodi alcohol or allowed or encouraged her to drink it.

I Jn her answer, Ashley admitted that the men had given alcohol to her and Jodi. However, she stated that Jodi had been driving at the time of the accident. In an answer filed on behalf of Ashley and State Farm, State Farm admitted issuing an insurance policy to Kevin McMurray and Odelle Tatum. In an amending and supplemental answer, they asserted that the State Farm policy excluded coverage for the plaintiffs’ claim that Ashley gave Jodi alcohol.

In January 2006, State Farm and Ashley filed a motion for summary judgment. They asserted that the deposition testimony and reports of all the investigating police officers concluded that Jodi was the driver and that Ashley was only a passenger in the car owned by Jodi’s grandmother. As such, Ashley owed no duty to Jodi. In support of their motion, the movants cited the testimony of Senior Trooper James Richardson, who was trained in accident reconstruction. He concluded that Jodi’s final resting place at the accident scene was consistent with her being ejected through the driver’s side window and that several factors, including the design of the vehicle, made the occurrence of a “crossover” — Ashley ending up in the passenger seat if she had been driving — “very unlikely.” Deputy John Mathews of the Tensas Parish Sheriffs Office, who had investigated at least 500 accidents during his lengthy law enforcement career, was the first officer on the scene and he opined that Jodi was the driver. He also testified in his deposition that he had been informed of a prior incident by Deputy Don McDuffy of the Franklin Parish Sheriffs Office in which Jodi had been driving her grandmother’s car without a driver’s license. Trooper Floyd McElroy, who|swas also at the accident scene, determined that the accident was caused by Jodi’s careless operation of the car. When Jodi’s family claimed that Jodi was not the driver, Senior Trooper Richardson and Trooper McElroy reexamined the matter. The review included looking at the injuries sustained by the surviving occupant and examining the seat belts in the car. They concluded again that Jodi was, in fact, the driver. Additionally, Trooper McElroy spoke to Deputy McDuffy, who recounted stopping the girls a week before the accident; Jodi, who had no driver’s license, was driving the car on that occasion.

The movants also presented deposition testimony from two of the men who had been boating with the girls the afternoon before the accident and who parted company with them before the accident. Travis Grace stated that he, last saw the girls walking down a driveway. Mead Hard-wick said he did not recall which girl was driving when they departed.

The plaintiffs filed an opposition to the motion for summary judgment. In support of their argument that Ashley was driving at the time of the accident, they submitted excerpts from Ashley’s deposition in which she admitted driving the car in the past and a cell phone video that showed Ashley driving the car at night. They also contended that Ashley was three inches shorter than Jodi and that the driver’s seat was closer to the dashboard than the passenger seat. In a deposition excerpt, Joseph Brown, another man who went boating with the girls before the accident, described the brunette as “kind of short,” while the “blonde was kind of tall.” According to him, the brunette, who was shorter, got in the driver’s seat 14when they left. (However, he also stated that the taller girl was “[t]he blonde, Ashley.”)

The plaintiffs also asserted that the injuries sustained by the girls indicated that Jodi was an ejected passenger whose pelvis was crushed by the car when it rolled over her. They maintained that Ashley’s injuries were consistent with driver side restraints and airbag injuries, as well as hitting the steering wheel. Other factors they pointed to were Ashley’s driver’s license being found at the scene, the passenger side window being down, and Ashley being found in the passenger seat without a seat belt. The plaintiffs reiterated their allegations that Ashley contributed to Jodi’s delinquency by allowing, giving or encouraging intoxicants. They further urged that even if Ashley was just a passenger, she should not have let Jodi drive if she was intoxicated.

The movants responded with another excerpt from Joseph Brown’s deposition in which he recounted hearing that the brunette girl had died and that it was possible that he could have been mistaken about who was driving.

On May 15, 2006, the motion for summary judgment was argued and taken under advisement. On August 30, 2006, the trial court issued written reasons and granted summary judgment in favor of Ashley and State Farm. The trial court found that all of the expert opinion testimony by qualified and disinterested personnel indicated that Jodi was driving at the time of the 1^accident. The court noted that at trial the plaintiffs will have the burden of proving who was driving and that they presented no expert testimony to rebut that put forth by the movants. Instead, the court found that the plaintiffs merely offered arguments interpreting the facts differently. The trial court also found that the plaintiffs failed to show that Ashley had any duty to supervise Jodi or that Ashley supplied Jodi with alcohol. Judgment in conformity with the written reasons was signed December 8, 2006.

The plaintiffs appeal.

SUMMARY JUDGMENT

Law

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Huston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

I r,The burden of proof is on the movant. If, as in this case, the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Foshee v. Louisiana Farm Bureau Casualty Insurance Company, 41,842 (La.App.2d Cir.1/31/07), 948 So.2d 1171, writ denied, 2007-0483 (La.4/20/07), 954 So.2d 169.

Summary judgment should be denied if there is (1) a genuine issue of fact and (2) it is material to the case. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Champagne v. Ward, 2003-3211 (La.1/19/05), 893 So.2d 773. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37. A “material” fact is one that would matter on the trial on the merits. Smith v. Our Lady of the Lake Hospital, Inc., supra.

| tDiscussion

The identity of the driver in this case involving a one-car accident is obviously “material.” The primary question is whether it is “genuine.” After a careful review of the evidence submitted both for and against summary judgment, we conclude that it is.

In support of their motion for summary judgment, the appellees relied upon the testimony of three law enforcement officers who were present at the scene. Although all three of them opined that Jodi was the driver, they were not universal in their observations and conclusions concerning the accident.

Senior Trooper Richardson and Trooper McElroy both arrived at the scene after the girls were transported to the hospital. They stated that Jodi was found east of the car’s final resting spot, and the crash report written by Trooper McElroy so reflected. This indicated to Senior Trooper Richardson, an accident reconstruction expert, that Jodi was ejected from the driver’s window. According to him, had she been ejected from the passenger’s window, she would have come to rest in the debris trail west of the vehicle’s final resting spot. He excluded the rear window as a potential ejection point.

Deputy Mathews, the first law enforcement officer at the accident site, was present when Jodi was found. According to both his incident report and his deposition testimony, she was discovered west of the car’s final resting spot. We note that such a location would place her in the car’s debris trail which, according to Senior Trooper Richardson’s analysis, | ¿would indicate that she was ejected through the passenger’s window. Although Deputy Mathews was not an accident reconstruction expert, he had worked at least 500 car accidents during his law enforcement career. In his opinion, Jodi was ejected through the back window, which was broken out like the side windows.

Although the coroner’s report indicated that no autopsy was initially performed, it concluded that Jodi suffered closed head injuries and a fractured pelvis. Jodi’s body was subsequently exhumed in August 2002, and an autopsy was performed at that time. The autopsy report stated that she died of a spinal cord injury and that she suffered “severe crushing injuries of the pelvis, indicating that the vehicle passed over her after she was ejected.”

The point from which Jodi was ejected is of paramount importance in this case because it will indicate whether or not she was driving at the time of the accident. The exact location where she was found at the accident scene is thus of great significance. Given the conflicts in the evidence as to the location of the spot where Jodi came to rest after the accident and the credibility calls necessary to resolve these conflicts, we find that summary judgment was not appropriate in this case at this juncture. Accordingly, we reverse the trial court ruling granting summary judgment in favor of Ashley Shively and State Farm Mutual Automobile Insurance Company.

^CONCLUSION

The judgment of the trial court is reversed, and the matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the appel-lees.

REVERSED AND REMANDED.

      . The exact time of the accident is unknown. The girls left a group of friends around 9 p.m. A watch found at the accident scene was stopped at about 9:10 p.m. The wrecked car was not found until approximately 1 a.m.

      . In Jodi’s autopsy report, her height is given as 5' 10" and her hair is described as blonde; in the coroner’s report, her hair color is given as brownish-blond. In her deposition, Ashley gave her own height as 5' 7" and she said that Jodi was a little bit taller than her.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Richard GREEN, individually and as Administrator for his minor children, Carlin Seth Green and Steven Chase Green, Plaintiff-Appellee, v. Rodney Lyle NUNLEY and State Farm Mutual Automobile Insurance Company, Defendants-Appellants. Lynn Green, Plaintiff-Appellee, v. Rodney Lyle Nunley, and State Farm Mutual Automobile Insurance Company, Defendants-Appellants.
    Nos. 42,343-CA, 42,344-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Kitchens, Benton, Kitchens & Black by Graydon K. Kitchens III, Minden, for Appellants Rodney Lyle Nunley and State Farm Mutual Automobile Insurance Company.
    Chris J. Roy, Jr., Alexandria, for Appel-lee Richard Green.
    Robert Lawrence Beck, Jr., Alexandria, for Appellee Lynn Green.
    Before GASKINS, DREW and ' LOLLEY, JJ.
   DREW, J.

1 TRichard Nunley and his liability insurer, State Farm Mutual Automobile Insurance Company, appeal the finding of liability and award of damages in this personal injury action arising from a vehicular accident. We affirm.

FACTS

On the morning of September 8, 2003, Lynn Green was driving her sons, Steven Chase Green (“Chase”) and Carlin Seth Green (“Seth”), in her white 1987 Chevrolet pickup truck from Castor to a pediatrician’s office in Shreveport. Mrs. Green was proceeding northbound along a stretch of Highway 71, which is a four-lane road divided by a median and which is known as Barksdale Blvd. Jimmie Davis Highway (“Jimmie Davis”) forms a T-type intersection with Highway 71, and at that intersection, there is a third lane on Highway 71 by which northbound motorists can make left turns onto Jimmie Davis. As Mrs. Green approached the intersection, her vehicle entered the turn lane in order to make a left turn onto Jimmie Davis.

At the same time, Rodney Nunley, who delivered bread as an independent contractor for a bakery, was driving his bread truck southbound in the outside lane on Highway 71. His truck collided with Nun-ley’s truck as she attempted to make her left turn. The left front of Nunley’s truck struck the right front fender wall on the passenger side of Mrs. Green’s truck and then behind the passenger door. The collision caused Mrs. Green’s truck to spin around, so that her truck ended up facing southeast.

Richard Green, Mrs. Green’s husband, filed suit on behalf of his sons, Chase and Seth, against Nunley and his insurer State Farm. Mrs. Green | ¿filed a separate suit on her own behalf against the same defendants. The two lawsuits were consolidated.

Following a bench trial on the merits, the trial court rendered judgment in favor of plaintiffs. The court concluded that Mrs. Green turned with a green arrow and found that Nunley was solely at fault for causing the accident. Mrs. Green was awarded general damages of $25,000.00, medical expenses of $3,028.24, and $1,325.00 for the damages to her vehicle. Mr. Green, on behalf of Chase, was awarded $10,000.00 in general damages and $7,439.34 in medical expenses. Mr. Green, on behalf of Seth, was awarded $5,000.00 in general damages, $4,493.71 in past medical expenses, and $1,000.00 in future medical expenses. Defendants have appealed.

DISCUSSION — LIABILITY

Defendants argue on appeal that the trial court erred in finding that Mrs. Green satisfied her burden of proof on the issue of liability. They contend that most of the fault for the accident, if not all of it, should have been assigned to Mrs. Green.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State, Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable Devaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the trier of fact’s findings. Rosell, supra.

Defendants urge the application of La. R.S. 32:104(A), which provides:

No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

In its reasons for judgment, the trial court referred to La. R.S. 32:232(l)(b), which states:

Vehicular traffic facing a green arrow signal, shown alone or in combination with another indication, may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time. Such vehicular traffic shall yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.

Because a left turn is one of the most dangerous maneuvers for a driver to execute, there is a presumption of negligence on a left-turning motorist involved in a motor vehicle accident. See Hughes v. Scottsdale Ins. Co., 35,043 (La.App.2d Cir.8/22/01), 793 So.2d 537. This is in accord with the statutory duty found in La. R.S. 32:122 that a left-turning motorist at an intersection “shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.”

A motorist attempting to make a left turn is under a duty to exercise a very high degree of care, even when executing the turn on the authority of an illuminated left turn signal. Christaw v. O’Bryant, 535 So.2d 1020 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1223 (La.1989).

Although a burden rests on the motorist who desires to make a left turn to explain how the accident occurred and to show that he is free from negligence, this burden may be discharged by the left-turning motorist proving that the left turn arrow was illuminated. See Lewis v. Smith, 40,590 (La.App.2d Cir.1/25/06), 920 So.2d 920.

Mrs. Green testified that when her vehicle entered the turn lane at the intersection, there were two vehicles stopped in front of her. The light was red. When the light changed to green, the first vehicle made its left turn, followed by the second vehicle, which was a black SUV. Mrs. Green asserted that when the green arrow became illuminated, her car was stopped. She began making her turn through the intersection and the accident occurred.

Mrs. Green’s older son, Chase, who was 12 at the time of the accident, recalled that there was an SUV in front of their truck in the turn lane. Chase testified that his mother had the green light and the green arrow |swhen she began her turn. Chase also stated that he saw the arrow change from red to green, then he agreed that the signal went from a red light to a green arrow; Chase explained that he generally meant what his mom had earlier testified about regarding the traffic light sequence.

Mrs. Green did not see Nunley’s bread truck prior to the collision. She conceded that there was nothing blocking her view of southbound traffic on Highway 71 while she was waiting to make her turn. Mrs. Green was not looking at oncoming traffic as she was looking at the traffic light waiting for the green arrow. Chase also did not see Nunley’s truck until after the collision.

Nunley described his bread truck as a traveling billboard measuring 8 feet wide and 28 feet long, with blue, red, and yellow stripes across the top. He testified that he was driving in the right lane as he approached the intersection, with his vehicle being the only southbound vehicle in the immediate area.

According to Nunley, the traffic light facing him as he drove toward the intersection was green at the time and it never changed. When his truck was approximately three truck lengths from the intersection, a white SUV turned left in front of him. The white SUV’s maneuver startled him, so he removed his foot from the accelerator. According to Nunley, following right behind the white SUV in making the left turn was Mrs. Green’s truck. Nunley did not think that Mrs. Green even looked before she turned. | fiNunley slammed on his brakes, and just prior to making impact, he steered to the right to avoid a head-on collision.

Nunley estimated that he decelerated to 30-35 mph at the time of the collision. Nunley was unable to recall what happened immediately after the impact as he was knocked unconscious. His truck apparently rolled into a third vehicle after he had been removed from the truck.

Thomas Camp, a patrol officer with the Bossier City Police Department, investigated the accident. He determined that the traffic signals were sequencing properly. His investigation also determined that three vehicles were hit: the bread truck hit the Green truck and then hit a car parked on the shoulder. Officer Camp guessed that the inside lane was where the collision between the Green truck and Nunley truck occurred. Officer Camp concluded that Mrs. Green committed a violation by turning left in disregard of the traffic signal, and that Nunley committed no violations; nevertheless, nobody was issued a citation.

Based upon our review of the record, we cannot conclude that the trial court was clearly wrong in finding Nunley solely at fault for the accident. The evidence establishes that Mrs. Green discharged her burden and proved Nunley’s negligence. Officer Camp determined that the lights were working properly. Therefore, because the trial court believed Mrs. Green’s position that she turned when she had the green arrow, this means that Nunley proceeded through the intersection against a red light. La. R.S. 1732:232(l)(b) commands that a motorist making a left turn protected by a green arrow yield the right of way to “pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.” (Our emphasis.) Nunley was neither a pedestrian nor, as a driver proceeding through a red light, “traffic lawfully” using the intersection.

Once Mrs. Green had a green arrow, she was under no obligation to keep her vehicle stationary until she determined if Nun-ley, who was approaching the intersection, was going to heed the red light. As noted by this court:

A motorist favored with a green signal when approaching an intersection cannot depend exclusively on the favorable light. Rather, the motorist has a duty to watch for vehicles already in the intersection when the light changed; this duty does not extend to looking for traffic that has not yet entered the intersection.

Lewis, 40,590 at p. 6, 920 So.2d at 924-5.

Mrs. Green’s statement to Dr. Gleason as recorded in her patient history that she turned on a green light does not lessen Mrs. Green’s credibility. Although Dr. Gleason undoubtedly pays careful attention to a patient’s description of an accident in order to learn about the dynamics of a wreck as it relates to possible injuries, it would not be important to his treatment whether there was a green light or green arrow.

DISCUSSION — DAMAGES

Mrs. Green’s Injuries

Immediately after the accident, Mrs. Green was transported by ambulance to the emergency room of a local hospital. She complained of pain in the chest wall, neck, and right hip. X-rays of the cervical spine, | ¿¡chest, and right hip were all negative. The ER doctor’s diagnosis was a cervical strain and a right hip contusion. Mrs. Green was discharged, told to take Advil for pain, given a prescription for Lortab for intense pain, and instructed to follow up with her doctor.

The evening of the accident, Mrs. Green felt extremely sore. In particular, her neck, chest, lower stomach, and right buttock were hurting. Mrs. Green recalled that she remained extremely sore for the rest of the week and could hardly move. Her husband took off a week of work to help care for her and the children.

Mrs. Green was evaluated by Dr. Austin Gleason, an orthopaedic surgeon, on September 10. She complained of continued soreness in her arms, back, stomach, right hip, and right ribs. Mrs. Green exhibited bruises over the left knee, right pelvic crest, and left biceps. There was also a contusion over the right greater trochan-ter. Decreased ranges of motion in the neck, lower back, and right hip were noted. Dr. Gleason’s impression was that Mrs. Green had a myoligamentous injury of the cervical and lumbar spines, and contusions of the left arm, right hip, and left knee. He recommended that Mrs. Green avoid vigorous activities, but that she should walk for exercise and do back and neck exercises.

Mrs. Green returned for an evaluation by Dr. Gleason on October 1. It was noted that Mrs. Green was doing better in all regards, but she complained of continued pain in the mid-thoracic region of the spine, pain over the right greater trochan-ter where she had had a severe bruise, and numbness and tingling sensations in her left lateral thigh that may have been | arelated to her driving. Mrs. Green reported that prior to the accident she often walked up to four miles a day, but had recently only walked a mile and then had trouble getting out of bed the next day. Dr. Gleason believed that Mrs. Green was responding reasonably well, and he told her to slowly push toward normal activities and that the problems in her left lateral thigh should go away. Dr. Gleason also noted that the contusions on her arm and knee appeared to be healing well.

Dr. Gleason next examined Mrs. Green on October 22, 2003. It . was noted that Mrs. Green’s neck felt better, but she was still having pain in her upper thoracic spine, posterior midline. She estimated that her lower back was 50% better. She still had pain that was localized in her right buttock and right piriformis area, especially when using stairs, Dr. Gleason’s new diagnosis was piriformis tendinitis of the right hip, which he related to the auto accident. Although hip injections were mentioned as a possible treatment, Mrs. Green preferred to wait and to try to increase her activities.

On November 17, 2003, Mrs. Green told Dr. Gleason that her hip pain was better by 50% following an injection over her right piriformis. ImShe complained of left lower back pain, and she continued to have some limitation of motion. Mrs. Green also complained of pain in her knee that was not bothering her during her October visits. Dr. Gleason found a tender area in her right knee with possible minimal swelling, which he thought may have been caused by a hamstring tendon strain. Although he would have expected the right knee problem to manifest itself earlier, he recognized that it may have been masked by the pain from other injuries. Mrs. Green was given a prescription for Ultra-cet for pain relief, which was the first time Dr. Gleason prescribed pain medication for her.

Mrs. Green was examined by Dr. Gleason on December 1, 2003. She stated that she was 50% better in her hip and could live with it. Dr. Gleason felt that she probably still had piriformis tendinitis as she still experienced pain in the posterior trochanter area. He suggested that she return to her normal activities and come back for an injection if her symptoms continued. Mrs. Green was not treated by Dr. Gleason again for nearly two years.

Dr. M. Alan Brown, Mrs. Green’s internist, examined her on April 12, 2004. Mrs. Green complained to Dr. Brown that she had soreness in her upper chest. She testified that her chest hurt after the accident, but felt better until one morning when it began hurting as she tried to put her seatbelt on. This pain, which she attributed to a respiratory illness, worsened with coughing or deep breathing. Dr. Brown’s diagnosis was musculoskeletal CP, and he prescribed Mobic, an anti-inflammatory drug.

On November 19, 2005, Dr. Gleason treated Mrs. Green, who complained of pain over the piriformis tendon in the posterior aspect of the | fright hip in the right buttock area, with the pain exacerbated by flexion of the hip and external rotation. X-rays of the pelvis and right hip ordered by Dr. Gleason were normal. Dr. Gleason’s impression was piriformis tendinitis on the right. He encouraged Mrs. Green to continue taking Mobic to see if it helped. Injection of the hip, about which Mrs. Green was reluctant, was suggested as a last resort.

Dr. Gleason explained that the types of injuries sustained by Mrs. Green usually resolve on their own over time. However, Dr. Gleason testified that the longer piri-formis pain lasts, the worse the prognosis is for it to resolve, although he had never seen a piriformis tendinitis condition that was disabling. Dr. Gleason felt that the pain Mrs. Green was experiencing was a chronic condition. Mrs. Green stated that pain will sometimes flare up in the area of her right buttock if she does a lot of driving or standing. She described this pain as dull, sharp, and radiating.

Dr. Gleason has never recommended surgery for treatment of any of her conditions, nor has he prescribed physical therapy. The only physical limitation he placed on her was to take it easy for a few weeks.

Chase’s Damages

Chase testified that the collision caused him to be thrown into the passenger door, and he thought he hit the passenger side window with his head. He believed that he received a “little, bitty” scratch on his head. Mrs. Green remembered Chase had blood and a scratch on the top of his head.

Although Mrs. Green recalled that Chase said his head hurt when they were in the ambulance, the ER records reflect that Chase had no complaints |1g,when he was brought to the ER following the accident, and the ER doctor found no evidence of any injury. Chase recalled that while in the ambulance, he was more concerned about the conditions of his mother and brother than about himself. The day after the accident, Chase was examined by his pediatrician for respiratory ailments.

Chase testified that he began having problems about two days after the accident. He began to feel soreness and then stabbing pain in his back and shoulder blades. He later noticed that he had bruises on his knees and his hand.

Dr. Gleason examined Chase on October 8, 2003. Chase complained that on the day after the accident, he began experiencing pain in the areas of his shoulder blades and lower back, and that he had bruises on his right knee and right index finger, and a scratch on the right side of his head. Although most of his symptoms had resolved by the time he visited Dr. Gleason, Chase asserted that he still had pain in his neck and upper back around his shoulder blades. Chase also reported missing four days of school after the accident, and several half-days since then. Dr. Gleason found a 50% range of motion in Chase’s neck and upper back. Dr. Gleason’s impression was that Chase had a myolig-amentous injury of the upper thoracic spine, and he decided to conservatively treat Chase. His recommendation was for Chase to slowly approach normal activities and to be excused from PE classes at school.

11sDr. David Adams examined Chase on December 9, 2003. Dr. Adams noted that carrying a school backpack had increased Chase’s pain in the area of his shoulder blades. Chase, who had full range of motion, also complained of frequent headaches. Dr. Adams’s impressions were that Chase had bilateral periscapular myofas-cial pain syndrome and lumbar sprain/ strain. Dr. Adams noted that Chase’s lower back pain and periscapular pain were centralized and radiating into the extremities. This lower back pain was not present when Dr. Gleason had examined Chase. Dr. Adams recommended physical therapy, and for Chase to have an aggressive home program of ice, stretching of the periscapular muscles, and extension exercises for the lumbar spine.

Dr. Gleason next treated Chase on January 2, 2004. It was noted that the therapy was dramatically helping Chase, and that he was virtually asymptomatic except for some mild stiffness. Dr. Gleason recommended that Chase finish therapy and go back to PE. Chase returned to Dr. Gleason on January 19, 2004. Chase reported occasional pain, for which he took Tylenol, and that he had resumed his normal activities. Dr. Gleason noted that Chase had a near normal range of motion with no spasm, and he was discharged to return only if necessary.

Even after Chase was discharged in January 2004, he continued to have periodic problems with the neck and shoulder. According to Mrs. |uGreen, she had to bring Tylenol or Advil to Chase’s school numerous times because he complained that his desk made his neck and back hurt, and on other occasions she had to check him out of school. Chase also treated his pain with heating pads, stretching, and soakings. However, he returned to Dr. Gleason on February 2, 2005, because his pain would stop for a few days and then come back. Everyday activities could cause the pain to return.

Chase complained to Dr. Gleason in February 2005 that he continued to have pain in his neck and upper thoracic spine, with occasional headaches and pain between his shoulder blades. MRIs of Chase’s cervical and thoracic spines were ordered. These MRIs, which were not performed until October 18, 2005, were unremarkable. When evaluated by Dr. Gleason the next day, Chase reported pain in his neck and thoracic spine when sitting in certain positions, which Dr. Gleason thought might be caused by growing pains in his spine. Dr. Gleason did not think anything serious was occurring, and he encouraged Chase to do light weightlifting and stretching exercises for his back and neck. It was recommended that Chase return if necessary. Dr. Gleason agreed that the pain complaints during the 2005 examinations were consistent with the earlier complaints that were attributed to the accident.

Chase has continued to have periodic problems with his neck and shoulder, although the pain has not been as severe as it was right after the | ^accident. He felt better after being released by Dr. Gleason in 2004, and Chase thought his pain could be treated with Tylenol or stretching.

Chase’s recreational activities were not severely limited by his injuries. During the fall of 2003, Chase was able to hunt deer, climb into a box stand, shoot a bow once or twice, and fish. Chase testified that he had returned to normal activities at the time of the August 2006 trial, even when he felt pain. He was able to play Little League baseball in the summers of 2004 and 2005.

Chase did not mention lower back pain when he was first treated by Dr. Gleason. However, Chase explained that he did not complain about it to Dr. Gleason during that examination because he did not have the pain at that time. According to Chase, this pain materialized after he carried his backpack.

Seth’s Injuries

Seth, who was four years old at the time of the accident, was seated in his car seat which was positioned in the middle of the pickup’s only bench seat. Mrs. Green recalled that after the accident, Seth had blood all over his face and shirt, which alarmed her because she did not know exactly where he was cut. She did not see him make impact with any part of the truck during the accident. Chase remembered Seth bleeding from the mouth and spitting out a piece of glass.

Like his mother and brother, Seth was taken to the ER by ambulance. The notes from the ER reflect that Seth was not crying and had little to say. Mrs. Green stated that Seth was only crying a little just after the accident, |1fiand was calm. Seth had two lacerations on the right side of his face. One was 2.5 cm long and on his cheek, and the other was 1.5 cm long and at the corner of his mouth. Seth was sedated and both lacerations were sutured. A piece of glass was found in the shorter laceration. A C-spine X-ray was negative, as was a CT scan of the brain and facial bones. Mrs. Green believed the CT scans were performed because the ER doctors were concerned that Seth was not crying as much as they thought he would, and they wanted to ensure there was no brain damage. The Greens were instructed at discharge to check Seth every two hours because of a possible head injury.

Some glass remained in Seth’s mouth even after he was discharged and returned home. He missed preschool the week after the accident. Seth’s cheek was bruised for about a month, and his injury made it hard for him to eat. At times, Seth was fearful of eating because it might be painful.

On October 6, 2003, Seth was examined by otolaryngologist Dr. David Hilton on a referral from Seth’s pediatrician. Dr. Hill found a 1 cm subcutaneous mass in Seth’s right cheek that was compatible with a small resolving hematoma.

In April of 2004, Dr. Barron O’Neal, a plastic surgeon, examined the scar that remained from the laceration on Seth’s cheek. Dr. O’Neal recommended scar revision surgery, which would cost approximately $1,000. It was noted by Dr. O’Neal that some permanent scarring would remain even if Seth had the surgery.

117Mrs: Green testified that Seth gets upset by the scar on his face, and it bothers him at times. It was agreed that although the scar remains noticeable, it has gotten better. The Greens had delayed the scar revision in hopes that improvement over time would make the procedure unnecessary, but now plan on having it done.

Mrs. Green testified that Seth became hysterical when he got into a car the next day because he was worried about another accident. He still gets nervous any time they drive through the intersection of Jimmie Davis and Highway 71. The Greens have decided not to seek counseling for Seth, but rather to discuss issues within the family as they come up.

Summary

Defendants argue that the general damages awards for Mrs. Green and her two sons were excessive. The defendants also protest the amount of special damages awarded for Chase.

The trier of fact has much discretion when assessing damages in cases of offenses, quasi offenses, and quasi contracts. La. C.C. art. 2324.1. Before an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. 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).

It is only after an articulated analysis of the facts discloses an abuse of discretion that resort to prior awards in similar cases is proper. Dixon v. Tillman, 29,483 (La.App.2d Cir.5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174.

The proper procedure for determining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

Based upon this record, we cannot conclude that the trial court abused its broad discretion in finding that Seth was entitled to general damages of $5,000.00, that Chase was entitled to general damages of $10,000.00, and that Mrs. Green was entitled to general damages of $25,000.00. The general damages for all three are on the high side of reasonable, but not so excessive that an appeals court should reduce the awards.

Defendants additionally argue that the trial court erred in its award of special damages to Chase. They apparently believe Chase can only recover for his medical expenses incurred prior to January 19, 2004, as they assert that any treatment after this date was for conditions not related to the automobile accident.

We note that Dr. Gleason agreed when asked if it was his opinion that more likely than not, his treatment, as well as all the other treatment of Chase, was related to the car accident. He also agreed that the complaints of pain made in 2005 were consistent with the complaints made earlier. Finally, we are mindful that a tortfea-sor is required to pay for the cost of overtreatment or unnecessary medical treatment, unless the overtreatment was incurred by the victim in bad faith. See Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2d Cir.1993); and Bass v. Allstate Ins. Co., 32,652 (La.App.2d Cir.1/26/00), 750 So.2d 460. There is no evidence of bad faith on the part of Chase in seeking medical treatment for the injuries he sustained in the collision. This argument is without merit.

CONCLUSION

At appellants’ costs, the judgment is AFFIRMED.

      . The officer who investigated the accident found that Nunley's truck was damaged in the mid-front and driver’s side front.

      . Officer Camp testified that Nunley told him he was traveling in the inside lane at the time of the accident.

      .Mrs. Green had not complained of this numbness and tingling during her first visit. Dr. Gleason explained that numbness in the .left lateral thigh is frequently seen after a lap belt bruises the lateral femoral cutaneous nerve. Dr. Gleason also explained in his deposition that the pain in Mrs. Green's right hip was caused by tendinitis, but the left hip pain seemed to be radiating from her lower lumbar spine or may have been caused by her favoring her right hip.

      . Dr. Gleason explained that the piriformis is a large tendon located about two inches toward the buttock from the bony prominence, or trochanter, of the hip.

      . Piriformis tendinitis is an inflammation of the tendon. Dr. Gleason testified that the reason he wrote new diagnosis regarding the right hip tendinitis was because the pain had localized, in that it went from a bruise to a tendinitis pain in the muscle.

      . This injection was not documented in the record, and Dr. Gleason stated that he had no definite evidence that he gave Mrs. Green an injection.

      . Chase was unable to see Dr. Gleason at that time as he was out of town. Mrs. Green took Chase to Dr. Adams because Chase had called from school complaining of severe pain.

      . Chase stated that before he saw Dr. Adams, the pain in his lower neck, lower back, and shoulder blades would go away and then flare up.

      . The MRIs were delayed until October because of insurance payment issues.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Bobby R. PARKER, Sr., Appellant.
    No. 42,311-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.
    Rehearing Denied Sept. 13, 2007.

      McGlynn, Glisson & Koch, by Karl J. Koch, Baton Rouge, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, Assistant District Attorney for Appellee.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

| tDefendant, Bobby R. Parker, Sr., was convicted of three counts of indecent behavior with a juvenile, in violation of La. R.S. 14:81. He was sentenced on each count to serve 7 years hard labor with 2 years suspended, to run consecutively with one another, for a total of 15 years. Defendant now appeals. For the reasons stated herein, we affirm Defendant’s conviction and sentence.

FACTS

Defendant was charged by bill of information filed in December 2004, with three counts of indecent behavior with a juvenile, in violation of La. R.S. 14:81. The three offenses involved three female juveniles, hereinafter referred to as A.F., 8 years old at the time of the offense, B.I., 7 years old at the time of the offense, and A.P., 12 years old at the time of the offense. All three offenses occurred at or around Defendant’s home located near Woolen Lake. A.F. and B.I. were Defendant’s step-granddaughters at the time the offenses occurred, and A.P. was Defendant’s neighbor.

The State filed a notice of intent to use other crimes evidence of Defendant’s improper behavior against his two step daughters-in-law, D.G. and C. W., and his daughter-in-law’s sister, M.H. The trial court conducted a Prieur hearing to determine the admissibility of such evidence and ruled in favor of the State.

12As stated, Defendant was convicted by a jury on all three charges. A pre-sentence investigation report was completed and he was sentenced on each count to serve 7 years hard labor with 2 years suspended, to run consecutively with one another, for a total of 15 years. Defendant filed a motion for reconsideration of sentence, which was denied without a hearing. This appeal ensued.

DISCUSSION

Assignment of Error Number Three (verbatim): The evidence presented at trial was insufficient to sustain a conviction; taking the evidence in the light most favorable to the state, no reasonable jury could have found the defendant’s guilt beyond a reasonable doubt as to the charged offenses.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if the evidence is constitutionally insufficient. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La. C. Cr. P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App. 2d Cir.8/18/99), 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 14:81(A) provides that indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of 17, where there is an age difference |4of greater than 2 years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.

Specific intent to commit the offense of indecent behavior with a juvenile need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Blanchard, 00-1147 (La.4/20/01), 786 So.2d 701.

' In the case sub judice, Defendant argues that the testimony of the State’s three witnesses was so internally inconsistent, and was otherwise shown to be unreliable through cross-examination, as to render belief in that testimony unreasonable. He urges that no reasonable jury would have convicted him on this testimony.

The State argues that it presented a solid case against Defendant based on testimony of the three victims and family members and that law enforcement was able to corroborate many aspects of the victims testimony. The State further argues that the testimony of the victims was consistent with one another and was accepted as credible by the jury. We agree.

B.I., the first victim, testified about an incident that had occurred at Defendant’s house on Woolen Lake during its construction in 1999. She was only 7 years old at the time. She was spending the night at Defendant’s house and was sleeping on the floor in sleeping bags with her cousin A.F. At this time, the interior walls were not complete with only the studs and framing in place.. She testified that, at some point during the night, A.F. moved to where Defendant and J.P., his wife at the time, were sleeping. | ¡Rater in the night, B.I. moved and laid down between Defendant and A.F. because she was scared. She further testified that Defendant lifted up her nightgown and started rubbing on her stomach, leg and in her vaginal area. She stated that she was scared at first and then pushed him away.' She testified that a little while later, he pulled her night gown back up and continued the same behavior. She stated that she moved away from Defendant after she got tired of it and moved to the other side of A.F.

B.I. testified that she did not tell any adults about what happened, but she did tell A.F. the following day when they both went swimming. B.I. stated that, when she asked A.F. if Defendant had done anything to her, A.F. stated that Defendant had “pulled down her underwear and rubbed on her.”

B.I. also recounted a second incident that occurred a few weeks to a month after the first incident in a now completed guest bedroom at Defendant’s house. She testified that, Defendant came in naked while she was sleeping in a guest bedroom with A.F. and another child. He lifted up her night gown. She stated that she kicked him away, but he held her arms and legs down while he pulled down her underwear and started rubbing between her legs and inserted his finger inside of her. B.I. testified that A.F. woke up and tried to push Defendant off of her, but Defendant pushed A.F. back, causing A.F. to fall off the bed. Shortly thereafter, B.I. testified that Defendant left the room after giving her a warning not to speak. B.I. stated that she told her adult foster sister, J.B., about the incident almost a year later when she turned 8 years old.

|,jJ.B. corroborated B.I.’s testimony. She testified that, in July 2000, Defendant’s wife came by offering to take B.I., A.F., and another child to her house for the weekend. She testified that, when she told B.I. about it, B.I. stated that she did not want to go, became very upset and burst into tears. She stated that B.I. told her that “Pappao Bobby did bad things to me.” J.B. testified that she had never met Defendant or knew anything about him.

A.F., the second victim and Defendant’s wife’s granddaughter, testified about a visit to her grandmother’s in August or September 1999 when she was 8 years old. She was there with her grandmother, Defendant, B.I. and her little brother. She testified that, at some point diming the night while she was sleeping, Defendant woke her up and asked if she and her brother wanted to sleep near him. She testified that she agreed and moved to a spot on the floor next to Defendant. She said that Defendant then lifted up her nightgown, pulled down her underwear and started rubbing her bottom with his hand. She further testified that she got up and moved away from Defendant and then B.I. took her spot next to Defendant.

A.F. testified that she did not report this incident to an adult, but did discuss the incident with B.I. the following day. She also testified that she recalled the second incident that occurred in 2000. A.F. confirmed that she spent the night at Defendant’s house and slept in an extra bedroom with B.I. and another child. She stated that she woke up and saw Defendant on top of B.I. She testified that, when she tried to push him off of B.I., Defendant pushed her off the bed. She also testified that there were no other men in [7the house and that Defendant was naked. She said that-it appeared to her that Defendant was trying to have sex with B.I. She said that she told her father about the incident after her father confronted her after learning about what happened with B.I. and Defendant.

J.F., A.F.’s father, testified about a confrontation he had with his daughter in July 2000 regarding an incident between B.I. and Defendant. He stated that A.F. told him that Defendant had fondled her by putting his hand on her behind. He testified that, when he called Defendant about the matter, Defendant told him that the allegations were false. J.F. took A.F. to the sheriffs office that same day and filed charges. He also testified that, after this information was revealed to him, A.F. never went around Defendant again.

A.P., the third victim, testified that she lived next door to Defendant and would spend the night at his house from time-to-time. She stated that, in the summer of 2004, Defendant would sometimes pick her up from the school bus stop after summer school. On occasion, when Defendant was alone when he picked her up, she said that he would touch her chest, put his hands between her legs and insert his finger into her vagina. She stated that this occurred most of the times when Defendant picked her up by himself.

A.P. also testified that she would sometimes .spend the night at Defendant’s house, and Defendant would get up at night and put his finger inside of her. She also told about an incident that occurred on a boat and related that, while she and Defendant were riding on the boat alone, Defendant would try to put his hand under her bathing suit bottoms. She 1 salso testified that Defendant has also abused her in a shed. A.P. said that she told her mother and an investigator with the sheriffs department about the incident.

S.P., the mother of A.P., testified that her daughter was slower than other children her age and that she had attended summer school in July 2004. She stated that either Defendant or his wife would sometimes pick A.P. up from the bus stop after summer school and bring her home. She testified that, in July 2004, Defendant took A.P. on his boat and she became suspicious after they were gone for an hour and a half. S.P. said that, when she questioned her daughter A.P. about it, A.P. stated that Defendant had been fooling with her “boobs” and private area. S.P. testified that, when she asked A.P. how many times it had happened, A.P. responded, “It’s been happening a lot of times.” S.P. stated that she then took A.P. to the sheriffs department.

Officer Terry Thompson testified that he received a call on July 16, 2000, concerning a complaint about Defendant. He testified that he met with A.F., her father (J.F.), B.I. and Defendant’s wife (J.P.) on that same afternoon and took the statements from A.F. and B.I. who told him that they had been molested by Defendant. He testified that he then contacted Defendant and asked him to come to his office concerning the allegations. Defendant agreed and Officer Thompson took a recorded statement from Defendant on July 19, 2000. In the statement, Defendant acknowledged going naked into the girls’ room, thereby corroborating the victims’ testimony. After Defendant gave the statement, Officer Thompson testified 19that he set the case aside because of an overwhelming caseload, but stated that he never closed it. Defendant was not arrested and no further action was taken by law enforcement until Defendant’s arrest for his offenses against A.P. four years later.

In viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime of indecent behavior with a juvenile were established beyond a reasonable doubt. The testimony of the three victims was consistent and corroborated by family members and by each other. Moreover, despite their youth, the witnesses were accepted as credible by the jury.

On cross-examination, the defense attempted to discredit the testimony of A.P.’s mother and A.F.’s father. The defense presented testimony by several Woolen Lake residents that A.P.’s mother had offered to accept money in exchange for the dismissal of the charges. The defense also tried to show that A.F.’s father was angry with Defendant over a previous deal with a truck. The defense, however, could not establish that the conversations with A.P.’s mother ever took place or that A.F.’s father had a pre-existing grievance against Defendant. Defendant was also unable to present any plausible evidence that would lead the jury to conclude that the three juveniles fabricated their testimony to help Defendant’s wife' in her divorce proceedings against Defendant, a recurring theme on cross-examination. We find this evidence to be sufficient to sustain the convictions.

Assignment of Error Number One (verbatim): The trial court erred by admitting evidence of uncharged, alleged sexual misbehavior by the |1(ldefendant involving adult women; such evidence was inadmissible under either Louisiana Code of Evidence articles 404(b) or 412.2, and the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury.

The State notified Defendant pri- or to trial of its intent to introduce evidence of prior uncharged bad acts. The notice indicated that such evidence was admissible under La. C.E. art. 404(b) and/or 412.2. The evidence was to be the testimony from two of Defendant’s adult step-daughters-in-law, D.G. and C.W., and an adult female neighbor, M.H. The notice indicated that the women would testify concerning sexual overtures and comments made by Defendant toward the women and lewd sexual gestures toward them, and, in the case of M.H., inappropriate touching of her breasts and between her legs. The stated relevance of the evidence was to show “the defendant’s pattern and history of lewd and lascivious conduct toward females,” a “pattern in the defendant’s behavior toward women of all ages” and “the defendant’s lustful disposition.” A hearing was held and, in a brief ruling, the trial court opined that the evidence was admissible under article 412.2.

At trial, D.G., the first adult female witness, testified that Defendant exposed himself to her twice, once near a shed located behind D.G.’s home, which was on Defendant’s property, and once when he got out of the shower and was covered by only a towel; that he made sexual tongue gestures toward her; that he made suggestive sexual comments to her under his breath; and that Defendant offered her $50 to see her “tits” because his wife had undergone breast cancer surgery and did not have “pretty” breasts.

InNext, C.W., the second adult female witness, testified that Defendant made sexual comments to her as he would walk by her and that he looked through an air vent in her bathroom door and watched while she bathed.

Finally, M.H., the third adult female witness, testified that Defendant walked by her and grabbed her between the legs and grabbed her breasts from behind her. He made comments to her about her breasts, came into the bathroom while she was in the shower and, once, followed her into a bedroom, pushed her down on the bed and kissed and touched her.

Defendant argues that none of the uncharged misconduct evidence should have been received pursuant to article 412.2 in that it involved only adult women. Defendant further argues that the types of evidence that can be received under article 412.2 are divided into two parallel categories-evidenee of the accused’s commission of “another crime, wrong, or act involving sexually assaultive behavior” and “acts which indicate a lustful disposition toward children.” Defendant asserts that, because he was not charged with an offense that includes any element of sexually as-saultive behavior, that portion of article 412.2 which allows for the admission of “another crime, wrong, or act involving sexually assaultive behavior” has no application in the case. Moreover, Defendant asserts that all of the uncharged misconduct evidence dealt with alleged misconduct with adult women and did not involve any “acts which indicate a lustful disposition toward children.”

The State argues that the other crimes evidence of Defendant’s sexually assaultive behavior toward his two step daughters-in-law and a 112daughter-in-law’s sister was properly admitted under article 412.2. The State further argues that the offense of indecent behavior with a juvenile is a crime which involves sexually assaultive behavior and that the other crimes evidence was relevant in this case not only to counter Defendant’s theory of the case, but also to prove specific intent and absence of mistake or accident. The State submits, alternatively, that, if the court finds that the evidence was improperly admitted, such error was harmless and the conviction should, nevertheless, be affirmed.

The admission of character evidence is governed, generally, by La. C.E. art. 404, which provides, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The legislature has provided a more specific rule for offenses of a sexual nature involving minors in La. C.E. art. 412.2, which provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
11SB. In a ease in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

In State v. Miller, 98-0301 (La.09/09/98), 718 So.2d 960, the supreme court discussed the additional concerns in admitting other crimes evidence:

Several other statutory and jurisprudential rules also play a role in determining the admissibility of such evidence. First, one of the factors listed in Article 404(B) “must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.” State v. Jackson, 625 So.2d 146, 149 (La.1993). Second, the state is required to prove the defendant committed these other acts by clear and convincing evidence. Id.; State v. Davis, 449 So.2d 466 (La.1984). Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Finally, the requirements set forth in State v. Prieur, 277 So .2d 126 (La.1973) must be met. Thereunder, the state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and describe these acts in sufficient detail. The state must show the evidence is neither repetitive nor cumulative, and is not being introduced to show the defendant is of bad character. Further, the court must, at the request of the defendant, offer a limiting instruction to the jury at the time the evidence is introduced. The court must also charge the jury at the close of the trial that the other crimes evidence serves a limited purpose and that the defendant cannot be convicted for any crime other than the one charged or any offense responsive to it.

Article 412.2 has been consistently applied by this court to allow the introduction of evidence of prior uncharged misconduct in cases where a defendant has engaged in sexually inappropriate behavior with minor \uindividuals similar to the charged misconduct. See State v. Williams, 41,731 (La.App. 2d Cir.1/24/07), 950 So.2d 126; State v. Wallace, 41,720 (La.App. 2d Cir.1/24/07), 949 So.2d 556, State v. Humphries, 40,810 (La.App. 2d Cir.4/12/06), 927 So.2d 650, writ denied, 06-1472 (La.12/15/06), 944 So.2d 1284. Generally, a trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Blackwell, 30,281 (La.App. 2d Cir.11/10/97), 701 So.2d 1389, writ denied, 97-3073 (La.2/13/98), 709 So.2d 755. Since the prior alleged misconduct in the case sub judice concerns actions of Defendant with adult women only, we conclude that the trial court abused its discretion in admitting the testimony of the three adult female "witnesses D.G., C.W. and M.H.

We further conclude, however, that the erroneous admission of the evidence was harmless and, therefore, does not constitute reversible error. The introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis on appeal. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94; State v. Jackson, 33,837 (La.App. 2d Cir.9/27/00), 768 So.2d 767, writ denied, 00-3078 (La.11/2/01), 800 So.2d 864; State v. Ingram, 29,172 (La.App. 2d Cir.1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505. Trial error is harmless where the verdict rendered is “surely unattributable to the error.” Id.

11BPefendant argues that the testimony of the adult female witnesses and the district attorney’s statements to the jury urging that his sexual misconduct toward women of all ages prejudiced the jury to the extent that his convictions must be vacated. We disagree. We credit the discretion of the jury in discerning and weighing the testimony of the three minor victims in this case. As previously discussed herein, the testimony of the victims in this case was reasonable, consistent and sufficient to sustain the convictions of Defendant. The verdict in this case is not attributable to the erroneous admission of the testimony that Defendant made inappropriate sexual comments and gestures toward three adult females; and, therefore, such error was harmless. Assignment of Error Number Two (verbatim): The trial court erred by refusing to allow the defendant to introduce evidence to rebut its claim that the defendant engaged in a pattern of conduct showing that he had “no regard for convention and proper morals” with women, specifically evidence showing that multiple other younger and older women were repeatedly in his presence and that he did not act improperly on those occasions; regardless of whether such evidence would be admissible otherwise, the defendant’s constitutional right to present a defense was violated by excluding the described evidence when it was offered in response to the state’s allegations regarding the defendant’s pattern of behavior.

Defendant sought to introduce testimony of several Mends of his from the community whose proffered testimony indicates that the individuals had observed Defendant often interacting with both adult and minor children and had never witnessed any inappropriate behavior on the part of Defendant toward women and girls. This evidence was to rebut or counter the article 412.2 testimony discussed in the previous assignment. Defendant argues that the only way to rebut the alleged pattern in his |1fibehavior was by proving that there was no such pattern through the testimony of other witnesses who observed his behavior in the same or similar circumstances.

La. C.E. art. 404 generally disallows admission of evidence of a person’s character or a trait of his character for the purpose of proving he acted in conformity therewith on a particular occasion. As a limited exception to the general rule, however, article 404(A)(1) allows admission of evidence of a pertinent trait of an accused’s character, such as a moral quality, offered by him or by the prosecution to rebut the character evidence, provided that such evidence shall be restricted to showing those moral qualities pertinent to the charged crime and cannot destroy conclusive evidence of guilt. For this exception to apply, the requirements of La. C.E. article 405 also must be met. Generally, article 405 allows a party to prove a person’s character with testimony as to “general reputation” only, and a particular foundation is required. La. C.E. art. 405(A) & (C).

The record reflects that the character evidence Defendant sought to introduce was by specific instances of alleged good conduct and not a pertinent trait of his character provable by testimony as to general reputation only. Thus, the testimony sought to be introduced was inadmissible under La. C.E. art. 404 A(l). The testimony was, therefore, properly excluded and this assignment is without merit.

Assignment of Error Number Four (verbatim): The trial court erred in sentencing the defendant, and then in denying the defendant’s motion for reconsideration of sentence, by imposing consecutive rather than concurrent sentences for the offenses, by failing to set forth its reasons for consecutive sentences, and by imposing a sentence which was excessive when taken as a whole.

|17Pefendant argues that the record in this case does not support the imposition of consecutive sentences resulting in a total sentence of 15 years. Defendant asserts that La. C. Cr. P. art. 883 provides for the imposition of concurrent sentences where a defendant is convicted of two or more offenses based on the same act or transaction or constituting parts of .a common scheme or plan.

La. C. Cr. P. art. 883 provides that:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run consecutively.

Although La. C. Cr. P. art. 883 favors the imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background justify treating him as a grave risk to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Feaster, 36,868 (La.App. 2d Cir.3/5/03), 840 So.2d 675.

It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Coates, 27,287 (La.App. 2d Cir.9/27/95), 661 So.2d 571, writ denied, 95-2613 (La.2/28/96), 668 So.2d 365; State v. George, 26,867 (La.App. 2d Cir.4/5/95), 652 So.2d 1382, writ denied, 95-1151 (La.9/29/95), 660 So.2d 855. Concurrent sentences arising out of a single cause of conduct are not mandatory. State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993), writ denied, 637 So.2d 476 (La.1994). Further, consecutive sentences under those circumstances are not necessarily excessive. State v. Williams, 445 So.2d 1171 (La.1984); State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). All factors are to be considered. State v. Ortego, supra. These include a defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims and whether the defendant constitutes an unusual risk of danger to the public. State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983); State v. Jett, 419 So.2d 844 (La.1982). The jurisprudence, however, requires that, when consecutive sentences are imposed, the court “shall state the factors considered and its reasons for the consecutive terms.” State v. Green, 614 So.2d 758 (La.App. 2d Cir.1993).

In reviewing a sentence for ex-cessiveness, this court must first determine whether there has been compliance with La. C. Cr. P. art. 894.1 in the imposition of sentence. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. State v. Price, 40,437 (La.App. 2d Cir. 1/25/06), 920 So.2d 389. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

A second inquiry is made to determine whether the sentence is too severe given the circumstances of the case and the defendant’s background. If it is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock one’s sense of justice, the sentence is considered unconstitutionally excessive as violative of La. Const. art. 1, § 20. Both inquiries must be made to determine if the sentence imposed is proper. State v. Lobato, 603 So.2d 739 (La.1992).

A trial court has broad discretion to sentence within the statutory limits. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. Absent a showing of manifest abuse of that discretion, this court may not set aside a 1 ¡^sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Whoever commits the crime of indecent behavior with juveniles shall be fined not more than $5,000 or imprisoned with or without hard labor for not more than 7 years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of C. Cr. P. art. 893. La. R.S. 14:81(C). Herein, Defendant was sentenced on each count to serve 7 years hard labor with 2 years suspended, to run consecutively with one another, for a total of 15 years.

As previously mentioned, although La. C. Cr. P. art. 883 does not specifically require that the trial court state reasons justifying the imposition of a consecutive sentence when the crimes arise out of a single course of conduct, the history of the jurisprudence reveals that the requirement for articulating specific reasons for imposing a consecutive sentence is based on La. C. Cr. P. art. 894.1. State v. Franks, 373 So.2d 1307 (La.1979). Over time, however, the Louisiana Supreme Court has found that the failure to articulate reasons for sentence pursuant to Article 894.1 does not require a remand when the sentence imposed is not “apparently severe” and there is an adequate factual basis for the sentence contained in the record. State v. Robicheaux, 412 So.2d 1313 (La.1982). It logically follows, therefore, that the failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence. State v. Caston, 40,093 (La.App. 2d Cir.10/26/05), 914 So.2d 122; State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452.

In the instant case, the trial court did not expressly state its reasons for the imposition of consecutive sentences. After carefully weighing the evidence presented at trial and the pre-sentence investigation report, the trial court did state the considerations taken into account and the factual basis for imposition of the sentence in accordance with La. C. Cr. P. art. 894.1.

In sentencing Defendant, the trial court noted that Defendant was the step-grandfather of two of the victims and an adult neighbor to the other victim. Two of the victims are still in therapy, and the victim impact statement indicates that the victims have fears, nightmares and have suffered emotionally from this ordeal. The trial court also stated that there was great harm caused to the three minor victims, that they did not deserve what had happened to them and that they have been denied the right to grow up innocent. Specifically, the court noted that Defendant threatened one of the victims and two of the victims were still in therapy. Finally, the court stated that these events will scar the victims for the remainder of their lives. Based upon the record and the sentencing transcript, we, therefore, conclude that there were adequate reasons for the trial court’s finding that the sentences should be served consecutively.

Although Defendant is a first-felony offender with a steady work history and some support in his community, the sentences are not grossly disproportionate to the severity of the offenses and do not shock the sensej^of justice. We find that the consecutive sentences imposed are not excessive.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Bobby R. Parker, Sr., are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS and MOORE, JJ.

Rehearing denied.

MOORE, J., would grant rehearing.

      . The initials of the victims are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W). Also for confidentiality, we have used the initials of other witnesses, including his step daughters-in-law, who testified at trial.


author: BROWN, Chief Judge.

text:
    Margie KALIL, Plaintiff-Appellee v. HCA HEALTH SERVICES OF LOUISIANA d/b/a North Monroe Medical Center and Rae M. Wegner, Defendants-Appellants.
    No. 42,404-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 2007.

      Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Joseph S. Wood-ley, Shreveport, for Defendants-Appellants.
    J. Antonio Tramontana, for Plaintiff-Ap-pellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| ¶ This appeal arises from a jury verdict in favor of plaintiff, Margie Kalil, and against defendant, HCA Health Services of Louisiana d/b/a North Monroe Medical Center, in the amount of $483,274.21. For the reasons stated herein, we affirm.

Facts and Procedural Background

On April 28, 2003, Margie Kalil was experiencing chest pains and went to her internal medicine physician, Dr. Charles Knight. After running some tests, Dr. Knight admitted Ms. Kalil to the North Monroe Medical Center and ordered that she be placed in ICU and kept on strict bed rest. The ICU, however, was overcrowded so plaintiff was sent to the emergency room. Ms. Kalil remained in the emergency room until she had a heart catheterization and stent placement. These procedures were performed by Dr. Gregory Sampognaro. Following the stent placement, Dr. Sampognaro wrote an order for plaintiff to be transferred to the coronary care unit and kept on flat bed rest for six hours.

According to plaintiff, flat bed rest and complete bed rest are different in that flat bed rest requires lying flat with the leg fully extended to prevent bleeding problems from a catheter insert into the leg. Dr. Knight’s original order of bed rest and Dr. Sampognaro’s subsequent order of flat bed rest are at issue with regard to the question of third-party fault.

Regardless of which order was in effect, six hours after her catheter procedure Ms. Kalil was awakened by Rae Wegner, the R.N. assigned to her. Ms. Wegner had plaintiff get out of bed and go to the restroom. While out of bed Ms. Kalil fell and struck her head. She was transferred to St. |2Francis Medical Center for neuro-surgical evaluation and she remained there for two weeks.

As a result of the fall Ms. Kalil suffered neurological injuries, including a right temporal parietal intracerebral hemorrhage, contusion of the brain, subdural hematoma, permanent hearing loss, and tinnitus. The effects of these injuries cause plaintiff to experience a constant ringing in her ears, headaches, forgetfulness, and irritability. Furthermore, as Ms. Kalil ages her condition will deteriorate and she may begin experiencing Alzheimer’s-type problems.

At trial against North Monroe Medical Center, and after plaintiff had rested, defendant attempted to bring up the third-party fault of Drs. Knight and Sampogna-ro. In response to this attempt, plaintiff made an oral motion in limine to exclude specific questions to defendant’s expert concerning any breach of the standard of care of those two doctors and to strike any such defense from the jury verdict form. After hearing from both parties, the trial court ruled in plaintiffs favor and North Monroe Medical Center objected. Defendant, however, failed to make any proffer of the excluded testimony.

The jury returned a verdict finding North Monroe Medical Center negligent and responsible for the injuries Ms. Kalil suffered. The jury awarded her general damages in the amounts of $50,000 for past, present and future physical pain and suffering, $125,000 for past, present and future mental pain and suffering, $125,000 for loss of enjoyment of life, and $150,000 for permanent disability. There was also a special damages award in the amount of $38,274.21 for past medical bills. North Monroe Medical | ^Center was to pay $100,000 and the remaining $383,274.21 was to be paid by the Patients’ Compensation Fund (“PCF”).

Following the return of the jury’s verdict defendant filed a motion for judgment notwithstanding the verdict and, alternatively, motion for a new trial. The motion addressed only the general damage award. After hearing arguments the trial court denied the motions.

Following the trial court’s denial of its motions for JNOV and new trial, defendant has appealed.

Discussion

Motions for JNOV/New Trial

In the case sub judice, defendant’s motions for JNOV/new trial addressed only the jury’s general damage award. It is defendant’s contention that the jury’s determination of damages and the trial court’s denial of defendant’s motions was clearly wrong and an abuse of discretion. Thus, it is incumbent on us to evaluate the general damage award.

|4General Damages

In the instant ease, we have closely reviewed the record to determine whether the jury’s award of damages was so excessive that it constituted an abuse of discretion. After analyzing the facts and circumstances of this case, we find that the jury’s assessment of damages was not an abuse of its vast discretion and, consequently, that the trial court neither committed manifest error by denying defendant’s motion for JNOV nor abused its great discretion by denying defendant’s motion for a new trial. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Theriot v. Allstate Insurance Co., 625 So.2d 1337 (La.1993).

The evidence shows that the injuries Ms. Kalil sustained affected her physically, mentally, and emotionally. According to all of the physicians that testified, Ms. Kalil suffers and will continue to endure headaches, forgetfulness, irritability, hearing loss, and tinnitus as a result of her brain injuries. During his testimony, Dr. Danna, an otorhinolaryngologist, stated the following with regards to some of Ms. Kalil’s injuries:

[Wjhat makes [sic] this lady more complicated now, it’s not just the hearing loss this lady has. This lady has a post concussion effect. She has torn her bridging veins and now she has a post concussion effect [sic] of headaches. She no longer remembers. Her personality is now changed. She’s a totally different person ... [T]his lady has a | r,temporal bone injury on the opposite side, but it also applies to the opposite ear ... It’s just like whiplash injuries ... [T]hey can get the same identical injury, dizziness, hearing loss, tinnitus, plus a post concussion effect ...

In addition to the physicians that testified, Ms. Kalil, her friends, and her coworkers testified about the adverse effects that came about as a result of her injury. Ms. Kalil’s friends and co-workers testified that she no longer has the ability to work as she did before her accident, she tires more easily, she “flies off the handle,” she forgets names and details, and she has trouble conversing as a result of her hearing loss. Ms. Kalil testified that she has trouble sleeping, and when she does she has to sleep with her good ear up in case there is an intruder. She also testified that there is constant ringing in her ears, she has become depressed and moody, and she often forgets and repeats things.

Based on the extent of the injuries Ms. Kalil suffered and the fact that her condition will continue to worsen over time, we find that the jury’s award of $50,000 for past, present, and future physical pain and suffering, $125,000 for past, present and future mental pain and suffering, $125,000 for loss of enjoyment of life, and $150,000 for permanent disability was not an abuse of discretion.

Excluded Testimony and Jury Interrogatories

Defendant contends that the trial court erred in limiting the questioning of its expert witness and in not submitting the issue of third-party fault to the jury.

When the trial court excludes or limits the testimony of a witness, a proffer can be made. La. C.C.P. art. 1636. It is incumbent upon the party | fiwho contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives its right to complain of the exclusion on appeal. Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993), writ denied, 623 So.2d 1340 (La.1993); Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329 (La.App. 1st Cir.1984), writ denied, 467 So.2d 531 (La.1985).

In cases to recover damages for injury, any party may request that the court submit to the jury special written questions inquiring as to whether another party or nonparty was at fault, and the court shall do so if appropriate under the facts adduced at trial. La. C.C.P. art 1812(C)(2)(a). The determination of whether the fault of a nonparty should be included in a jury interrogatory is left to the discretion of the trial court. Guidroz v. State, Through Dept. of Transportation and Development, 94-0253 (La.App. 1st Cir.12/22/94), 648 So.2d 1361; Wilson v. Transportation Consultants, Inc., 04-0334 (La.App. 4th Cir.03/02/05), 899 So.2d 590, writ denied, 05-0827 (La.05/13/05), 902 So.2d 1025.

During the trial, defendant hoped to establish the third-party fault of Drs. Knight and Sampognaro through the testimony of its expert witness, Dr. Mason. The trial court, however, precluded defendant from asking any questions concerning the doctors’ standard or care and the possible breach of that standard of care. Defendant contends that this limitation of Dr. Mason’s testimony was erroneous. Dr. Mason’s testimony, however, was not proffered, and as such, defendant cannot now claim that the limitation of his testimony was erroneous. Thus, without any testimony establishing a | possible breach of Drs. Knight’s and Sampognaro’s standard of care, the trial court was well within its discretion to exclude the potential fault of a nonparty from the jury interrogatories.

Accordingly, we find that this assignment of error is without merit.

Costs

Finally, defendant contends that the trial court erred in: the amount of expert witness fees awarded; the award of deposition costs; and failing to reduce the costs of copies and exhibits to those used at the trial.

La. R.S. 13:4533 states:

The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

A trial court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. La. C.C.P. art.1920. The trial court’s assessment of costs is afforded great discretion and absent an abuse of that discretion may not be reversed on appeal. Joe Broadway, Inc., Wholesale Fish v. Dickson, 582 So.2d 967 (La.App. 2d Cir.1991); Succession of Batton v. Prince, 384 So.2d 506 (La.App. 2d Cir.1980); Garlepied Transfer, Inc. v. Guaranty Bank and Trust Co., 94-549 (La.App. 5th Cir.05/30/95), 656 So.2d 728, writ denied, 95-1638 (La.10/06/95), 661 So.2d 470. Defendant did not prevail at trial and has failed to show that the trial court abused its great discretion when it assessed costs. Furthermore, the trial court was in a better position than- this Court to determine what was equitable and what fees were reasonable. Therefore, we do not find that the trial-court was erroneous when it taxed costs against defendant.

| ^Conclusion

For the foregoing reasons, the jury verdict and trial court judgments in favor of plaintiff are AFFIRMED at defendant’s cost.

      . Louisiana Code of Civil Procedure art. 1811(F) states that a motion for a judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both issues. A JNOV is not warranted unless the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94. Furthermore, if the evidence opposed to the motion is of such quality and weight that reasonably fair-minded persons in the exercise of impartial judgment could reach different conclusions, the motion for JNOV should be denied. Joseph, supra; Williams v. State ex rel. Dept. of Social Services, 37,923 (La.App.2d Cir.01/28/04), 865 So.2d 908, writ denied, 04-0514 (La.04/08/04), 870 So.2d 276. In making its determination, the trial court may not evaluate the credibility of the witnesses or substitute its judgment of the facts for that of the jury. Joseph, supra; Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2d Cir.1991). The trial court should also consider all the evidence in the light most advantageous to the non-moving party, giving to this party the benefit of every legitimate and reasonable inference that could have been drawn from the evidence. Gibson, supra. In reviewing a trial court's decision to deny a JNOV, the appellate court must determine whether the trial court committed manifest error in reaching its determination. Gibson, supra; Morehead v. Ford Motor Co., 29,399 (La.App.2d Cir.05/21/97), 694 So.2d 650, writ denied, 97-1865 (La. 11/07/97), 703 So.2d 1265.
      In accordance with La.Code of Civil Procedure art. 1811(A)(2), a motion for JNOV may be joined with an alternative motion for a new trial. The motion for a new trial requires a less stringent test than that used for a JNOV since granting a motion for a new trial does not deprive the parties of their right to have all disputed issues resolved by a jury. Davis v. Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00), 774 So.2d 84; Gibson, supra. Unlike the standard applicable to a motion for JNOV, the trial court may evaluate evidence without favoring any party, draw its own inferences and conclusions, and assess the credibility of the witnesses when determining whether to grant or deny a motion for a new trial. Davis, supra; Morehead, supra. A trial court’s discretion in ruling on a motion for a new trial is great, and its decision should not be reversed unless there has been an abuse of that discretion. Joseph, supra; Davis, supra; Gibson, supra; Morehead, supra.