author: CARTER, C. J.

text:
    Bennett BLACKLEDGE, Bonnie Jill Blackledge, for and on Behalf of Their Minor Child, Brooks Blackledge v. Jackie FONT and Peggy Font, Liberty Mutual Fire Insurance Company, Victor Vidaurre and Debbie Vidaurre, for and on Behalf of Themselves and Their Minor Child, Jason Vidaurre, and Safeco Insurance Company of America.
    No. 2006 CA 1092.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Felix A. DeJean, IV, Linda L. Lynch, Baton Rouge, for Plaintiffs-Appellants, Bennett Blackledge, Bonnie Jill Black-ledge, and Brooks Blackledge.
    Patrick F. Robinson, C. Frank Holthaus, Baton Rouge, for Defendants-Appellees, Jackie Font, Peggy Font, and Liberty Mutual Insurance Company.
    Andrew W. Eversberg, Baton Rouge, for Defendants, Victor Vidaurre, Debbie Vidaurre, and Safeco Ins. Co. of America.
    Before: CARTER, C.J., WHIPPLE, and MCDONALD, JJ.
   CARTER, C. J.

1 aPlaintiffs, a teenage boy and his parents (the Blackledges), appeal from a trial court ruling granting summary judgment in favor of defendants, Jackie and Peggy Font (the Fonts) and Liberty Mutual Insurance Company (Liberty Mutual), dismissing their claims arising from an incident in which Brooks Blackledge was injured in an altercation with another teenage guest at the Fonts’ residence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 23, 2002, a group of teenagers finished their high school final exams and gathered at the Fonts’ home with their teenage son, Kevin Font, for an end-of-year party. Even though Mr. and Mrs. Font planned to work away from their house on the day of the gathering, they believed that Kevin and his friends were mature enough to be at their home without adult supervision, so they gave their permission for Kevin to have a group of three or four teenagers come to their house mid-morning after exams. Mrs. Font was due home from work that day at her usual time of 1:00 p.m. It is undisputed that the Fonts - had never experienced or -witnessed any violence from any teenager at their home before the day of this party.

One of the teenagers invited to the Font’s house was Jason Yidaurre, who had just finished his junior year along with Kevin. Kevin and Jason had been friends since the first grade, and Jason had previously been to the Fonts’ home. Both Kevin and Jason knew a freshman friend of Jason’s 1 ¿brother, Brooks Blackledge. It is undisputed, however, that Kevin’s parents did not know Brooks or Brooks’ parents, and Brooks was not one of the teenagers that the Fonts had given express permission for Kevin to have at their house after the exams that day. Nevertheless, unbeknownst to the Fonts, Brooks’ mother, Bonnie Jill Blackledge, transported Brooks and four of his friends to the Fonts’ house for the party after exams. Mrs. Black-ledge was under the mistaken impression (from the representation of one of the teenagers that she was transporting, David Albus) that Mrs. Font was present at the house for the party. Notwithstanding Mrs. Blackledge’s strong belief that it is irresponsible to leave a child at an unsupervised home where she does not know the parents, at no time did she verify the presence of Mrs. Font, and she did not meet with or speak to Mr. or Mrs. Font regarding adult supervision for the party.

Throughout the morning, more teenagers arrived at the party and Kevin allowed all of them to stay. At one point, Jason threw Brooks in the Fonts’ swimming pool and he ran through parts of the Fonts’ house without clothing. Even though Kevin was aware of this rowdy behavior, he never asked any of the teenage guests to leave the party, because he did not perceive that there was any trouble.

Around noon, before Mrs. Font arrived home from work, Kevin and Jason (the juniors) and David and Brooks (the freshman) decided to play a game of two-on-two basketball (juniors versus freshman) in the Fonts’ driveway. The game was competitive and physically rough, with heated words and “trash talk” being exchanged. The juniors did not want to lose to the younger team. After approximately 15 minutes of play, while Brooks |5was aggressively guarding and reaching around Jason as they both tried to grab the basketball, Jason suddenly dropped the ball, pushed Brooks off of his back, and swung his fist around his body into Brooks’ face. Jason’s movement was so quick and unexpected that neither of the other two teenagers, David or Kevin, had time to react or attempt to stop Jason’s violent act. Brooks immediately fell to the ground, hitting his head on the concrete. He began to tremble and he lost consciousness. As a result of the hit and fall, Brooks sustained a serious head injury. By the time that Mrs. Font arrived home from work at 1:00 p.m., Brooks had been taken to his mother, Mrs. Blackledge, who took him to the hospital. Mrs. Font did not learn about Brooks’ injury until an hour or so later. As a result of this incident, Jason served nine months on supervised probation for second-degree battery.

The Blackledges filed suit against the Fonts and their homeowner’s insurer, Liberty Mutual, on May 22, 2003. The Fonts and Liberty Mutual answered and then filed a motion for summary judgment, maintaining that the Blackledges could not meet their burden of proof regarding any duty to supervise owed by the Fonts, or that the alleged breach of duty was the cause-in-fact of Brooks’ injury since it was the result of Jason’s sudden and unforeseen criminal act. After a hearing on October 24, 2005, the trial court rilled in favor of the Fonts and Liberty Mutual, granting summary judgment and dismissing the Blackledges’ demands. The Black-ledges appealed, arguing that the trial court erred (1) in granting the motion for summary judgment, (2) in finding no duty to protect and supervise the teenagers, and[fi(3) in finding the incident was unforeseeable and could not have been prevented even with supervision.

LAW AND ANALYSIS

An issue of negligence or fault can be decided on a motion for summary judgment, provided that the evidence leaves no relevant, genuine issue of fact, and reasonable minds must inevitably conclude that the mover is entitled to judgment based on the facts before the court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 752; Cates v. Beauregard Elec. Co-op., Inc., 328 So.2d 367, 370 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). In Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632-633, the Supreme Court summarized the applicable legal principles regarding summary judgment and duty-risk analysis as follows:

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A court must grant a motion for summary judgment “if the depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is favored under our law. LSA-C.C.P. art. 966(A)(2). Paragraph C(2) of Article 966, which reads as follows, is especially pertinent in the instant case: The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary \nburden of proof at trial, there is no genuine issue of material fact. (Emphasis supplied in original.)
Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under LSA-C.C. art. 2315. This approach provides an analytical framework for evaluation of liability. One analysis requires proof by the plaintiff of five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability.
A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty.
(Case citations omitted.)

Louisiana law is clear that there is no duty to protect against or control the actions of a third party that causes physical injury to another unless a special relationship exists to give rise to such a duty. Beck v. Schrum, 41,647 (La.App. 2 Cir. 11/1/06), 942 So.2d 669, 672; Corley v. Delaney, 92-899 (La.App. 3 Cir. 12/15/93), 629 So.2d 1255, 1258, writs denied, 94-0481, 94-0636 (La.4/22/94), 637 So.2d 156. Courts traditionally have found such relationships to exist between parent and child; employer and employee; carrier and passenger; innkeeper and guest; shopkeeper and business visitor; restaurateur and patron, jailer and prisoner; and teacher and | «pupil. Beck, 942 So.2d at 672. In the case sub judice, none of these special relationships exist between the Fonts and Brooks Blackledge. Brooks and Jason were both guests in the Fonts’ home, although Brooks was initially uninvited. We have found no statutory authority or jurisprudence holding that a homeowner has a duty to protect against or control one guest’s unexpected criminal actions toward another guest.

Under our jurisprudence, a homeowner is not an insurer of the safety of persons lawfully on the premises. In general, the duty owed by the owner of a home to a social guest is to avoid reasonably foreseeable danger to the guest and to keep the premises safe from hidden dangers in the nature of traps or pitfalls. Broussard v. Peltier, 499 So.2d 1026, 1028 (La.App. 3 Cir.1986); Beckwith v. State Farm Fire & Cas. Co., 393 So.2d 155, 157 (LaApp. 1 Cir.1980), writ denied, 399 So.2d 209 (La.1981). Furthermore, our supreme court has recognized that generally, there is no duty to protect others from the criminal activities of third persons. Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, 766, citing Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). Thus, the duty imposed by law on a homeowner does not extend to unanticipated or unforeseeable criminal acts of a third person. Fontenot v. Bolfa, 549 So.2d 924, 926 (La.App. 3 Cir.1989). Only when the owner has knowledge or can be imputed with knowledge of a third person’s intended criminal conduct which is .about to occur, and which is within the power of the owner to protect against, does such a duty toward a guest arise. See Davenport v. Nixon, 434 So.2d 1203, 1205 (La.App. 1 Cir.1983). As explained in Posecai, 752 So.2d at 766, before a duty can be imposed on the landowner, it must be determined whether the criminal act in question was reasonably foreseeable. Thus, the preliminary question as to the foreseeability of the criminal act must be addressed. Patton v. Strogen, 39,829 (La.App. 2 Cir. 8/17/05), 908 So.2d 1282, 1288, writ denied, 05-2397 (La.3/17/06), 925 So.2d 548.

Some of the deposition testimony excerpts submitted in support of and in opposition to the summary judgment came from the teenagers involved in the basketball game at the Fonts’ house. The testimony reveals that the sudden criminal attack perpetrated by Jason against Brooks was not reasonably foreseeable. No one who was participating in the basketball game had any reason to anticipate Jason’s violent behavior when Brooks was attempting to wrestle the basketball away from Jason. Kevin and David both testified in their depositions that they could not have stopped Jason’s swift attack on Brooks because neither one of them knew that it was about to happen. Similarly, even Jason’s deposition testimony confirmed that his action was extremely quick and it was an impulsive reaction.

Although the teenagers were trash-talking and the game was very competitive and aggressive, there was no evidence of any fighting before Jason’s attack against Brooks. There was also no evidence that Jason had a history of violent tendencies, outbursts, or unruly behavior. Thus, the evidence submitted reasonably supports the conclusion that the events surrounding Brooks’ injury happened rapidly and without warning, giving little time for anyone to react in order to protect Brooks. Under the 1 inundisputed material facts of this case, the duty imposed by law on the Fonts to protect their houseguests did not extend to this unforeseeable and unanticipated criminal act by Jason.

The Blackledges strongly urge this court to find, as a matter of law, that the Fonts breached their duty to supervise their teenage son’s party. As a general rule, a person (non-parent) who voluntarily agrees to undertake the control and supervision of a child has the duty to use reasonable care to protect the child from injury. Such a person is not the insurer of the child’s safety, but is required to use reasonable care commensurate with the reasonably foreseeable risk of harm to which the child might be subjected while under his control and supervision. Turner v. Parish of Jefferson, Through Dept. of Recreation, 98-336 (La.App. 5 Cir. 10/14/98), 721 So.2d 64, 74, writs denied, 98-2823, 98-2859, 98-2861 (La.1/8/99), 735 So.2d 636, 638; Muse v. Dunbar, 97-582 (La. App. 3 Cir. 6/10/98), 716 So.2d 110, 114, writs denied, 98-1851, 98-1870 (La.11/6/98), 727 So.2d 448; Bordelon v. Pelican State Mut. Ins. Co., 599 So.2d 511, 513 (La.App. 3 Cir.1992); Freeman v. Wilcox, 303 So.2d 840, 842 (La.App. 1 Cir. 1974), writ denied, 307 So.2d 630 (La. 1975).

In the case before us, it is undisputed that the Fonts never spoke to the Black-ledges about agreeing to control and supervise Brooks or any other | ¶ teenager at the party. The record simply does not support a conclusion that the Fonts voluntarily agreed to take control of Brooks. Furthermore, as we have already discussed, the cause-in-fact of Brooks’ injury was not that the Fonts were absent and did not supervise the party. Brooks’ injury was caused solely by Jason’s intentional act of punching Brooks in the face during the basketball game. This unfortunate incident occurred so quickly that even if the Fonts had been present at the party and were actually standing by the teenagers while they played the basketball game, they would not have been able to keep Jason from impulsively reacting to Brooks’ attempt to steal the ball by. punching Brooks in the face, just as the two other teenagers involved in the game could not anticipate or stop Jason’s actions.

The essential cause-in-fact element is missing from the Blackledge’s negligence claim; therefore, it is unnecessary for us to determine whether the Fonts had a duty to supervise their teenage son’s party. While we recognize that parents have a general duty to supervise their minor children |iaas well as those children they have voluntarily agreed to supervise, it is clear that no personal injuries would have resulted to Brooks absent Jason’s sudden and unforeseeable violent behavior. Cf. Otwell v. State Farm Fire and Cas. Co., 40,142 (La.App. 2 Cir. 10/26/05), 914 So.2d 100, 106 (where no duty was breached by parents of a teenager who had a party without their knowledge, drove a car under the influence of alcohol after the party and was in a wreck due to his negligence wherein his guest passenger died); Peterson v. G.H. Bass & Co., Inc., 97-2843 (La.App. 4 Cir. 5/20/98), 713 So.2d 806, 809-810, writ denied, 98-1645 (La.10/16/98), 727 So.2d 441 (where grandparents breached no duty to supervise their teenage grandchildren who intentionally hid their misconduct of inhaling dangerous vapors of household products during a sleepover); Craig v. Sepulvado, 97-1076 (La.App. 3 Cir. 2/18/98), 709 So.2d 229, 232-233, writ denied, 98-0729 (La.5/1/98), 718 So.2d 414 (where a grandmother owed no duty to take extraordinary steps to guard against an accidental shooting of a teenage boy by her teenage grandson).

CONCLUSION

For the reasons assigned, the judgment appealed from is affirmed. All costs of this appeal are assessed against the plaintiffs, Bennett Blackledge, Bonnie Jill Blackledge, and Brooks Blackledge.

AFFIRMED.

      . Suit was originally brought by the boy's parents, Bennett and Bonnie Jill Blackledge, for and on behalf of themselves and their minor child, Brooks Blackledge. When Brooks reached the age of majority on May 29, 2005, he was substituted as a party plaintiff along with his parents. The other named defendants, Victor and Debbie Vidaurre, for and on behalf of their minor child, Jason Vidaurre, and Safeco Insurance Company of America, are not a part of this appeal.

      . It is undisputed that Kevin had the authority to ask any uninvited guests to leave his house, yet he did not direct any teenage guest to leave the party on the day in question.

      . In a somewhat similar factual scenario, we note that the vast majority of Louisiana courts have found no liability on the part of school boards for fights occurring between students, or accidents at school, either because the school board did not breach its duty of reasonable supervision, or because the school board or school personnel could not have prevented the incident from occurring. See Wallmuth v. Rapides Parish School Board, 01-1779 (La.4/3/02), 813 So.2d 341, 347.

      . This case is distinguished from Doe v. Jeansonne, 97-795 (La.App. 3 Cir. 12/10/97), 704 So.2d 1240, 1245-1246, writs denied, 98-0754, 98-0770 (La.5/8/98), 718 So.2d 433, 434, wherein the parent specifically agreed to supervise a teenage party and a teenager became pregnant after having sex at the party. Further, we note with interest one case, Trahan v. Gulf Ins. Co., 525 So.2d 1164, 1167-1168 (La.App. 3 Cir.1988), wherein the court found the parents of an injured teenage boy negligent for failing to provide or arrange for supervision for their son when they believed it to be necessary while the boy worked at his grandfather’s house. However, any comparative negligence on Mrs. Blackledge's part is not at issue in this appeal.

      . We seriously question, but leave for another decision, whether the parents of a teenager owe a duty of supervision to teenage party guests under a factual scenario wherein the parents have not voluntarily undertaken the control and supervision of any of the guests, invited or uninvited, and there is no evidence that any of the guests had known violent tendencies. See Garison v. Wells, 262 So.2d 820, 824 (La.App. 2 Cir. 1972) (on rehearing), holding that a sixteen-year-old boy was capable of exercising reasonable supervision of a seven-year-old child and it was not negligent for the parents to leave the sixteen-year-old in charge. See also Carpenter v. Johnson, 95-0431 (La.App. 1 Cir. 12/15/95), 664 So.2d 1354, 1357, wherein we held that the mere presence of a crowd of reasonably well-behaved teenagers did not impose a special duty on a business owner to hire security guards.


source: Caselaw Access Project

license: Public Domain

text:
    James Billy LAFLEUR v. The LAW OFFICES of ANTHONY G. BUZBEE, P.C., Anthony G. Buzbee, Stern, Miller & Higdon, Jeffrey M. Stern, Ramsey Jones and Clarence Jones.
    No. 2006 CA 0466.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Jeremiah A. Sprague, Timothy J. Falcon, Marrero, David Groner, New Iberia, for Plaintiff-Appellee, James Billy Lafleur.
    David J. Schexnaydre, Mark A. Myers, Wade D. Rankin, Covington, for Defendants-2nd Appellants, Jeffrey M. Stern and Stern, Miller & Higdon.
    James A. Brown, Carey L. Menasco, New Orleans, for Defendants-lst Appellants, Anthony G. Buzbee and the Buzbee Law Firm, P.C.
    Clarence Jones, Ramsey Jones, St. Mar-tinville, Pro Se Defendants/Appellees.
    Before: CARTER, C.J., WHIPPLE, and McDONALD, jj.
   CARTER, C. J.

1 aAppellants-defendants, Jeffrey M. Stern and Stern, Miller & Higdon (collectively referred to as “the Stern defendants”), seek relief from the trial court’s denial of their dilatory exception raising the objection of prematurity, and alternative motions to stay proceedings and compel arbitration. For the following reasons, we affirm the trial court’s finding that the arbitration provision in the Power of Attorney and Engagement Agreement (hereafter referred to as the “Agreement”) between the Stern defendants and plaintiff, James Billy Lafleur (“Mr.Lafleur”), was adhesionary, and therefore, unenforceable.

BACKGROUND

This case arises out of a contractual relationship between Mr. Lafleur, a Louisiana resident, and his Texas attorneys, the Stern defendants. It is undisputed that on April 5, 2002, Mr. Lafleur executed a written Agreement with the Stern defendants at the Stern defendants’ Houston, Texas law office. The Agreement was a five-page preprinted attorney-client contract that had been drafted by the Stern defendants. Mr. Lafleur retained and employed the Stern defendants to pursue his maritime claim for personal injuries that he had sustained on March 19, 2002, while traveling on a vessel in navigable waters off the coast of Louisiana.

|4On April 5, 2004, Mr. Lafleur filed suit against his attorneys, the Stern defendants, alleging negligent legal representation. Specifically, Mr. Lafleur contended that his attorneys committed legal malpractice by (1) settling his maritime claim without the proper authority from the workers’ compensation carrier and his employer; (2) negotiating an inadequate settlement; and/or (3) failing to obtain authority for and payment of his medical services, treatments, and bills from his employer’s workers’ compensation carrier.

The Stern defendants responded to Mr. Lafleur’s lawsuit by filing a dilatory exception raising the objection of prematurity, and alternatively, motions to stay the proceedings and to compel arbitration. 'The matter was heard on January 5, 2005. The Stern defendants argued that the dispute is subject to arbitration required by the Agreement, and therefore, Mr. La-fleur’s claims were premature and the case should be dismissed. Alternatively, the Stern defendants moved for an order compelling Mr. Lafleur to arbitrate and for a stay of the proceedings pending arbitration. The Stern defendants also maintained that Texas law applied according to a provision in the Agreement. Mr. La-fleur argued that Louisiana law applied, because although the Agreement was executed in the state of Texas, all of the -other events and contacts occurred in Louisiana. Additionally, Mr. RLafleur opposed arbitration on the grounds that the arbitration provision in the Agreement was unconscionable because it unilaterally applied to him and not the Stern defendants, and it required him to be solely responsible for the cost of the arbitration regardless of the outcome.

After a hearing, the trial court denied the Stern defendants’ exception and motions, finding that Louisiana law applied and that the arbitration provision in the Agreement was unenforceable because it was adhesionary, arbitrary, and lacked good faith and mutuality. The Stern defendants appealed, assigning three errors allegedly made by the trial court: (1) error in applying Louisiana instead of Texas law; (2) error in failing to uphold the validity of the arbitration agreement under Texas law; and alternatively, (3) error in holding the arbitration agreement unenforceable under Louisiana law.

BURDEN OF PROOF AND STANDARD OF REVIEW

The burden was on the Stern defendants to establish that a valid and enforceable, arbitration agreement exists in this case. In determining whether a party is bound by an arbitration agreement, we apply ordinary contract principles. A party cannot.be required to submit to arbitrate a dispute that he has not agreed to submit. Broussard v. Compulink Business Systems, Inc., 41,276 (La.App. 2 Cir. 8/23/06), 939 So.2d 506, 509; Rico v. Cappaert Manufactured Housing, 05-141 (La. App. 3 Cir. 6/1/05), 903 So.2d 1284, 1288. If the Stern defendants satisfy their burden of proof establishing their right to arbitration, the burden then shifts to Mr. Lafleur to demonstrate that he did not consent to the arbitration terms or his consent was vitiated by error, which rendered the arbitration provision | fiUnenforceable. See Aguillard v. Auction Management Corp., 04-2804 (La.6/29/05), 908 So.2d 1, 12.

Whether a court should compel arbitration is a question of law. Appellate review of questions of law is simply whether the trial court , was legally correct or incorrect. Johnson v. Blue Haven Pools of Louisiana, Inc., 05-0197 (La.App. 1 Cir. 2/10/06), 928 So.2d 594, 597. If the trial court’s decision was based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Id. We note that to the extent that the .trial court relied on the principles found in Sutton’s Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-0152 (La.3/16/01), 787 So.2d 316, the trial court was legally incorrect per the Louisiana Supreme Court’s recent holding in Aguillard, 908 So.2d at 16-18, abrogating Sutton’s Steel. Therefore, we review the instant matter de novo. See Hoffman, Siegel, Seydel, Bienvenu & Centola, APLC v. Lee, 05-1491 (La.App. 4 Cir. 7/12/06), 936 So.2d 853, 858-859, writ denied, 06-1995 (La.11/3/06), 940 So.2d 671.

LAW AND ANALYSIS

The Agreement at issue has two provisions (Paragraph 9 “APPLICABLE LAW” and paragraph 10 “ARBITRATION”) pertinent to our analysis. The provisions provide as follows:

9. APPLICABLE LAW
This Agreement shall be construed under and in accordance with the laws of the state in which it is executed, and the rights[,] duties and obligations of [Mr. Lafleur] and of [the Stern defendants] regarding [the Stern defendants’] representation of [Mr. La-fleur] and regarding any matter 17covered by this Agreement shall be governed by the laws of the state in which this Agreement is executed. Subject to the requirements of Séction 10 [the ARBITRATION provision] hereof, any controversy between [Mr. Lafleur] and [the Stern defendants] or either of them regarding [the Stern defendants’] representation of [Mr. Lafleur] or régarding anything covered by this Agreement will be filed in a court of competent jurisdiction in Harris County, Texas.
10. ARBITRATION
, Any and all disputes, controversies, claims or demands arising out of or relating to this Agreement or any provisions hereof, the providing of services by [the Stern Defendants] to [Mr. La-fleur], or in any way relating to. the relationship between [the Stern defendants] and [Mr. Lafleur], whether in contract, tort or otherwise, at law or in equity, for damages or any other relief, made by or on behalf of [Mr. Lafleur] shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association. Any such arbitration proceeding shall be conducted in Harris County, Texas pursuant to the substantive federal laws established by the Federal Arbitration Act. The expense of any arbitration shall be a Case Advance • pursuing the Claims. Any party to any award rendered in such arbitration proceeding may seek a judgment upon the award and that judgment may be entered by any federal or state court in Harris County, Texas having jurisdiction. [Mr. Lafleur] understands and acknowledges that [Mr. Lafleur] is waiving all rights to a trial by a jury or a judge.

(Emphasis added.)

The choice of law provision (Paragraph 9) specifically states that the applicable law is “[s]ubject to the requirements” of the arbitration provision (Paragraph 10) in the Agreement. The arbitration provision specifically references the Federal Arbitration Act (FAA), 9 U.S.C. § 1-16, as the applicable substantive law, not the laws of the state (Texas) in which the Agreement was executed. The trial court considered several factors in deciding that Louisiana law governed the determination of whether or not the arbitration provision was enforceable. The trial court found, and we agree, that every aspect of Mr. Lafleur’s underlying maritime personal injury |sclaim (the object of the Agreement) was connected with Louisiana, and therefore, Louisiana policies were most seriously affected by the Agreement. The place of execution of the Agreement (Texas) was not a factor that outweighed the underlying case’s significant connection to Louisiana.

The Louisiana Binding Arbitration Law (LBAL) is found at LSA-R.S. 9:4201-4217. Application of the LBAL as opposed to the FAA is of little consequence because, as pointed out by the Louisiana Supreme Court in International River Center v. Johns-Manville Sales Corp., 02-3060 (La.12/3/03), 861 So.2d 139, 143, the FAA is “a collection of statutes which is very similar” to the LBAL. Jurisprudence has recognized that the FAA and the LBAL are “virtually identical;” therefore, Louisiana courts have recognized that determinations regarding the viability and scope of arbitration clauses would be the same under either law, and federal jurisprudence interpreting the FAA may be considered in construing the LBAL. See Aguillard, 908 So.2d at 18; Gunderson v. F.A. Richard & Assoc., Inc., 05-917 (La. App. 3 Cir. 8/23/06), 937 So.2d 916, 920; Dufrene v. HBOS Mfg., LP, 03-2201 (La. App. 4 Cir. 4/7/04), 872 So.2d 1206, 1209-1210; Shroyer v. Foster, 01-385 (La.App. 1 Cir. 3/28/02), 814 So.2d 83, 87. Thus, since the arbitration provision at issue clearly references the substantive federal laws established by the FAA as the applicable law, and the FAA is virtually identical to the LBAL, the trial court did not err in applying Louisiana law to determine the validity of the arbitration provision.

Furthermore, in determining whether parties agreed to arbitrate a certain matter, courts must apply the contract law of the particular state that governs the agreement. See Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th Cir. 2004); Snyder v. Belmont Homes, Inc., 04-445 (La.App. 1 Cir. 2/16/05), 899 So.2d 57, 61, writ denied, 05-1075 (La.6/17/05), 904 So.2d 699. Because Louisiana is the domicile of the plaintiff and the witnesses in the underlying maritime personal injury claim, and it is the location of the personal injury site and the place of the performance of the Agreement, we find that Louisiana has the most significant relationship to the parties and the subject matter of the Agreement. Therefore, we will apply Louisiana law in deciding whether the arbitration provision in the Agreement is enforceable.

We note that the positive law of Louisiana favors arbitration, and any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration. Aguillard, 908 So.2d at 7-8. Unquestionably, the FAA embodies a liberal federal policy favoring arbitration agreements. Id. The FAA, at 9 U.S.C. § 2, provides in pertinent part:

A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ..., or an agreement in writing to submit to arbitration an existing controversy arising out of a contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at laiv or in equity for the revocation of any contract. (Emphasis added.)

Similarly, the LABL, at LSA-R.S. 9:4201, specifically provides in pertinent part:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, ... or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Emphasis added.)

Therefore, as a matter of federal law, arbitration agreements and provisions are to be enforced unless they are invalid under principles of state law that govern all contracts. Generally applicable contract defenses such as fraud, |induress, or uncon-scionability, may be applied to invalidate arbitration agreements without contravening the FAA. Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 166 (5th Cir.2004).

One of the conditions of a valid contract is the consent of both parties. LSA-C.C. art.1927. Louisiana jurisprudence recognizes that certain contractual terms, especially when contained in dense standard forms that are not negotiated, can be too harsh to justly enforce. The theory of such decisions, often, is that an unconscionable contract or term can be thought of as lacking the free consent that the Louisiana Civil Code requires of all contracts. Iberia Credit Bureau, 379 F.3d at 167. In order to be invalidated, a provision must possess features of both adhe-sionary formation and unduly harsh substance. Id.

A contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection by the weaker party. Often in smail print, these contracts sometimes raise a question as to whether the weaker party actually consented to the terms. Aguillard, 908 So.2d at 9. However, the real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Id., 908 So.2d at 12 (referencing Saul Litvinoff, Consent Revisited: Offer Acceptance Option Right of First Refusal and Contracts of Adhesion in the Revision of the Louisiana Law of Obligations, 47 La.L.Rev. 699, 758 (1987)). As the supreme court explained in Aguillard, 908 So.2d at 12:

Consent is called into question by the standard form, small print, and most especially the disadvantageous position of the accepting party, which is further emphasized by the potentially unequal bargaining positions of the parties. An unequal bargaining position is evident when the contract |nunduly burdens one party in comparison to the burdens imposed upon the drafting party and the advantages allowed to that party. Once consent is called into question, the party seeking to invalidate the contract as. adhesionary must then demonstrate the non-drafting party either did not consent to the terms in dispute or his consent was vitiated by error, which in turn, renders the contract or provision unenforceable.
In summation, a contract is one of adhesion when either its form, print, or unequal terms call into question the consent of the non-drafting party and it is demonstrated that the contract is unenforceable, due to lake of consent or error, which vitiates consent.

(Emphasis added).

The trial court found that the arbitration provision in the Agreement at issue was a standard form contract, with small print, and prepared by the Stern defendants. While we agree the print size is small, we do not find that it is unreasonably small. Furthermore, the arbitration provision is in the same size print as the rest of the contract and it is sufficiently set apart with a heading so that the arbitration provision is easily recognizable to anyone reading the contract. However, we emphasize and agree with the trial court’s assessment that an attorney-client relationship is more than a contractual one; it is fiduciary, which requires a full and fair disclosure of all the rights and interest which are materially affected by the contract.

The trial court determined that this particular arbitration provision was “unduly burdensome,” because it attempts to solely bind the client, Mr. Lafleur, to the arbitration requirement for any dispute brought by or on his behalf, while allowing the attorneys, the Stern defendants, to avail themselves of any and all procedural and substantive law remedies. The arbitration provision also imposes the expense of any arbitration exclusively on the client, Mr. Lafleur, as a “[c]ase [advance” (repayable and reimbursable to the attorneys under the Agreement, Paragraph 7) regardless h?of the outcome of the arbitration proceedings. The arbitration provision further states that only the client, Mr. Lafleur, “understands and acknowledges that [he] is waiving all rights to a trial by a jury or a judge” for any and all disputes arising out of or relating to the Agreement. The trial court found that under the circumstances, the arbitration provision was arbitrary and adhesionary, and therefore, lacking in the requisite consent necessary for enforcement of the provision. We agree.

We recognize that the client is in an unequal bargaining position when initially contracting with an attorney and signing a pre-printed contract drafted by the attorney. Trust is essential in attorney-client relationships. Clients who have sustained serious personal injuries and seek legal assistance are often overwhelmed with pain and desperate living conditions, particularly if their source of income has disappeared due to their inability to work. It is unconscionable for an attorney to be allowed to draft a contract with an arbitration provision that unilaterally takes away the client’s right to a trial should legal malpractice occur or any dispute arise out of the contract between the attorney and client, while allowing the attorney to pursue any and all remedies.

We find this case distinguishable from Aguillard, 908 So.2d at 21, wherein the supreme court found that an arbitration clause in an auction document limited both parties rights to litigate. The Aguillard scenario did not involve the unequal bargaining power that is inherent in the attorney-client relationship. See Aguillard, 908 So.2d at 23. In the case sub judice, the lack of mutuality in the arbitration requirement, along with the obligation that the client alone is to bear the expense of the arbitration proceedings, accentuate the burdensome and unconscionable elements in this arbitration 113provision that was drafted by the attorneys without any input from the client. These factors make this particular arbitration provision adhesion-ary and unenforceable.

Accordingly, while we recognize that under federal and state law the weight of the presumption in favor of arbitration is heavy, we find no error in the trial court’s conclusion that the arbitration provision in this attorney-client contract was adhesion-ary. Due to the lack of mutuality, the arbitration provision was unconscionable, and we therefore decline to order arbitration. We affirm the trial court’s judgment denying the Stern defendants’ dilatory exception of prematurity and alternative motions to stay the proceedings and compel arbitration. We remand this case to the trial court for further proceedings consistent with this opinion, and we assess costs of this appeal to the Stern defendants.

AFFIRMED AND REMANDED.

      . The other appellants-defendants, Anthony G. Buzbee and the Buzbee Law Firm, P.C. (collectively referred to as "the Buzbee defendants"), moved this court for an order of partial dismissal of this appeal after a settlement was reached between the Buzbee defendants and the plaintiff, James Billy Lafleur. The appeal of the Buzbee defendants was dismissed on May 4, 2006, while the appeal of the Stern defendants was maintained.

      . Mr. Lafleur also filed suit against the Buz-bee defendants who were engaged as co-counsel with the Stem defendants, as well as two alleged case-runners, Ramsey Jones and Clarence Jones (collectively referred to as "the Jones defendants”). Mr. Lafleur settled his claim against the Buzbee defendants after this appeal was filed. Because the Buzbee defendants are no longer parties and the Jones defendants are not part of the appeal, this opinion concentrates solely on Mr. Lafleur's claim against the Stern defendants.

      . Prior to the Stern defendants' exception and motions, the case was removed from the 16th Judicial District Court for the Parish of St. Mary to the United States District Court for the Western District of Louisiana. The case was remanded back to the state district court on October 7, 2004, due to a lack of subject matter jurisdiction because of an absence of complete diversity of citizenship.


author: GAIDRY, J.

text:
    Gregory ODEN v. James GALES, Jr. and Allstate Insurance Company.
    No. 2006 CA 0946.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Cyrus J. Greco, Matthew L. Mullins, Baton Rouge, Counsel for Plaintiff/Appellant Gregory Oden.
    . Anthony M. Butler, Baton Rouge, Counsel for Defendant/Appellee Allstate Insurance Company.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| PThe plaintiff-appellant, Gregory Oden, appeals a trial court judgment on a jury verdict in this personal injury action. For the following reasons, we affirm the judgment.

FACTS AND PRIOR PROCEEDINGS

This action arises from a motor vehicle accident that occurred on May 28, 2000, in Baton Rouge, Louisiana. The plaintiff, Mr. Oden, was the driver of an automobile which was struck from the rear by a following automobile operated by James Gales, Jr. The collision caused considerable damage to Mr. Oden’s automobile, and he was taken by ambulance to the emergency room of Earl K. Long Medical Center.

According to Mr. Oden, the collision caused the right rear of his head to strike his headrest with considerable force, causing a bump or “big knot” and rendering him “dazed.” He also experienced the onset of neck pain, which “lasted about a week.” Although he did not actually lose consciousness, he testified at trial that “it seemed like [he] was about to.” At the hospital emergency room, he was x-rayed, examined, and prescribed pain medication before being discharged with instructions to return for a followup examination regarding his x-ray results. The x-ray films of the skull were normal, while those of the neck revealed only mild degenerative changes of the lower cervical spine. He returned to the emergency room on May 31, 2000, and was prescribed a different medication for pain and advised to return if he experienced any further problems.

Mr. Oden did not seek further treatment until over a year later, on July 18, 2001, when he consulted John M. Boutte, Ph.D., a clinical psychologist in Slidell. At trial, Mr. Oden explained that his occupation was that of a union boilermaker, and that because of lack of available work, he was not | ¡¡employed at the time of the accident, had not accumulated enough work hours to maintain his health insurance through his union, and could not afford to seek further treatment after the emergency room visits. He testified that he eventually decided to consult Dr. Boutte because of memory problems and unusual physical sensations he was experiencing, as well as his concern “about starting to develop seizures” from the blow to his head. Dr. Boutte diagnosed a depressive disorder and a possible cognitive disorder, and recommended that Mr-. Oden consult a psychologist in the Baton Rouge area, closer to his residence, in order to avoid long drives to Slidell.

Mr. Oden next consulted Cary D. Ros-tow, Ph.D., a clinical psychologist and neu-ropsychologist, five months later on December 20, 2001. Dr. Rostow diagnosed an adjustment disorder with mixed anxiety and depression and a pain disorder associated with those psychological factors.

After being examined by another neu-ropsychologist, John Bolter, Ph.D., at the request of Allstate Insurance Company (Allstate), Mr. Oden was evaluated on two occasions in September 2003 and February 2004 by a neurologist, Gerard Dynes, M.D. An MRI study of the brain and an EEG study conducted in January 2004 were both essentially normal.

Mr. Oden filed suit for damages against Mr. Gales and his liability insurer, Allstate. Mr. Gales died prior to trial, leaving Allstate as the sole defendant. Following a jury trial on June 8 and 9, 2005, at which the issue of Allstate’s liability was stipulated, the jury returned a verdict in favor of Mr. Oden, awarding him $1,000.00 in general damages for pain and suffering and $800.00 for medical expenses. The trial court entered its final Lsigned judgment on the jury verdict on February 6, 2006. Mr. Oden now appeals.

ASSIGNMENTS OF ERROR

Mr. Oden contends that the judgment incorporating the jury verdict is in error in these respects:

1. The jury abused its discretion in awarding damages below what a reasonable trier of fact would [assess] for the effects of the injuries [sustained] by plaintiff.
2. The jury committed legal error by failing to award Mr. Oden damages for mental anguish and loss of enjoyment of life after finding Mr. Oden was injured and incurred medical expenses.

ANALYSIS

As part of his first assignment of error, Mr. Oden contends that the jury abused its discretion by awarding inadequate general damages for pain and suffering. But he also contends in his second assignment of error that the jury’s refusal to make awards for “mental anguish” and “loss of enjoyment of life” amounts to legal error, thus warranting a de novo assessment of all general damages and review of damage awards for injuries comparable to those he claims, citing Hoyt v. State Farm Mut. Auto. Ins. Co., 623 So.2d 651, 660 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La. 1993). We disagree with that characterization of the applicable standard of review, and find Hoyt factually distinguishable.

Standard of Review

The trier of fact is accorded much discretion in fixing general damage awards. La. C.C. art. 2324.1; Cheramie v. Horst, 93-1168, p. 6 (La.App. 1st Cir.5/20/94), 637 So.2d 720, 723. The discretion vested in the trier of fact is great, even “vast,” so that an appellate court should rarely disturb an | Raward of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74; Youn, 623 So.2d at 1261. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Youn, 623 So.2d at 1260.

Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So.2d at 1261. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Id. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate. Theriot, 625 So.2d at 1340.

If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. Pri- or awards under similar circumstances serve only as a general guide. In such review, the test | fiis whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Id.

Pain and Suffering

Under the foregoing standard of review, we must first examine the facts and circumstances relating to Mr.. Oden’s particular injuries. The primary disputed issues at the trial of this matter were the nature and causation of Mr. Oden’s claimed injuries. By their nature, these issues were interrelated. The trial court’s finding regarding causation is a factual finding and must bé reviewed under the manifest error standard. Robling v. Allstate Ins. Co., 97-0582, p. 4 (La.App. 1st Cir.4/8/98), 711 So.2d 780, 783. In a-personal injury suit, the plaintiff has the burden of proving by a preponderance of the evidence a causal connection between the injury sustained and the accident which caused the injury. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injury was caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759.

The ambulance run report, introduced into evidence, confirmed that Mr. Oden was complaining of posterior head pain and back pain, and that “slight bruising” of the head was noted. The report listed an unknown depression medication under Mr. Oden’s “current medications,” and also noted a past medical history of “depression.” The emergency room record of Earl K. Long Medical Center noted Mr. Oden’s complaint of a “knot” on the back of his head, along with a discharge diagnosis which included “contusions.” That record also documented a past history of depression and use of antidepressant medication.

|7Mr. Oden testified at trial that he had previously been treated for depression between 1991 and 1993 at a Baton Rouge mental health clinic and had been prescribed medication for that condition. He claimed, however, that his condition had improved by the time of the accident.

In the interval between the followup hospital visit after the accident and his evaluation by Dr. Boutte, Mr. Oden worked in his occupation in Massachusetts and Rhode Island for approximately a year. He admitted that his complaints after the accident did not cause him to lose any time from work. He testified that by the time he returned to Baton Rouge from his work out of state, he began to notice strange “tingling” or “moving” sensations in his torso and arm, primarily at night, along with feelings of depression. He claimed that he was still experiencing those sensations and memory problems at the time of trial.

Dr. Boutte did not testify at trial, but his report from his clinical interview of Mr. Oden was introduced into evidence. The stated reasons for the consultation were Mr. Oden’s “[l]oss of memory, headaches, earache and no motivation,” as well as his desire to “find out if [he had] brain damage.” Dr. Boutte recorded that Mr. Oden reported a history of the accident, a primary complaint of “memory problems” since that date, and the onset of “sad mood, decreased interest, sleep difficulty, concentration problems, and thoughts of danger” within the month prior to the evaluation. Mr. Oden also advised Dr. Boutte that during the prior year, he had experienced “unemployment, financial stress and threat of job loss.” During the interview, Mr. Oden exhibited moderate levels of clinical depression. Significantly, the report did not specifically relate or attribute the diagnoses to the accident. Dr. Boutte saw Mr. Oden on only that one occasion.

1 sMr. Oden was referred by his attorney for evaluation by Dr. Rostow. He saw Dr. Rostow on only one occasion. Dr. Rostov^s general impression was that of an adjustment disorder with mixed anxiety and depression, as well as a pain disorder. He found no objective evidence of memory loss, but concluded that Mr. Oden’s subjective complaints in that regard were a “compensatory symptom” that was psychological or emotional in origin. He also believed that Mr. Oden’s physical complaints at the time of his evaluation were a “depressive equivalent,” a psychological response to his depression.

At the time of his evaluation, Dr. Ros-tow was under the erroneous impression that Mr. Oden had been under Dr. Boutte’s continuing care since the time of the accident. He also incorrectly believed that Mr. Oden had been hospitalized for two to three days after the accident. In addition to those misconceptions, Dr. Ros-tow admitted under cross-examination that he was unaware of the extent of Mr. Oden’s financial difficulty at the time he evaluated him, and that such difficulty is a known stressor or cause of depression. However, Dr. Rostow maintained his opinion that the depression was partly attributable to the accident, which was the “proximal cause” of the development of the symptoms. Finally, Dr. Rostow admitted that his evaluation of Mr. Oden was not for purposes of his undertaking treatment of Mr. Oden, but for diagnostic purposes to facilitate his treatment by others.

John Bolter, Ph.D., a neuropsychologist, evaluated Mr. Oden on behalf of Allstate on January 27, 2003. Mr. Oden’s primary complaints at that time were memory loss and strange bodily sensations. In addition to his opinion that Mr. Oden did not sustain any organic brain damage as the result of the accident, he concluded that there was no evidence and “too much 1 ¡¡doubt” to conclude that Mr. Oden’s psychological condition was related to the accident. Under cross-examination, Dr. Bol-ter did not dispute Dr. Rostow’s diagnostic impression, and admitted that it was “very clear” that Mr. Oden had some psychological problems. He also agreed that the odd physical sensations described by Mr. Oden might be a “depressive equivalent.” It was Dr. Bolter’s impression that Mr. Oden’s failure to advise him of any history of past treatment for depression was deliberate rather than a memory lapse, given the contrary history provided to the emergency room physician. He explained that his conclusion that Mr. Oden “lied to [him] about his history” was corroborated by an elevated L-scale on the MMPI-2 psychological test and a followup credibility scale, both of which indicated that Mr. Oden was the type of person who tended not to admit to common human frailties.

Mr. Oden next consulted Gerard Dynes, M.D., a neurologist, on September 3, 2003, on referral from his family physician. Dr. Dynes’s testimony was presented by deposition. Dr. Dynes testified that Mr. Oden related the history of the accident and complained of continued, unchanged memory loss and odd sensations such as leg movement and jerking since the accident. His neurological examination was normal, as was a simple mental status and memory examination. Dr. Dynes recommended MRI and EEG studies, which were performed in January 2004 and were essentially normal. Mr. Oden was seen for a followup examination on February 19, 2004, complaining of odd sensations or par-esthesias in his stomach and arms. His neurological examination was again normal. Dr. Dynes noted that unchanged memory loss over a period of three years was atypical for a post-concussive syndrome. When asked whether his treatment related to injury from the accident, Dr. Dynes characterized that issue as “a challenge,” and |instated that he could not be definite on that point. He explained that he only saw Mr. Oden twice and did not have the opportunity to review the neuropsychological reports, which he felt might be helpful. When asked whether the unusual sensations or paresthesias were related to head trauma, Dr. Dynes’s response was, “I doubt it.”

Because a jury was the trier of fact in this case, we do not have the benefit of articulated findings of fact or reasons for judgment. However, we may deduce the jury’s conclusions from the awards rendered in its verdict and from a question it posed to the trial court during its deliberations. See Metrejean v. Prudential Ins. Co., 98-2170, p. 13 (La.App. 1st Cir.11/5/99), 761 So.2d 1, 9; Hoyt, 623 So.2d at 657.

The jury posed a written question relating to the first interrogatory on the verdict form: “Was James Gales’ negligence a substantial factor in bringing about Gregory Oden’s injuries?” Based upon that interrogatory, the jury asked, “What injuries?” The trial court recalled the jury to the courtroom and explained that although the liability issue was stipulated, the jury was required to determine “what[,j if any[,] injuries were caused by this accident.” As the- foreman explained to the trial court, the jury was “concerned about the problem about [Mr. Oden’s] mental condition as well as his bumps and bruises.”

The jury awarded Mr. Oden the sum of $800.00 for “past, present, and future medical expenses.” Mr. Oden contends that this award was inadequate, but has not specifically stated the basis of his contention in that regard. We must therefore assume that it relates solely to the jury’s failure to award the total amount of medical and psychological expenses documented at trial, or $5,441.75. We note that the jury’s award only slightly exceeds the total medical expenses incurred for his ambulance ¡^service and hospital evaluation and treatment, $493.75, or perhaps those expenses combined with the bill of Dr. Boutte, $257.00, for a total of $750.75. Given the equivocal testimony of Dr. Dynes as to the relationship of his treatment to the accident, as well as the inconclusive nature of his diagnosis, the jury obviously concluded such treatment was not shown to be related to injury caused by the accident. Likewise, the incomplete history provided to Dr. Rostow and his incorrect assumptions regarding the nature of Mr. Oden’s immediate post-accident treatment undoubtedly influenced the jury’s refusal to. award his evaluation fee of $1,875.00.

The jury’s awards are consistent with a finding that Mr. Oden sustained minor to moderate physical injuries of relatively brief duration, and that his later corn-plaints of depression, memory loss, and subjective pain and paresthesias were not attributable to the accident. The record clearly supports the conclusion that there were two permissible views of the evidence relating to the nature and causation of the claimed injuries, and that the jury was ultimately required to base its decision upon Mr. Oden’s credibility and the underlying history and findings of the expert witnesses. Such being the case, the jury’s implicit finding that Mr. Oden sustained only minor to moderate physical injuries of brief duration and failed to prove the causation of his depression and other claimed injuries cannot be manifestly erroneous. See Stobart v. State ex rel. Dept. of Transp. and Dev., 617 So.2d 880, 883 (La. 1993).

Given the jury’s factual findings expressed in its verdict and based upon our thorough review of the record on appeal, we find no abuse of the Injury's great discretion in the total award of general damages for pain and suffering. Thus, it is inappropriate and unnecessary for us to undertake a comparison of the award in this case with past awards. See Youn, 623 So.2d at 1260.

“Mental Anguish” and “Loss of Enjoyment of Life”

In the Hoyt case, relied upon by Mr. Oden, the jury awarded the plaintiffs minor son $22,500.00 in general damages, as well as an award for past medical expenses. The minor had been treated for neck, back, and head injuries following a motor vehicle accident. The trial court subsequently granted the plaintiffs motion for judgment notwithstanding the verdict (JNOV) and increased the general damages award to $60,000.00 as to the back and neck injuries only. In doing so, the trial court acknowledged in its reasons that the jury evidently concluded that the plaintiffs son’s mental dysfunction was not caused by the accident. While agreeing with the trial court as to the latter finding by the jury, this court nevertheless held that the trial court committed legal error by failing to award general damages for a closed head injury and post-concussion syndrome, as distinguished from the mental dysfunction claim. We based our ruling on the fact that the jury’s award of medical expenses clearly included hospital and diagnostic test expenses related to the head injury and post-concussion syndrome. Id. at 660. We thereupon increased the original general damages award by an additional $15,000.00 for the head injury and post-concussion syndrome.

However, since the rendition of Hoyt, the supreme court has held that “the particular facts of each case are ultimately determinative” as to whether awards for different elements of damages in personal injury cases are inconsistent, and that “there is no bright line rule at work” in situations where special damages are awarded but no general damages are awarded. | Wainwright, 00-0492 at pp. 8-9, 774 So.2d at 76. Thus, while it is still true that “a jury verdict awarding medical expenses but simultaneously denying damages for pain and suffering will most often be inconsistent in light of the record,” it cannot be concluded that such a perceived inconsistency always amounts to legal error. Wainwright, 00-0492 at pp. 6-7, 774 So.2d at 75.

Here, unlike Hoyt, the trial court’s judgment did not exclude any award of general damages for a particular injury while at the same time including the award of medical expenses for treatment of that injury. The jury in this case made an award of general damages for the element of “pain and suffering,” but obviously concluded that Mr. Oden’s claims related to depression, memory loss, and other mental or psychological dysfunction were not caused by the accident.

The same considerations applicable to the award for pain and suffering apply to the jury’s failure to award general damages for the elements of “mental anguish” and “loss of enjoyment of life” listed separately on the verdict form. Although both elements, like pain and suffering, are components of general damages, “loss of enjoyment of life” is conceptually different from the element of pain and suffering, while “mental anguish” is not. See McGee v. A C and S, Inc., 05-1036, pp. 5-7 (La.7/10/06), 933 So.2d 770, 775-76. “Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies [sic ] an injury.” McGee, 05-1036 at p. 5,933 So.2d at 775. (Emphasis supplied.) Here, the verdict form did not expressly limit the element of pain and suffering to physical sensations, to the exclusion of mental or emotional aspects. To some extent, an undifferentiated award of general damages for “pain and suffering” may be duplicative of an award for “mental anguish” deriving from the same injury. We conclude it is inappropriate to split hairs so finely under these facts, and that the jury’s failure to make a separate award for “mental anguish” was neither manifest error nor legal error.

We similarly find no manifest or legal error as to the jury’s refusal to award damages for “loss of enjoyment of life.” The jury evidently concluded that those injuries proven to have been sustained by Mr. Oden did not cause him a detrimental lifestyle change warranting such an award. See McGee, 05-1036 at p. 5, 933 So.2d at 775. The record provides an evidentiary basis for the jury’s decision.

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Gregory Oden.

AFFIRMED.

      . The trial court's original judgment was signed on November 29, 2005. The original judgment was amended on February 6, 2006 to reflect that only the jury verdict, rather than the judgment, was entered on June 9, 2005.

      . The jury conceivably could have concluded that Mr. Oden was warranted in seeking an evaluation by Dr. Boutte to rule out “brain damage,” his expressed concern, and was therefore entitled to recover the cost of that evaluation even if no brain or psychological injury was caused by the accident. See Wainwright, 00-0492 at pp. 10-11, 774 So.2d at 77-8.

      . Thus, the facts of this case more closely resemble those of Metrejean v. Pmdential Ins. Co., 98-2170 (La.App. 1st Cir.11/5/99), 761 So.2d 1, than those of Hoyt. In Metrejean, the plaintiff sustained a head injury which he contended caused his personality to change and resulted in chronic debilitating headaches and post-concussion syndrome. The jury made awards of $1,200.00 for “past and present physical pain and suffering” and $2,000.00 for “past and present mental pain and suffering.” We affirmed the jury’s verdict, finding the jury’s limited awards of medical expenses and lost wages to be consistent with "a mild closed head injury with no long-term complications.” Metrejean, 98-2170 at p. 13, 761 So.2d at 9-10.