author: WEIMER, Justice.

text:
    STATE of Louisiana v. Walter R. COX, Sr.
    No. 2008-K-0492.
    Supreme Court of Louisiana.
    Jan. 21, 2009.
    Rehearing Denied March 6, 2009.
    James D. Caldwell, Attorney General, John F. DeRosier, District Attorney, David Daniel Palay, Jr., Carla Sue Sigler, Assistant District Attorneys, for applicant.
    Louisiana Appellate Project, Mark Owen Foster, for respondent.
   WEIMER, Justice.

hThe State’s writ application was granted to determine the correct interpretation of LSA-R.S. 14:96 which defines the crime of aggravated obstruction of a highway of commerce as “the intentional or criminally negligent placing of anything, or performance of any act, on any ... highway ... wherein it is foreseeable that human life might be endangered.”

For reasons that follow, we reverse the ruling of the court of appeal, reinstate the jury verdict and sentences imposed by the trial court, and remand to the court of appeal for consideration of pretermitted issues not addressed in the original opinion.

FACTS AND PROCEDURAL BACKGROUND

On March 19, 2005, the defendant arrived at his son’s residence at approximately 11:00 a.m. He informed his son of his flight from the police and his need for money. Defendant’s son instructed him to meet him at a particular truck stop | ¿in Calcasieu Parish and promised to bring him money. The son then contacted authorities in an attempt to effect the peaceful surrender of his father at the truck stop.

Defendant noticed police at the truck stop and drove away. A high speed chase ensued with the defendant driving around police road blocks and through residential neighborhoods at speeds approaching 100 miles per hour. Out of a concern for safety, the police backed off the chase. While negotiating a curve on Louisiana Highway 12, defendant’s vehicle crossed the center line and struck another vehicle traveling in the opposite direction. The driver of the other vehicle died as a result of the injuries sustained in the collision. Her husband survived.

The defendant was charged by grand jury indictment with one count of manslaughter in violation of LSA-R.S. 14:31(A)(2)(a), one count of aggravated obstruction of a highway of commerce in violation of LSA-R.S. 14:96, and one count of aggravated criminal damage to property in violation of LSA-R.S. 14:55.

[<¡A jury convicted the defendant of all counts and the trial court sentenced him to 40 years imprisonment at hard labor on the manslaughter conviction, 10 years imprisonment at hard labor on the aggravated criminal damage to property conviction and 15 years imprisonment at hard labor on the aggravated obstruction to a highway of commerce conviction. The court further ordered the aggravated criminal damage to property sentence to run concurrently with the manslaughter conviction, but ordered the sentence for the aggravated obstruction of a highway of commerce sentence to run consecutively with the manslaughter sentence.

Defendant appealed his convictions and sentences. The appellate court found the evidence did not support defendant’s conviction of aggravated obstruction of a highway of commerce. Thus, the court vacated the convictions and sentences for the charges of manslaughter and aggravated obstruction of a highway of commerce. Concluding the record supported a finding that defendant’s conduct amounted to criminal negligence, the appellate court found defendant guilty of the responsive verdict of negligent homicide and remanded the matter for sentencing on that conviction and for compliance with the notification requirements of LSA-C.Cr.P. art. 930.8. State v. Cox, 07-0774 (La.App. 3 Cir. 1/30/08), 974 So.2d 891.

Both parties sought writ of review to this court. The State’s writ application was granted to determine whether the court of appeal properly reversed the convictions of manslaughter and aggravated obstruction of a highway of commerce. State v. Cox, 08-0492 (La.10/3/08), 992 So.2d 996.

^DISCUSSION

On appeal, the defendant argued the evidence was insufficient to support his conviction on each offense. The court of appeal correctly acknowledged its role was to determine whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court further acknowledged that the role of the fact finder is to weigh the respective credibility of the witnesses; thus, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. The record must reflect that the State has satisfied its burden of proving the elements of the crime beyond a reasonable doubt. State v. Cox, 07-0774 at 2-3, 974 So.2d at 895.

Defendant argued that LSA-R.S. 14:96 had never been interpreted to find someone in the wrong lane of travel obstructed that lane as contemplated by the statute. Defendant further noted that to interpret the statute in such a manner would make virtually all traffic offenses felonies. Defendant also argued that roads are designed to accommodate traffic, the statute addresses only that which does not belong on the highway and the reference to “placing” within the statute contemplates putting stationary items on roadways.

Jurisprudence interpreting LSA-R.S. 14:96 is minimal. Only one Louisiana case has interpreted the evidentiary sufficiency requirement for aggravated obstruction of a highway of commerce. In State v. Winnon, 28,654 (La.App. 2 Cir. 9/25/96), 681 So.2d 463, writ denied, 96-2576 (La.3/27/97), 692 So.2d 391, the Second Circuit found defendant had created a foreseeable danger to human life when he placed his vehicle perpendicular to the highway, blocked passage of the victim’s |svehicle, and then assaulted her. In that case, the defendant exited the vehicle after blocking the roadway with the vehicle. The court found defendant created an obstruction by the placement of his vehicle across the roadway.

Recently, the First Circuit found erratic driving witnessed by a private person was sufficient to justify a stop for the felony offense of aggravated obstruction of a highway of commerce. The court focused on the words of the statute defining aggravated obstruction of a highway of commerce as “the intentional or criminally negligent placing of anything or performance of any act, on any railway, railroad navigable waterway, road, highway, thoroughfare, or runway of an airport, wherein it is foreseeable that human life might be endangered.” State v. Lavergne, 08-0044, p. 7 (La.App. 1 Cir. 5/2/08), 991 So.2d 86, 90. Another case addressing aggravated obstruction of a highway of commerce merely considered claims of excessive sentencing under the statute. See, State v. Keltner, 542 So.2d 42 (La.App. 2 Cir.), writ denied, 548 So.2d 1228 (1989).

In reviewing the record evidence, the court of appeal agreed with the defendant that the evidence did not support his conviction of aggravated obstruction of a highway of commerce. In analyzing the statute, the appellate court focused on the term “placing” of anything on a highway. The appellate court found the evidence established that defendant “drove” his vehicle on the wrong side of the highway, a violation of LSA-R.S. 32:71, further finding the act of driving in the wrong lane on a highway did not equate to placing anything on the highway. State v. Cox, 07-0774 at 5, 974 So.2d at 896.

The court of appeal found Winnon distinguishable from the matter currently before the court and did not consider the State’s argument regarding the disjunctive nature of the definition contained in the statute. Id.

| f,In its writ application to this court, the State contends the court of appeal erred in concluding the evidence presented was insufficient to sustain defendant’s convictions for manslaughter and aggravated obstruction of a highway of commerce. The State insists the conviction for aggravated obstruction of a highway of commerce was proper if the definition of “placing” or “performance of any act” under LSA-R.S. 14:96 would include turning one’s vehicle into the oncoming lane of traffic. The State argues the defendant “placed” his vehicle against oncoming traffic by driving into the opposite lane, or alternatively, “performed an act” which created a foreseeable risk to human life.

We note this case presents a unique set of factual circumstances. Prior to the collision, the defendant was engaged in a high speed chase with authorities through residential neighborhoods at speeds approaching 100 miles per hour. The evidence presented at trial estimated the speed of defendant’s vehicle at the time of the crash to be 85 miles per hour with the speed of the decedent’s vehicle about 40. Evidence also indicated the decedent attempted to avoid the collision by veering to her right as far as possible. Additional testimony established that defendant turned his vehicle toward the victims into the oncoming lane of travel. An accident reconstruction expert testified as to his findings regarding the collision which included the fact that there was no evidence of loss of control of defendant’s vehicle prior to impact. He found no evidence of prior or pre-skid marks, tire marks, or tracking marks on the highway and nothing to indicate the cause of the collision resulted from inattention or over correction. It was the expert’s opinion that the collision occurred because defendant’s vehicle made a four degree turn to the left immediately prior to impact. Significantly, the decedent’s husband testified that he “felt like a target” as a result of the defendant purposefully swerving to cause a collision. In addition to the ^evidence regarding the chase and the crash itself, there was testimony by the defendant’s son at the trial indicating the defendant proclaimed that he would not be taken alive and nobody was going to get in his way. In connection with the testimony, the State introduced a written statement identified as having being written by the defendant. Although the content of the statement indicated he would not go through with it, defendant wrote: “I think every day about hitting a truck head on.”

We find the court of appeal erred in failing to consider the statute in its entirety. An offender commits the crime of aggravated obstruction of a highway when he or she intentionally or criminally negligently places anything or performs any act on a highway wherein it is foreseeable that human life might be endangered. LSA-R.S. 14:96.

We need not resolve whether the evidence sufficiently establishes that defendant “placed” his vehicle in the opposite lane of travel under circumstances which clearly created a foreseeable risk to human life. On the other side of the statute’s disjunctive “or,” defendant’s conduct represented “any other act” which created a foreseeable risk to human life. Defendant surely performed an act which created a foreseeable risk to human life by driving into the opposite lane of travel at an estimated speed of 85 miles per hour and driving so as to intentionally target the victim’s vehicle. The difference between parking a vehicle in the opposite lane of travel and leaving it as an obstruction to oncoming traffic and speeding in the wrong direction in the opposite lane is that the latter act effectively creates a moving obstruction, increasing the risk to human life as it reduces the time in which oncoming traffic has to take evasive maneuvers to avoid a collision.

|sThe court of appeal focused its attention on the term “placed” which would tend to suggest that the statute is violated only when a stationary object has been placed in the roadway. However, the court of appeal failed to adequately consider the remainder of the statute which provides that “performance of any act” on a highway endangering human life is also prohibited. We find the concern expressed by the court of appeal that the statute might be applied too broadly in the context of traffic violations is a concern more appropriately addressed by the legislature. Given the unique facts of this case, particularly the defendant’s statements he would not be taken alive and the surviving victim’s testimony he believed he was targeted by the defendant’s driving, this case does not present an extreme application of the statute. Ultimately, we are bound by the requirement that provisions of the criminal code “shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” See LSA-R.S. 14:3, which guides the interpretation and application of criminal code provisions. The language of the statute, which requires the State to prove intent or criminal negligence in placing of anything or performance of any act on a highway where it is foreseeable that human life might be endangered, serves to limit the application of the statute.

After a thorough review of the record, we find that viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of aggravated obstruction of a highway of commerce were proven beyond a reasonable doubt. Thus, we reverse the ruling of the court of appeal and reinstate the jury verdict of guilty of aggravated obstruction of a highway of commerce. Based on the reinstatement of that guilty verdict, the manslaughter guilty verdict is also reinstated. We reinstate the sentences imposed by the trial court |fland remand to the court of appeal for consideration of issues pretermitted by the original opinion.

CONCLUSION

For the foregoing reasons, the decision of the court of appeal is reversed. The jury verdict and sentences are reinstated and the matter is remanded to the court of appeal for consideration of issues preter-mitted by the original opinion.

REVERSED; JURY VERDICT AND SENTENCES REINSTATED; REMANDED TO THE COURT OF APPEAL.

      . Calogero, C.J., retired, participated in this decision which was argued prior to his retirement.

      . LSA-R.S. 14:31(A)(2)(a) defines manslaughter as follows:
      (2) A homicide committed, without any intent to cause death or great bodily harm.
      (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.

      . LSA-R.S. 14:96 provides:
      Aggravated obstruction of a highway of commerce is the intentional or criminally negligent placing of anything, or performance of any act, on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, wherein it is foreseeable that human life might be endangered.
      Whoever commits the crime of aggravated obstruction of a highway of commerce shall be imprisoned, with or without hard labor, for not more than fifteen years.

      . LSA-R.S. 14:55 provides:
      Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.
      Whoever commits the crime of aggravated criminal damage to property shall be fined not more than ten thousand dollars, imprisoned with or without hard labor for not less than one nor more than fifteen years, or both.

      . Based on jury instructions to which the State failed to object, the manslaughter conviction was contingent on a guilty verdict in the aggravated obstruction of a highway of commerce charge. State v. Cox, 07-0774 at 9-10, 974 So.2d at 898-899.

      . The reporter's comment to LSA-R.S. 14:96 refers to the reporter’s comment for LSA-R.S. 14:97 which, in turn, states: "Not only obstruction but also any act which will impede travel and commerce comes within the purview of these articles.”

      . On appeal, defendant argued his convictions for manslaughter and the underlying felonies violate the constitutional principle that bars double jeopardy. Because the court of appeal reversed the convictions of manslaughter and aggravated obstruction of a highway, the court found that assignment of error moot. Reinstatement of the convictions of manslaughter and aggravated obstruction of a highway by this court requires remand to the court of appeal for consideration of the double jeopardy issue because that issue was not addressed by the court of appeal.


source: Caselaw Access Project

author: GUIDRY, J. HUGHES, J.,

license: Public Domain

text:
    Michael BROWN v. CITY OF MADISONVILLE, Covington Paving, Wallace Poole, and Louisiana Department of Transportation and Development, Office of Highways.
    No. 2007 CA 2104.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 2008.
    Writ Denied Feb. 20, 2009.

      Christopher C. McCall, Robert C. McCall, Lake Charles, LA for Plaintiff/lst Appellant/2nd Appellee Michael Brown.
    Charles C. Foti, Jr., Attorney General, William S. Culver, Jr., Cherie R. Huffman, Assistant Attorney Generals, New Orleans, LA, for Defendant/2nd Appellant/lst Ap-pellee Louisiana Department of Transportation and Development.
    Before WHIPPLE, KUHN, GUIDRY, DOWNING, and HUGHES, JJ.
   GUIDRY, J.

|2A truck driver appeals the allocation of fault and general damages awards rendered by the trial court pursuant to a jury verdict for an accident in which the trailer of his 18-wheeler collided with an overhanging tree limb while traveling down a state highway. The State of Louisiana, through the Department of Transportation and Development (DOTD), separately appeals the trial court’s judgment finding it liable and the jury’s award of special damages.

FACTS AND PROCEDURAL HISTORY

Around 1:00 p.m. on November 10, 2000, Michael Brown was driving an 18-wheeler for Triad Transport, Inc. on Louisiana Highway 21, known as St. John Street, in Madisonville, Louisiana. About five minutes from his destination, as he was preparing to navigate a sharp curve in the road, the trailer of the truck collided with a tree limb that hung over the lane in which Mr. Brown was traveling. A few weeks prior to the accident, in August 2000, the DOTD had completed a road maintenance project along that stretch of Louisiana Highway 21 that included overlaying the roadway.

The collision with the tree limb damaged the roof of the trailer of the truck, but did not damage or cause a spill of the hazardous materials Mr. Brown was transporting in the truck at the time. Mr. Brown reported the incident to his dispatcher, and on receiving instructions from his supervisor, proceeded to his destination where he waited for a replacement trailer to which to transfer the load of hazardous materials he was transporting.

Although he did not seek immediate medical attention following the accident, within days of the incident, Mr. Brown notified his supervisor and dispatcher that he was experiencing some pain. He visited the emergency room of a local hospital to seek treatment two weeks following the accident, but after waiting for a few hours, he left the hospital without being treated. A few days | 3later, Mr. Brown again sought medical treatment, and was prescribed various anti inflammatory and pain medication and conservative therapy for his pain. Despite his pain, Mr. Brown continued to work as an over-the-road truck driver during this time.

By mid-December 2000, Mr. Brown’s pain had not abated, but had grown worse. The medical treatment that he had received did not improve his symptoms, and Mr. Brown sought more specialized and invasive medical treatment for his injuries. Due to his pain and the potency of the medication he was taking, Mr. Brown stopped working.

On November 9, 2001, Mr. Brown filed a petition for damages against the City of Madisonville, Covington Paving Company (identified in the petition as “Covington Paving”), and Weldon Wallace Poole (identified as “Wallace Poole” in the petition), generally alleging that the named defendants were liable for failing to properly maintain the roadway to eliminate the danger presented or to warn of the danger. In the petition, Mr. Brown asserted that prior to the accident, the roadway was resurfaced “and this actually raised the height of the roadway, causing the tree limb to be below a safe height at which vehicles could pass without striking the limb.” Mr. Brown later amended his petition to add the DOTD as a defendant.

Mr. Brown’s claims against the City of Madisonville and Mr. Poole were later dismissed pursuant to summary judgments granted in favor of those defendants. Mr. Brown also filed a motion for partial dismissal, to dismiss without prejudice the claims asserted against Covington Paving Company, which was granted by the trial court. Mr. Brown then filed a motion for summary judgment against the remaining defendant, the DOTD, which the trial court denied in open court at the hearing on the motion.

Thus, the matter was set to proceed to trial. On the eve of trial, the DOTD filed a motion in limine to exclude the testimony of an economics expert whose | testimony Mr. Brown proposed to present to the jury. A four-day trial on the merits began on December 4, 2006. On the third day of trial, prior to the presentation of the testimony of Mr. Brown’s economics expert, the trial court considered the motion in limine filed by the DOTD and denied the motion. Thereafter, the parties continued presentation of evidence and argument to the jury, following which the jury ruled in favor of Mr. Brown, awarding the following damages, subject to reduction in accordance with the jury’s allocation of sixty-one percent fault to Mr. Brown and thirty-nine percent fault to the DOTD:

Past physical pain and suffering $ 10,000
Future physical pain and suffering $ 40,000
Past mental pain and suffering $ 6,000
Future mental pain and suffering $ 12,000
Past medical expenses $186,453
Future medical expenses $614,503
Past loss of wages $179,736
Loss of future wages and/or earning capacity $446,971
Loss of enjoyment of life $ 10,000

The trial court rendered judgment in accordance with the jury’s verdict, and following the denial of various post-trial motions filed by the parties, the trial court granted Mr. Brown a devolutive appeal and the DOTD a suspensive appeal from the judgment. Consideration of those cross appeals is discussed herein.

ASSIGNMENTS OF ERROR

By this appeal, Mr. Brown seeks to modify the judgment in the following respects:

1.The jury erred in assessing 61% comparative fault to the plaintiff, where there is no evidence or testimony supporting any fault on the plaintiff.
| ñ2. The jury erred when it awarded only $10,000.00 dollars in past pain and suffering for injuries that had necessitated undergoing $186,453.00 in invasive medical treatment for chronic pain for a period of over six years.
3. It was error to award only $40,000.00 in future physical pain and suffering when the jury agreed that plaintiff had injuries that would require $614,503 in future medical care to try and control the pain.

The DOTD filed a separate, suspensive appeal of the judgment, alleging the following assignments of error:

1. The trial court erred in denying the State’s Daubert motion seeking to deny qualification to plaintiffs expert in economics and statistics, where the expert used methods of calculation [not] accepted in the industry.
2. The jury erred/abused its discretion in finding 39% liability on the part of the State, when it should have assessed 100% liability to plaintiff.
3. The jury erred/abused its discretion in awarding plaintiff past lost wages in the amount of $179,736.00, which was based entirely on only his wages for his last six months of employment, and did not include the average of his prior earnings for the past five years.
4. The jury erred/abused its discretion in awarding plaintiff future lost wages in the amount of $446,971.00 which was based entirely on only his wages for his last six months of employment, and did not include the average of his prior earnings for the past five years.
5. The jury erred/abused its discretion in awarding damages to plaintiff where plaintiff failed to prove causation of his injuries.
6. The jury erred/abused its discretion in awarding plaintiff future medical expenses at all, and specifically in awarding an amount of $614,503.00, which was based on sheer speculation, where no physician testified that plaintiff would need any items medically more probable than not[.]

DISCUSSION

Motion in Limine

In its first assignment of error, the DOTD contends that the trial court erred in denying its motion in limine to exclude the testimony of Dr. Charles Bettinger based on a Daubert objection. DOTD alleges that Dr. Bettinger’s method of 1 ^calculation was “radical and resulted in radically inflated figures for past and future lost wages.” Dr. Bettinger was offered by Mr. Brown and accepted by the trial court as an expert in economics.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the U.S. Supreme Court articulated the standard for courts to follow in determining the admissibility of expert scientific testimony under Federal Rule of Evidence article 702. In that opinion, the court enumerated certain factors for courts to consider in evaluating the admissibility of expert scientific testimony, including testing, peer review, error rates, and acceptability in the relevant scientific community. Daubert, 509 U.S. at 593-594, 113 S.Ct. at 2796-2797.

When confusion arose over whether the Daubert test applied to non-scientifie, expert testimony, the U.S. Supreme Court held ‘Daubert’s general holding — setting forth the trial judge’s general ‘gatekeep-ing’ obligation — applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.’ ” Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). Thus, the Court held that “as ... stated in Daubert, the test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Company, Ltd., 526 U.S. at 141-142, 119 S.Ct. at 1171 (emphasis in original).

Accordingly, the factual basis for an expert opinion determines the credibility of the testimony. It is the responsibility of opposing counsel to explore |7the factual basis for the opinion and thus, determine its reliability. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. Miramon v. Bradley, 96-1872, p. 6 (La.App. 1st Cir.9/23/97), 701 So.2d 475, 478. The trial court’s inquiry must be tied to the specific facts of the particular case. The abuse of discretion standard applies to the trial court’s ultimate conclusion as to whether to exclude expert witness testimony and to the trial court’s decisions as to how to determine reliability. Ashy v. Trotter, 04-612, pp. 18-19 (La.App. 3d Cir.11/10/04), 888 So.2d 344, 356, writs denied, 05-0180, 05-0347 (La.3/24/05), 896 So.2d 1045, 1047. Furthermore, when opinions of expert witnesses differ, it is for the trier of fact to determine the most credible evidence and these determinations will not be overturned unless it is proven that the expert’s stated reasons are patently unsound. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, pp. 6-7 (La.10/19/99), 748 So.2d 417, 421.

Herein, DOTD contends that the reasoning and methodology used by Dr. Bettinger was patently unsound because Dr. Bettinger calculated the amount of past and future lost wages Mr. Brown had and would incur based on his earnings as a company truck driver only, excluding earnings from the periods in which Mr. Brown was employed as an independent or owner-operator truck driver.

At trial, Mr. Brown provided his income tax returns and W-2 wage and tax statements for the years 1996 through 2000. The video deposition testimony of Mr. Brown’s supervisors from trucking companies where he used to work, including his direct supervisor and his dispatcher at Triad Transport, Inc., were also introduced. Mr. Brown’s supervisors all testified that Mr. Brown was an excellent driver and a hardworker. Mr. Brown’s supervisor at Triad Transport, Inc., Mark Wilkett, additionally testified that in the year 2000, truck drivers with Triad Transport, Inc. were making anywhere from $46,000 to $48,000, and truck |sdrivers like Mr. Brown, who worked out of the Houston terminal, were making in the high $40,000 to low $50,000. At the time he was deposed, Mr. Wilkett testified that truck drivers with his company were earning in the low $50,000 range on average.

When asked at trial whether he preferred working independently as an owner-operator truck driver or as a company driver, Mr. Brown testified, “I tried that self-employment, but I found that Triad, you know, they give me a lot of relief and take the burden off of your shoulders. So I would rather be a company driver.” Mr. Brown described some of the problems he encountered as an owner-operator by relating his experience while working with a particular company, Cryogenic Transportation, Inc. He stated that while working with that company, he worked as an operator who was allowed to lease the trucks he drove from the company and he stated that he made good money; however, he further stated, “[y]ou’ve got to have some truck knowledge on your trucks, you know, because you can make good money and, within a month’s time, you end up owing the company money. So I made good money. I was saving money for my son and everything, you know, but I had a lot of expense.” Mr. Brown testified that in the end, he stopped working for Cryogenic Transportation, Inc. “because it was too much overhead.”

At the time of his accident, Mr. Brown was 44 years old. He testified that prior to the accident, it was his intent to work until he reached the age of 65 because he had a young son. At the time of the trial, Mr. Brown’s son was seven years old.

In formulating his opinion regarding Mr. Brown’s past lost wages and loss of future earnings capacity, Dr. Bettinger testified that he considered Mr. Brown’s age, the date of the accident, his training and skills, including the fact that Mr. Brown was Hazmat certified, his experience, and the type of work Mr. Brown performed. Based on Mr. Brown’s tax returns and Mr. Brown’s testimony, Dr. | nBettinger decided that the best way to determine Mr. Brown’s past and future lost wages was to consider only his earnings as a company driver. As Dr. Bettinger explained:

He had a — obviously from the tax returns, he had problems with expenses, just running away expenses while ... his truck was down, which ... if you’re an owner-operator and your truck is not running, your expenses skyrocket and your income stops. So he did not have a great success as an owner-operator....
But ... the final choice, was to go to work as a company driver. The difference between a company driver and owner-operator is the fact that he is told where to go. He is told when to go. What to pick up. Where to drop it off. And he gets a regular amount of money for doing those kinds of jobs. He doesn’t have to worry about his truck being broken down. If he has a breakdown, the company sends another truck out. They shift all the materials around and he keeps on driving.
On the other hand, we tend to think of owner-operator[s] having more income potential, but this depends on how good a business person they are. I can’t speak except that it doesn’t look like he was a very good business person as an owner-operator or maybe he had a bad truck. But either one of those are deadly if you’re an owner-operator. So his primary earning capacity was not as an owner-operator but as a company driver, which is what he was doing at the time of the injury.

The reasons expressed by Dr. Bettinger are logical, reasonable, and supported by the evidence. Thus, we cannot say that the trial court abused its discretion in allowing Dr. Bettinger to testify regarding his calculations of Mr. Brown’s lost wages, past and future.

LIABILITY OF DOTD

In its second assignment of error, DOTD alleges that the jury erred in assessing it with any fault relative to Mr. Brown’s collision with the tree. Normally, when liability is premised on DOTD’s ownership of an allegedly defective thing, a plaintiff may recover damages from DOTD, a public entity, based on La. C.C. art. 2317, as limited by La. R.S. 9:2800. However, as liability in this case is premised on a tree that is located outside of the area of DOTD’s right-of-way, simple negligence principles apply to determine DOTD’s liability as outlined by this court in Murphree v. Daigle, 02-1935, pp. 3-1 (La.App. 1st Cir (9/26/03), 857 So.2d 535, 537-538, writ denied, 03-2927 (La.1/9/04), 862 So.2d 990 (case citations omitted):

When trees are outside the right-of-way, they are outside the ownership or “garde” of the entity charged with maintaining the highway. Accordingly, strict liability under Louisiana Civil Code article 2317 is inapplicable and simple negligence principles apply. See also [La.] C.C. art 2317.1. Under those principles, to establish a breach of DOTD’s duty to maintain safety for the motoring public, a plaintiff must show that a hazardous condition existed and that DOTD had actual or constructive knowledge of said condition, but failed to take corrective action within a reasonable time. “Constructive notice” in negligence cases exists when the defect or condition has existed for such a period of time that it would have been discovered and repaired had the public body exercised reasonable care.
The ultimate determination of whether a condition creates an unreasonable risk of harm is subject to review on appeal under the manifest error standard. Under this standard, the trial court’s findings are reversible only when there is no reasonable factual basis for the conclusions, or if they are clearly wrong. Similarly, the question of whether or not DOTD had actual or constructive notice of a hazardous condition creating a risk for motorists is a factual issue and is reviewed under the manifest error standard. On the other hand, the existence of a duty is an issue of law [that] is determined by the court. On this issue, the inquiry is whether the plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault — to support his claim.

At trial, the parties agreed to the following stipulations:

1. On November 10, 2000 Michael Brown was driving a 1999 Peterbilt eighteen wheeler in the city of Madi-sonville when his trailer struck a tree limb that was hanging over the roadway.
2. The highway he was traveling on when the accident occurred was Highway 21 which is a State highway that is under the care, custody and maintenance of the State of Louisiana.
3. The particular stretch of highway is designated as St. John Street.
4. The State DOTD had undertaken a road project on January 8, 2000 and it was completed on August 16, 2000.

Several witnesses, including local residents, a former Madisonville police officer, and DOTD road maintenance employees, testified that prior to the November 10, 2000 accident, they observed the tree limb at issue scrape the tops of trucks, often shearing small branches and leaves off the limb, as the trucks drove on Louisiana Highway 21 under the overhanging limb. Frank M. Burns, Jr., who lived in a In house near the tree, said he often heard trucks striking the limb and since 1971, he had observed scars and scrapes on the limb where the limb had been hit by passing trucks. Henry Leroy Fairburn, a carpenter who was repairing a home adjacent to the tree, and Anthony Porocobba, a former Madisonville police officer, testified that they had seen trucks swerve or drive around the limb on occasion.

Mr. Porocobba also noted that his observations regarding trucks scraping or grazing the overhanging limb on Louisiana Highway 21 occurred prior to the DOTD overlaying the roadway in 2000. In January 2000, DOTD commenced a project to widen an over five-kilometer stretch of Louisiana Highway 21 that included the portion of the road where the overhanging limb was located. Larry J. McGee, a DOTD employee who held the position of Engineer and Technician Y, inspected the work of the contractor working on the project. He testified that as a result of the overlay work, the roadway was raised by about an inch and a half. The overlay work was completed on August 16, 2000, a little less than three months prior to Mr. Brown’s accident.

Mr. Brown testified that prior to the date of the accident, he had never traveled that portion of Louisiana Highway 21. He stated that he was driving in that location on the date of the accident because that was the route he had been advised to take. He said that he saw the tree limb hanging over the lane in which he was traveling, but he assumed that the tree limb would not impede his travel because there were no signs or restrictions posted for the roadway.

Louisiana Revised Statute 32:381A(1) states that the “height of any vehicle and its load shall not exceed thirteen feet, six inches, except that the height of any vehicle and its load which operates exclusively on the interstate highway system shall not exceed fourteen feet....” An “operator of a vehicle that is higher than \12thirteen feet six inches shall ensure that the vehicle will pass through each vertical clearance of a structure in its path without touching the structure.” La. R.S. 32:381 A(2) (emphasis added). However, a roadway clearance lower than the maximum legal height for vehicles allowed on the highways of this state constitutes a defect that is hazardous to the motoring public, and therefore a warning of some type is necessary. See Smith v. Southern Pacific Transportation Company, Inc., 467 So.2d 70, 72 (La.App. 4th Cir.1985).

Mr. Brown, as well as his supervisor, Mark Wilkett, and his dispatcher, Dennis Jansen, testified that the truck that Mr. Brown was driving did not exceed the height limitation imposed by Louisiana law. According to the testimony of Duane T. Evans, a witness offered by Mr. Brown and accepted by the trial court as an expert in traffic engineering, he concluded that the limb overhanging the roadway was less than thirteen feet, six inches because of the damage sustained by the truck Mr. Brown was driving on the date of the accident. He further testified that from his review of the plans and testimony regarding the road work completed in August 2006, the road work involved removing approximately two inches of asphalt off of the existing' road and replacing it with approximately four inches of asphalt. He thus concluded that “they effectively raised the surface of the road two inches ... .if the trucks had been clearing it previously, that two inches could have caused enough reduction in clearance to allow a vehicle to hit it.” It is undisputed that there were no signs posted in the area of the overhanging limb warning of a low clearance.

Hence, it was established that the truck Mr. Brown was driving did not exceed the legal height limitations imposed by La. R.S. 32:381 A. It was also established that the overhanging limb constituted a hazardous defect, in that the limb was lower than the maximum legal height allowed for vehicles on the state highways, see Smith, 467 So.2d at 72, and that the defect had existed for such a 113period of time that DOTD can be held to have had constructive notice of the defect, but failed to take corrective action within a reasonable time. See Thompson v. State, 97-0293, p. 3 (La.10/31/97), 701 So.2d 952, 956 n. 3. Accordingly, the record supports a finding that DOTD violated its duty to maintain the roadway in reasonably safe condition for the motoring public.

Nevertheless, in its fifth assignment of error, DOTD contends that Mr. Brown failed to establish that his injuries were caused by the November 10, 2000 accident, as opposed to a later incident wherein Mr. Brown reported injuring himself while trying to secure a tarp over a load that he was transporting in December 2000. In addition to proving that the roadway that was in the custody of the DOTD was defective because it had condition that created an unreasonable risk of harm and that DOTD had actual or constructive notice of the defect, it must also be shown that the defect in the roadway was a cause in fact of Mr. Brown’s injuries. See Thompson, 97-0293 at 2, 701 So.2d at 955.

DOTD relies on a June 19, 2001 medical report from Dr. Jack G. McNeill, an orthopedist who was engaged to perform a “Required Medical Examination” on Mr. Brown, to support its contention that the November 10, 2000 accident did not cause Mr. Brown’s injuries. In that report, Dr. McNeill recounts:

Mr. Brown says that he did return to work and did pretty well until he was assigned a drive to Oklahoma. He said that he had to stop at one point and pull the tarpaulin down over his load and the wind caught it and he strained his neck.... After his trip he returned to Houston and saw Dr. Orengo again on December 7. He was treated with medication and taken off work again. More x-rays were made. He has never returned to work.

DOTD also alleges that x-ray films of Mr. Brown taken prior to the December 2000 incident further support its contention that Mr. Brown’s injuries were not caused by the November 10, 2000 accident.

| ^Immediately following the accident, Mr. Brown testified that he felt sore and stiff, but he took over-the-counter pain medication such as Tylenol or ibuprofen for the pain and presumed “it was going to blow over.” When his symptoms did not abate, Mr. Brown went to the emergency room of Memorial Hermann Baptist Beaumont Hospital in Beaumont, Texas on November 25, 2000. The initial intake/admission forms completed for that visit disclose that Mr. Brown reported to the triage nurse that he had been involved in a motor vehicle accident two weeks prior to the visit and that three days prior to the visit, he began to experience back pain on his left side. According to an assessment note, the triage nurse found that Mr. Brown had pain in his left shoulder and that his left fingers felt numb. An order was placed to have Mr. Brown’s cervical spine and shoulder x-rayed, but it is recorded that Mr. Brown “eloped” before any further medical evaluation could be performed. At trial, Mr. Brown stated that he left before seeing a doctor after waiting six hours to be seen.

Two days later, Mr. Brown visited the emergency room of the East Houston Regional Medical Center in Houston, Texas. His chief complaint during that visit was back pain that had grown worse since the accident and problems with urination that consisted of a burning sensation while urinating and blood in the urine. An x-ray of Mr. Brown’s lumbar spine was ordered that revealed “[n]o fracture, subluxation, or significant disc space narrowing. There is mild spondylosis at L4 and L5.” The clinical impression from that visit was of acute myofascial lumbar strain for which he was prescribed various medications and instructed to rest and soak in warm baths.

Thereafter, Mr. Brown was seen by Dr. Antonio Orengo on December 1, 2000. In a progress note for that visit, Dr. Orengo recorded that Mr. Brown was “off work,” but Mr. Brown had told him he needed to work and that he would like to return to work. Dr. Orengo diagnosed Mr. Brown as having muskoskeletal |1Rstrain of the paraspinal muscle region. Mr. Brown returned to work and worked until his next visit with Dr. Orengo on December 7, 2000.

The foregoing evidence clearly supports a finding that the November 10, 2000 accident caused injury to Mr. Brown’s back and neck. Moreover, two of Mr. Brown s treating physicians expressly related his injuries to the November 10, 2000 accident, despite knowledge of the December 2000 incident. The video deposition testimony of Dr. Patrick McMeans, who specialized in pain management, was presented to the jury at trial. In his deposition, Dr. McMeans related Mr. Brown’s injuries to his November 10, 2000 accident, explaining that the tarp injury when “compared to the injury he suffered when he struck the tree limb is relatively minor, because he did not suffer a deceleration injury.” Likewise, Dr. Jerry Keepers, who also specialized in pain management, testified via a video deposition to the jury that in his medical opinion, it “would be very unlikely to herniate five discs in the neck just from tugging on a tarp.”

Finally, Dr. Stephen I. Esses, a board certified orthopedic surgeon that examined Mr. Brown, explained why the extent of Mr. Brown’s neck and back injuries were not recognized on earlier x-ray film taken of Mr. Brown. Dr. Essess stated that an x-ray only shows the bones of the spine. It does not show the discs, ligaments, spinal cord, nerve roots, or musculature. Thus, he stated “unless there’s a fracture, unless there’s some gross misalignment in the spine, none of the other types of problems that we’re here talking about would show up on an x-ray.” We observe that the earlier x-ray film was a scan of Mr. Brown’s lumbar spine, not his cervical spine.

Based on this evidence, we cannot say that the jury manifestly erred in finding that the injuries sustained by Mr. Brown were caused by the November 10, 2000 accident. See Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 7 (La.12/1/04), 893 So.2d 1, 6.

| ^LIABILITY OF MR. BROWN

In his first assignment of error, Mr. Brown disputes the jury’s finding that he was proportionately at fault in causing the accident in which he sustained injuries. Like all factual findings, the standard of review of comparative fault allocations is that of manifest error. Leonard v. Ryan's Family Steak Houses, Inc., 05-0775, p. 13 (La.App. 1st Cir.6/21/06), 939 So.2d 401, 410. Mr. Brown argues there is no basis in the record for allocating him with any fault, citing Smith, 467 So.2d 70. In that case, the defendant, the City of New Orleans, tried to argue that the plaintiff, a professional truck driver, was contributorily negligent in failing to appreciate the obstruction presented by a railroad underpass that was not posted as having a low clearance and that “was considerably lower than the maximum legal height of vehicles allowed on the highways of this state.” Smith, 467 So.2d at 72. In rejecting the city’s argument, the Fourth Circuit held “a motorist should not be placed in the position of having to estimate a clearance upon approaching it unless it is quite obvious that the vehicle cannot pass.” Smith, 467 So.2d at 72.

At trial, Mr. Brown testified, “I could see the tree, but there is no way I could tell that limb was too low....” He also testified that the route he was driving at the time of the accident was a truck route and that 18-wheelers were not restricted from driving in that area. Prior to the date of accident, Mr. Brown had never driven on the road. Photographs of the 18-wheeler Mr. Brown was driving at the time of the accident display damage to the top, front edge of the truck’s trailer.

Mr. Evans, the traffic engineering expert offered by Mr. Brown, testified that he did not know if it would be obvious that the tree limb fell below the legal limit for vertical clearance. As he explained, “I don’t think [Mr. Brown] had an opportunity to know that that limb was below the height of his vehicle. So I don’t think he did anything improper. He assumed that he could travel that route if he |17didn’t see a sign saying he couldn’t.” Mr. Evans further observed that Louisiana Highway 21 is a two-lane road and that if Mr. Brown “swerved” to avoid the tree limb, he would go into the opposing lane, which would be a hazard. Finally, Mr. Evans opined that evidence of other truck drivers maneuvering around the tree limb indicated that those drivers were probably aware of the condition and were trying to avoid it.

No countervailing evidence was offered by the DOTD on this point. We particularly note that if DOTD employees, who were charged with inspecting and maintaining the roadway and who admitted observing the overhanging tree limb and evidence of the tree limb having been impacted, did not view the limb as posing a hazard to the motoring public, Mr. Brown cannot be held liable for not appreciating such danger. Therefore, considering the evidence that was presented, we find that the trial jury manifestly erred in assessing Mr. Brown with any fault for the accident.

PAST AND FUTURE LOST WAGES

We further find no merit in the DOTD’s assignments of error numbers three and four, contending that the awards of past and future lost wages awarded Mr. Brown were an abuse of the jury’s discretion. A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. Boyette v. United Services Auto. Assn., 00-1918, p. 3 (La.4/3/01), 783 So.2d 1276, 1279. The trier of fact has broad discretion in assessing awards for lost wages, but there must be a factual basis in the record for the award. Driscoll v. Stucker, 04-0589, p. 29 (La.1/19/05), 893 So.2d 32, 53. Where there is no basis for a precise mathematical calculation of a past lost wage claim, the trier of fact can award a reasonable amount of damages without abusing his discretion. Burrell v. Williams, 05-1625, p. 10 (La.App. 1st Cir.6/9/06), 938 So.2d 694, 701.

| iRMr. Brown worked as a company driver for Triad Transport, Inc. for approximately two months. Dr. Bettinger “annualized” Mr. Brown’s earnings for that two-month period and determined that Mr. Brown would have made at least $43,000 per year up until the time of trial. He multiplied that amount by the number of years that had elapsed from the date of Mr. Brown’s accident until the date of his report, and calculated the amount of $260,006 as Mr. Brown’s past lost wages. Dr. Bettinger stated that the amount calculated was “extremely conservative,” since no consideration for increases of any nature were given in calculating that sum.

As for Mr. Brown’s future earning capacity, Dr. Bettinger calculated Mr. Brown’s future earning capacity to be $52,000 per year, based largely on the testimony of Mr. Brown’s prior employer, whom he said had testified that Mr. Brown had the potential to earn between $50,000 to $90,000 per year. Dr. Bettinger then determined from the Bureau of Labor Statistics that Mr. Brown would have stayed in the labor force until age 65, assuming he had the capacity to work until that age. He then multiplied the future annual salary amount he had projected for Mr. Brown by a two percent productivity rate increase and discounted the amount to present value dollars to reach an estimated total value future income stream for Mr. Brown until age 65 of $769,992.

The jury was also presented with testimony from an economics expert offered by DOTD, Dr. Kenneth J. Bou-dreaux, who calculated Mr. Brown’s past lost wages based on an average of the five years net income shown on Mr. Brown’s | istax returns for the years 1997 through 2000. Dr. Boudreaux described Mr. Brown’s net income as being “volatile,” and as such, it was his opinion that an average of Mr. Brown’s past earnings had to be calculated and that sum used to determine his past and future earning capacity. According to Dr. Boudreaux, Mr. Brown’s net income for the tax years 1996-2000 was: $27,000 in 1996; $38,000 in 1997; $12,300 in 1998, $3,937 in 1999; and a negative $1,952 in 2000. Dr. Boudreaux then used those amounts to calculate an estimated annual income of $16,394.00. He therefore calculated Mr. Brown’s past lost wages up through the time of trial as $99,460.27. He then calculated a future loss of income of $123,951.00, assuming that Mr. Brown is totally disabled for the remainder of his work life expectancy, which he calculated to be 14.4 years from the date of Mr. Brown’s accident in November 2000, based on national statistical tables he consulted.

Apparently the jury found merit in both experts’ testimony, as the amounts awarded Mr. Brown for past and future lost wages were simply an average of the amounts calculated by the competing experts. Where, as here, a conflict in the evidence exists and neither party presents evidence that is wholly inconsistent, implausible on its face, or unbelievable in light of objective evidence, the appellate court must defer to the factfinder’s decision unless that decision is manifestly erroneous or clearly wrong. Henderson v. Nissan Motor Corporation U.S.A., 03-606, p. 14 (La.2/6/04), 869 So.2d 62, 71. Having reviewed the evidence presented, we cannot say that the amounts awarded Mr. Brown for past and future lost wages was an abuse of the jury’s discretion. Accordingly, we reject the DOTD’s assignments of error so alleging.

| ^FUTURE MEDICAL EXPENSES

We likewise reject the DOTD’s remaining assignment of error alleging that the award of future medical expenses was an abuse of the jury’s discretion because there was no evidence presented to support the award. As acknowledged by the DOTD in briefing this assignment of error, Dr. Keepers, Mr. Brown’s treating physician, did testify regarding the medical treatment and medications Mr. Brown will require in the future as a result of his injuries.

Dr. Keepers testified that as a result of Mr. Brown’s cardiac and other health problems, he cannot undergo any type of surgical procedure, and as a consequence, he testified that his “best guess is he’s going to be on this medication for the rest of his life.” The medication that Dr. Keepers referred to was OxyContin, Vico-din, Soma and Phenergan. Further, because of the OxyContin prescription, Dr. Keepers stated that Mr. Brown would have to see a physician monthly in order to obtain needed refills of the narcotic medication. Finally, Dr. Keepers stated that he anticipated administering epidural steroid injections to Mr. Brown’s lumbar and cervical spine areas at least once a year and that Mr. Brown would also require periodic diagnostic tests every two to three years, such as MRIs and EMGs.

Dr. Esses agreed with Dr. Keepers’ assessment that it is unlikely that Mr. Brown’s other health conditions would improve sufficiently that he would be able to undergo the surgeries that were recommended to alleviate his pain. Dr. McMe-ans concurred with Dr. Keepers’ finding that in the future Mr. Brown will continue to need epidural steroid injections in his neck and back and that Mr. Brown will continue to require medications similar to the ones that he was taking at the time Dr. McMeans was deposed.

Although future medical expenses must be established with some degree of certainty, they do not have to be established with absolute certainty, as an award for future medical expenses is by nature somewhat speculative. Grayson v. R.B. Ammon and Associates, Inc., 99-2597, p. 35 (La.App. 1st Cir.11/3/00), 778 So.2d 1, 23, writs denied, 00-3270, 00-3311 (La.1/26/01), 782 So.2d 1026, 1027. An award of future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. Hanks v. Seale, 04-1485, p. 16 (La.6/17/05), 904 So.2d 662, 672. In such a case, the court should award all future medical expenses that the medical evidence establishes that the plaintiff, more probable than not, will be required to incur. Hymel v. HMO of Louisiana, Inc., 06-0042, pp. 26-27 (La.App. 1st Cir.11/15/06), 951 So.2d 187, 206, writ denied, 06-2938 (La.2/16/07), 949 So.2d 425. An appellate court should not set aside an award for future medical expenses absent an abuse of the trier of fact’s discretion. Hymel, 06-0042 at 27, 951 So.2d at 206.

Based on the evidence presented, as outlined above, we do not find that the jury abused its discretion in awarding Mr. Brown future medical expenses.

GENERAL DAMAGES

In Mr. Brown’s remaining assignments of error, he contests the jury’s award of general damages for past and future physical pain and suffering. When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. La. C.C. arts.1999 and 2324.1. In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn, 623 So.2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the |22highest or lowest point of an award within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976).

All of Mr. Brown’s treating physicians stated that he will suffer from chronic pain for the rest of his life, without much hope of abatement, because Mr. Brown is unable to undergo any of the surgical procedures that could possibly relieve his pain to any significant degree. Dr. Keepers opined that Mr. Brown is probably going to end up being in more pain than the usual patient for the rest of his life.

Mr. Brown suffers from disc herniation at the L4-5 level in his lumbar spine and at all levels of his cervical spine. As described by Dr. Keepers, Mr. Brown also suffers from spasms in the paraspinous muscles of his low back and in his neck, with the spasms sometimes radiating into his shoulders. Dr. Keepers said there is nothing medically that can be done for Mr. Brown that could restore him to his pre-accident condition and alleviate his pain, and so the most he can try to do for Mr. Brown is attempt to minimize his pain as much as possible. He stated that over time discs tend to get worse because they are not going to repair themselves, and if the discs collapse enough, the vertebral bodies of Mr. Brown’s spine will rub on top of each other in a way that Dr. Keepers described as “bone on bone.” Dr. Keepers considered Mr. Brown to be permanently and totally disabled from his injury.

The record reveals that prior to the November 10, 2000 accident, Mr. Brown had no history of pain or problems with his neck or back; however, following the accident, Mr. Brown has been rendered disabled from working. Mr. Brown testified that his injury has further affected his personal life in that he is unable to | ¡aspend quality time with his family because of pain and the medication he is taking. He specifically noted being unable to attend his son’s T-Ball games, because he cannot endure the pain of sitting on a hard bench at the ballpark. Additionally, some of Mr. Brown’s medications restrict his exposure to sunlight. Mr. Brown also related that he was unable to visit his mother, who was suffering from some health problems at the time of trial, because he could not physically endure the long car ride. Further as a result of his injuries, Mr. Brown stated that he has trouble sleeping, that he feels helpless and stressed, and that his injuries have adversely affected his sex life.

The jury awarded Mr. Brown general damages not only for his physical pain and suffering, but also for his mental pain and suffering and loss of enjoyment of life, for a total general damages award of $78,000. Considering the evidence presented, we find that the jury abused its discretion in the amount of general damages awarded Mr. Brown. The minimum amount that was within the jury’s discretion to award was $40,000 for past physical pain and suffering and $120,000 for future physical pain and suffering, for a total general damages award of $188,000. See Bellard v. American Central Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654 ($200,000 in general damages awarded); Cheramie v. Contract Haulers, Inc., 98-1399 (La.App. 1st Cir.9/24/99), 754 So.2d 987 ($200,000 in general damages awarded); Keller v. City of Plaquemine, 96-1933 (La.App. 1st Cir.9/23/97), 700 So.2d 1285, writ denied, 97-2635 (La.1/16/98), 706 So.2d 977($125,-000 in general damages awarded); see also Stewart v. Ice, 07-0871 (La.App. 4th Cir.4/9/08), 982 So.2d 928, writ denied, 08-1000 (La.8/29/08), 989 So.2d 101 ($350,000 in general damages awarded); Beard v. Coregis Insurance Co., 07-314 (La.App. 3d Cir.10/17/07), 968 So.2d 278 ($110,000 in general damages awarded); Fox v. Anderson, 05-934 (La.App. 3d Cir.3/1/06), 924 So.2d 399, writ denied, 06-0722 (La.6/23/06), 930 So.2d 977 ($175,000 in general damages awarded); Sepulvado v. Turner, 37,912 (La.App.2d Cir.12/10/03), 862 So.2d 457, writ denied, 04-0089 (La.3/19/04), 869 So.2d 855 ($250,000 in general damages awarded).

CONCLUSION

For the foregoing reasons, we amend the judgment of the trial court to increase the amount awarded Mr. Brown for past physical pain and suffering to $40,000 and future physical pain and suffering to $120,000, We further amend the judgment to eliminate any finding of fault on the part of Mr. Brown and to allocate one hundred percent fault to the DOTD. In all other respects, we affirm the judgment of the trial court finding DOTD liable for the injuries sustained by Michael Brown on November 10, 2000. All costs of this appeal, in the amount of $2,334.75, are assessed to the State of Louisiana, through the Department of Transportation and Development.

AMENDED, AND AS AMENDED, AFFIRMED.

DAWNING, J., concurs.

HUGHES, J., dissents in part and assigned reasons.

HUGHES, J.,

dissenting in part.

hi respectfully disagree with the reallocation of fault. We have upped the state’s liability from 39% to 100%. The pictures show that it would be hard not to see that this large, low hanging limb presented a problem. I believe the truck driver was also at fault for not at least slowing down and proceeding more cautiously.

      . Mr. Brown also raised a fourth assignment of error in the event that the DOTD asserted the applicability of La. R.S. 13:5106 B(3)(c) as a defense on appeal. As the DOTD did not raise the defense, we pretermit discussion of that assignment of error.

      . The source of the text for La. C.E. art. 702 is Rule 702 of the Federal Rules of Evidence. As the text of both statutes are virtually identical, it has been held to be proper to consider federal jurisprudence interpreting F.R.E. 702 to determine the proper application of the state article. State v. Foret, 628 So.2d 1116, 1121 (La.1993).

      . Weldon Wallace Poole, Jr. owned the house at which Mr. Fairburn was performing carpentry repairs. In his deposition testimony, which was placed into evidence at trial, Mr. Poole acknowledged that he was considered the owner of the tree, but stated that there was some debate over whether he or the City of Covington actually owned the tree.

      . Arguably, DOTD could be held to have had actual notice of the defect as well based on the observations of its employees and its action of overlaying the highway to increase the height of the roadway by one and a half inches, thereby further decreasing the vertical clearance of the roadway in the area of the overhanging limb.

      . Mr. Wilkelt, Mr. Brown’s supervisor with Triad Transport, Inc., testified of a salary in the low $50,000 range for company drivers and that Kevin Matthews, Mr. Brown's supervisor with Cryogenic Transportation, Inc., testified that the average gross revenue earned by owner-operators employed with his company was from $90,000 to $200,000. Since the projected annual amount that Dr. Betting-er assumed Mr. Brown could have earned falls within the company driver range that Mr. Wilkett discussed, we find this discrepancy in Dr. Bettinger's testimony to be of no consequence.

      . Dr. Bettinger additionally expressed his belief that the average age for participation rates in the labor force would continue to rise because of federal laws increasing the age at which citizens could collect social security to age 67.

      . The actual net incomes as shown on Mr. Brown’s tax returns were: $26,551 in 1996; $34,758 in 1997; $12,397 in 1998, $4,457 in 1999; and a negative $2,263 in 2000. These amounts, however, are not truly reflective of the amounts Mr. Brown actually earned nor of the amounts Mr. Brown could earn, as the jurisprudence is clear that gross rather than net income is used when determining lost wages. Blanchard v. Means Industries, Inc., 93-715 (La.App. 5th Cir.3/16/94), 635 So.2d 288, 293.

      . An intradiscal electrothermal coagulapathy (IDET) procedure was performed on Mr. Brown's lumbar disc on December 13, 2001, roughly one year following his accident. The procedure involved placing Mr. Brown under anesthesia, inserting a needle into the problem disc, and then inserting a wand through the needle to encircle the periphery of the problem disc. The wand was then used to burn the fibers around the periphery of the disc at a very high temperature in an effort to shrink the disc and alleviate pressure on the nerve root. The procedure was not successful. Thereafter, before any further surgical intervention could be attempted, Mr. Brown developed other health problems, particularly cardiac problems, which prevented him from undergoing any additional surgical procedures.


author: JAMES F. McKAY, III, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Will H. SPARKMAN.
    No. 2008-KA-0472.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 2009.

      Keva Landrum-Johnson, District Attorney of Orleans Parish, Alyson Graugnard, Assistant District Attorney of Orleans Parish, New Orleans, LA, for PlaintiffiAppel-lee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY, III, Judge.

| ,On January 23, 2007, the appellant was charged by bill of information with one count of violating La. R.S. 14:62, relative to simple burglary. He entered a not guilty plea at his arraignment on January 29, 2007. On March 13, 2007, a six person jury returned a verdict ■ of guilty as charged. On October 29, 2007, the appellant was found to be a second felony offender and sentenced to six years in the custody of the Louisiana Department of Corrections, with credit for time served.

STATEMENT OF FACT

Prior to Hurricane Katrina, Ethel Bell, the victim, resided for about twenty years at 2105 Fourth Street. The property was owned by her father Willie Williams and his wife Julie Williams (Ms. Bell’s stepmother). The defendant is the grandson of Julie Williams. This home is a double with two municipal addresses, 2105 and 2107 Fourth Street. As a result of Hurricane Katrina, Ms. Bell was forced to vacate the residence, leaving most of her possessions behind. The home was not damaged by the hurricane. In October of 2006, Ms. Bell returned to her residence to find that it had been ransacked. At trial, the State called three witnesses to the stand, Ms. Clara Jackson, Ms. Ethel Bell, and Ms. Doris Bryer.

|2Ms. Clara Jackson was the first witness. She testified that her mother, Ethel Bell, lived at 2105 Fourth Street in New Orleans prior to Hurricane Katrina. At the time of the burglary, no one actually lived in the house; it had been empty since the hurricane. The witness testified that she visited the house at least every other day to check up on it. On the Friday before the burglary she had checked the residence and did not notice any damage. She could not remember the exact date when she noticed that something was out of the ordinary, only that it was a Sunday. On that day she noticed that the windows were broken in the back of the house, the air conditioner had been pushed in, and there was glass everywhere. She saw a cedar robe that was broken into, the lock was broken and it was empty. She testified that the cedar robe contained jewelry and other “nice things.”

Ms. Jackson identified the appellant as a person whose “grandmother had married her grandfather,” and was the person that she saw “just standing outside” in front of the house at 2105 Fourth Street on the Sunday evening to which she referred earlier. She also recollected that there was a garbage bag sitting in front of the steps of the house. The witness said that she called to appellant, saying “someone has broken into Ethel’s house,” and the appellant replied, “Oh, maybe someone just broke into it to see what they could find.” She never saw the contents of the garbage bag.

On cross examination, the witness told the jury that she never saw appellant take anything and that appellant never said that he took anything from the house. Ms. Jackson confirmed that her grandfather, Willie Williams, and appellant’s grandmother, Julie Williams, were married. She also admitted that she had no idea who was the legal owner of the house.

| ¡;Ms. Ethel Bell, the second witness, testified that she has lived in Gloster, Mississippi since the storm. She lived at 2105 Fourth Street before Katrina for twenty years. She admitted that she did not own the house; rather, it was her father’s house (Willie Williams), describing it as a double with 2107 Fourth Street. When she moved to Mississippi, she locked the house. The building was not flooded, but sustained wind damage. She testified that her neighbor Ms. Bryer had contacted her sometime in October of 2006, to let her know that something was wrong with the house. She returned to find the window air conditioner at the back of the house pushed in, and the room ransacked. The doors to her cedar robe were broken in, and the lock to her cedar chest at the foot of her bed was broken. She reported missing jewelry, two men’s watches rings and bracelets. All of her sheets except one were gone; they were kept in the chest of drawers.

She identified the appellant as her father’s wife’s grandson, and she testified that appellant had never been given permission to go into the house.

On cross examination, Ms. Bell admitted that she did not see who pushed in the air conditioner or broke the locks on her furniture. When asked if she paid a mortgage note on the house, the witness answered “no”. She also admitted that the owners were the grandparents of the appellant who are both deceased, and that to her knowledge, succession proceedings had never been started.

Doris Bryer, the state’s third and final witness, testified that she lives at 2103 Fourth Street, next to 2105 Fourth Street. She returned to her home in November of 2005 and was aware that Ms. Bell had not returned to her home. When asked on direct examination whether she had ever seen anyone enter the 2105 property other than the prior witnesses, she identified the appellant. She said that she met the appellant on a Thursday when “he came to me and knocked on my door, and told |4me that he was living there.” She and her daughter had come to do some cleaning that evening, and as she and her daughter got inside, he knocked on the door and said “I am staying next door.” She responded, “Well, what does that have to do with me?” The witness saw the appellant later that evening; she heard a noise in the alleyway and saw the appellant in the alley with a bicycle.

On that Friday morning, as she came out of her house and climbed into her truck, the appellant went over to “speak” to her “and I saw him put three bags across the street.” The bags that he was carrying “looked like a trash bag, white trash bag.” When asked if she could tell what was in the bags, the witness answered “no,” “they looked full and kind of bulky”. Then he got onto a bicycle and left. The bags were gone by that evening. She did not see who removed them. She never saw the appellant break anything, but she did see him remove and then repair the handle on the door.

Under re-cross examination, the witness admitted that she did not keep the 2105 house under constant surveillance and did not actually live continuously at her own house. “I was living in it sometimes. I would spend maybe the weekend, sometimes during the week.... I never stayed the whole week”.

The state presented no other witnesses and rested its case.

ERRORS PATENT

There are no errors patent.

DISCUSSION

The appellant argues that the trial court erred in denying his motion for post verdict judgment of acquittal upon the insufficiency of the evidence to support his conviction and his motion for a new trial pursuant to La.C.Cr. Pro. art. 851(1).

[¿The Louisiana Code of Criminal Procedure does not provide for the mechanism of a motion for judgment notwithstanding the verdict. As to the denial of defendant’s motion for new trial, the stated grounds for the motion pursuant to La. C.Cr.P. art. 851(1) and (5) was that the verdict was contrary to the law and evidence and that the ends of justice would be served by the granting of a new trial. In State v. Snyder, 98-1078, p. 37, n. 21 (La.4/14/99), 750 So.2d 832, 859, n. 21, cert, granted, judgment vacated on other grounds, Snyder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956, 162 L.Ed.2d 884 (2005), the court stated:

The denial of a motion for new trial based upon La.C.Cr.P. art. 851(1) is not subject to review on appeal. State v. Skelton, 340 So.2d 256, 259 (La.1976) (“[W]e have uniformly held that a bill of exceptions reserved to the refusal of the trial judge to grant a motion for a new trial based on Article 851(1), relative to sufficiency of the evidence presents nothing for our review.”) (citations omitted); State v. Bartley, 329 So.2d 431, 433 (La.1976) (“It is well established in Louisiana that an assignment of error reserved to the denial of a motion for a new trial alleging that the verdict is contrary to the law and the evidence presents nothing for appellate review.”) (citations omitted).

Snyder, 98-1078, p. 37, n. 21, 750 So.2d at 859, n. 21. See also. State v. Huckabay, 2000-1082, p. 31 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1110-1111.

The appellant alleges that the evidence presented at trial was insufficient to uphold the conviction, thus rendering the verdict contrary to the law and evidence. Accordingly, insofar as the denial of defendant’s motion for new trial based on the ground that the verdict was contrary to the law and evidence, this assignment of error presents nothing for review.

IfiMr. Sparkman asserts that the trial court erred in denying his motion for post verdict judgment of acquittal based upon the insufficiency of the evidence presented to sustain the conviction.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930. The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Gibson, 43,146, p. 4 (La.App. 2 Cir. 3/19/08), 978 So.2d 1218 (citing State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165). Lastly, appellate courts do not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443

La.C.Cr.Pro. art. 821 provides for the motion for post judgment acquittal and states, in pertinent part:

|7B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.

This Court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). 98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

See also State v. Sykes, 2004-1199, p. 7, (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

|8In the instant matter the appellant was charged with simple burglary pursuant to La. R.S. 14:62, which in pertinent parts defines simple burglary as the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein.

There is no disagreement in the instant matter that Doris Bryer observed the appellant entering the house at 2105 Fourth Street. The dispute lies on whether his entry was unauthorized and whether the appellant had the intent to commit a felony or any theft therein.

Doris Bryer testified that she saw the appellant enter the house and that he admitted that he was living in the house. She also testified that she saw Mr. Spark-man exit the house with three garbage bags and placed the bulky bags across the street from the house. Ms. Bell testified that she never gave Mr. Sparkman permission to enter the house. The State presented three witnesses which the trier of fact concluded to be credible witnesses and established that the appellant had entered the house without authorization with the intent to commit a felony or theft thereby resulting in a simple burglary at 2105 Fourth.

CONCLUSION

In this matter, viewed in a light most favorable to the prosecution, any rational trier of fact, inferring from all of the circumstances, could have found beyond a reasonable doubt that Mr. Sparkman made an unauthorized entry into the house at 2105 Fourth Street with the intent to commit a theft. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

BELSOME J., dissents with reasons.

BELSOME, J.,

dissenting.

hAs the majority acknowledges, the evidence against Defendant in this case, a relative, is circumstantial. No witnesses observed Defendant break the rear window of the home, nor did any witness observe the contents of the bags. Moreover, Doris Bryer testified that Defendant not only came over and introduced himself, but also entered the home through the front door and repaired the door latch, behavior that is arguably inconsistent with a burglar. Thus it can be reasonably hypothesized that someone other than Defendant removed the property from the premises. Accordingly, this writer does not agree that the evidence in this case excludes every reasonable hypothesis of innocence, nor can this writer agree that the elements of the offense of simple burglary were met under these particular facts. See La. R.S. 15:438; State v. Bullard, 29,662, p. 4 (La.App. 2 Cir. 9/24/97), 700 So. 2d 1051, 1053. I must respectfully dissent.