Opinion
2022 CA 0696 2022 CA 0697
05-08-2023
BARBER BROTHERS CONTRACTING COMPANY, LLC v. CAPITOL CITY PRODUCE COMPANY, LLC; FRANK CUSHENBERRY; AND XYZ INSURANCE COMPANY v. FRANK CUSHENBERRY AND ROBIN CUSHENBERRY, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN, NOAH CUSHENBERRY AND KHLOE CUSHENBERRY v. JOHNNY SCOTT AND BARBER BROTHERS CONTRACTING COMPANY, LLC
Isaac H. Ryan New Orleans, LA Counsel for Appellant Barber Brothers Contracting Company, LLC Peyton P. Murphy Brian L. McCullough Lewis O. Unglesby Lance C. Unglesby Baton Rouge, LA Counsel for Appellees Frank Cushenberry & Robin Cushenberry, Individually & on Behalf of the Minor Children, Noah Cushenberry & Khloe Cushenberry
On appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 672217 C/W 674957 Honorable Donald R. Johnson, Judge Presiding
Isaac H. Ryan New Orleans, LA Counsel for Appellant Barber Brothers Contracting Company, LLC
Peyton P. Murphy Brian L. McCullough Lewis O. Unglesby Lance C. Unglesby Baton Rouge, LA Counsel for Appellees Frank Cushenberry & Robin Cushenberry, Individually & on Behalf of the Minor Children, Noah Cushenberry & Khloe Cushenberry
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
WOLFE, J.
Barber Brothers Contracting Company, LLC (Barber Brothers) appeals from a trial court judgment entered in conformity with a jury's verdict apportioning fault and awarding damages. For the reasons that follow, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
This matter arises from a collision, which occurred on March 27, 2018, as Frank Cushenberry was traveling on the interstate in a Freightliner box truck owned by his employer, Capitol City Produce Company, LLC. At the same time, Johnny Scott, an employee of Barber Brothers, was in a construction zone, operating a Ford F250 pickup truck owned by his employer, and removing cones from the shoulder of the road. Mr. Scott was driving the pickup truck in reverse when the collision occurred. Mr. Cushenberry sustained serious, life-threatening injuries as a result of the accident.
Thereafter, on October 11, 2018, Mr. Cushenberry and his wife, Robin Cushenberry, individually and on behalf of their minor children, filed suit against Johnny Scott and Barber Brothers. Following a jury trial, a judgment was rendered on February 2, 2021, in favor of the Cushenberrys. Mr. Cushenberry was awarded special and general damages totaling $13,446,634.65. Mrs. Cushenberry and each of the Cushenberry children were awarded $2,500,00.00 and $1,500,000.00, respectively, for loss of consortium. This appeal followed with the Barber Brothers urging the following assignments of error:
Barber Brothers first filed a petition for damages against Frank Cushenberry, Capitol City Produce, and their insurer. These cases were consolidated on January 28, 2019.
1. The Trial Court erred in deleting Barber Brothers' proposed jury instruction regarding La. R.S. 32:125, after plaintiff stipulated to its inclusion at the jury charge conference and after closing argument had occurred.
2. The Trial Court erred in instructing the jury regarding a heightened duty of care for Barber Brothers as a highway contractor, but refusing to instruct the jury regarding Frank Cushenberry's' heightened duty as a commercial truck driver[.]
3. The juty erred in failing to find Frank Cushenberry at fault when Mr. Cushenberry took no action to avoid striking the nearly stationary pickup truck of Johnny Scott.
4. The jury's awards for general damages and loss of consortium were excessive.
DISCUSSION
We first address the assignments of error concerning jury instructions. Barber Brothers argues that the trial court, after closing arguments, failed to give instruction on La. R.S. 32:125, which sets forth the procedures for passing a parked emergency vehicle. Barber Brothers also argues that the trial court erred in declining to include a jury instruction regarding Mr. Cushenberry's heightened duty as a commercial truck driver.
The trial court held a conference outside of the jury's presence wherein the parties seemingly agreed to the inclusion of a jury instruction regarding the application of La. R.S. 32:125. The trial court, at that time, also informed the parties that it would not instruct the jury on the heightened duty of a commercial driver. Thereafter, and outside of the jury's presence, the parties again debated the inclusion of a jury instruction on La. R.S. 32:125. The trial court ultimately determined that the statute did not apply.
Barber Brothers objected to the trial court's rulings on the record.
Louisiana Code of Civil Procedure article 1793(B) requires a trial court to inform the parties of the instructions it intends to give to the jury at the close of the evidence within a reasonable time prior to their arguments to the jury. The trial court must also give instructions that properly reflect the law applicable in light of the facts of the particular case. Thomas v. Department of Wildlife &Fisheries, 2018-0869 (La.App. 1st Cir. 10/2/19), 289 So.3d 579, 593, writ denied, 201901767 (La. 1/14/20), 291 So.3d687.
See La. Code Civ. P. art. 1793.
Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. Thomas, 289 So.3d at 593. Generally, the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining party has been injured or prejudiced thereby. Rosell v. ESCO, 549 So.2d 840, 849 (La. 1989). In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire instruction to determine if the charges adequately provided the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the instructions adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Thomas, 289 So.3d at 593. The manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 575.
The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the adequacy of the jury instructions as a whole and the circumstances of the case. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 574.
In the present matter, we initially conclude, with regard to La. R.S. 32:125, that the trial court fell short of compliance with La. Code Civ. P. art. 1793. Because the trial court allowed counsel to proceed with closing arguments without informing counsel that it would not be including a jury instruction pertaining to La. R.S. 32:125, the trial court erred. This finding of error, however, does not end our analysis. Instead, a reviewing court must take one further step and examine the nature of the error and the resulting prejudice to the complaining party within the specific circumstances of the case. Wooley, 61 So.3d at 577. In doing so here, we find no prejudice suffered by Barber Brothers. To be precise, we find no error in the trial court's decision to omit a jury instruction regarding La. R.S. 32:125 because, like the trial court, we find the statute to be inapplicable to the facts of this case, especially where Mr. Scott was backing the vehicle, albeit slowly.
Louisiana Revised Statutes 32:125, effective through June 3, 2021, provided in part:
B. When any vehicle making use of any visual signals as authorized by law, including the display of alternately flashing amber or yellow warning lights is parked on or near the highway, the driver of every other vehicle shall:
(1) When driving on an interstate highway or other highway with two or more lanes traveling in the same direction, yield the right-of-way by making a lane change into a lane not adjacent to the parked vehicle, if possible with due regard to safety and traffic conditions. If a lane change is not possible, the driver shall slow to a reasonably safe speed.
(2) Maintain a safe speed for road conditions, if unable or unsafe to change lanes, or driving on a two-lane road or highway.
C. This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway. [Emphasis added.]
With reference to Barber Brothers' contention that the trial court erred in refusing to instruct the jury that Mr. Cushenberry should be held to a heightened standard of care as a licensed commercial driver, we conclude that the trial court adequately provided the correct principles of law and did not mislead the jury to the extent that it was prevented from dispensing justice. Although the trial court did not include an instruction concerning a heightened standard for Mr. Cushenberry due to his possession of a commercial driver's license, the trial court's jury instructions were appropriate as a whole, stating in part that:
Our law requires that a motorist generally ... keep his vehicle under proper control and at a proper speed and to maintain a proper lookout for hazards, which by the use of ordinary care and observation one should be able to see. A motorist is not absolved from liability because of his failure to see what he could have seen by the exercise of due diligence. And a motorist's duty to look ahead and observe never ceases. ... A motorist is legally charged with seeing that which he or she should see in the exercise of due diligence. For a driver to look and fail to see what he should have seen is the equivalent of the driver not looking at all and is negligence.
The jury instructions were not so inadequate as to preclude the jury from reaching a verdict based on the law and facts. The jury's determination is therefore subject to review for manifest error.
We also note that Barber Brothers' presentation of its case and closing arguments sufficiently addressed and placed the issue of Mr. Cushenberry's commercial driving license before the jury.
Having so found, as it pertains to Barber Brothers' third assignment of error, we note that the jury assigned no fault to Mr. Cushenberry for the subject accident. The jury heard from numerous witnesses, including drivers on the interstate on the morning of the accident, a police officer called to the scene, experts in accident reconstruction, and representatives from Barber Brothers.
It is well-settled in Louisiana law that a trier of fact's findings of fact may not be reversed in the absence of manifest error or unless clearly wrong. See Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). A reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court's or jury's findings; it must instead review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id.
Scott Baudoin testified that he was driving behind Mr. Cushenberry on the interstate. According to Mr. Baudoin, Mr. Cushenberry was driving straight, but later Mr. Baudoin saw Mr. Cushenberry's truck "[dart] to the left" and then come back to the right before it began to flip over. Mr. Baudoin stated he was "positive" that he did not see an amber light on the Barber Brothers' truck, nor did he actually see the Barber Brothers' truck and realize that the truck was near the shoulder of the road, until he stopped to help.
Mark Liggett, also a driver on the interstate that morning, passed the Brother Brothers' truck before Mr. Cushenberry. According to Mr. Liggett, who used the interstate regularly to travel to work, there were signs warning of road construction. However, according to Mr. Liggett, those signs were posted whether a construction crew was working or not. Mr. Liggett stated that he did not see an amber light flashing on the Barber Brothers' truck. Mr. Liggett also stated that it was pitch black except for the "freeway" lights, and that the reverse lights on the Barber Brothers' truck were dim.
David Ciolino, a highway inspector, indicated that construction signage was posted on the day of the accident. He also indicated that a driver would not need to "get over" because the backing vehicle could have stayed "on the shoulder or out in the grass and pull the cones off."
Trooper Jacob Pucheu indicated in his testimony that the Barber Brothers' truck, was not on the shoulder of the road, as it should have been, and testified that he told Mr. Scott he was at fault. Trooper Pucheu also explained that when interviewed, Mr. Cushenberry stated that he did not have enough time to react.
The record also indicates that Mr. Cushenberry told Trooper Pucheu that he struck a vehicle on the shoulder of the road and partly in his lane.
Ric Robinette, the Cushenberrys' expert in accident reconstruction, explained that the Barber Brothers' truck was extending at least a foot into the travel lane, with the front of the truck further into the lane than the rear.According to Mr. Robinette, the cause of the collision was the Barber Brothers' truck, which was backing up on the shoulder of the road and steered into Mr. Cushenberry's lane of travel, which was "an open available lane for traffic."
On cross examination, Mr. Robinette stated the truck was "out" nine inches to a foot. He had previously stated that there may be some debate as to whether the "overhang" in the travel lane is "9 inches, a foot, ... maybe even a little more than a foot, but more than a half-foot and less than a foot and a half."
Additionally, Gary Thomas, a traffic engineering expert for Barber Brothers, testified that he had "no issue" with the accident reconstruction reports, which concluded that the Barber Brothers vehicle was "over the fog line, which technically is not in compliance with a traffic control plan."
Regarding distance and visibility, Mr. Robinette agreed that you can see lights at 900 feet, noting that "because of the curvature [you] don't know whether it's in the lane or on the shoulder, but it's somewhere in the road ahead of you." When asked if a driver would know that a vehicle is in reverse at 400 feet, Mr. Robinette answered, "If the driver approaching has detected that dynamically ... ." Mr. Robinette also stated, "maybe" you can begin to detect that the pickup truck may be hanging over the line at 400 feet.
Barber Brothers' accident reconstruction expert, Brent Munyon, stated that an attentive, prudent driver would have seen the Barber Brothers' vehicle from 900 feet away because the view was unobstructed.
Mr. Robinette agreed that at 400 feet, even without a light on top of a truck (an amber light), you can still see brake lights and back-up lights.
Rashaad Winn, an employee of Barber Brothers, who was picking up cones to open the lane of travel testified as follows:
I didn't see the impact. ... I saw him coming down on the top of the bridge. I figured he would just get over like every other car did. But he came near. He got close or whatever and then moved over last minute - left lane, last minute. And so once he passed me, I went and continued picking up the cones, and that's when I heard the impact.
Mr. Winn further stated that it was completely dark outside and that the brake lights and amber light on the Barber Brothers' truck were on, Doug Barber, Chief Operating Officer of Barber Brothers, while asserting that Mr. Cushenberry should have seen the truck, testified that the Barber Brothers' investigation revealed that the front end of the Barber Brothers' truck was in the travel lane "a few inches."
We cannot say, given the evidence of record, that the jury's finding of fact, regarding Mr. Cushenberry's fault (or lack thereof), is manifestly erroneous or clearly wrong. To the contrary, we find the jury's conclusion to be a reasonable one, which is amply supported by the record. There seems to be no dispute that the Barber Brothers' truck was not where it was supposed to be and instead, was slightly in Mr. Cushenberry's lane of travel. In addition, based on the testimony, the truck may have lacked sufficient lighting to warn Mr. Cushenberry of its location. We therefore find no error in the jury's determination that Mr. Cushenberry was not at fault.
Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the apportionment. See Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607, 610-611. Additionally, where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart, 617 So.2d at 883. It is well-settled that if a fact-finder's findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., at 882-883.
Finally, we turn to the jury's awards for general damages. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms. Duncan v. Kansas City Southern Railway Company, 2000-0066 (La. 10/30/00), 773 So.2d 670, 682, cert, dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Vast discretion is accorded the factfinder in fixing general damage awards. Thus, an appellate court should rarely disturb an award of general damages. Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So.2d 802, 809 (per curiam). An appellate court's role in reviewing a general damages award 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. Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So.3d 1104, 1117. As explained in Youn v. Maritime Overseas Corporation, 623 So.2d 1257, 1261 (La. 1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379(1994):
Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award.
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Only after a determination that the trier of fact has abused its "much discretion" is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Duncan, 773 So.2d at 682-683.
In the present matter, the jury awarded $10,750,000.00 in general damages to Mr. Cushenberry for his past and future physical pain and suffering, past and future mental pain and suffering, loss of enjoyment of life, disability, and scarring and disfigurement. As a result of the accident, Mr. Cushenberry suffered injury to his head, face, neck, shoulder, and cervical and lumbar spine. Mr. Cushenberry sustained a mild to moderate traumatic brain injury, which left him with an executive function in the mildly impaired range. Mr. Cushenberry also suffers from daily headaches, depression, and physical and mental pain.
Mr. Cushenberry suffered facial trauma and fractures, sought treatment for injuries to his cervical and lumbar spine, and underwent shoulder surgery.
Mr. Cushenbeny's neuropsychologist, Dr. Susan Andrews, described Mr. Cushenbeny's executive function deficits to include problems with processing speed and attention. Dr. Andrews also testified that Mr. Cushenberry has a "cognitive disorder or a neurocognitive disorder due to traumatic brain injury. He's got major depression at this point. He has generalized anxiety disorder. And he also has post[-]traumatic stress disorder."
Barber Brothers' expert neurologist, Dr. Kevin Bianchini, found that Mr. Cushenberry had "some residual problems in his mental abilities, and that he also has some emotional issues that ... are symptoms of residual brain problems ... According to Dr. Bianchini, Mr. Cushenberry "does have some cognitive impairments."
Dr. Patricia Morgan, the treating physician and neurologist, stated that Mr, Cushenbeny's deficits are related to where he had the injury. According to Dr. Morgan, "[h]is injuries [have] to do with executive function, which is making decisions, his emotions, his social ability, his apathy, all those things that he exhibits ... And other areas can be intact because they weren't injured."
Dr. Morgan also diagnosed Mr. Cushenberry with post-traumatic headache syndrome and post-concussive syndrome.
Mr. Cushenberry described himself, prior to the accident, as an outgoing, "go-jolly fellow." According to Mr. Cushenberry, he is now easily agitated, easily distracted, and has to be reminded of different things. Mr. Cushenberry is no longer able to "do a lot of the strenuous activities and stuff [he] did before." He is no longer a "quick thinker." On cross examination, Mr. Cushenberry admitted that he is better now than he was after the accident. He is able to drive his children to school, drive a rental car while on vacation, and engage in activities on vacation with his family. Mr. Cushenberry also has assisted his son's sporting league with securing rings because the team won the "Super Bowl."
According to Mr, Cushenberry's wife, after the accident Mr. Cushenberry still tried to coach:
But I found that he was more like just an irate coach on the sideline, like, yelling. More like just yelling - no, do this. Do this, that -- and I was like I don't think you need to be doing that because I was feeling like you just upsetting yourself. Because he couldn't physically get down low with the kids and do the things he was doing with them so he was just yelling.
Barber Brothers argues that the award for general damages to Mr. Cushenberry is excessive and an abuse of discretion. We disagree. Mr. Cushenberry's life has drastically changed as a result of his injuries, and he is fully aware of the impact of his traumatic brain injury on his life. We find that the general damage award is not beyond that which a reasonable jury in its discretion could assess in such a case. The jury heard extensive testimony about the physical and mental pain and suffering that Mr. Cushenberry has, and will continue to, endure from his injuries. Mr. Cushenberry's general damage award is appropriate given his age, his relationship with his family, his community, his health prior to the accident, his serious, disfiguring, and permanent deficits from his injuries, his evidence of serious depression, and his inability to return to work. The jury clearly considered the effects of Mr. Cushenberry's particular and unique injuries. The record is replete with evidence supporting the award; thus, comparable damage awards should not be considered. See Bouquet v. Wal-Mart Stores, Inc., 20080309 (La. 4/4/08), 979 So.2d 456, 459.
We note that Youn makes it clear that the general damage award must bear a reasonable relationship to the elements of the proved damages. See Youn, 623 So.2d at 1261.
As to the awards for loss of consortium to Mrs. Cushenberry and the Cushenberry children, Barber Brothers similarly contends that the awards are an abuse of discretion. In reviewing an award for loss of consortium, it is necessary to evaluate the elements that comprise a loss of consortium claim. The compensable elements of a claim for loss of consortium of a spouse include loss of love and affection, loss of companionship, loss of material services, loss of support, impairment of sexual relations, loss of aid and assistance, and loss of felicity. Lemoine v. Mike Munna, L.L.C., 2013-2187 (La.App. 1st Cir. 6/6/14), 148 So.3d 205, 214. An award of loss of consortium in favor of a child compensates for the loss of love and affection, loss of companionship, loss of material services, loss of support, loss of aid and assistance, and loss of felicity. Baack v. McIntosh, 2020-01054 (La. 6/30/21), 333 So.3d 1206, 1216-1217.
At the time of trial, the Cushenberry children were 14 and 9 years of age.
Cognizant of the fact that our initial inquiry is not guided by awards made under similar factual scenarios, see Reck v. Stevens, 373 So.2d 498, 501 (La. 1979), we turn our attention to the particular facts of this case wherein Mrs. Cushenberry testified as follows:
He's not the same. Like I said, he - he did - he did all the things that men would do. He kept his kids. He's really crazy about his kids. He did things like - I mean, he'll surprise me sometimes. I'll be at work.
I'll call him and say something like I wanted something or something and he's like, girl, whatever or something like that. Kind of brush me off. But then I'll come home sometimes to it. And he was great. He was a great husband. He's still a great husband. He's just - just not as - he's not what he was before.
And then ... I'll send him to the grocery store - not the grocery store - the Dollar General store, which is probably like three miles away from the house. And I'll send him to the store, and he'll call me back and it's like, so what I came here for - it could have been just a roll of tissue. And it's like what I came here for? And I'm like tissue, you know.
When asked if Mr. Cushenberry is able to take full care of himself without any assistance, Mrs. Cushenberry answered, "I wouldn't say full care of himself. I mean, he can get in the shower. But as far as preparing a meal, he can't prepare a meal. He knows that he has to brush his teeth. But as far as keeping up with the household chores and stuff, he doesn't do that." Mrs. Cushenberry further stated, "I couldn't do it by myself... My mama comes now to clean up the house because I pay her to clean up the house because I - it's just too much." Mrs. Cushenberry testified on cross examination that Mr. Cushenberry still attends his son's games, supports his son, and travels to sporting events. According to Mrs. Cushenberry, her husband is still a good dad and has remained close to his children. However, Mr. Cushenberry went from being athletic, outgoing and being very involved "in everything" with his family, to being depressed, easily irritable, forgetful, in constant pain, and secluded/disengaged. In short, Mr. Cushenberry is "not the same." [R. 3003-3009] We conclude, based on the particular facts of this case, that the jury did not abuse its discretion in its general damage awards for loss of consortium, services, and society to Mrs. Cushenberry and the Cushenberry children.
CONCLUSION
For the above and foregoing reasons, the trial court's February 2, 2021 judgment, rendered in conformity with the jury's verdict, is fully affirmed in all respects. All costs of this appeal are assessed to the appellant, Barber Brothers Contracting Company, LLC.
AFFIRMED.
GUIDRY, C.J., dissents in part and assigns reasons.
I agree with the majority that the jury charge was not so inadequate as to preclude the jury from reaching a verdict based on the law and facts, and would also find no error in the jury's determination that Mr. Cushenberry was not at fault for the accident. I disagree, however, with the opinion reached by the majority as it concerns the awards for general damages. As explained in Youn v. Maritime Overseas Corporation, 623 So.2d 1257, 1261 (La. 1993), cert, denied. 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994):
Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the
particular circumstances that the appellate court should increase or decrease the award.Youn makes it clear that the general damage award must bear a reasonable relationship to the elements of the proved damages. See Youn, 623 So.2d at 1261.
Further, as expressed in Youn. the standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Youn, 623 So.2d at 1261.
Without doubting that Mr. Cushenberry's life has changed as a result of his injuries, where Mr. Cushenberry is able to interact with his family, drive his children to school, drive a rental car while on vacation, "ride bikes" with the family, go to the store for his wife, and engage in everyday activities with his family, I would find that the general damage award is beyond that which a reasonable trier of fact in his discretion could assess in such a case. Therefore, I would reduce Mr. Cushenberry's general damage award.
A review of cases involving similar injuries reveals that the highest amount that could reasonably be awarded under the facts herein is $4,300,000. See Jenkins v. State ex rel. Department of Transportation & Development, 06-1804, p. 35 (La.App. 1st Cir. 8/19/08), 993 So.2d 749, 772, writ denied, 08-2471 (La. 12/19/08), 996 So.2d 1133 (wherein this court affirmed an award of $3,000,000 in general damages to a plaintiff who after an accident was rendered unconscious, cerebrospinal fluid was dripping from plaintiffs right ear and he had an acute subdural hematoma, following the collision plaintiff was diagnosed as having post-concussion syndrome and post-traumatic vision syndrome, plaintiff suffered permanent loss of hearing in his right ear, postaccident plaintiff suffered headaches on a daily basis, and testing by neuropsychologist revealed a mild to moderate impairment in his mental abilities). Also see Moulds v. Louisiana Stadium and Exposition District, 21-0503, p. 34 (La.App. 4th Cir. 3/23/22), 336 So.3d 920, 941, writ denied. 22-00668 (La. 6/22/22), 339 So.3d 645 (the appellate court affirmed a $1.3 million general damages award for a plaintiff who after a fall continued to suffer from severe nonstop headaches and migraines, memory problems, confusion, stress epilepsy, blacking out, bursts of anger, and sometimes forgot how she arrived somewhere; plaintiff also no longer played flute, needed transportation and new service dog, and medical testimony indicated that plaintiff had traumatic brain injury and major neurocognitive disorder); Scarberry v. Entergy Corporation, 13-0214, p. 33 (La.App. 4th Cir. 2/19/14), 136 So.3d 194, 215, writs denied 14-0566 and 14-0599 (La. 5/16/14), 139 So.3d 1026 (the appellate court affirmed a general damages award of $4,750,000 for a man diagnosed with a traumatic brain injury and delayed-onset neurological syndrome with symptoms similar to amytrophic lateral sclerosis, or Lou Gehrig's disease, who also suffered from post-traumatic stress disorder, major depressive disorder, pain disorder, and undifferentiated somatoform disorder); and Oubre v. Union Carbide Corporation, 99-63, p. 26 (La.App. 5th Cir. 12/15/99), 747 So.2d 212, 229, writs denied. 00-472 and 00-473 (La. 4/20/00); 760 So.2d 346 (the appellate court affirmed a general damages award of $700,000 where evidence supported that plaintiff suffered serious, permanent and disabling injuries, including but not limited to injuries to his lower and upper respiratory tracts, a brain injury and impairment, and significant restrictions and limitations of his ability to engage in many activities). The jury awarded $10,750,000 in general damages to Mr. Cushenberry for his past and future physical pain and suffering, past and future mental pain and suffering, loss of enjoyment of life, disability, and scarring and disfigurement.
As to the awards for loss of consortium for Mrs. Cushenberry and the Cushenberry children, Mrs. Cushenberry testified as follows: "He's still a great husband. He's just... not what he was before." Mrs. Cushenberry also testified on cross examination that Mr. Cushenberry still attends his son's games, supports his son, and travels to sporting events. According to Mrs. Cushenberry, her husband is still a good dad and has remained close to his children.
The Cushenberrys surely suffer some deprivations. However, from my view, the evidence of record does not support such substantial awards for loss of consortium. Given the evidence herein, I would find that the jury abused its discretion in its general damage awards to Mrs. Cushenberry and the Cushenberry children. I would therefore reduce these awards.
It is the plaintiff who carries the burden of proving a definite loss on each element of damages. Gradnigo v. Louisiana Farm Bureau Casualty Insurance Company, 08-1198, p. 15 (La.App. 3d Cir. 3/4/09), 6 So.3d 367, 377, writ not considered. 09-0768 (La. 5/22/09), 9 So.3d 333.
The loss of consortium awards to the Cushenberrys, in particular the awards to the children, are without precedent. A review of cases reveals that the highest award reasonably within the jury's discretion for loss of consortium to Mrs. Cushenberry is $350,000. See Ritter v. Exxon Mobile Corporation, 08-1404, p. 11 (La.App. 4th Cir. 9/9/09), 20 So.3d 540, 547 ($250,000 for wife was affirmed for loss of consortium where plaintiffs arm was amputated, he had to undergo a cervical fusion, had to have reconstructive surgery on his left upper extremity, and continues to suffer from phantom pain, insomnia, sleep disorders, major depression and post-traumatic stress disorder); Rentrop v. Arch Insurance Company, 17-0635, p. 12 (La.App. 1st Cir. 12/29/17), 241 So.3d 357, 368 (this court affirmed a loss of consortium award in the amount of $250,000 to a wife after plaintiff husband's cervical discectomy and fusion); Hall v. Brookshire Brothers, Ltd, 02-2404, p. 15 (La. 6/27/03), 848 So.2d 559, 568-569 (a jury awarded a husband $200,000 for loss of consortium after his wife sustained disability due to a pharmacist and physicians malpractice in dispensing drugs and must now rely on her husband daily for assistance). A review of cases reveals that the highest award reasonably within the jury's discretion for loss of consortium to the Cushenberry children is $50,000 each. See Malta v. Herbert S. Hiller Corporation, 21-00209, p. 36 (La. 10/10/21), 333 So.3d 384, 409-410 (the supreme court found that the highest award reasonably within the trial court's discretion for loss of consortium to plaintiffs son was $15,000 when the "scant evidence" related to the issue showed generally that plaintiff and his son were unable to participate in the some of the same outdoor activities, after the accident, plaintiff became very bitter and angry and treated his family horribly, but his relationship with his son had greatly improved); Ritter v. Exxon Mobile Corporation, 08-1404, p. 11 (La.App. 4th Cir. 9/9/09), 20 So.3d 540, 547 ($50,000 for each minor child was affirmed for loss of consortium where plaintiffs arm was amputated, he had to undergo a cervical fusion, had to have reconstructive surgery on his left upper extremity, and continues to suffer from phantom pain, insomnia, sleep disorders, major depression and post-traumatic stress disorder); Savant v. Hobby Lobby Stores, Inc., 12-447, pp. 14-15 (La.App. 3d Cir. 11/7/12), 104 So.3d 567, 576, writ not considered. 12-2685 (La. 2/8/13), 107 So.3d 640 (plaintiffs children were entitled to damage awards of $50,000 each for their loss of consortium in plaintiffs personal injury action where plaintiff was an active, single mother who engaged with her children in their everyday play, but after the accident she could no longer be the active and engaged mother she was before).