More specifically, when reviewing courts have found that the lower courts of this state utilized an improper burden of proof, the jurisprudence has recognized that such an error may have interdicted the fact-finding process and calls for a de novo review of the evidence. Ferrell, 650 So.2d at 746-47; Duncan v. Safeway Ins. Co. of La., 35,240 p. 3 (La.App. 2 Cir.10/31/01), 799 So.2d 1161, 1163; Valley v. Specialty Restaurant Corp., 98-0438 p. 6 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1032; Campo v. Correa, 2001-2707 p. 10 (La. 6/21/02), 828 So.2d 502, 510. REASONABLENESS OF DATE OF DISCOVERY
An appellate court may disturb a damage award only if it finds that the award is an abuse of discretion. Valley v. Specialty Restaurant Corp., 98 0438, p. 22 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1040. The first question to be answered when reviewing a damage award is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the great discretion of the trier of fact.
More specifically, when reviewing courts have found the lower courts of this state utilized an improper burden of proof, the jurisprudence has recognized that such an error may have interdicted the fact-finding process and calls for a de novo review of the evidence.Ferrell, 650 So.2d at 746-47; Duncan v. Safeway Ins. Co. of La., 35,240 (La.App. 10/31/01), 799 So.2d 1161, 1163; Valley v. Specialty Restaurant Corp., 98-0438 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1032; Dousay v. Allstate Ins. Co., 99-32 (La.App. 3 Cir. 6/2/99), 741 So.2d 750, 753. Even though we, like the appellate court, have appellate jurisdiction of both law and fact in civil matters, and may perform an independent review and render judgment on the merits, see Buckbee v. United Gas Pipe Line Co., 561 So.2d 76 (La. 1990) (citing LA. CONST. art. V, § 5(C) and Thomas v. Missouri Pacific R.R. Co., 466 So.2d 1280 (La. 1985)), we have not always chosen to conduct a de novo review of the record.
April 1, 1999. Prior report: La.App., 726 So.2d 1028. IN RE: New York Marine Gen. Ins. Co.; — Other(s); Applying for Writ of Certiorari and/or Review; Parish of Orleans Civil District Court Div. "K" Number 89-9952; to the Court of Appeal, Fourth Circuit, Number 98CA-0438.
Pena v. Delchamps, Inc., 2006–0364 (La.App. 1 Cir. 3/28/07), 960 So.2d 988, 991, writ denied, 2007–0875 (La.6/22/07), 959 So.2d 498 (citing Stockwell v. Great Atlantic & Pacific Tea Company, 583 So.2d 1186, 1188 (La.App. 1st Cir.1991). Whether measures taken by a merchant were reasonable must be determined in light of the circumstances of each case. Valley v. Specialty Rest. Corp., 98–0438 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1035, writ denied, 99–0478 (La.4/1/99), 742 So.2d 560 (citing Thompson v. Stalnaker's Restaurant, Inc., 93–1447, pp. 4–5 (La.App. 3 Cir. 6/1/94), 640 So.2d 733, 736, writ denied, 94–1799 (La.10/14/94), 643 So.2d 165 )). Nevertheless, when proper signage is used to warn patrons of the floor's condition, a wet floor does not create an unreasonable risk of harm. See Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 2 Cir. 9/24/08), 996 So.2d 476, 479.
To discharge our review function, we consider the record as a whole to determine if the factual finding is a reasonable finding. Valley v. Specialty Restaurant Corp., 98-0438, p. 6 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1032. On the one hand, Mr. Katner's offer of a valuation for the home was prepared by a Louisiana licensed appraiser.
More specifically, when reviewing courts have found that a lower court utilized an improper burden of proof, the jurisprudence has recognized that such an error may have interdicted the fact-finding process and calls for a de novo review of the evidence. Campo v. Correa, supra; Ferrell v. Fireman's Fund Insurance Co., supra; Duncan v. Safeway Ins. Co. of La., 35,240 (La.App. 2nd Cir. 10/31/01), 799 So.2d 1161, 1163; Valley v. Specialty Restaurant Corp., 98-0438 (La.App. 4th Cir. 1/19/99), 726 So.2d 1028, 1032; Andrus concedes that the trial court charge to the jury was erroneous and that this Court must review the evidence relating to liability de novo.
The jury's findings as to lost earnings may not be disturbed on appeal absent a finding that they were without foundation or were clearly wrong. See Valley v. Specialty Restaurant Corp., 98-0438, pp. 23-24 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1041. At trial, Ms. Updegraff testified that she had worked as a waitress at Barrister's for approximately one year before the accident, earning about $400.
The district court's Reasons for Judgment states: "General damages of at least $350,000 are supported by the Fourth Circuit's recent decision in Valley v. Specialty Restaurant Corp., 726 So.2d 1028 (La.App. 4th Cir. 1999). In that case, the plaintiff, like Darrell Parker, underwent both lumbar and cervical neurotomies performed by Dr. Vogel. The general damage award of $350,000 was affirmed on appeal and would be an appropriate award in this case, particularly considering the testimony adduced at trial.
The next issue we will address is whether the trial court erred in failing to adequately consider the intervening accident in assessing damages. In reviewing damages, an appellate court should not disturb an award unless it is an abuse of discretion. Valley v. Specialty Restaurant Corp., 98-0438, p. 22 (La.App. 4 Cir. 1/19/99) 726 So.2d 1028, 1040 writ denied, 99-0478 (La. 4/1/99), 742 So.2d 560, 1999 WL 269967. In this case, we find that the trial court did abuse its discretion in not considering the February 2, 1996 automobile accident — an accident that occurred before the second and third surgeries performed on Plaintiff's back.