180 So. 3d 326
La. Ct. App.2015Background
- Fecke injured Dec. 3, 2008 in an indoor bouldering wall accident at LSU UREC; staff instructed and Fecke signed a Rock Climbing Wall Participation Agreement; Fecke elected the rear bouldering wall not requiring a harness or belay; she became stuck while descending, fell, and suffered a comminuted talus fracture with multiple surgeries and potential future procedures; plaintiffs sued LSU Board for damages, jury allocated 75% fault to LSU Board and 25% to Fecke, awarding substantial damages; trial court later adjusted damages after fault allocation and awarded costs and interest; dispute centers on statutory treatment of future medical care costs against a state entity under the Louisiana Governmental Claims Act and related funds/trusts; appellate court reverses in part, amends damages, and affirms as amended; key issues relate to FMCF vs reversionary trust, admissibility of a waiver/participation agreement, and the proper scope of damages under the cap for state entities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FMCF applies to Fecke's future medicals against LSU Board. | Fecke entitled to FMCF payments per La. R.S. 39:1533.2 and 13:5106(B)(3)(c). | LSU Board is a state agency; FMCF applies; trial court erred in using a reversionary trust. | FMCF applies; reversionary trust error vacated. |
| Whether costs and attorney’s fees may be paid from the future medical award. | Costs/fees may be deducted as allowed by statute. | Costs/fees not medical care; should not be paid from FMCF. | Costs/fees not payable from FMCF; portions vacated. |
| Whether the Rock Climbing Wall Participation Agreement should have been admitted. | Agreement contains non-waiver provisions; probative of duty/supervision. | Waiver paragraph null; redacted portions potentially probative. | Paragraph 4 null; redacted portions not admitted; error not prejudicial. |
| Whether the loss of earnings vs loss of earning capacity instruction, and the resulting cap, were correct. | Fecke suffered loss of earning capacity; damages not fully economic. | Loss of earning capacity not subject to the cap; misapplied instruction. | Damages pegged to loss of earning capacity; cap of $500,000 applies; loss of consortium extinguished. |
| Whether the court correctly applied the $500,000 cap to damages against a state entity. | Cap applies; damages amended to $500,000 (exclusive of medicals). |
Key Cases Cited
- Rideau v. State Farm Mut. Auto. Ins. Co., 970 So.2d 564 (La.App. 1 Cir. 2007) (applies manifest error review to jury findings and de novo where legal error prejudicial)
- Folse v. Fakouri, 371 So.2d 1120 (La.1979) (loss of earning capacity not economic loss under cap framework)
- Cooper v. Public Belt R.R., 886 So.2d 531 (La.App. 4 Cir. 2004) (distinction between loss of earning capacity and loss of future earnings; cap implications)
- Hobgood v. Aucoin, 574 So.2d 344 (La.1990) (earning capacity considerations in future damages)
- Wooley v. Lucksinger, 61 So.3d 507 (La.2011) (standard for adequate jury instructions; prejudicial error analysis)
- Ravey v. Rockworks, LLC, 111 So.3d 1187 (La.App. 3 Cir. 2013) (duty of gym operators; safety obligations in recreational activities)
- Folse v. Fakouri, 371 So.2d 1120 (La.1979) (see above)
- Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993) (manifest error standard in factual findings)