Prevost v. New Orleans Public Service Inc., 357 So. 2d 1371

357 So. 2d 1371 | La. Ct. App. | 1978

Lead Opinion

GULOTTA, Judge.

Defendant complains, on appeal, that a $300,000.00 jury award is excessive. We affirm.

Based on the medical¹ and actuarial ² testimony, a jury could have reasonably concluded: 1) that lower back nerve root irritation was causally related to injuries sustained in a bus accident; 2) that the injuries were permanent in nature; 3) that because of chronic pain, resulting from the injury, plaintiff was unable to continue to be gainfully employed; 4) that a 34-year-old plaintiff with a work-life expectancy of 26.3 years³ who was earning between $13,-000.00-$14,000.00 per year, had sustained loss of future earnings ranging from approximately $200,000.00-$400,000.00 depending on discount and cost-of-living factors. The evidence supports these conclusions. Under the circumstances we cannot say the jury award was excessive. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Defendant does not quarrel with the jury charges or cite any trial irregularities. Accordingly, the judgment is affirmed.

AFFIRMED.

STOULIG, J., concurs with written reasons.

1 . Medical experts who testified in support of plaintiffs’ position included Dr. Kenneth Adat-to, plaintiff’s treating orthopedic surgeon, and Dr. Raeburn Llewelyn, a neurosurgeon. The jury also heard the testimony of Dr. Claude S. Williams, an orthopedic surgeon who examined plaintiff at defense counsel’s request.

2 . An expert economist, Melville S. Wolfson, testified regarding plaintiff’s loss of wages.

3 . Dr. Wolfson relied on U.S. Department of Labor tables to arrive at this work-life expectancy. We find no merit to defendant’s contention that the economist should have used the American Experience Table of Mortality set forth in LSA-R.S. 47:2405. The statute suggested by defendant pertains to evaluation of annuities or usufructs in legacies. In Triche v. Commercial Union Insurance Company, 329 So.2d 784 (La.App. 1st Cir. 1976), relied on by defendant, the actuarial expert’s use of the U.S. Department of Labor table was accepted by the court.

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Concurrence Opinion

STOULIG, Judge,

concurring.

I concur in the majority opinion for the reasons therein stated.

In my opinion this case is a classic illustration of one of the glaring deficiencies in our civil jury trial procedures — the failure to require that specific interrogatories be propounded to the jury to elicit from them the specific awards for general and for special damages. In the instant case, the jury verdict of $300,000 is an aggregate award without any specific allocation for the general damages of pain and suffering and the special damages of the loss of the future income based upon a $13,000 annual salary with a work life expectancy of 26.3 years.

Neither this court nor counsel for the litigants can, with any degree of reasonable certainty, apportion the award for general and for special damages as determined by the jury since this information is not available. The defendant-appellant, who maintains that the award is excessive, must now tilt against the windmills of speculation in trying to have this court reduce the same.

The deficiency in the system represented by this lack of information is indeed a most serious one in reviewing the assessment of damages since the norm or standard in determining both general damages and special damages are radically different. Great discretion vests in the jury or trial judge in awarding general damages for pain and suffering, etc.; however, special damages are based upon actual expenses or losses and the projection of these continuing expenses as losses in the future. Thus one damage falls within the discretion of the trier, whereas the other is based upon actual facts and circumstances.

And in connection with the loss of future wages or for future medical expenses, the award of damages projected over the period of disability or life expectancy should be discounted or adjusted by a reasonable rate of return which could be realized by its conservative investment based upon prevailing market conditions at the time of its award. This adjustment is necessary because the pre-payment of the párticular anticipated special damage is made immediately upon the finality of judgment, whereas in fact the right to such wages would normally accrue or be payable in successive years in the future over a like period of time.

To do otherwise in those instances where the work life expectancy is of _ sufficient duration (as in this case 26.3 years), if no adjustment is made the claimant by conservative investment of the mass amount awarded could earn sufficient interest or income in excess of her annual salary and at the conclusion of her life work expectancy would still have the principal of the mass amount awarded still intact. The tort law of this State and the jurisprudence interpreting the same never contemplated such a result.