690 So. 2d 856 | La. Ct. App. | 1997
Concurrence Opinion
concurring on rehearing.
For the following reasons, I respectfully concur on rehearing.
Concerning the survival damages, I adhere to my views expressed earlier in my concurrence in part and dissent in part. I fully agree with the survival damage award of $50,000. This award is in keeping with the jurisprudence set in Dent v. Perkins, 93-405 (La.App. 4 Cir. 12/16/93); 629 So.2d 1354, writ denied, 94-0116 (La. 3/18/94); 634 So.2d 853. This award represents the baby’s pain and suffering. The record shows that Dr. Joan Milner, a pathologist, testified: that the unborn baby girl (the parents knew the baby was a girl and named her Ashley Virginia) had no congenital abnormalities; that the cause of her death was suffocation which would have produced fetal distress before dying; and, that pain was a stimuli a full
Concerning the Wartelles’ mental anguish and emotional distress damages under La. Civ.Code art. 2315.6, the majority finds $25,-000 to each parent appropriate. I agree that this award is completely reasonable in view of this tragic accident that is so heart rending.
Lead Opinion
ON REHEARING
We granted a rehearing to reconsider issues pertaining to the La.Civ.Code art. 2315.1 survival damages and La.Civ.Code art. 2315.6 LeJeune damages issues.
After further consideration, a majority of this Court finds that survival damages of $50,000.00 are warranted in this case. Additionally, LeJeune damages of $25,000.00 to each of the parents are appropriate under the circumstances. These amounts raise the total award by an additional $100,000.00. See generally, Dent v. Perkins, 93-405 (La. App. 4 Cir. 12/16/93); 629 So.2d 1354, writ denied, 94-0116 (La. 3/18/94); 634 So.2d 853, and Dunn v. Gentry, 94-1164 (La.App. 3 Cir. 4/5/95); 653 So.2d 783, writ denied, 95-1148 (La. 6/16/95); 655 So.2d 335.
KNOLL, J., concurs on rehearing and assigns written reasons.
THIBODEAUX, J., specially concurs for the reasons stated in Judge KNOLL’s concurring opinion.
Concurrence Opinion
concurs for the reasons assigned by KNOLL, J.
SAUNDERS and DECUIR, JJ., dissent in part, being of the opinion that a remand is required to establish a reasonable award for survival damages. In addition, Judges SAUNDERS and DECUIR believe that $5,000.00 per parent offers adequate compensation under La.Civ.Code art. 2315.6 and that any amount in excess of that amount would unnecessarily duplicate a portion of the general damages award already meted out by the district court and affirmed by us.