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Oliveaux v. St. Francis Medical Center12/15/2004
. 2 Cir. 10/4/00), 768 So. 2d 803, writ denied, 2000-3153 (La. 1/12/01), 781 So. 2d 558. It properly identifies the degree of supervision and control over the alleged contractor's work as an important factor in determining her status. Fuller v. U.S. Aircraft Ins. Group, 530 So. 2d 1281 (La. App. 2 Cir.), writ denied, 543 So. 2d 444 (1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954 (1989); Nippa v. Chevron USA, 99-2954 (La. App. 4 Cir. 11/15/00), 774 So. 2d 310, writ denied, 2000-3420 (La. 2/9/01), 685 So. 2d 823. This charge fairly and reasonably identified the issue of independent contractor status and provided correct principles of law for the jury's consideration. Smart v. Kansas City Southern, supra.
(D) Elements of damage. Oliveaux contends the court failed to instruct the jury on the elements of damage recoverable in a survivorship claim, and used the term "survivorship" in the jury form without defining it. He contends that without knowing what damages were compensable, the jury could not have assessed the legal cause of those damages.
The court charged the jury as follows:
In an action such as this one, Louisiana law permits plaintiff as the surviving beneficiaries of Haley Oliveaux to present evidence of certain losses that may have been suffered by the deceased prior to death and for which you may award damages. These damages may include conscious pain and suffering by the deceased prior to her death, as well as funeral expenses which may have been incurred.
Oliveaux correctly shows that this charge does not specifically define "survival claim," while the jury form contains a line for "Survival claim of Haley Oliveaux." Better symmetry between the charge and the form would be desirable. However, the charge tracks the model jury instruction in Johnson, supra, ยง 18.13, is based on the analysis in Cheatham v. City of New Orleans, 378 So. 2d 369 (La. 1979), and is an abridged version of the discussion in Etcher v. Neumann, 2000-2282 (La. App. 1 Cir. 12/28/01), 806 So. 2d 826, writ denied, 2002-0905 (La. 5/31/02), 817 So. 2d 105.
This charge fairly and reasonably identified the issue of survival damages and provided correct principles of law for the jury's consideration. Smart v. Kansas City Southern, supra.
(E) General Unfairness
Oliveaux contends the jury charge, taken as a whole, fails to present the issues in a clear and balanced fashion. He complains the plaintiffs "are not presented to the jury as persons who have the right to compensation if the case is proved" but rather as "mere beggars." He also argues that the court adopted the defendants' proposed jury charge, the product of "snipping pieces from appellate decisions and stringing together the bits that are favorable to [their] own side."
Regarding burden of proof, the charge stated:
The plaintiff has the burden of proving every element of his cause of action and, in addition to proving fault, he must also establish a causal link between the defendant's acts or omissions and his damages.
In a suit such as this one, negligence or fault is never presumed and the plaintiff bears the burden of establishing his claims to a legal certainty by a reasonable preponderance of the evidence. Mere possibilities and even unsupported probabilities are insufficient to support a judgment.
This is a summary of the general burden of proof expressed in Lasha v. Olin Corp., 93-0044 (La. 10/18/93), 625 So. 2d 1002, 25 A.L.R. 5th 872, and Prim v. City of Shreveport, 297 So. 2d 421 (La. 1974). The charge fairly and adequately identified the issue for the jury. Smart v. Kansas City Southern, supra.
Oliveaux's
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