Simms v. Progressive Insurance Co.9/29/2004
nor permanently life-altering. As indicated by Dr. Sutton's testimony, Simms made a good recovery and was released to do as much as she can. Simms is functional and able to work. Morever, she is able to enjoy life with her family and friends, though at a bit slower pace than before the accident.
A survey of similar cases involving multiple injuries convinces us that though the award for pain and suffering is in the upper range of what a reasonable trier of fact could award, the amount is not so high as to constitute an abuse of the jury's vast discretion. See Couvillion v. Shelter Mutual Ins. Co., 95-1186 (La. App. 1st Cir. 4/4/96), 672 So. 2d 277, wherein $245,000 awarded plaintiff with fractured tibia and fibula, fractured ribs, arm injury , and closed head injury; Gauthier v. Kansas City Southern Railroad Co., 96-529 (La. App. 3d Cir. 11/6/96), 682 So. 2d 993, writ denied, 96-2918 (La. 1/24/97), 686 So. 2d 867 and 96-2932 (La. 1/24/97), 686 So. 2d 868, wherein $425,000 in general damages awarded for fractures of femurs, knee, humerus, and tooth along with surgeries and other injuries; Cornish v. State, Through DOTD, 93-0194 (La. App. 1st Cir. 12/1/94), 647 So. 2d 1170, writ denied, 95-0547 (La. 5/5/95), 654 So. 2d 324, wherein plaintiff awarded $425,000 general damages for leg and hip fractures, facial lacerations, and multiple surgical procedures; and Lousteau v. K-Mart Corp., 03-1182 (La. App. 5th Cir. 3/30/04), 871 So. 2d 618, writ denied, 2004-1027 (La. 6/25/04), 876 So. 2d 835, wherein $450,000 in general damages awarded for comminuted and spiral femur fracture and knee problems.
While we do not find an abuse of discretion as to the award for pain and suffering, we do find that the jury abused its vast discretion in awarding $225,000 for loss of enjoyment of life. Loss of enjoyment of life is a compensatory element of damages recoverable upon proof that the injured party's lifestyle was detrimentally altered or that the injured party was forced to give up activities because of his injury . Day v. Ouachita Parish School Board, 35,831 (La. App. 2d Cir. 8/8/02), 823 So. 2d 1039, writ denied, 2002-2532 (La. 12/19/02), 833 So. 2d 343.
In Day, supra, a high school freshman was awarded $50,000 for loss of enjoyment of life after a back injury rendered him unable to play high school football and baseball, adversely affected his school performance, and resulted in recurring pain that will limit his daily activities. In Horton v. McCrary, 620 So. 2d 918 (La. App. 3d Cir. 1993), aff'd in part, rev'd in part, 635 So. 2d 199 (La. 1994), the plaintiff was awarded $50,000 for loss of enjoyment of life due to a left femur fracture which caused him to lose a potential professional baseball career. Similarly, an award of $50,000 for loss of enjoyment of life was affirmed in Levy v. Bayou Indus. Maintenance Services, Inc., 2003-0037 (La. App. 1st Cir. 9/26/03), 855 So. 2d 968, for a plaintiff who lost independence and the ability to maintain the same high level of activity enjoyed prior to her injury. An award of $45,000 was affirmed in Matos v. Clarendon Nat. Ins. Co., 2000-2814 (La. App. 1st Cir. 2/15/02), 808 So. 2d 841, for a plaintiff in the prime of his life whose disabling back injuries deprived him of enjoying activities with his young child and foreclosed his participation in outdoors recreational activities.
Higher awards have been made in cases where the plaintiffs have sustained severe disabling conditions or injuries that impacted their ability to return to work. See Bouregois v. McDonald, 622 So. 2d 684 (La. App. 4th Cir. 1993), writ denied, 629 So. 2d 1177 (La. 1993); Rivere v. Union Pacific Railroad Co., 93-1132 (La. App. 1st Cir. 10/7/94), 647 So. 2d 1140, writ denied
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