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Cox v. Moore12/12/2001
after the accident.
Lejeune Damages
The DOTD argues that Rebecca did not carry her burden of proving that her mental anguish or emotional distress was caused by the accident and that it was severe, debilitating, and foreseeable.
Prior to the enactment of Louisiana Civil Code Article 2315.6 the supreme court concluded that mental pain and anguish claims arising out of injury to third persons were permissible. Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990). In explaining the requirement that the emotional injury must be both severe and debilitating, the court noted:
The emotional distress sustained must be both serious and reasonably foreseeable to allow recovery. Serious emotional distress, of course, goes well beyond simple mental pain and anguish. Compensation for mental pain and anguish over injury to a third person should only be allowed where the emotional injury is both severe and debilitating. For instance, Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759, 765 (1983) held that "serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia and shock. Lejeune, 556 So.2d at 570 (citations omitted).
We find that Rebecca proved that she suffered severe emotional distress as a result of witnessing the death of her daughter. We find that the trial court did not abuse its discretion in awarding $150,000 for Rebecca's mental anguish at witnessing the death of her daughter, Darlene.
Wrongful Death Damages
The DOTD claims that there is no authority for an award of $350,000 for the loss of life of an eleven-year-old daughter. It argues that the award should be reduced.
Wrongful death damages compensate the designated survivors for their loss of the decedent. La.Civ.Code art. 2315.2. As explained in Duncan, 773 So.2d 670, it is impossible to place a monetary value on the life of a child. Aside from the evidence already discussed, the testimony of Jerry Cox was that since the accident his mother is sad and depressed all the time and that she continues to have problems as a result of the accident which killed his sister.
We find no abuse of discretion in the trial court's award of $350,000 in wrongful death damages to Rebecca for the loss of her daughter, Darlene. See Dartlone v. Louisiana Power & Light Co., 33,597 (La.App. 2 Cir. 6/21/00); 763 So.2d 779, and cases cited therein.
Physical and Emotional Injuries and Damages
The DOTD claims that an award of $750,000 for debilitating physical and emotional injuries is unsupported by the evidence. We agree that this award is excessive considering the evidence and the other damages awarded to Rebecca. We find that the highest reasonable amount that could have been awarded to Rebecca for her physical and mental injuries is $200,000.
Survival Action
The DOTD argues that the additional $150,000 award for the survival action was inappropriate in this case because Darlene passed away instantaneously or within minutes of the accident.
A survival action is for the recovery of damages for injury to a deceased from the time the injuries occurred until his death. La.Civ.Code art. 2315.1. "`Damages are properly awarded if there is a scintilla of evidence of any suffering or pain on the part of the decedent by his actions or otherwise.'" Guillot v. Valley Forge Ins. Co., 99-1044, p. 7 (La.App. 3 Cir. 12/8/99); 753 So.2d 891, 896 (quotin
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