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Duncan v. Kansas City Southern Railway Co.10/30/2000
he trier of fact found the evidence presented in the Voogt Plan was the most credible. Based on the Voogt Plan, Dr. Pettingill calculated the present values for future medical expenses with LPN care at $22.00 per hour and based on a life expectancy of 57 years to be $10,528,722. Accordingly, we reduce the award of future medical expenses to $10,528,722.
CONCLUSION
For the aforementioned reasons, the decision of the court of appeal insofar as it finds KCS at fault and in the awarding of general damages is affirmed. We reverse the percentages of fault of KCS and Mitchell, to 33.3% and 66.67%, respectively, and the award of future medical expenses for Rachel Duncan is reduced to $10,528,722. We also reduce the award of general damages to Rachel Duncan to $6,000,000. The case is remanded to the trial court to confect appropriate monetary judgments based upon the fault percentages.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
VICTORY, J. (concurring)
Had I been the trier of fact, I probably would not have found liability on the part of defendant, Kansas City Railway Co. However, based on the record in this case, I cannot say that the jury committed manifest error in finding the railroad partially at fault.
Accordingly, I respectfully concur in the result.
KNOLL, J., concurring in part and dissenting in part.
I concur in the majority's conclusion that the jury manifestly erred in finding that Rachel's life expectancy was 81-years. Instead, the record evidence preponderated that her life expectancy was to the age of 57 years. This finding necessitated a reduction in the medical damage award to Rachel. However, I dissent from the majority's reduction in Rachel's general damage award and its reapportionment of fault. In my view, the jury's general damage award to Rachel and the apportionment of fault by the trial judge were clearly supported by the record and, therefore, were not manifestly erroneous.
Reapportionment of Fault
The majority correctly cites the factors contained in Watson v. State Farm Fire & Cas. Ins. Co., 469 So. 2d 967 (La. 1985), in its discussion of fault, but fails to properly apply the factors to the facts of this case. In my view, if the Watson factors were properly applied to the facts of this accident, the jury's apportionment of fault would have been affirmed. This can easily be discerned from the following analysis of these factors.
Whether the conduct resulted from inadvertence or involved an awareness of the danger. Any extenuating circumstances which might require the actor to proceed in haste, without proper thought.
The majority finds that "his (Mitchell) negligent conduct of proceeding across the tracks was more than likely inadvertent." Duncan v. Kansas City So. RR Co., No. 00-0066, slip op. at 11; (emphasis added). On the other hand, the record shows that "KCS knew of the unique situation posed by this crossing before the accident, they had knowledge of prior accidents at the crossing and other complaints about the crossing." Duncan, slip op. at 12. Thus, the evidence shows that KCS's acts of negligence were clearly paramount in comparison to Mitchell's inadvertent negligent acts.
How great a risk was created by the conduct.
The risk created by KCS's conduct was overwhelmingly dangerous, as shown by the majority's own appreciation of the evidence:
Testimony was presented that the East Iowa Road crossing presented a unique situation since less than 200 feet after crossing the railroad tracks, there is a stop sign at the intersection of East Iowa Road and Highway 27. Approximately 8
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