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Joseph v. Broussard Rice Mill10/30/2000
f rice fell on him at the Port and that this accident was the cause of his neck injuries. The only doctor not to find objective evidence to support Joseph's cervical problem was Dr. Jack Pennington, an orthopedist who examined Joseph once as an IME for Stevedores's compensation carrier. Despite Dr. Pennington's opinion, Joseph presented objective medical findings in the form of myelograms and CT scans which showed the disc protrusions. Moreover, his treating physicians opined that more probably than not the accident at the Port was the cause of Joseph's cervical disc problems. In addition, Dr. Gunderson, the orthopedist who performed Joseph's cervical disc surgery, indicated that more cervical surgery was needed and opined that Joseph could not return to work. Finally, Dr. Foster unequivocally stated that the Port accident caused Joseph to suffer from thoracic outlet syndrome which he would either have to live with or have addressed surgically. When this testimony is considered along with the unrefuted testimony that Joseph had worked successfully as a longshoreman for twenty years without physical problems, we find that the appellate court, after particularizing the facts of this injury to this plaintiff, properly found the jury's general damage award abusively low.
DECREE
For the foregoing reasons, we affirm that part of the JNOV which found Floyd Joseph free from fault. We further reverse that portion of the JNOV which held Broussard Rice Mill 100% at fault and which increased the damage award. We reinstate the jury's damage award as amended in the appellate court's judgment which increased damages to $584,485. In accordance with our findings herein, we reallocate fault 15.5% to Broussard Rice Mill and 84.5% fault to Lake Charles Stevedores.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED AS AMENDED.
Johnson, J., Concurs in part and Dissents in part.
I agree with the majority that the jury erred in assigning any percentage of fault to plaintiff, Floyd Joseph. Clearly, this worker was doing the task assigned. There is no evidence that he created or contributed to this dangerous situation. Nor is there any evidence that he performed this task in a negligent fashion.
I disagree with the majority's conclusion as to the apportionment of fault between Broussard Rice Mill, Inc. and the Lake Charles Stevedores. From all the evidence, reasonable minds can only conclude that Broussard was responsible for glueing and stacking the rice and that Broussard failed in its duty to properly glue and stack the rice sacks before they left the rice mill on pallets. The lower courts were correct to assign the greater percentage of fault to Broussard because of this active negligence. The fault of the Stevedores in failing to notify Broussard of its own negligence pales by comparison, and I would assign 85% negligence to Broussard and 15% negligence to the Stevedores.
VICTORY, J. (assigning additional reasons)
While I subscribe to the majority opinion, I write separately to note that this Court has never squarely addressed the issue of awarding hedonic damages for loss of enjoyment of life as a separate element of damages. While damages for "loss of enjoyment of life" were recited as part of the jury's total award in this case, and as amended by the appellate court, no party assigned error to the award of damages for loss of enjoyment of life. Nor did this Court grant certiorari in this case to consider that issue.
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