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Cheney v. Coregis Insurance Co.2/28/2001
. 3 Cir. 3/27/96); 671 So.2d 1074, 1080, this court said:
Damages for pain and suffering are properly awarded if there is a scintilla of evidence of any suffering or pain on the part of the deceased by his actions or otherwise. Prince v. Mattalino, 583 So.2d 541 (La.App. 3 Cir.1991). The pain and suffering of a deceased are not assumed; nonetheless, awards in survival actions have been upheld as within the trial court's discretion even in the absence of testimony of the deceased's pre-death pain. In Dent v. Perkins, 629 So.2d 1354 (La.App. 4 Cir.1993), writ denied, 634 So.2d 853 (La.3/18/94), the parents of an infant who lived only thirty-six hours were permitted to recover for the child's pain and suffering even though the child did not appear to be conscious after birth and there was no movement detected. See also Brown v. Department of Transportation, 604 So.2d 99 (La.App. 3 Cir. 1992).
After reviewing the record in this case, we find the trial court erred in granting the motion for summary judgment. Cheney established that for at least forty-two minutes Rhodeman was not declared dead and that during that time he at least blinked his eyes. This was sufficient to demonstrate that whether he consciously suffered remained a genuine issue of material fact in dispute. Plaintiff is not required to try its case to prevail at a motion for summary judgment. Accordingly, the trial court erred in granting the motion for summary judgment.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed and the case remanded for further proceedings. All costs of these proceedings are taxed equally among appellees.
REVERSED AND REMANDED.
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