 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Ruttley v. Lee5/17/2000
BR>
The proper allocation of fault requires an analysis of both parties' conduct. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La.1985). In apportioning fault, the following factors are applied:
(1) whether the conduct resulted from inadvertence or involved an awareness of the danger;
(2) how great a risk was created by the conduct;
(3) the significance of what was sought by the conduct;
(4) the capacities of the actor, whether superior or inferior; and
(5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Watson, 469 So.2d at 974; Coley v. State, Dept. of Transp. and Development, 621 So.2d 41, 48 (La. App. 2 Cir.1993).
The trial court did not provide reasons to support its judgment that Stacey was at fault, however, it is apparent from the record that she was familiar with the intersection and she had a duty to proceed with caution through the dangerous intersection.
While the trial court's written reasons for judgment do not reflect the trial court's specific application of the Watson factors, we nonetheless find no manifest or clear error in the trial court's assessment of fault in this case. Thus, we will not reassess fault.
PROPERTY DAMAGE
Jefferson Parish argues that the trial court erred in awarding Ernest T. Ruttley, Jr., property damage for his car when he was dismissed as a party plaintiff from this suit. Plaintiffs argue that while it is true that Ernest T. Ruttley, Jr., was dismissed from some claims by the Peremptory No Cause of Action exception, Ernest T. Ruttley, Jr., is entitled to his property damage award because the Parish of Jefferson stipulated to the amount.
LSA-C.C.P. art. 1841 states that " judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." A judgment cannot determine rights or award relief to persons or entities who are not parties to the litigation. LSA-C.C.P. art. 1841. Since Ernest T. Ruttley, Jr., was dismissed with prejudice as a party to this suit and was not a party to the litigation, the award to him was improper and is, therefore, reversed.
SURVIVAL DAMAGES
Jefferson Parish argues that the trial court erred in awarding survival benefits when the only testimony indicating that Stacey survived was presented by Ms. Hunter-Amedee. Mrs. Ruttley responds that the trial court did not abuse its discretion in awarding her $150,000.
Under LSA-C.C.P. art. 2315.1, the surviving father and mother of the deceased have an action for damages suffered by their child prior to her death. 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 her actions or otherwise. Prince v. Mattalino, 583 So.2d 541, 543 (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 decedent's pre-death pain. Jones v. State Through Dept. of Health and Hospitals, 95-1130 (La. App. 3 Cir. 3/27/96), 671 So.2d 1074, 1080, writ denied, 96-1040 (La. 5/31/96), 674 So.2d 263.
The Parish of Jefferson urges us to reverse the trial court's award for Stacey's pain and suffering because only Ms. Hunter-Amedee testified that Stacey was alive.
In this case, there is the testimony of only one witness, Ms. Hunter- Amedee, that supports the proposition that Stacey was alive and suffered before her demise. However, as noted supr
Page 1 2 3 4 5 6 7 8 9 10 11 12 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|