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Williams v. City Baton Rouge4/30/1998
App. 1st Cir. 1986). Where the defendant trespasses upon plaintiff's property, it is clear plaintiff is entitled to recover damages for anguish, humiliation and embarrassment. Britt Builders, Inc. v. Brister, 618 So.2d 899, 903 (La. App. 1st Cir. 1993).
After a review of the mental anguish awards made when property has been damaged, we find these awards range from a low of $100.00 to a high of $35,000.00. Bryant v. Sears Consumer Financial Corp., 617 So.2d 1191, 1195 (La. App. 3d Cir. 1993); Cutrer v. Illinois Central Gulf Railroad Co., 581 So.2d 1013, 1022 (La. App. 1st Cir. 1991), writ denied, 588 So.2d 1120 (La. 1991). Based on this record, I believe the most the trial court could have awarded plaintiffs, without abusing its discretion, would be as follows:
Williams family plaintiffs:
Class I Ä Louise Jackson: $35,000.00;
Class II Ä Houston Williams, Willie Williams, Leroy Williams, Bernice (Williams) Christopher, Gloria (Williams) Taylor and Alzetia (Williams) Davis: $11,000.00 each.
Gage family plaintiffs:
Class I Ä Beatrice Gage Harris and Irma Gage Carr: $29,000 each;
Ä Earline Gage Howard: $14,800.00;
Class II Ä Ophelia Simmons, Evelyn Gage Sagna and Lubertha Ethel Gage Johnson: $11,000.00 each;
Ä Ulysses Gage, Jr. and Leroy Gage for Ulysses Gage, Sr.: $7800.00;
Ä Leonard Gage: $3900.00.
the Rabys:
John B. Raby: $35,000.00;
Ida Jane Raby: $29,000.00; John Raby, Jr. and Kathy Raby: $9750.00 each.
In my opinion, the awards for mental anguish by the trial court, affirmed by the majority, appear to be punitive in nature. Accordingly, I Dissent from that portion of the majority's opinion which affirms the trial court's awards for mental anguish.
I also Dissent from the majority's award of attorneys' fees. For reasons that follow, I agree with the majority's Conclusion that the actions of the City/Parish do not amount to violations under 42 U.S.C.A. § 1983. Therefore, attorneys' fees are not recoverable under a theory of civil rights violations. However, I disagree with the majority's Conclusion that the City/Parish's actions amounted to a "taking," thereby supporting recovery under La.R.S. 13:5111. To the extent that the actions of the City/Parish constituted a "taking," defendants would be correct in their assertion that plaintiffs' recovery excludes non-physical damage. Reymond v. State, Dep't of Highways, 255 La. 425, 231 So.2d 375, 384 (1970). The physical damage which is recoverable to a plaintiff whose property has been taken by the City/Parish must be proximately caused by the improvement as designed and constructed or must be the probable, the immediate, the direct, and the necessary result and effect of the activities engaged in during the construction. Id. In my opinion, the majority's affirmance of the non-physical damage awards precludes an award of attorneys' fees under La.R.S. 13:5111. Because I believe, the excavation project undertaken by the City/Parish is not "a taking or damaging for public purposes" as contemplated by Art. 1, Sec. 4 of the Louisiana Constitution, but rather the ultra vires actions of elected and appointed officials for the City/Parish (which amount to the tort of trespass), attorneys' fees may not be awarded under La.R.S. 13:5111.
I concur with the remainder of the majority's opinion. I whole-heartedly agree with the majority's Conclusion that the trial court erred in its determination that defendants are liable to plaintiffs under 42 U.S.C.A. § 1983 (see n. 30 of the majority opinion). I write separately, however, to suggest that trial court's Conclusion
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