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Williams v. City Baton Rouge4/30/1998
955 (La. App. 2d Cir. 1989). Damages are recoverable for unauthorized activities performed on the property of another, and are calculated on physical property damage, invasion of privacy, inconvenience, and mental and physical suffering. See Beacham v. Hardy Outdoor Advertising, Inc., 520 So.2d 1086, 1091 (La. App. 2d Cir. 1987). In the instant case, plaintiffs are entitled to full indemnification for the damages caused by the City/Parish's trespass. See Britt Builders, Inc., 618 So.2d at 903.
The trier of fact is given much discretion in the assessment of damages. Upon appellate review, damage awards will be disturbed only when there has been a clear abuse of that discretion. La.C.C. art. 2324.1; Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993). The initial inquiry must always be directed at whether the trial court's award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact's much discretion. Reck v. Stevens, 373 So.2d 498, 501 (La. 1979).
On appeal, defendants urge the trial court's awards of any damages except for fair market value of the land taken are erroneous. Additionally, defendants assert the quantum of the trial court's awards for mental anguish is excessive and amounts to an abuse of discretion. All plaintiffs contend the quantum of the trial court's awards for property damages is erroneously low. Additionally, the Williams and Gage families maintain the quantum of the trial court's awards for mental anguish is abusively low. Except for minor changes, we will not disturb any of the awards.
A. Property Damages
1. Tracts of Land
When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage. Roman Catholic Church v. Louisiana Gas Service Co., 618 So.2d 874, 876 (La. 1993). When damage to property is assessed, no mechanical rule can be applied with exactitude. Justice, reason, and the principle of full reparation of La.C.C. art. 2315 require that, where an individual's property is damaged unlawfully by a tortfeasor for no good reason, the owner be compensated at least as fully as when his property is damaged by the state for a public purpose. Id.
We note that the proper measure of damages when a governmental entity exercises its power of eminent domain is the lesser of (1) the market value of the property and severance damages minus any residual value or (2) the cost of restoring the property to its condition at the time the taking was initiated. Matherne v. Terrebonne Parish Police Jury, 462 So.2d 274, 279 (La. App. 1st Cir. 1984). Severance damages are normally calculated as the difference in value of the remaining property before and after the taking. See Hobgood v. Parish of East Baton Rouge, 563 So.2d 413, 419 (La. App. 1st Cir.), writ denied, 567 So.2d 105 (La. 1990). Cost to cure is an appropriate method of determining damages and may be resorted to in unique situations and special instances wherein ascertainment of market value is not otherwise possible. See State, Dep't. of Highways v. Salassi, 244 So.2d 871, 875 (La. App. 1st Cir. 1971).
a. Gage family
The trial court awarded $56,000.00 to all classes of Gage family plaintiffs for property damage to their land, and we find no error in the award. On appeal, the Gage family asks this court to conclude that the property is useless and to award them the fair market value of the entire tract before it was damaged; or alternatively that the award be affirmed.
Plaintiffs' expert in real estate appraisal, Oren Russell, made a study
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