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Dufrene v. Carter11/29/2005
Panel composed of Judges Edward A. Dufresne, Jr., Clarence E. McManus, and James C. Gulotta, Pro Tempore
REVERSED; SET ASIDE; AND REMANDED
Defendant, Werner Enterprises, Inc. ("Werner"), appeals from a judgment confirming a preliminary default in favor of plaintiff, and awarding damages in the amount of $278,723 plus legal interest and costs. We reverse and set aside the judgment and remand the matter for further proceedings.
In plaintiff's petition she alleges that on January 27, 2003, as manager of a Family Dollar store ("the store"), she was assisting in the unloading of merchandise from a semi-tractor trailer truck driven by Werner employee, Norris Carter. Plaintiff further alleges Carter had the unloading ramp elevated to such a degree packages came down the roller ramp at a very rapid rate of speed and with great force. She alleges that Carter refused to lower the ramp in order to slow down his placement of packages on the ramp, despite repeated requests by plaintiff and her co-workers, resulting in one of the heavier packages injuring plaintiff's thumb. As a result, plaintiff claims she suffered severe injury to her thumb and hand; Carter was in the course and scope of his employment by Werner at the time of this incident; and Werner is liable under the doctrine of respondeat superior.
Werner was served with the petition via its registered agent for service of process on February 5, 2004. Service was never perfected upon Carter. Thereafter, Werner neither answered nor filed other responsive pleadings.
On July 6, 2004, plaintiff obtained a preliminary default judgment against Werner. After a confirmation hearing on November 2, 2004 the matter was left open, during which time additional evidence was submitted to the court. On January 10, 2005, the trial judge confirmed the default and entered judgment against Werner, awarding plaintiff damages totaling $278,723 (plus legal interest and costs), which it itemized as follows:
$23,963
| $29,760
| $100,000
| $125,000
|
Werner appeals.
On appeal, Werner raises eight assignments of error. Werner argues that plaintiff did not present a prima facie case of liability or damages; the judgment amount is grossly excessive; plaintiff failed to prove a relationship between Norris Carter and Werner; plaintiff failed to prove any negligence on the part of either Norris Carter and Werner, or a lack of negligence on the part of the plaintiff; plaintiff failed to provide expert testimony with regard to alleged special damages; plaintiff failed to provide original certified medical records for plaintiff's special damages; and, the evidence submitted by plaintiff was incompetent and/or inadmissible, therefore was insufficient to satisfy the statutory requirements of proof of a prima facie case under La. C.C.P. art. 1702.
Prima Facie Case
In its first two assignments of error, Werner argues plaintiff did not present a prima facie case of liability or damages. Werner relies on La. C.C.P. art. 1702(A) which provides " judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case."
We agree. To obtain a default judgment, one must establish the elements of a prima facie case with competent evidence, as fully as though the defendant denied each of the allegations in the petition. Ventola v. Hall, 03-0703 (La.App. 5 Cir. 11/12/03), 861 So.2d 677. The plaintiff must present competent evidence that convinces the court that it is probable that she would
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