 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Boudreaux v. State6/10/2005
d not be proven in cases in which there is an "especial likelihood of genuine and serious mental distress arising from special circumstances." Johnson v. First National Bank of Shreveport, 00-870, pp. 21-22 (La.App. 3rd Cir.6/20/01), 792 So.2d 33, 51, writs denied, 01-2770, 01-2783 (La.1/4/02), 805 So.2d 212, 213 (quoting Moresi v. State Through Department of Wildlife & Fisheries, 567 So.2d 1081, 1096 (La.1990)).
Although the plaintiff does not suffer contemporaneous personal injury or property damage, he or she nevertheless may recover for negligently inflicted emotional distress if the defendant's conduct placed the plaintiff in fear or concern for his or her safety.... Louisiana ... an award is proper when the conduct is directed at the mental anguish victim and the circumstances show an "especial likelihood of genuine and serious mental distress." Cases in which a plaintiff fears for his personal safety or in which he watches his property destroyed probably are the most common.
Johnson, 00-870 at 21, 792 So.2d at 51 (quoting Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law ยง 5-8 at pp. 124-125 (1996)).
Second, although the Damages Procedure Order states that the Court will determine the appropriate level or levels of compensation for all class members who have claimed psychological damage, the agreement then goes on to instruct that the average from that determination is to be applied to the class. Normally, such damages would be recoverable only by those class members who claimed or proved psychological damage; however, the Damages Procedure Order agreed to by the State does not have such a limitation. That is the agreed-upon law as to these parties. Hence, since mental anguish damages are recoverable relative to property damage and the Damages Procedure Order allows for the calculated average to be awarded to all class plaintiffs, we find no error in the trial court's judgment granting such relief. We likewise reject the arguments of the class plaintiffs regarding the trial court's failure to award varying levels of mental anguish damages, as opposed to an average, based on this same premise.
As for the amount of the mental anguish award, the trier of fact is given much discretion in the assessment of damages and damage awards will only be disturbed when there has been a clear abuse of that discretion. Williams v. City of Baton Rouge, 98-1981, pp. 11-12 (La.4/13/99), 731 So.2d 240, 249. Based on our review of the testimony, evidence, and jurisprudence regarding claims for mental anguish relative to damage to property, we find that the amount awarded was not a clear abuse of the trial court's discretion, and accordingly, we reject the arguments of the State and the class plaintiffs relative to the amounts awarded.
In its final assignment of error, the State disputes the trial court's award of business interruption losses to four businesses. We will address the arguments raised relative to each business separately. First, the State contends that the trial court incorrectly calculated the amount owed to the partnership of Joseph Ebrecht and Taylor Fernandez for the loss incurred when the partnership sold its commercial real estate including improvements. It was proven at trial that the real estate sold, a poultry farm comprised of 33 acres of land and six poultry houses, was purchased by the partnership in 1972 for $59,000.00; the partnership later purchased a railroad right-of-way that ran through the property for $515.00, making for a total acquisition cost of $59,515.00. After purchasing the property, the partnership decided to modernize the poultry operation and spent a total of $202,000.00 on improvements. After the flood, th
Page 1 2 3 4 5 6 7 8 9 10 11 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|