Pesson v. Reynolds11/13/1998
uctible) paid to the Pessons by RPC Energy Services, Inc., on behalf of Mr. Reynolds and Patterson Truck Line, Inc. Pursuant to the settlement agreement, CIGNA/Insurance Company of North America was dismissed from the lawsuit with prejudice, on December 21, 1994. Mr. Reynolds and Patterson Truck Line, Inc., remained as defendants in the lawsuit for any amounts in excess of $2,000,000.
On January 10, 1995, the Louisiana Health Care Authority intervened in the suit on behalf of Charity Hospital in New Orleans, alleging that it had a right to intervene for recovery of charges for services rendered there to Mrs. Pesson. Plaintiffs and defendants filed answers to the intervention of the Louisiana Health Care Authority, generally denying its allegations.
On January 13, 1995, DOTD filed an answer to the third party demand of Excess Underwriters, generally denying the allegations. On May 22, 1995, plaintiffs filed a supplemental petition, naming DOTD as an additional defendant, and alleging the intersection of Aycock Street and Hwy. 90 was unreasonably dangerous and DOTD was strictly liable for the plaintiffs' damages. DOTD filed an answer to the supplemental petition, alleging the comparative fault of Mrs. Pesson and the other defendants named in the suit.
Trial was held on April 3-4, 1996, and June 5-6, 1996. Before the trial, Patterson Truck Line, Inc. and Excess Underwriters entered into a "Mary Carter" settlement agreement with the plaintiffs. Pursuant to the agreement, Excess Underwriters gained a financial interest in Mrs. Pesson's recovery and was realigned as a plaintiff, leaving DOTD as the only defendant. Following the trial, a judgment was rendered in favor of the plaintiffs and the third party plaintiff, awarding $4,925,027.14 in damages, plus interest and costs. The trial court assessed Mr. Reynolds and Patterson Truck Line, Inc. with 60% of the fault and DOTD with 40% of the fault. Damages were allocated as follows:
"Special Damages For Anna Pesson "1) Past Lost wages $27,090.00 "2) Future loss of wages $200,992.00 "3) Past medical expenses $206,945.14 "4) Future orthopedic surgeries $40,000.00 "5) Life Care $1,500,000.00 "General Damages "1) Loss of Consortium Ä Ray Pesson, Jr. $250,000.00 "2) Loss of Consortium Ä Ray Pesson, III $100,000.00 "3) Loss of Consortium Ä Jasmine Pesson $100,000.00 "4) Past and Future pain and suffering Ä Anna Pesson $2,500,000.00"
It is from this judgment that DOTD now appeals and urges the following assignments of error:
"1. The trial court erred in finding DOTD liable under theories of strict liability and negligence. "2. The trial court erred in its allocation of fault between the parties by apportioning forty percent of fault to DOTD and only sixty percent to Jess Reynolds and not apportioning any fault to Anna Pesson. "3. The trial court erred in its assessment of $2,500,000 in general damages to Anna Pesson. "4. The trial court erred in its assessment of $250,000 in loss of consortium damages to Raymond Pesson, Jr. and $100,000 each for loss of consortium damages to Raymond Pesson, III and Jasmine Pesson."
THE LIABILITY OF DOTD
In assignment of error number one, DOTD contends the trial court erred in finding DOTD liable under theories of strict liability and negligence.
The elements which plaintiff must prove to recover damages from a public entity based on a defective condition of a roadway are the same, whether based on negligence or strict liability. Faulkner v. State, Department of Transportation and Development, 25,857, 25,858 (La. App.2nd Cir. 10/26/94), 645 So.2d 268, 273, writs denied, 94-2901, 94-2908 (La. 1/27/95), 649 So.2d 390. A plaintiff must
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