clementine-murray-and-carmen-r-wright-guardian-ad-litem-for-adrian , 843 F.2d 831 ( 1988 )

843 F.2d 831

Clementine MURRAY and Carmen R. Wright, Guardian Ad Litem
for Adrian Lavonne Wright, Minor, Plaintiffs-Appellees,
v.
RAMADA INNS, INC., Interstate Motor Lodges of Shreveport,
Inc., Barker Development and Management, Inc.,
Aetna Casualty & Surety Company,
Defendants- Appellants.

No. 86-4648.

United States Court of Appeals,
Fifth Circuit.

April 18, 1988.

Brian D. Smith and Charles W. Salley, Shreveport, La., for defendants-appellants.

H. Alston Johnson, III, Baton Rouge, La., for amicus curiae La. Assoc. of Defense Counsel.

John E. McKay, Kansas City, Mo., and Bennett L. Politz, Shreveport, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before GOLDBERG and JONES, Circuit Judges.*

EDITH H. JONES, Circuit Judge:

1

We certified a question to the Louisiana Supreme Court as to the applicability of the assumption of the risk defense under the Louisiana comparative negligence statute, 821 F.2d 272. La.Civ.Code Ann. art. 2323. The Louisiana Supreme Court has answered that assumption of the risk does not serve as a total bar to a plaintiff's recovery in a negligence case, 521 So. 2d 1123. Therefore, we affirm the district court's decision not to instruct the jury on the assumption of the risk defense.

2

Appellants have also appealed the size of the damage award to Adrian Wright as being unsupported by the evidence. We review the district court's decision not to grant a new trial on damages or order a remittitur under the abuse of discretion standard. Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1241 (5th Cir.1985). We are convinced that appellants have satisfied that heavy burden. Adrian Wright was receiving little if any financial support from the decedent at the time of the decedent's death. In addition, the decedent rarely visited his son. The jury's award was far out of line compared with awards by Louisiana juries in similar cases. Therefore, we find the jury's award of $250,000 to Adrian Wright to be excessive and order a remittitur of the award to $25,000.

3

The remaining errors urged by Appellants are without merit. Therefore, the judgment of the district court is AFFIRMED as modified.

*

Due to his death October 19, 1987, Judge Hill did not participate in this decision. The decision of the Court is being issued by a quorum. 28 U.S.C. Sec. 46(d)