Gerald Wayne Glaser, Individually and as of the Estate of, Charles Raymond Glaser, Sr., Trudy Glaser, Robert Glaser, and Karl Glaser v. Hartford Fire Insurance Company, Steven Ray Cowart, Rail 1, LLC, and State of Louisiana through the Louisiana Department of Transportation ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0534
GERALD WAYNE GLASER, INDIVIDUALLY AND AS EXECUTOR OF THE
ESTATE OF CHARLES RAYMOND GLASER, SR., TRUDY GLASER, AND
ROBERT GLASER
VERSUS
RD FIRE INSURANCE COMPANY, STEVEN RAY COWART, RAIL
1, LLC, AND STATE OF LOUISIANA THROUGH THE LOUISIANA
DEPARTMENT OF TRANSPORTATION
I
V
CONSOLIDATED WITH—
2022 CA 0535
DANNA J. GLASER, INDIVIDUALLY AND AS THE EXECUTOR OF THE
ESTATE OF CHARLES RAYMOND GLASER, SR., BARBARA G.
LACOMBE, AND CHARLES R. GLASER, JR.
VERSUS
HARTFORD FIRE INSURANCE COMPANY, STEVEN RAY COWART, RAIL
1, LLC, AND STATE OF LOUISIANA THROUGH THE LOUISIANA
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
JUDGMENT RENDERED: AUG 3 0 2023
Appealed from the Eighteenth Judicial District Court
Parish of Pointe Coupee • State of Louisiana
Docket Number 49, 803 clw Docket Number 50, 012- A • Division " C"
The Honorable Alvin Batiste, Jr., Presiding Judge
Julie E. Vaicius COUN SEL FOR APPELLANTS
Daniel E. Atkinson, Jr. DEFENDANTS— Steven Ray Cowart;
Metairie, Louisiana Rail 1, LLC; Hartford Fire Insurance
and Company; and Hartford Casualty
H. Alston Johnson, III Insurance Company
Kevin W. Welsh
Baton Rouge, Louisiana
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Amira A. Makke COUNSEL FOR APPELLEES
Robert M. Marionneaux, Jr. PLAINTIFFS -- Gerald Wayne Glaser,
B. Cade Melancon individually and as Executor of the
Baton Rouge, Louisiana Estate of Charles Raymond Glaser,
Sr.; Trudy Glaser; Robert Glaser; and
Karl Glaser
Donald J. Cazayoux, Jr. COUNSEL FOR APPELLEES
J. Lane Ewing, Jr. PLAINTIFFs— Danna J. Glaser,
Baton Rouge, Louisiana individually and as Executor of the
Estate of Charles Raymond Glaser,
Sr.; Barbara G Lacombe; and Charles
R. Glaser, Jr.
BEFORE: WELCH, THERIOT, PENZATO, LANIER, AND GREENE, JJ.
2
PENZATO, J.
The defendants— Steven Ray Cowart, Rail 1, LLC (" Rail 1"), Hartford Fire
Insurance Company, and Hartford Casualty Insurance Company— challenge the
general compensatory damages awarded for survival and wrongful death actions by
the trial court pursuant to a jury verdict The plaintiffs— decedent' s seven adult
children— have answered the defendants' appeal, seeking reversals of: the jury' s
20% fault allocation to decedent; the trial court' s denial of their motions for
judgment notwithstanding the verdict (" JNOV"), or alternatively, motions for new
trial; and a motion in limine granted in favor of Rail 1, prohibiting the introduction
of any evidence regarding Rail 1' s direct negligence.
For the reasons that follow, we reverse the trial court' s denial of defendants'
JNOV as to the amounts of the survival damage award and wrongful death awards;
we render JNOV, awarding plaintiffs $ 2 million in survival damages and $ 500, 000
each in wrongful death damages (totaling $3. 5 million). We grant plaintiffs' answers
to the appeal. We reverse the trial court' s denial of plaintiffs' JNOV; we render
JNOV, finding defendants Steven Ray Cowart/Rail 1 100% at fault for the
automobile collision.
BACKGROUND
On May 13, 2020, at approximately 9: 49 a.m., three employees of Rail 1 were
operating tractor -trailers pulled by semi -trucks and traveling in a caravan on US
Highway 190 West, just west of the Town of Lottie, Louisiana, headed to a location
near Fordoche, to deliver equipment to a Union Pacific Railroad facility. At this
location, Highway 190 is a divided, four -lane highway with a posted speed limit of
55 -miles -per -hour. The eastbound and westbound lanes are separated by a guardrail.
Driver Shaye Stanford led the Rail 1 caravan, followed by drivers Steven Ray
Cowart and Michael Cleypas.
3
Around the same time, Gerald Wayne Glaser, Sr. was also traveling on
Highway 190 West in a 2012 white Ford F- 150 pickup truck, some distance behind
the Rail 1 caravan.
After passing through the Town of Lottie, the Rail 1 drivers realized they had
missed a turn. The drivers pulled onto the north shoulder of Highway 190 West, with
the intention of using an opening in the guardrail to make a left U- turn. The drivers
agreed to " spot" for each other by watching for oncoming traffic and communicating
via CB radio or hands- free cell phones. To have enough room to make the left U-
turn, the drivers pulled off the shoulder and into the parking lot of an abandoned
building.
After Ms. Stanford successfully completed her left U-turn, she pulled onto the
south shoulder of Highway 190 East to spot for the other two drivers. Mr. Cowart
moved into the parking lot to begin his left U-turn. He looked across the highway
and watched for oncoming traffic in the eastbound lanes, while Ms. Stanford spotted
oncoming traffic for him in the westbound lanes. Ms. Stanford communicated to Mr.
Cowart that westbound traffic would be clear once two vehicles passed. Once those
two vehicles passed, Mr. Cowart began his left U- turn. The front of Mr. Cowart' s
semi -truck cab had almost made it past the center line of Highway 190 when the cab
collided with Mr. Glaser' s pickup truck.
Emergency responders arrived at the scene of the accident. Mr. Glaser was
able to exit his vehicle and walk to a gurney to be transported by ambulance to Baton
Rouge General Medical Center (" BRG").
Upon admission to BRG' s intensive care unit (" ICU"), medical providers
diagnosed Mr. Glaser with four fractured ribs, a fractured sternum, a chest
hematoma, bruises to his abdomen and lungs, moderate effusion to the right lung, a
compression fracture of the lumbar spine, a distended abdomen, and a closed head
injury with concussion. Over the next four days, Mr. Glaser was able to sit in a chair,
4
stand, and walk, although he was still experiencing pain. On the fifth day after the
accident, medical providers diagnosed Mr. Glaser with an ileus, which is an
impairment or stoppage of the flow of intestinal contents due to an obstruction or
diminished intestinal motility.' His medical providers began undertaking procedures
to try to alleviate the intestinal disorder; however, Mr. Glaser' s colon perforated on
May 25, 2020. Mr. Glaser died on May 26, 2020, approximately two weeks after the
accident, at the age of eighty- nine.
PROCEDURAL HISTORY
Mr. Glaser' s seven adult children— who ranged in age from 59 to 69 at the
time of his injury and death— filed a survival action as his representatives, pursuant
to La. C. C. art. 2315. 1. They also filed wrongful death actions on their own behalf
under La. C. C. art. 2315. 2 .2 Named as defendants were the driver, Steven Ray
Cowart; Mr. Cowart' s employer, Rail 1; 3 Rail 1' s insurers, Hartford Fire Insurance
Company and Hartford Casualty Insurance Company ( collectively, " Hartford");'
Mr. Glaser' s personal automobile insurer, Louisiana Farm Bureau Casualty
Insurance Company (" Farm Bureau"); 5 and the State of Louisiana, through the
1 The symptoms of an ileus are abdominal bloating and pain caused by a buildup of gas and liquids,
nausea, vomiting, severe constipation, loss of appetite, and cramps. See " ileus," 1- 2, Attorney' s
Illustrated Medical Dictionary ( Ida G. Dox, Gilbert M. Eisner, June L. Melloni, and B. John
Melloni, eds., West 1997).
2 On June 10, 2020, Gerald Wayne Glaser, Trudy Glaser, and Robert Glaser filed a survival action
as Mr. Glaser' s representatives and wrongful death actions on their own behalf (the " Marionneaux
plaintiffs"). See Docket Number 49803, Division "C," 181' Judicial District Court, Parish of Pointe
Coupee, State of Louisiana. Karl Glaser joined the survival action and filed a wrongful death action
on his own behalf on March 11, 2021. On October 27, 2020, Danna J. Glaser, Barbara G. Lacombe,
and Charles R. Glaser, Jr. filed a second survival action as Mr. Glaser* s representatives, as well as
wrongful death actions on their own behalf ( the " Cazayoux-Ewing plaintiffs"). See Docket
Number 50012, Division " A," 18`h Judicial District Court, Parish of Pointe Coupee, State of
Louisiana. The trial court signed an order consolidating the two cases on January 13, 2021,
3 Mr. Cowart was acting in the course and scope of his employment with Rail 1 at the time of the
accident.
a At all material times, Hartford Fire Insurance Company issued a business automobile policy (no.
21UENOE6254), and Hartford Casualty Insurance Company issued an umbrella policy ( no.
21HHUOZ6255), to Rail 1 and its permissive driver, Mr. Cowart. These policies provided
coverage for any judgment rendered against Rail 1 or Mr. Cowart regarding the accident at issue.
Farm Bureau issued an insurance policy (no. A -X82526) to Mr. Glaser, which provided medical
payment coverage, uninsured/underinsured motorist coverage, and death payment coverage.
5
Department of Transportation and Development (" DOTD"), Farm Bureau asserted
cross- claims against Mr. Cowart, Rail 1, and Hartford, seeking indemnity and in the
alternative, contribution, from the cross- claim defendants.
Prior to trial, the trial court dismissed DOTD from the suit.' The plaintiffs
filed a motion in limine to prohibit the defendants from referring to, utilizing, or
introducing the plaintiffs' medical malpractice action filed against Dr. Christopher
J. Christensen and/ or BRG. The defendants stipulated they would not seek an
allocation of fault on the part of Mr. Glaser' s medical providers or the hospital and
further agreed that no reference would be made to the filing of a medical malpractice
claim. Rail 1 also filed a motion in limine, seeking an order prohibiting the plaintiffs
from introducing evidence at trial regarding Rail 1' s direct negligence or fault.'
The matter proceeded to a five-day jury trial. The parties stipulated that the
jury' s determination of fault would only be allocated between Mr. Glaser and Mr.
Cowart/ Rail 1. The parties further stipulated that Mr. Glaser' s past medical expenses
totaled $ 103, 230. 59, and his burial and funeral expenses totaled $ 13, 714.33. During
an in -chambers conference, Farm Bureau agreed to dismiss its cross- claim against
Mr. Cowart, Rail 1, and Hartford in exchange for its dismissal " as a UM in both
lawsuits." Plaintiffs' counsel agreed, as did the trial court. On the second day of trial,
the trial court orally granted the motion in limine filed by Rail 1 and prohibited the
plaintiffs from introducing any evidence regarding Rail 1' s direct negligence or
fault.
F The trial court dismissed the plaintiffs' claims against DOTD in a summary judgment signed on
August 12, 2021. The judgment decreed that no evidence of DOTD' s fault would be admitted at
trial or submitted to the jury, nor would DOTD be included on the jury verdict form.
The plaintiffs opposed Rail 1' s motion to exclude evidence of Mr. Cowart' s driving violations
recorded by his employer, Rail 1. We note that Rail 1 also filed a motion for partial summary
judgment on this issue, seeking the dismissal of plaintiffs' claims regarding Rail 1' s direct
negligence. The trial court set the matter for hearing on August 24, 2021. A minute entry indicates
that the trial court continued the hearing to September 20, 2021 ( the first day of the jury trial);
however, the record on appeal is silent as to whether the trial court held a hearing or ruled on Rail
1' s motion for partial summary judgment.
0
Following the close of evidence and arguments, the trial court instructed the
jury, which then retired to deliberate. Following deliberations, the jury returned a
unanimous verdict: Mr. Cowart and Rail 1 were at fault in causing the automobile
collision, and Mr. Cowart was in the course and scope of his employment with Rail
1 at the time of the automobile collision. Mr. Glaser was also at fault in causing the
automobile collision. The jury allocated 80% fault to Mr. Cowart and Rail 1 and
20% fault to Mr. Glaser. The jury found that Mr. Glaser suffered damages as a result
of the automobile collision and awarded him special damages and survival damages:
1) $ 103, 230. 59 for past medical expenses; 2) $ 13, 714. 33 for burial and funeral
expenses; and 3) $ 10 million for survival damages. The jury further concluded that
each of Mr. Glaser' s seven children sustained wrongful death damages and awarded
them $ 1. 5 million each ( totaling $ 10. 5 million). The jury' s compensatory damages
award totaled $ 20, 616, 944. 92.
The trial court signed a judgment in accordance with the jury' s verdict on
October 21, 2021. Thereafter, pursuant to La. C. C. P. art. 1951 and with the consent
of all parties, the trial court signed an amended final judgment on December 15,
2021. The trial court rendered judgment in the total amount of $ 16, 493, 555. 94
reflecting a 20% reduction of the jury' s compensatory damages verdict of
20, 616, 944. 92, for Mr. Glaser' s fault), in favor of Mr. Glaser' s seven children and
against Mr. Cowart, Rail 1, and Hartford, in solido, for $11 million, and against Mr.
Cowart and Rail 1, in solido, for $5, 493, 555. 94, allocated as follows:
judgment in favor of Mr. Glaser' s seven children for survival damages in the sum
of $8, 093, 555. 94 ( reflecting a 20% reduction of the jury' s survival damages
verdict of $ 10, 116, 944.92, for Mr. Glaser' s fault), plus legal interest on each
plaintiff' s equal share from the date of judicial demand;
judgment in favor of each of Mr. Glaser' s seven children for wrongful death
damages in the amount of $1. 2 million each ( reflecting a 20% reduction of the
7
jury' s wrongful death damages verdict of $1. 5 million each, for Mr. Glaser' s
fault), plus legal interest from the date ofjudicial demand; and
judgment ordering Mr. Cowart, Rail 1, and Hartford, in solido, be assessed with
all costs of the proceedings.
Thereafter, the plaintiffs filed motions for JNOV, or alternatively, motions for
new trial. The defendants filed a motion for JNOV and motion for new trial, or
alternatively, motion for remittitur, and in the further alternative, motion to amend
judgment. The trial court denied all the motions in a judgment signed on December
17, 2021. The defendants now appeal.' The plaintiffs have answered the appeal.
LAW AND DISCUSSION
In their sole assignment of error, the defendants argue that the amount of the
general compensatory damages awarded in the survival and wrongful death actions
was an abuse of the jury' s discretion, and the trial court erred in denying the
defendants' JNOV, or alternatively, new trial, to reduce those damages to the highest
amount reasonably within the jury' s discretion. The defendants argue that based on
the severity and duration of Mr. Glaser' s injuries and subsequent death, the jury' s
survival damages award of $10 million for Mr. Glaser' s pain and suffering and $ 1. 5
million awarded to each of his seven adult children for their wrongful death actions
totaling $ 20. 5 million, prior to a 20% reduction for Mr. Glaser' s fault allocation) is
excessively high.
JNOV, or Alternatively, Motion for New Trial
A JNOV is a procedural device authorized by La. C. C. P. art. 1811, by which
the trial court may correct an erroneous jury verdict by modifying the jury' s finding
of fault or damages or both. Bourg v. Cajun Cutters, Inc., 2014- 0210 ( La. App. V
Cir. 517115), 174 So. 3d 56, 61, writs denied, 2015- 1306, 2015- 1253 ( La. 414116),
s The defendants filed a motion for suspensive appeal on January 12, 2022. The trial court signed
an order of appeal on January 25, 2022, notice of which was transmitted by the Clerk of Court to
the parties on February 15, 2022.
N.
190 So. 3d 1201, 1205. if the verdict is supported by competent evidence and is not
wholly unreasonable, the trial judge may not set it aside. Daigle v. U.S. Fid. & Guar.
Ins. Co., 94- 0304 ( La. App. I" Cir. 515195), 655 So.2d 431, 435. The trial court
should not evaluate the credibility of the witnesses, and all reasonable inferences or
factual questions should be resolved in favor of the non-moving party. Falcon v.
Louisiana Dept. of Transp., 2013- 1404 ( La. App. 1st Cir. 12119114), 168 So. 3d 4761488, writ denied, 2015- 0133 ( La. 4110115), 163 So. 3d 813 ( citing Smith v. State,
Dept. of Transp. & Dev., 2004- 1317, 2004- 1594 ( La. 3111105), 899 So. 2d 516, 524-
25). 9
The standard of review of a JNOV on appeal is twofold. First, the appellate
court must determine whether the jury verdict is supported by competent evidence
and is not wholly unreasonable. If the verdict is supported by competent evidence
and not wholly unreasonable, then the trial court may not set it aside. To make this
determination, the appellate court must, after considering all of the evidence in the
light most favorable to the party opposing the motion, find that it points so strongly
and overwhelmingly in favor of the moving party that reasonable persons could not
arrive at a contrary verdict on the issue. Faul v. Robinson, 2019- 1450 ( La. App. I"
Cir. 12116120), 316 So. 3d 1077, 1081, writ denied, 2021- 00081 ( La. 319121), 312
So. 3d 584. Second, after determining that the trial court correctly applied its standard
of review as to the jury verdict, the appellate court reviews the JNOV using the
9 A motion for new trial may be joined with the motion for JNOV or may be prayed for in the
alternative. La. C. C. P. art. 1811( A)( 2). " A new trial may be granted ... to all or any of the parties
and on all or part of the issues, or for reargument only." La. C. C. P. art. 1971. The peremptory
grounds for a trial court' s grant of a new trial are when the judgment appears clearly contrary to
the law and the evidence, when a party discovers new evidence that could not have been discovered
before or during trial, and when impartial justice was not done because the jury was bribed or
behaved improperly. La. C. C. P. art. 1972. Finally, "[ a] new trial may be granted in any case if
there is good ground therefor, except as otherwise provided by law." La. C. C. P. art. 1973. Unless
an abuse of discretion is demonstrated, an appellate court cannot reverse a trial court' s decision to
grant or deny a motion for new trial. Martin v. Heritage Manor South Nursing Home, 2000- 1023
La. 413101), 784 So. 2d 627, 632.
W
manifest error standard of review. Davis v. Wal-Mart Stores, Inc., 2000- 0445 ( La.
11/ 28/ 00), 774 So.2d 84, 89; Faul, 316 So. 3d at 1081.
Therefore, our initial inquiry is: did the evidence at trial overwhelmingly
support a decrease in the survival damages awarded to Mr. Glaser and the wrongful
death damages awarded to his adult children such that reasonable jurors could not
have concluded otherwise? If so, then the trial court erred in denying the JNOV.
However, if reasonable jurors in the exercise of impartial judgment might conclude
from the evidence that the amount of general compensatory damages awarded in the
survival and wrongful death actions was appropriate, then the trial court was correct
in denying the JNOV.
Assessment of Quantum
It is well- settled that a judge or jury is given great discretion in the assessment
of quantum, of both general and special damages. La. C. C. art. 2324. 1; Fontenot v.
Louisiana Dep' t ofPub. Safety & Corr., 2021- 1213 ( La. App. I" Cir. 418122), 342
So. 3d 28, 35 ( citing Guillory v. Lee, 2009- 0075 ( La. 6/ 26/ 09), 16 So. 3d 1104, 1116).
Furthermore, the assessment of quantum, or the appropriate amount of damages, by
a trial judge or jury is a determination of fact that is entitled to great deference on
review. Fontenot, 342 So. 3d at 35 ( citing Wainwright v. Fontenot, 2000- 0492 ( La.
10/ 17/ 00), 774 So.2d 70, 74).
In conducting our review, we are mindful that neither the trial court nor this
court may substitute its evaluation of the proper amount of damages for that of the
jury unless the jury' s awards totally offend reasonable inferences from the evidence.
Gutierrez v. Louisiana Dep' t of 'Transp. & Dev., 2011- 1774 ( La. App. 1St Cir.
3123112), 92 So. 3d 380, 386, writ denied, 2012- 1237 ( La. 9/ 21/ 12), 98 So. 3d 343.
An appellate court may not overturn an award of damages unless it is so out of
proportion to the injury complained of that it shocks the conscience. See Johnson v.
Montoya, 2013- 1951 ( La. App. 1St Cir. 5/ 2/ 14), 145 So. 3d 418, 421; Patin v.
10
Duplessis Pontiac -Buick -GMC Trucks, Inc., 632 So. 2d 790, 793 ( La. App. P' Cir.
1993), writ denied, 638 So. 2d 1096 ( La. 1994).
The trier of fact' s independent assessment of the damages is reviewed on
appeal under the restraints of Coco v. Winston Indus., Inc., 341 So.2d 332, 335 ( La.
1976), that is, lowering ( or raising) those awards to the highest point ( or lowest
point) that is reasonably within the discretion afforded to the trier of fact when
considering prior awards for similar injuries. As set forth by our Supreme Court in
Coco, 341 So. 2d at 335:
B] efore a Court of Appeal can disturb an award made by
a trial court[,] the record must clearly reveal that the trier
of fact abused its discretion in making its award. Only after
making the finding that the record supports that the lower
court abused its much discretion can the appellate court
disturb the award, and then only to the extent of lowering
it ( or raising it) to the highest ( or lowest) point which is
reasonably within the discretion afforded that court. It is
never appropriate for a Court of Appeal, having found that
the trial court has abused its discretion, simply to decide
what it considers an appropriate award on the basis of the
evidence. [ Internal citations omitted.]
See also Bourg, 174 So.3d at 70.
The standard for appellate review for abuse of discretion in the award of
damages is difficult to express and is necessarily non- specific. Cone v. Nat' l
Emergency Servs., Inc., 99- 0934 ( La. 10/ 29/ 99), 747 So. 2d 1085, 1089. In Youn v.
Maritime Overseas Corp., 623 So. 2d 1257, 1261 ( La. 1993), cert. denied, 510 U.S.
1114, 114 S. Ct. 1059, 127 L. Ed. 2d 379 ( 1994), our Supreme Court recognized:
T] he discretion vested in the trier of fact is " great," and
even vast, so that an appellate court should rarely disturb
an award of general damages. Reasonable persons
frequently disagree about the measure of general damages
in a particular case. It is only when the award is, in either
direction, beyond that which a reasonable trier of fact
could assess for the effects of the particular injury to the
particular plaintiff under the particular circumstances that
the appellate court should increase or reduce the award.
11
See also Malta v. Herbert S. Hiller Corp., 2021- 00209 ( La. 12110121), 333 So. 3d
384, 407- 08; Fontenot, 342 So. 3d at 35. Thus, the role of an appellate court in
reviewing general damages is not to decide what it considers to be an appropriate
award, but rather, to review the exercise of discretion by the trier of fact. Youn, 623
So. 2d at 1260.
In determining whether an " abuse of discretion" has occurred, the Youn court
noted that "[ e] ach case is different, and the adequacy or inadequacy of the award
should be determined by the facts or circumstances particular to the case under
consideration." Youn, 623 So.2d at 1260. Our inquiry therefore is a narrow one:
whether the particular effects of the particular injuries on the particular plaintiff are
such that there has been an abuse of the much discretion vested in the trier of fact.
Youn, 623 So. 2d at 1260. It is only when the award is, in either direction, beyond
that which a reasonable trier of fact could assess for the effects of the particular
injury to the particular plaintiff under the particular circumstances so as to constitute
an abuse of discretion that the appellate court should resort to prior awards in
determining what would be an appropriate award for the present case. Youn, 623
So. 2d at 1261. Accordingly, resorting to a comparison of prior awards is only
appropriate after the reviewing court has concluded that an abuse of discretion has
occurred. Cone, 747 So. 2d at 1089; Coco, 341 So. 2d at 335; Rideau v. State Farm
Mut. Auto. Ins. Co., 2006- 0894 ( La. App. 1st Cir. 8129/ 07), 970 So. 2d 564, 579, writ
denied, 2007- 2228 ( La. 1/ 11108), 972 So. 2d 1168.
Thus, the initial inquiry for this Court is whether the jury abused its discretion
in assessing the amount of damages. If we conclude that it has, then and only then
may prior awards be used for determining the highest or lowest amount that was
reasonably within that discretion. Cone, 747 So. 2d at 1089.
12
Survival Action
Applying these standards, we first address the jury' s award for the survival
action. In a survival action, certain beneficiaries of the deceased have the right to
recover the damages for injuries that the deceased suffered and would have been
entitled to recover from the tortfeasor, had the deceased lived. La. C. C. art. 2315. 1;
Sacco v. Allred, 2002- 0141 ( La. App. 1st Cir. 2119103), 845 So.2d 528, 538. The
survival action permits recovery only for the damages suffered by the victim from
the time of the injury to the moment of death. The elements of damage for the
survival action are pain and suffering, loss of earnings, and other damages sustained
by the victim up to the moment of death. White v. Entergy Gulf States Louisiana,
L.L.C., 2013- 1608 ( La. App. Pt Cir. 11/ 10114), 167 So. 3d 764, 770, writ denied,
2015- 0478 ( La. 5115115), 170 So. 3d 163; Thompson v. Crawford, 2017- 1400 ( La.
11113117), 229 So. 3d 451, 452 (per curiam).
At trial, the jury heard testimony and received evidence that showed that as a
result of the accident, Mr. Glaser suffered " polytrauma"— trauma to more than one
area of the body— and sustained four fractured ribs ( two on each side); a fractured
sternum; a chest hematoma; a compression fracture of the lumbar spine; abdominal
bruises and hematoma; bruises to both lungs; moderate effusion ( i.e., fluid) to the
right lung; a distended abdomen; and a closed head injury with concussion.
As is common with polytrauma patients, during the fourteen days he was in
the hospital, Mr. Glaser' s condition would improve, only to regress. In the first three
days following the accident, Mr. Glaser was awake and alert and able to speak and
orient himself However, he experienced " tremendous" pain and received
oxycodone and morphine. On the fourth day after the accident (May 17), Mr. Glaser
suffered severe bruising and swelling of his testicles. Although still complaining of
pain, Mr. Glaser was able to sit in a bedside chair on oxygen, in no apparent distress
13
and with stable vital signs. He was able to stand, walk with " encouragement," and
was agreeable to further evaluations.
On the fifth day after the accident (May 18), Mr. Glaser was still able to walk
and orient himself. His medical providers believed he was ready to leave the ICU
and be admitted to the floor. However, Mr. Glaser had not had a bowel movement
since the day prior to his accident ( May 12); his abdominal distension had begun to
worsen. Six days after the accident ( May 19), Mr. Glaser' s digestive system began
to fail. 1° Medical providers diagnosed him with an ileus, neurological damage to the
gut where the gut does not push stool, liquid, or air down the gastrointestinal (" G.I.")
tract, which causes abdominal distension. Although Mr. Glaser was still able to stand
up and walk with assistance, he stated, " I' m not sure I' m gonna make it."
Medical providers began decreasing Mr. Glaser' s pain medication and
administering laxatives, electrolytes, and other medications. When those measures
proved unsuccessful, his medical providers began a bowel program/ G.I. protocol in
attempts to alleviate the pressure in his abdomen caused by the ileus. After scans and
a manual dis- impaction attempt, Mr. Glaser' s medical providers were able to
confirm that there were no obstructions in his digestive system. A nasogastric
NG") tube was then inserted down Mr. Glaser' s nose and into his esophagus and
stomach, while another tube was inserted into his rectum. Medical providers then
compressed and decompressed his stomach in attempts to relieve the abdominal
pressure. Mr. Glaser also underwent three enemas and a colonoscopy. Unfortunately,
these attempts to alleviate the pressure in Mr. Glaser' s abdomen failed. He
experienced no relief and was reported as " screaming out in pain." Mr. Glaser began
to Dr. Everett Bonner, who treated Mr. Glaser at BRG in his capacity as a general surgeon, testified
that polytrauma patients " will start having GI [ gastrointestinal] issues, meaning that the GI system
won' t work because of all the significant trauma, all the medications we' re giving them between
pain medicine, all the ICU medications [ they] go on. What happens is you' ll get constipation or
you' ll get what [ Mr. Glaser] had, ileus and dysmotility of the GI system." Dr. Bonner also testified
that pain medication worsens ileus symptoms and causes the digestive system to slow down.
14
pulling out his tubes and I.V.s and had to be restrained to the hospital bed, where he
remained restrained until his death. At one point, Mr. Glaser reported pain so bad
that he wished his medical providers " would just shoot him."
Surgery remained the only option to relieve Mr. Laser' s abdominal
distension. His medical providers discussed doing an exploratory laparotomy to
open his abdominal cavity and assess his condition, or possibly a total removal of
Mr. Glaser' s colon and placement of an ostomy. 11 Then, on the twelfth day after the
accident (May 25), Mr. Glaser' s colon perforated. After medical providers informed
his family that Mr. Glaser would not likely survive with or without surgical
intervention, his family decided that Mr. Glaser would not undergo an operation.
Mr. Glaser died the next day on May 26, 2020— thirteen days after the accident.
The evidence supports the jury' s finding that Mr. Glaser endured mental
anguish, physical pain, and suffering for fourteen days prior to his death. There is no
question that the fear and fright experienced by Mr. Glaser during this ordeal leading
to his death contributed to his mental anguish. See Maldonado v. Kiewit Louisiana
Co., 2012- 1868, 2012- 1869 ( La. App. 1st Cir. 5( 30/ 14), 152 So. 3d 909, 936- 37, writ
denied, 2014- 2246 ( La. 1116115), 157 So. 3d 1129. As discussed above, Mr. Glaser
told medical providers he was " not sure I' m gonna make it;" he screamed out in
pain; he pulled out his tubes and I.V.s; he had to be restrained to his hospital bed;
and he expressed his wish that his medical providers " would just shoot him." Mr.
Glaser' s mental anguish was compounded by the fact that due to the COVID- 19
pandemic, the hospital had a restricted visitation policy in place that prevented Mr.
Glaser' s family and friends from regularly visiting him. The plaintiffs' contact with
their father can be summarized as irregular " FaceTime" calls and brief visits by each
11 An ostomy is an artificial opening created surgically; in this instance, to allow bodily waste to
pass through the opening into an ostorny bag on the outside of the body. See " ostomy," 0-23,
Attorney' s Illustrated Medical Dictionary (Ida G. Dox, Gilbert M. Eisner, June L. Melloni, and B.
John Melloni, eds., West 1997).
15
of the children to say their " last words" once medical providers determined that Mr.
Glaser was not going to survive. Thus, in our review of the jury' s verdict, we
conclude the jury verdict granting recovery for survival damages was supported by
competent evidence.
However, we conclude that reasonable persons could not differ that the award
for Mr. Glaser' s survival action was abusively high beyond that which a reasonable
trier of fact could assess for the effects of the particular injuries to Mr. Glaser under
the particular circumstances. The evidence showed that Mr. Glaser was able to exit
his vehicle and walk to a gurney to be transported by ambulance to BRG. During his
first six days in the ICU, Mr. Glaser was able to talk, orient himself, sit up, stand,
and walk. By May 18, his medical providers were discussing moving him from the
ICU unit to be admitted to the hospital floor. It was not until Mr. Glaser' s digestive
system completely failed and his medical providers diagnosed him with an ileus that
he entered the end stages of his life. The jury' s survival damages award of $10
million shocks the conscience and offends reasonable inferences from the evidence,
especially considering Mr. Glaser' s condition actually improved during his first six
days in the hospital, and only later worsened. Accordingly, we find the jury abused
its discretion in its award of survival damages, and the trial court manifestly erred in
denying the defendants' JNOV.
Because we have concluded that the jury abused its discretion in awarding Mr.
Glaser $ 10 million in survival damages, we now resort to a comparison of prior
awards. See Youn, 623 So. 2d at 1261; Cone, 747 So. 2d at 1089. His damages must
be set in accordance with Coco, 341 So.2d at 335, that is, lowering the award to the
highest point that is reasonably within the discretion afforded to the trier of fact.
Based on the totality, severity, and fourteen -day duration of Mr. Glaser' s pain and
suffering, this Court finds that the highest award reasonably within the jury' s
16
discretion for general damages for a survival action is $ 2 million.12 See Bujol v.
Entergy Servs., Inc., 2000- 1621 ( La. App. 1St Cir. 8/ 14102), 833 So. 2d 947, 981- 83,
opinion modified on reh' g ( Jan. 6, 2003), writsrag nted, 2003- 0492, 2003- 0502 ( La.
5/ 16/ 03), 843 So. 2d 1115, rev' d on otherrog unds, 2003- 0492 ( La. 5/ 25/ 04), 922
So. 2d 1113 ($ 1. 75 million survival award to burn victim who lived for six days after
accident); 13 Dakmak v. Baton Rouge City Police Dep 't, 2012- 1468 ( La. App. I" Cir.
9/ 4114), 153 So. 3d 498, 507- 08 ($ 1 million survival award to elderly driver who died
less than three months after motor vehicle collision); 14 Hicks v. State, 34, 890 ( La.
App. 2nd Cir. 1217101), 802 So. 2d 1005, 1013, writ denied, 2002- 0040 ( La. 3122102),
12 We note that this Court recently affirmed a jury' s $ 10. 75 million general damages award to a
motor vehicle accident (" MVA") victim for his past and future physical pain and suffering, past
and future mental pain and suffering, loss of enjoyment of life, disability, and scarring and
disfigurement. As a result of the MVA, the victim suffered injury to his head, face, neck, shoulder,
and cervical and lumbar spine; sustained a mild to moderate traumatic brain injury, which left him
with an executive function in the mildly impaired range; and suffers from daily headaches,
depression, and physical and mental pain. This Court found the general damage award was
appropriate given the victim' s age, his relationship with his family, his community, his health prior
to the accident, his serious, disfiguring, and permanent deficits from his injuries, his evidence of
serious depression, and his inability to return to work. Barber Bros. Contracting Co., LLC v.
Capital City Produce Co., LLC, 2022- 0696, 2022- 0697 ( La. App. I" Cir. 5/$ 123), _ So. 3d_,
2023 WL 3301245, writ pending, 2023- 00788 ( La. 6/ 6/ 23). The general damage award did not
specify the amount of the award attributable to the victim' s past physical and mental pain and
suffering. Chief Judge Guidry dissented in part, finding that the general damages award was
beyond that which a reasonable trier of fact in his discretion could assess. He would have reduced
the general damages award to $ 4. 3 million. Barber, 2023 WL 3301245 at * 7, n. 2 ( Guidry, C. J.,
dissenting in part).
We find that Barber is factually distinguishable from the particular injuries to Mr. Glaser under
the particular circumstances; specifically, Mr. Glaser did not sustain any brain injury and survived
for only thirteen days following the accident.
13 In Bujol, this Court affirmed the trial court' s decision that a $ 5 million survival award to a plant
employee who died of injuries resulting from a flash fire was unreasonably high in light of awards
to the two survivors of the fire. The trial court granted a JNQV and reduced the award to $ 1. 75
million. The evidence introduced at trial was that all three victims were horrifically burned. The
employee who died lived for six days, while the two survivors underwent prolonged
hospitalization and treatment thereafter.
In Dakmak, this Court affirmed the jury' s award of damages of $334, 000 for past physical pain
and suffering, $ 333, 000 for past mental pain and suffering, and $ 333, 000 for loss of enjoyment of
life ($ 1 million total) in a survival action arising from the death of an 83 -year-old driver
approximately three months after he was in a collision with a police officer who was negligent in
a high- speed attempt at catching up to a possible suspect. The driver' s spinal cord was severed in
the accident, which resulted in paraplegia from the umbilicus down. The driver suffered
excruciating neck and back pain, a left ankle fracture, lung contusions, and decubitus ulcers,
including a grapefruit -sized stage three ulcer on his sacrum with exposed bone as a consequence
of his paralysis. The driver became acutely depressed and refused further treatment when told he
would never walk again.
17
811 So. 2d 941 ($ 1. 035 million survival award to motorist who was rendered
quadriplegic and required hospitalization until death, five months after motor vehicle
accident);` Wingfield v. State ex rel. Dep' t of Transp. & Dev., 2001- 2668, 2001-
2669 (La. App. I" Cir. 11/ 8/ 02), 835 So. 2d 785, 809, writs denied, 2003- 0313, 2003-
033% 2003- 0349 ( La. 5130103), 845 So. 2d 1059, 1060, cert. denied, 540 U.S. 950,
124 S. Ct. 419, 157 L.Ed.2d 282 ( 2003) ($ 800, 000 survival award to deceased
tractor -trailer passenger who survived for three hours after the accident). 16
Wrongful Death Actions
While it is impossible to place a monetary value on the life of a person, our
jurisprudential system has established that a monetary award is the appropriate
remedy to one who has suffered the loss of a loved one as a result of the fault of
another. Moss v. State, 2007- 1686 ( La. App. 1st Cir. 818108), 993 So. 2d 687, 704,
writ denied, 2008- 2166 ( La. 11114108), 996 So. 2d 1092 ( ci_
tin Anderson v. New
Orleans Pub. Serv., Inc., 583 So. 2d 829, 833 ( La. 1991)). Wrongful death damages
are meant to compensate the designated survivors for their loss of the decedent. See
La. C. C, art. 2315. 2. The elements of the award include loss of love, affection,
companionship, services, and support, as well as medical and funeral expenses.
Moss, 993 So.2d at 704. In this case, the jury made separate awards for medical and
funeral expenses. The only wrongful death awards the defendants contest are those
11 The Second Circuit affirmed a survival award of $ 1. 035 million in Hicks for the pain and
suffering, mental anguish, and pre -impact fear experienced by a motorist who died as a result of
injuries sustained when he lost control of his vehicle while passing through a defective highway
intersection constructed by DOM The motorist suffered spinal cord damage, which required
hospitalization until his death ( five months after the accident), and rendered him quadriplegic,
unable to breathe without medical intervention, and incapable of providing for his basic needs.
16 This Court reinstated a jury award for survival damages of $800, 000 in Wingfield for a tractor -
trailer passenger' s pain and suffering after a tractor -trailer that the passenger was riding in rolled
over a highway ramp railing while entering a sharp ramp curve. The passenger suffered one
complete leg amputation and one crushed leg, with partial amputation, severe chest injuries, and
other serious injuries such as several fractured ribs and massive bleeding throughout his body,
including the brain and kidneys. The passenger was conscious at the scene of the accident and
survived for three hours.
for the plaintiffs' loss of love, affection, companionship, services, and support from
their father.
Mr. Glaser' s seven surviving adult children testified at trial."
Karl Glaser, who was 62 years old at the time of trial, is a sugarcane farmer.
He testified that he saw his father four or five times a week and that Mr. Glaser drove
a tractor at his farm cutting grass at least two to three days a week. Karl stated that
he also accompanied his father to doctor' s appointments. When asked on a scale of
zero to ten about his relationship with Mr. Glaser— zero being he did not see his
father often and ten being he saw his father every day— Karl responded, " ten." Karl
testified that the last time he saw his father— the day before the accident— his father
was at the farm driving the tractor and cutting grass, " doing what he wanted to do."
When he received the call from his sister, Danna, that Mr. Glaser had been in an
accident, Karl drove to the scene and was able to wave to his dad as he was loaded
into the ambulance. Karl stayed at the scene to clean up and take care of his father' s
truck.
Robert Glaser testified that after he finished high school, he took up welding
and got his certification to help out his father " because it seemed like every time we
turned around we needed something welded." Prior to Mr. Glaser' s death, Robert
helped his father out on his brother Karl' s farm after work and on the weekends.
Robert stated he helped his father with " odds and ends." Robert testified that his
father taught him the value of hard work and that his best characteristics attributable
to his father are his manners and politeness. The day of the accident, Robert traveled
to the hospital with his sisters to await Mr. Glaser' s ambulance; when it arrived,
Robert held his father' s hand.
17 Three of Mr. Glaser' s children preceded him in death.
19
Trudy Glaser was 65 years old at the time of trial. She testified that she often
traveled to Texas for work, but that she resided in Louisiana. Trudy purchased the
family home in Maringouin, where Mr. Glaser resided prior to his death. Trudy
stated that when she was home in Louisiana, she lived in the house with her father.
Trudy described her father as a " true Southern gentleman," and " the nicest man"
who was " kind to everyone he met."
Danna Glaser testified that she ate breakfast with Mr. Glaser at the family
home a few days a week. She also stated that she saw her father every afternoon
during the week and visited him every Sunday. Danna helped refill her father' s pill
box and scheduled doctor' s appointments for him. Danna testified that the entire
family gathered for Mr. Glaser' s birthday every year to celebrate him. The day of
the accident, Danna and Mr. Glaser had breakfast, and then Mr. Glaser left to pick
up boudin for a store Danna and her husband owned. When Danna received the call
about the accident, she drove to the scene and witnessed her father being pulled from
his truck.
Barbara Glaser Lacombe testified that she was 69 years old and was the oldest
of Mr. Glaser' s children. According to Barbara, she and her siblings helped care for
Mr. Glaser after their mother passed away in 2008. Barbara stated that she
accompanied Mr. Glaser to doctor' s appointments, often reminded him to take his
medication, and helped refill his pill box. Barbara testified that her father made a
point to visit " each and every one of' his children. When she spoke to her siblings
on the phone, they would tell each other they got "the visit" from Mr. Glaser. Barbara
stated that her father was such a large presence in the lives of the entire family and
that she felt " emptiness" after he died.
Charles `Brother" Glaser, Jr., age 67, testified that he saw his father two or
three times a week, sometimes every day, when his father drove through the field
next to his house to visit a family orchard behind his garden. Sometimes, Mr. Glaser
20
would sneak up on Charles while he was working in the garden and blow the horn
to jokingly startle him. Charles stated that his father would stop for a chat whenever
he visited— Mr. Glaser would drive a tractor and cut grass in the orchard or pick
pecans, depending on the season. Charles testified that the family gathered at Mr.
Glaser' s house for every holiday and birthday celebration, but that since his father' s
death, the family does not get together as much as they did when their father was
alive. Charles stated that his father was " that magnet drawing us together."
Gerald Wayne Glaser testified that after he completed his education, he went
to work on the farm with his father and drove a crude oil truck. He stated that he was
often able to work alongside his father in the field and driving trucks. Gerald, who
lives in Baton Rouge, worked seven days a week and was only occasionally able to
visit Mr. Glaser during the week and on the weekends; however, he testified that he
had accompanied Mr. Glaser to doctor' s appointments. Gerald testified that
Christmas was an especially " big holiday" for the Glaser family because his father' s
and sister' s birthdays were right before Christmas, so the entire family would
combine the celebrations. Gerald stated that the last time he saw his father was a
week before the accident, when he was working near Mr. Glaser, so he dropped in
and had a " nice visit" with his father.
Based upon our review ofthe testimony, we conclude the jury verdict granting
recovery for wrongful death damages was supported by competent evidence.
However, as with the award for survival damages, we find the jury abused its
discretion in its award of $10. 5 million in wrongful death damages, and the trial
court manifestly erred in denying the defendants' JNOV. Thus, we resort to prior
awards for the purpose of determining the highest or lowest point that is reasonably
within the discretion afforded to the trier of fact. See Youn, 623 So. 2d at 1260. While
no one questions the love, affection, and companionship enjoyed by the Glaser
family, $ 1. 5 million to each child is unsupportable in light of the fact that these adult
21
children were not members of their father' s household or dependent upon him for
support; we find that the highest award reasonably within the jury' s discretion for
wrongful death damages is $ 500, 000 each to the adult Glaser children." See Bujol,
19
833 So. 2d at 983 ($ 400, 000 wrongful death awards to each of three adult sons);
Simmons v. CTL Distribution, 2003- 1301 ( La. App. 5th Cir. 2/ 23104), 868 So. 2d 918,
927, writs denied, 2004- 0743, 2004- 0764 ( La. 5114104), 872 So. 2d 524 ($ 300, 000
wrongful death award to adult son); Hicks, 802 So. 2d at 1013 ($ 125, 000 wrongful
death awards each to five adult children for the loss of their father);20 Roberts v.
Qwens- Corning Fiberglas Corp., 2003- 0248 ( La. App. I" Cir. 412/ 04), 878 So. 2d
631, 644, writ denied, 2004- 1834 ( La. 12/ 17/ 04), 888 So. 2d 863 ( wrongful death
awards of $250, 000 each to three adult children were reasonable).
PLAINTIFFS' ANSWERS TO THE APPEAL
The plaintiffs filed answers to the appeal pursuant to La. C. C. P. art. 2133. 21
When an unrestricted appeal is taken from a final judgment, an appellee may seek
So. 3d at ,
In Barber Bros. Contracting Co., _____ 2023 WL 3301245 at * 6- 7, this Court also
affirmed loss of consortium awards of $1. 5 million each to two minor children ( ages 14 and 9).
Chief Judge Guidry dissented in part, and would have reduced the awards to the two minor children
to $ 50, 000 each.
We find that Barber is distinguishable; the adult Glaser children were not members of their father' s
household or dependent upon him for support.
19 In Bujol, the jury awarded $ 1 million to each of the victim' s three adult sons. This Court affirmed
the trial court' s granting of a JNOV to reduce the awards to $ 400, 000 each.
20 In Hicks, the Second Circuit found the trial court' s awards of $250, 000 each to five adult children
aged 37- 48 at the time of their father' s death) to be " clearly excessive and an abuse of discretion,"
and reduced the wrongful damage awards to $ 125, 000 each " as the highest sum reasonably within
the trial court' s discretion, and which we can affirm." Hicks, 802 So. 2d at 1012- 13.
Louisiana Code of Civil Procedure article 2133( A) provides:
An appellee shall not be obliged to answer the appeal unless he desires to have the
judgment modified, revised, or reversed in part or unless he demands damages
against the appellant. in such cases, he must file an answer to the appeal, stating the
relief demanded, not later than fifteen days after the return day or the lodging of the
record whichever is later. The answer filed by the appellee shall be equivalent to an
appeal on his part from any portion of the judgment rendered against him in favor
of the appellant and of which he complains in his answer. Additionally, however,
an appellee may by answer to the appeal, demand modification, revision, or reversal
of the judgment insofar as it did not allow or consider relief prayed for by an
incidental action filed in the trial court. If an appellee files such an answer, all other
parties to the incidental demand may file similar answers within fifteen days of the
appellee' s action.
22
review of all adverse interlocutory rulings by filing an answer to the appeal. See La.
C. C. P. art. 2133( A); Thompson v. Or. for Pediatric & Adolescent Med., L.L. C.,
2017- 1088 ( La. App. V Cir. 3/ 15118), 244 So. 3d 441, 447 n.2, writ denied, 2018-
0583 ( La. 6I1/ 18), 243 So. 3d 1062. Under La. C. C. P. art. 2133, the answer to the
appeal must state what the " relief demanded" is, and the answer operates as an appeal
only from those matters " of which he complains in his answer." Stevens v. St.
1St
Tammany Par. Gov' t, 2017- 0959 ( La. App. Cir. 7118118), 264 So. 3d 456, 466,
writ denied, 2018- 2062 ( La. 2118/ 19), 265 So. 3d 773.
In their answers to the appeal, the plaintiffs seek to modify, reverse, or revise
the trial court' s December 15, 2021 amended judgment on the allocation of fault
between the parties and also seek a reversal of the trial court' s December 17, 2021
judgment denying the plaintiffs' respective motions for JNOV, or in the alternative,
motions for new trial. The plaintiffs are aggrieved by the percentage of fault
allocated to Mr. Glaser, arguing that he was not at fault in causing the accident and
that 100% of the fault should be allocated to Mr. Cowart and Rail 1. 22
Allocation of Fault
Louisiana courts have adopted a duty -risk analysis in determining whether to
impose liability under the general negligence principles as set forth in the Civil Code.
See Brewer v. J.B. Hunt Transport, Inc., 2009- 1408 ( La. 3116/ 10), 35 So. 3d 230,
240. In order for liability to attach under the duty -risk analysis, a plaintiff must prove
five separate elements: ( 1) the defendant had a duty to conform his conduct to a
specific standard of care ( or the defendant owed a duty of care to the plaintiff) (the
as The plaintiffs also seek modification of the trial court' s judgment rendered in open court on the
second day of trial, which granted Rail 1' s motion in limine, prohibiting the introduction of
evidence regarding Rail 1' s direct negligence. In Martin v. Thomas, 2021- 01490 ( La. 6129122),
346 So. 3d 238, 245— rendered after the jury trial in this matterthe Louisiana Supreme Court
held that an employer sued for both direct negligence and vicarious liability for an employee' s
negligence is not automatically relieved from liability for direct negligence merely by stipulating
that the employee was acting in the course and scope of employment. However, based upon our
reallocation of fault between Mr. Cowart/Rail 1 and Mr. Glaser, we need not address this issue.
23
duty element); ( 2) the defendant failed to conform his conduct to the appropriate
standard ( or breached the requisite duty) ( the breach element); ( 3) the defendant' s
substandard conduct was a cause -in -fact of the harm or the plaintiff' s injuries ( the
cause -in -fact element); ( 4) the risk of harm was within the scope of protection
afforded by the duty breached ( the scope of the duty, scope of protection, or legal
cause element); and ( 5) actual damages ( damages element). Bellanger v. Webre,
2010- 0720 (La. App. I" Cir. 5/ 6/ 11), 65 So. 3d 201, 207, writ denied, 2011- 1171 ( La.
9/ 16/ 11), 69 So. 3d 1149. See also Lazard v. Foti, 2002- 2888 ( La. 10/ 21/ 03), 859
So. 2d 656, 659.
In apportioning fault, we must consider both the nature of the conduct of each
party and the extent of the causal relation between the conduct and the damages
claimed. Bourg, 174 So.3d at 68 ( citing Watson v. State Farm Fire and Casualty
Insurance Co., 469 So. 2d 967, 974 ( La. 1985)). In assessing the nature of the parties'
conduct, factors that may influence the degree of fault allocated include: ( 1) whether
the conduct resulted from inadvertence or involved an awareness of the danger; ( 2)
how great a risk was created by the conduct; ( 3) the significance of what was sought
by the conduct; ( 4) the capacities of the actor, whether superior or inferior; and ( 5)
any extenuating circumstances that might require the actor to proceed in haste,
without proper thought. Watson, 469 So. 2d at 974.
Louisiana Revised Statutes 32: 58( A) provides, in pertinent part, that "[ a] ny
person operating a motor vehicle on the public roads of this state shall drive in a
careful and prudent manner, so as not to endanger the life, limb, or property of any
person." Louisiana Revised Statutes 32: 124 provides, that "[ t]he driver of a vehicle
about to enter or cross a highway from a private road, driveway, alley or building,
shall yield the right of way to all approaching vehicles so close as to constitute
an immediate hazard." An individual driver owes a duty of being reasonably
observant of conditions that might affect the operation or use of his vehicle that
24
would pose an unreasonable risk ofharm to others. Adams v. Par. ofE. Baton Rouge,
2000- 0424, 2000- 0425, 2000- 0426, 2000- 0427 ( La. App. 1st Cir. 11/ 14/ 01), 804
So. 2d 679, 698, writ denied, 2002- 0448 ( La. 4/ 19/ 02), 813 So.2d 1090. It is well-
settled that left turns or U-turns are the most dangerous maneuvers a motorist can
undertake; he must make sure that such maneuvers can be accomplished without
danger to traffic to his left or rear. Booth v. Aetna Cas. & Sur. Co., 220 So. 2d 188,
192 ( La. App. 1" Cir. 1969). An on -coming motorist has a right to assume that a left -
turning motorist will yield the right- of-way. Dakmak, 153 So. 3d at 504; Anderson v.
May, 2001- 1031 ( La. App. 5" Cir. 2113102), 812 So. 2d 81, 85. The evidence shows
that Mr. Cowart also agreed to Rail 1' s Company Vehicle Policy, which stated:
It is the driver' s responsibility to operate the vehicle in a
safe manner and to drive defensively to prevent injuries
and property damage. The Company expects each driver
to drive in a safe and courteous manner pursuant to the
following safety rules. The attitude you take when behind
the wheel is the single most important factor in driving
safely.
The jury heard testimony and saw evidence that Highway 190 is a four -lane
highway divided by a six- foot median with a center guardrail, with a speed limit of
55 -miles -per -hour. At the site of the accident, Highway 190 West has a ten -foot
paved shoulder; an eleven -foot outside lane; a twelve -foot inside lane; and a six- foot
median. Mr. Cowart operated a semi -truck pulling a tractor -trailer, which measured
seventy- seven feet in length. After Ms. Stanford— the lead driver in the Rail 1
caravan— successfully completed her left U-turn from Highway 190 West to the
eastbound lanes of the highway, she pulled onto the shoulder of Highway 190 East
to " spot" for the other two drivers. The Rail 1 drivers communicated via CB radio
or hands- free cell phones while watching for oncoming traffic. Ms. Stanford spotted
traffic in the westbound lanes, while Mr. Cowart looked out for traffic in the
eastbound lanes. Mr. Cowart then attempted the left U-turn. Ms. Stanford testified:
25
I said, okay, you got three or four coming, let them pass.
He let them pass. I said, you got two more coming. I said
one of them is a van. He said copy that, too, and I see the
van. And I said, you got it after that.
And the next thing I know, those two pass, and as
they were passing, this truck I guess was behind that van,
and right before [ Mr. Cowart] went -- right when he
thought the van was going to clear and he went and pulled
out, as soon as his wheels got into the right-hand lane on
the westbound side, that man, I don' t know if he moved
out from behind that van or what. I never saw the man in
the truck. I would have certainly never told my buddy to
pull out. But he pulled out and the man hit him in the
driver' s side right at the tire ....
Q. State it a different way: Those two vehicles
that you did see and the van being the second one in the
rear traveling west, you simply never saw the white Ford
F- 150 truck that was involved in the collision, correct?
A. No, sir.
Mr. Cowart testified:
And [ Ms. Stanford] said, " you have two vans
coming to you. As soon as [ they' re] clear, you' re good to
go." I was waiting on the red tractor -trailer headed
eastbound on the other side of the highway.
I pull up. He flies through the intersection, then the
other two vans, clear.... I just looked in the side -view
mirror, looked ahead, looked at the side -view mirror again,
checking traffic with Ms. [ Stanford], said " good to go?"
She said, " yes, you' re good to go." Then I took off.
Q. And how long did it take, approximately,
from where you took off to where the accident happened?
A. Maybe three seconds.
The defendants' accident reconstruction expert, A.J. McPhate, Sr., testified as
to the heightened standard of care of a left -turning motorist:
Q. If an 18 -wheeler is making a left-hand turn or
even if a car is making a left turn from the shoulder area,
they have a higher -- a heightened duty to make sure it' s
safe to do so?
A. Oh, absolutely .... There' s no question about
it. I mean, anytime you go to transverse -- to go across the
traffic, you have a heavy duty to make sure that it' s clear.
26
There is no question that by making the left U- turn, Mr. Cowart placed his
tractor -trailer in the path of Mr. Glaser' s vehicle, which led to this motor vehicle
collision. The plaintiffs' accident reconstruction expert, Mike Gillen, and the
defendants' accident reconstruction expert, Mr. McPhate, both testified that Mr.
Cowart violated Louisiana law by performing the U-turn that caused the crash.23
Both experts also agreed that it was impossible for Mr. Glaser to avoid the crash.
At trial, however, the defendants argued that Mr. Glaser should be found
partially at fault because he was traveling 64 -miles -per -hour at the point of impact,
in excess of the 55 -mile -per -hour speed zone. The defendants argued that had Mr.
Glaser not been speeding, he could have possibly made an evasive move to avoid
the collision. The jury heard testimony and saw evidence that Mr. Glaser' s vehicle
was equipped with a " black box," which is part of an electronic control module in a
vehicle' s engine. A black box is also part of an airbag control module that determines
whether or not to fire an airbag in the case of an accident. A black box can store
accident -related data. In this case, the black box in Mr. Glaser' s vehicle recorded
and stored the speed of his vehicle, in the five seconds prior to the crash. Mr.
McPhate testified:
The Ford pick-up truck also has a black box, and so the
download of the black box gives a tremendous amount of
data about what the truck was doing in the five seconds
before the crash. And so one of the things that it tells you
is how fast the truck was traveling.
Now, of course, this information is internal to the
truck and it' s no more accurate than the speedometer itself
which -- you know, if you put brand- new tires on your
vehicle, then your speedometer will read differently than
it does after your tires wear down. It' s because the wheels
are actually a little bit smaller and they turn a little bit
more, and so you may read 65 on your speedometer and
only be doing 63 when the tires are worn. Whenever the
tire[ s] are brand-new, it may be perfectly accurate because
that' s what' s recorded. What you would see is also
recorded. And so it says that Mr. Glaser was -- entered that
particular area doing about 67 miles per hour. And at the
See La. R.S. 32: 58 and 32: 124.
27
time that his vehicle struck [ Mr. Cowart' s tractor -trailer],
he was down to about 64 miles per hour.
Mr. McPhate stated, however, that the black -box speed recorded at the point of
impact could be inaccurate:
Q. So, though, Glaser' s speedometer says 4467,"
and at point of impact " 64"; that may not be correct?
A. No, it may not be. It' s within the error of the
instrumentation.
Q. He may be going slower than that, right?
A. That' s true.
Regardless of the black box data, Mr. McPhate testified that Mr. Glaser' s
speed was not a factor in causing this accident because Mr. Cowart never saw Mr.
Glaser' s vehicle. Mr, McPhate further testified that the collision would have
occurred even if Mr. Glaser had been traveling at the posted speed limit of 55 -miles -
per -hour:
Q. Doesn' t matter. Ten or 90, it doesn' t matter
because they never saw him, right?
A. They never saw him. So if they never saw
him, right.
Q. At 55 or 65, there' s going to be a crash?
A. There' s going to be a crash.
Mr. Gillen testified that Mr. Glaser' s first indication of trouble was 1. 4
seconds prior to impact, while Mr. McPhate testified that time was 1 second. Given
the accepted " perception reaction time" of 1. 5 seconds, Mr. McPhate testified that
there was nothing Mr. Glaser could have done to alter the outcome of this collision.
He also testified, however, that had Mr. Glaser been going 55 mph instead of 67
mph, it " would make a difference. He would have more distance[,] and he would be
able to probably clear the 18 -wheeler." Mr. McPhate continued to testify that while
Mr. Glaser may have missed the truck, he may not have avoided a crash.
Specifically, he testified that " at 55 miles an hour, he may not have hit the truck but
W
there was going to be a crash." He further testified that " it was difficult" to place
blame on Mr. Glaser. He testified that the only person who could have avoided this
collision was Mr. Cowart.
Mr. Gillen testified:
Mr. Glaser was speeding. He was going 66 in a 55 but that
did not cause this collision. Mr. Glaser could have been
going 90 miles per hour[;] but for the 18 -wheeler pulling
out into his path in less than two seconds, that' s what
caused this collision. That, combined with the fact that two
professional commercially -licensed drivers, who do this
for a living, neither one of them saw the approaching pick-
up truck on Highway 190[,] which in this area is as straight
as an arrow. There' s no hill. There' s no curve. There are
no trees. There' s nothing preventing them from seeing the
approaching traffic and just holding their position to let the
favored traffic clear before Mr. Cowart starts making a
maneuver... blocking the highway[,] and you pull out into
the roadway when the approaching traffic is less than two
seconds away. Speed did not cause this collision.
Based upon the evidence presented at trial, we find that Mr. Glaser' s speed,
while in excess of the posted speed limit, was not a cause -in -fact of the collision;
therefore, the jury manifestly erred in finding Mr. Glaser 20% at fault for causing
the accident, and the trial court manifestly erred in denying the plaintiffs' JNOV.
By making the left U-turn, Mr. Cowart placed his tractor -trailer in the path of Mr.
Glaser' s vehicle, which led to this motor vehicle collision and Mr. Glaser' s injuries
and damages. The testimony of both accident reconstruction experts further
demonstrates that the crash was inevitable, regardless of whether Mr. Glaser was
speeding— there was nothing Mr. Glaser could have done to alter the outcome of the
collision. Not only was the breach of Mr. Cowart' s duty as a left -turning motorist
the cause -in -fact of Mr. Glaser' s injuries, the breach of his duty was also a legal
cause of Mr. Glaser' s damages. The evidence overwhelmingly shows that the
conduct of Mr. Cowart was the sole cause of this accident and Mr. Glaser' s resulting
injuries and damages.
29
DECREE
The trial court' s December 17, 2021 judgment denying defendants' motion
for JNOV is reversed. The portions of the trial court' s December 15, 2021 amended
final judgment that awarded $ 10 million in survival damages and $ 1. 5 million in
wrongful death damages to each plaintiff are reversed. We render judgment
notwithstanding the verdict in favor of plaintiffs and against defendants Steven Ray
Cowart, Rail 1, LLC, and Hartford Fire Insurance Company, in solido, in the total
amount of $2 million in survival damages and $ 500, 000 in wrongful death damages
to each plaintiff, plus legal interest on each plaintiffs equal share from the date of
judicial demand until paid.
We grant plaintiffs' answers to the appeal. The trial court' s December 17,
2021 judgment denying plaintiffs' motion for JNOV is reversed. We reverse the
portion of the trial court' s December 15, 2021 amended final judgment attributing
20% fault to Mr. Glaser. We render judgment notwithstanding the verdict and find
defendants Steven Ray Cowart/Rail 1, LLC 100% at fault for the automobile
collision.
Appeal costs are assessed one- half to defendants, Steven Ray Cowart, Rail 1,
LLC, and Hartford Fire/Hartford Casualty Insurance Company; and one- half to
plaintiffs.
DENIAL OF DEFENDANTS' MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT REVERSED; PORTIONS OF
DECEMBER 15, 2021 AMENDED FINAL JUDGMENT AWARDING
PLAINTIFFS SURVIVAL DAMAGES OF $10 MILLION AND WRONGFUL
DEATH DAMAGES OF $1. 5 MILLION TO EACH PLAINTIFF REVERSED;
JUDGMENT NOTWITHSTANDING THE VERDICT RENDERED
AWARDING SURVIVAL DAMAGES OF $ 2 MILLION, AND WRONGFUL
DEATH DAMAGES OF $ 500,000. 00 TO EACH PLAINTIFF, PLUS LEGAL
INTEREST ON EACH PLAINTIFF' S EQUAL SHARE FROM THE DATE
OF JUDICIAL DEMAND UNTIL PAID.
PLAINTIFFS' ANSWERS TO THE APPEAL GRANTED; DENIAL OF
PLAINTIFFS' MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT REVERSED; PORTION OF DECEMBER 15, 2021 AMENDED
FINAL JUDGMENT AS TO FAULT ALLOCATION REVERSED;
30
JUDGMENT NOTWITHSTANDING THE VERDICT RENDERED TO
ATTRIBUTE 100% OF THE FAULT TO STEVEN RAY COWART/ RAIL L,
LLC.
31
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0534
GERALD WAYNE GLASER, INDIVIDUALLY AND AS EXECUTOR OF THE
ESTATE OF CHARLES RAYMOND GLASER, SR., TRUDY GLASER, AND
ROBERT GLASER
VERSUS
HARTFORD FIRE INSURANCE COMPANY, STEVEN RAY COWART, RAIL 1,
LLC, AND STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT
OF TRANSPORTATION
CONSOLIDATED WITH—
2022 CA 0535
DANNA J. GLASER, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE
OF CHARLES RAYMOND GLASER, SR., BARBARA G. LACOMBE, AND
CHARLES R. GLASER, JR.
VERSUS
HARTFORD FIRE INSURANCE COMPANY, STEVEN RAY COWART, RAIL 1,
LLC, AND STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT
OF TRANSPORTATION AND DEVELOPMENT
WELCH, J., concurring in part and dissenting in part.
I respectfully concur in part and dissent in part with the majority' s decision. I
concur with the majority' s allocation of fault. I disagree, however, with the
majority' s opinion concerning the damage awards for the wrongful death and
survival actions. I recognize that the standard for appellate review for abuse of
discretion in the award of damages is difficult to express and is necessarily non-
specific. CD v. SC, 2022- 00961 ( La. 6/ 1123), So. 3d , 2023 WL
4195811, * 3; Cone v. Nat' l Emergency Servs., Inc., 99- 0934 ( La. 10129199), 747
So. 2d 1085, 1089. However, our Supreme Court has instructed that:
T] he discretion vested in the trier of fact is " great," and
even vast, so that an appellate court should rarely disturb
an award of general damages. Reasonable persons
frequently disagree about the measure of general damages
in a particular case. It is only when the award is, in either
direction, beyond that which a reasonable trier of fact
could assess for the effects of the particular injury to the
particular plaintiff under the particular circumstances that
the appellate court should increase or reduce the award.
Emphasis added.]
Youn v. Maritime Overseas Corp., 623 So. 2d 1257, 1261 ( La. 1993), cert. denied,
510 U.S. 1114, 114 S. Ct. 1059, 127 L.Ed.2d 379 ( 1994). 1 As further set forth by our
Supreme Court in Coco v. Winston Indus., Inc., 341 So. 2d 332, 335 ( La. 1976):
B] efore a Court of Appeal can disturb an award made by
a trial court [...] the record must clearly reveal that the trier
of fact abused its discretion in making its award. Only after
making the finding that the record supports that the lower
court abused its much discretion can the appellate court
disturb the award, and then only to the extent of lowering
it ( or raising it) to the highest ( or lowest) point which is
reasonably within the discretion afforded that court.
I am mindful that the role of this appellate court in reviewing general damages
is not to decide what we consider to be an appropriate award, but rather, to review
the exercise of discretion by the trier of fact. CD, So. 3d at , 2023 WL
4195811 at * 3; Youn, 623 So. 2d at 1260. Neither this appellate court, nor the trial
court, may substitute its evaluation of the proper amount of damages for that of the
jury unless the jury' s awards totally offend reasonable inferences from the evidence.
Gutierrez v. Louisiana Dep' t of Transp. & Dev., 2011- 1774 ( La. App. 1St Cir.
3/ 23112), 92 So. 3d 380, 386, writ denied, 2012- 1237 ( La. 9121/ 12), 98 So.3d 343.
This Court may not overturn an award of damages unless it is so out of proportion
to the injury complained of "that it shocks the conscience." See Baack v. McIntosh,
2020- 01054, 2020- 1117 (La. 6/ 30/ 21), 333 So. 3d 1206, 1215; Johnson v. Montoya,
2013- 1951 ( La. App, 1st Cir. 512114), 145 So. 3d 418, 421.
Our inquiry therefore is a narrow one: whether the particular effects of the
particular injuries on the particular plaintiff are such that there has been an abuse of
See also La. C. C. art. 2324. 1; CD, So. 3d at , 2023 WL 4195811 at * 3; Malta v. Herbert
S. Hiller Corp., 2021- 00209 ( La. 12/ 10/ 21), 333 So. 3d 384, 407- 08; Fontenot v. Louisiana Dep' t
of Pub. Safety & Corr., 2021- 1213 ( La. App. 1' Cir. 4/ 8/ 22), 342 So. 3d 28, 35 ( ci_ting Guillory
v. Lee, 2009- 0075 ( La. 6/ 26/ 09), 16 So. 3d 1104, 1116).
2
the vast discretion vested in the trier of fact. CD, So. 3d at , 2023 WL
4195811 at * 3; Youn, 623 So.2d at 1260- 61. It is only when the award is, in either
direction, beyond that which a reasonable trier of fact could assess for the effects of
the particular injury to the particular plaintiff under the particular circumstances so
as to constitute an abuse of discretion that the appellate court should resort to prior
awards in determining what would be an appropriate award for the present case.
Youn, 623 So. 2d at 1261. Accordingly, resorting to a comparison of prior awards is
only appropriate after the reviewing court has concluded that an abuse of discretion
has occurred. Cone, 747 So. 2d at 1089; Coco, 341 So. 2d at 335; Rideau v. State
Farm Mut. Auto. Ins. Co., 2006- 0894 ( La. App. Pt Cir. 8/ 29107), 970 So. 2d 564,
579, writ denied, 2007- 2228 ( La. 1/ 11108), 972 So.2d 1168.
Wrongful Death Damages
I agree with the majority that the jury verdict granting the plaintiffs recovery
for wrongful death damages is supported by the record. However, based upon my
review of the record and this Court' s narrow inquiry into the particular effects of the
particular injures on the plaintiffs, I find no abuse of the jury' s vast discretion in
awarding of $1. 5 million to each of the plaintiffs for the wrongful death of their
father. A wrongful death award of $1. 5 million is not so out of proportion to the
injuries complained of—the award does not " shock the conscience."
There is no question that Mr. Glaser was loved by his children and was a
cherished, significant member of his family and his community. Mr. Glaser enriched
the lives of his children, grandchildren, great-grandchildren, and community. It is
clear from the testimony given at trial that all seven adult children loved Mr. Glaser
very much and were grief-stricken by his loss. The jury perceived that each plaintiff
2 See Baack v. McIntosh, 2020-01054, 2020- 1117 ( La. 6/ 30/ 21), 333 So. 3d 1206, 1215; Johnson
Y. Montoya, 2013- 1951 ( La.App. 0 Cir. 512114), 145 So. 3d 418, 421; Patin v. Duplessis
Pontiac -Buick -GMC Trucks, Inc., 632 So. 2d 790, 793 ( La. App. 0 Cir. 1993), writ denied, 638
So. 2d 1096 ( La. 1994).
3
had a distinctive relationship with their father, but were all equally close to him and
were devastated by his passing in their own ways. This accident tragically ended the
relationships an eighty -nine- year-old father had with his seven children, which
resulted in great mental anguish to his children. I find no abuse of discretion in the
jury' s awards of $1. 5 million in wrongful death damages to each plaintiff.
Again, I note that the trier of fact is accorded much discretion in fixing general
damage awards. La. C. C. art. 2324. 1; Rentrop v. Arch Ins. Co., 2017- 0635 ( La.
App. 1st Cir. 12129117), 241 So. 3d 357, 370. The discretion vested in the trier of fact
is " great," even vast, so that an appellate court should rarely disturb an award of
general damages. Id. The rote of an appellate court in reviewing damages is not to
decide what it considers to be an appropriate award but, rather, to review the exercise
of discretion by the trier of fact. Id. Before an appellate court can disturb the
quantum of an award, the record must clearly reveal that the trier of fact abused its
discretion. Id. After my extensive and thorough review of the record, I find no abuse
of the jury' s vast discretion in awarding of $1. 5 million to each of the plaintiffs for
the wrongful death of their father. The majority errs by substituting their judgment
for that of the jury. Here, the majority considers a $ 500, 000. 00 wrongful death
damage award to each plaintiff to be an appropriate award. However, the
jurisprudence shows numerous wrongful death awards in excess of $500, 000. 00
awarded to adult children by juries of this state. See Stauder v. Shell Oil Company,
2022- 0593 ( La. App. 4' Cir. 2/ 15123), So. 3d , 2023 WL 2009251 ( wrongful
death awards of $2. 75 million each to two adult daughters affirmed); Williams v.
Centerpoint Energy Resources Corp., Docket No. 600, 967- C ( 1St JDC, Parish of
Caddo, 519/ 19), 2019 WL 9103581 ( wrongful death award of $1. 8 million to adult
daughter); Williams v. Placid Oil Co., 2016- 839 ( La. App. Yd Cir. $/ 2/ 17), 224
So. 3d 1101, writ denied, 2017- 1501 ( La. 11117117), 229 So. 3d 929 ( awards of
750, 000 to each adult child of mother who died from exposure to asbestos);
4
McGrail v. Lee, 35, 756 ( La. App. 211 Cir. 4/ 3/ 02), 814 So.2d 729, writ granted,
2002- 1496 ( La. 1014/ 02), 826 So.2d 1110, order recalled, 2002- 1496 ( La. 4/ 9/ 03),
874 So.2d 66, and writ denied as improvidently ranted, 2002- 1496 ( La. 4/ 9/ 03),
874 So.2d 66 ( awards of $750, 000 each to two adult sons ( and a minor daughter) in
the wrongful death of mother killed in an intersectional collision with left -turning
truck affirmed);
Chauvin v. State of Louisiana through the Dept. of Transp. &
18th
Dev. ( JDC, Parish of West Baton Rouge, Docket No. 104, 0034, 2015) ( awards
of $ 650, 000, per parent, to adult daughter for wrongful death of parents killed in
MVA ($ 1. 3 million total)); Chabaud v. Liberty Mutual Ins. Co. ( 23r6 JDC; Parish
of Saint James, Docket No. 37, 286, 2019) ( awards of $600, 000 each to two adult
children of father diagnosed with mesothelioma); Oddo v. Asbestos Corp., 2014-
0004 ( La. App. 4th Cir. 8/ 20/ 15), 173 So. 3d 1192, writ denied, 2015- 1712 ( La.
1116/ 15), 180 So. 3d 308 ( awards of $600,000 each to two adult sons whose father
died four months after mesothelioma diagnosis); and Chaisson v. Avondale Indus.,
Inc., 2005- 1511 ( La. App. 4 1 Cir. 12/ 20/ 06), 947 So. 2d 171, writ denied, 2007- 0411
La. 4/ 5/ 07), 954 So. 2d 145 ( awards of $562, 000 each to two adult children of parent
who died nine months after mesothelioma diagnosis).
I find no abuse of discretion in the jury' s awards of $1. 5 million in wrongful
death damages to each plaintiff. Because I find that no abuse of discretion has
occurred, resorting to a comparison of prior awards is unnecessary; however, I
specifically note that my finding is bolstered by recent jurisprudence affirming
wrongful death awards to adult children in excess of $1. 5 million. See Stauder v.
Shell Oil Company, 2022- 0593 ( La. App. 4t4 Cir. 2115123), So. 3d , 2023
WL 2009251 ( wrongful death awards of $2. 75 million each to two adult daughters
affirmed);' Williams v. Centerpoint Energy Resources Corp., Docket No.
3 A writ of certiorari has been filed with the Louisiana Supreme Court challenging the quantum
and judicial interest affirmed by the Fourth Circuit in Stauder. As of this date, the Supreme Court
has not yet decided whether to grant or deny the writ.
5
600, 967- C ( 1' t JDC, Parish of Caddo, 5/ 9/ 19), 2019 WL 9103581 ( wrongful death
award of $1. 8 million to adult daughter).
Survival Dana es
I agree with the majority that the jury verdict granting Mr. Glaser recovery for
survival damages is supported by the record. I likewise agree with the majority that
the jury abused its discretion in awarding Mr. Glaser $ 10 million in survival damages
because reasonable persons could not differ that the award was abusively high
beyond that which a reasonable trier of fact could assess for the effects of the
particular injures to Mr. Glaser under the particular circumstances. However, in
resorting to a comparison of prior awards, I disagree with the majority lowering the
survival damages award to $ 2 million.
Upon presentation to the hospital on the day of the accident, Mr. Glaser was
placed in ICU to receive specialized care. Medical providers diagnosed Mr. Glaser
with four fractured ribs, a fractured sternum, a chest hematoma, bruises to his
abdomen and lungs, moderate effusion to the right lung, a compression fracture of
the lumbar spine, a distended abdomen, and a closed head injury with concussion.
These are severe and devastating injuries, Mr. Glaser' s distended abdomen and other
injuries indicated he suffered internal injuries. This is not surprising since the point -
of i-mpact speed of the accident was calculated at 64 -miles -per -hour.
Over the next four days in the ICU, Mr. Glaser was able to sit in a chair, stand,
and walk, although he was still experiencing pain. However, on the fifth day after
the accident, it was clear that Mr. Glaser had suffered grave internal injuries, which
caused his bowels to shut down. His medical providers diagnosed him with ileus, an
impairment or stoppage of the flow of intestinal contents. As is common with
patients with significant trauma, the combination of the administered medications
and trauma can lead to ileus and dysmotility of the GI system, as occurred with Mr.
Glaser. His medical providers began undertaking procedures to try to alleviate the
n
ileus ---all proved unsuccessful. During these attempts, Mr. Glaser was administered
additional medicine, underwent scans, manual dis- impaction attempts, and had tubes
inserted down his esophagus and inserted into his rectum. Mr. Glaser also underwent
multiple enemas and a colonoscopy. Mr. Glaser suffered tremendous pain during
these procedures, attempted to rip out his tubes and LV.s, and had to be restrained
to his hospital bed until his death. On the twelfth day after the accident, Mr. Glaser"s
colon perforated, and bowel and fecal matter leaked into his abdominal cavity,
causing sepsis, which resulted in his death the next day— thirteen days after the
accident.
Further, it is important to note that for the last fourteen days of his life, Mr.
Glaser had to suffer and die alone in the hospital. Mr. Glaser' s family could not
support nor comfort him in final days of life due to the hospital' s restricted visitation
policy put in place due to the COVID- 19 pandemic. Mr. Glaser had to endue great
pain and suffering, coupled with emotional fear and anxiety as he faced his death. I
firmly believe the jury considered this evidence in awarding Mr. Glaser survival
damages.
Based on the totality, severity, and fourteen -day duration of Mr. Glaser' s pain
and suffering, I find that the highest award reasonably within the jury' s discretion
for survival action damages for the particular injures to Mr. Glaser under the
particular circumstances is $ 3. 6 million.' See Williams v, Centerpoint Energy
In Barber Bros. Contracting Co., LLC v. Capitol City Produce Co., LLC, 2022- 0696, 2022-
0697 ( La. App. P Cir. 518123), So. 3d , , 2023 WL 3301245 at * 5 -* 7, this Court
recently affirmed a jury' s $ 10. 75 million general damages award to a motor vehicle accident victim
for his past and future physical pain and suffering, past and future mental pain and suffering, loss
of enjoyment of life, disability, scarring, and disfigurement. As a result of the accident, the victim
suffered injury to his head, face, neck, shoulder, and cervical and lumbar spine; sustained a mild
to moderate traumatic brain injury, which left him with an executive function in the mildly
impaired range; and suffers from daily headaches, depression, and physical and mental pain. This
Court found the general damage award was appropriate given the victim' s age, his relationship
with his family, his community, his health prior to the accident, his serious, disfiguring, and
permanent deficits from his injuries, his evidence of serious depression, and his inability to return
to work. Id. The general damage award did not specify the amount of the award attributable to the
victim' s past physical and mental pain and suffering. Chief Judge John Michael Guidry dissented
in part, finding that the general damages award was beyond that which a reasonable trier of fact in
7
Resources Corp., Docket No. 600, 967- C ( 1St JDC, Parish of Caddo, 519/ 19), 2019
WL 9103581 ($ 3. 6 million awarded to burn victim who survived 82 days in hospital
and became comatose prior to death); Thistlethwaite v. Gonzalez, 2012- 130 ( La.
App. 5th Cir. 12/ 18/ 12), 106 5o.3d 238 ($ 3. 5 million awarded to deceased semi -truck
passenger); 5 Butler v. Louisiana Mut. Medical Ins. Co., Docket No. 2011- 03534
Civil District Court, Parish of Orleans, 2015) ( award of $3 million to an 8 -year old
girl who survived 8 days after misdiagnosis for " swine flu").
For these reasons, I respectfully concur in part and dissent in part.
his discretion could assess; he would have reduced the general damages award to $4. 3 million. Id.at , 2023 WL 3301245 at * 7 -* 8.
The Fifth Circuit in Thistlethwaite found that the evidence supported the jury' s award of survival
damages to a deceased semi -truck passenger, in survival and wrongful death suit brought against
the driver of a pick- up truck; specifically, $ 2 million for past pain and suffering and $ 1. 5 million
for past mental pain and suffering ($ 3. 5 million total). Evidence introduced at trial indicated that
the passenger was on fire when he jumped out of the burning truck, and that it was over two hours
after the accident before he received any pain medication. Over the ensuing eight days prior to his
death, the passenger underwent aggressive treatment, including numerous dressing changes, x-
rays, and other diagnostic tests. There was also expert testimony as to the extreme pain experienced
by burn patients.
8
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2022 CA 0534
GERALD WAYNE GLASER, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE
OF CHARLES RAYMOND GLASER, SR., TRUDY GLASER, AND ROBERT GLASER
VERSUS
HARTFORD FIRE INSURANCE COMPANY, STEVEN RAY COWART, RAIL 1, LLC,
AND STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT OF
TRANSPORTATION
CONSOLIDATED WITH
DOCKET NUMBER
2022 CA 0535
DANNA J. GLASER, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE
OF CHARLES RAYMOND GLASER, SR., BARBARA G. LACOMBE, AND
CHARLES R. GLASER, ] R.
VERSUS
HARTFORD FIRE INSURANCE COMPANY, STEVEN RAY COWART, RAIL 1, LLC,
AND STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT
GREENE, J., dissenting.
I respectfully disagree with the majority opinion because it disregards the
fundamental role a jury has in our judicial system. As the trier of fact, a jury is afforded
much discretion in assessing facts, allocating fault, and rendering a damage award,
because it is in the best position to evaluate witness credibility and see the evidence
firsthand. Tisdale v. Hedrick, 22- 01072 ( La. 3/ 17/ 23), 359 So. 3d 484, 490 ( fault
allocation); CD v. SC, 22- 00961 ( La. 6/ 1/ 23), So. 3d , 2023 WL 4195811, * 5
general damages). The Louisiana Supreme Court has recently emphasized the
importance of the jury in our judicial system and the great deference owed to their
decisions. In CD, So. 3d , _, 2023 WL 4195811, * 5, the Supreme Court
reinstated a jury's general damages award, finding the appellate court erred by lowering
the damage award, thereby substituting its own judgment for that of the jury. In
reversing the appellate court, the CD court reiterated the great deference owed to jury
decisions, because a jury participates in the live presentation of the case, while the
appellate court merely reviews the cold transcript. CD, 2023 WL 4195811 at * 3, n. 5. The
CD court also noted that confidence in juries, and their ability to handle and decide
difficult factual questions, is reflected in the recent 2021 amendment to La. C. C. P. art.
1732, wherein the legislature lowered the jury trial threshold to $ 10, 000. Id.; see 2020
La. Sess. Law Serv. 1t Ex. Sess. Act 37, eff. January 1, 2021.
In this case, the jury sat through the five- day trial, during which it heard extensive
testimony and saw evidence documenting: the respective fault of the Rail 1 employee
and Mr. Glaser in causing the accident; Mr. Glaser's injuries over the fourteen days he
lived after the accident; and, the losses his adult children incurred as a result of his death.
In its opinion, the majority reviews the evidence heard by the jury. As to the fault
allocation, the majority expressly notes that Mr. Glaser was speeding at the time of the
accident, and according to the defense's accident reconstruction expert, Mr. Glaser may
have cleared the eighteen- wheeler had he not been speeding. Nevertheless, the majority
determines the jury manifestly erred in finding Mr. Glaser partially at fault. As to survival
damages, the majority specifically notes that the evidence overwhelmingly supports the
jury's finding that Mr. Glaser endured tremendous mental anguish, physical pain, and
suffering for fourteen days prior to his death. Nevertheless, the majority determines the
jury abused its discretion in awarding $ 10 million in survival damages. And, as to the
wrongful death damages, the majority reviews the testimony of each of Mr. Glaser's
children and concludes they each had a close relationship with him and each child was
devastated by his death. Nevertheless, the majority determines the jury abused its
discretion in awarding $ 1. 5 million to each child in wrongful death damages. Then,
having found manifest error, the majority renders its own verdict, substituting its own
evaluation of the fault allocation and damages for that of the jury.
In arriving at the amount of damages it finds proper in this case, the majority
considers and analyzes certain cases while inexplicably not considering other arguably
relevant cases. The inclusion or exclusion of certain cases appears to be somewhat
arbitrary. Yet, since the 1996 tort reform, the legislature has convened in session 52
times ( not counting veto and organizational sessions) but has not once provided any
2
limits or guidelines for damage awards in general tort cases similar to the cap for medical
malpractice cases. Why is it so necessary to have a limit on general damages for a
professional who fails to meet the standard of care but no limit on the damages that may
be assessed against an ordinary defendant who is found to be negligent? Instead of the
legislature taking action, appellate courts appear to be exercising a legislative function of
creating limits to damage awards in the name of Coco, Youn, and various other cases.
Until the legislature acts, we must continue to rely on juries, not appellate courts,
to decide difficult factual issues such as fault allocation and determining general damages.
In this case, the jury had a superior role in assessing credibility and evaluating evidence
firsthand. Because the record amply and reasonably supports the jury's factual findings
as to both fault allocation and damages, I think the majority has impermissibly usurped
the jury's role in this case.
3