Melissa Rushing (Individually and on behalf of her minor son, Tristen Rushing) v. Jason Jones, McKinley High School and East Baton Rouge Parish School System ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0433
MELISSA RUSHING INDIVIDUALLY AND ON BEHALF OF HER MINOR
SON, TRISTEN RUSHING
VERSUS
JASON JONES, MCKINLEY HIGH SCHOOL AND EAST BATON ROUGE
PARISH SCHOOL SYSTEM
Judgment rendered FEB 1 12020
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C640369, Sec. 23
The Honorable William Morvant, Judge Presiding
Locke Meredith Attorneys for Plaintiffs/ Appellees
Sean Fagan Melissa Rushing and Tristen Rushing
Collins Meredith
Mitchell Meredith
Baton Rouge, Louisiana
Anderson O. Dotson, III Attorney for Defendant/ Appellant
Baton Rouge, Louisiana Jason Jones
Carla S. Courtney Attorneys for Defendant/ Appellant
Harold J. Adkins East Baton Rouge Parish School
Jonathan D. Blake System
Baton Rouge, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
HOLDRIDGE, J.
In this personal injury action, defendants, the East Baton Rouge Parish
School Board and Jason Jones, appeal a judgment awarding damages to plaintiffs,
Tristen Rushing and Melissa Rushing. We affirm the general damage awards, but
reduce the past medical expense award, and issue this memorandum opinion in
compliance with Uniform Rules— Courts of Appeal, Rule 2- 16. 1( B).
On June 25, 2015, Mrs. Rushing, individually and on behalf of her then -
minor son Tristen, filed this lawsuit against defendants, seeking damages for
injuries sustained by Tristen while at band practice at McKinley High School on
October 28, 2014. A four-day jury trial was held, during which plaintiffs and
defendants gave differing versions of the events culminating in Tristen' s injuries.
Evidence was presented establishing that on October 28, 2014, Tristen was several
minutes late for band practice, and as punishment for his tardiness, Tristen was
ordered by Mr. Jones, the assistant band director, to do 200 push- ups. Evidence
further established that soon thereafter, Tristen was hospitalized for a life-
threatening condition known as rhabdomyolysis, which results when muscles in the
body break down and cause the body to release certain enzymes into the blood
stream. Medical testimony established a causative link between the
rhabdomyolysis and the push- ups performed by Tristen at band practice.
A unanimous jury found that defendants were at fault and that Tristen
suffered injuries as a result of the October 28, 2014 incident. The jury awarded
Tristen past medical expenses in the amount of $10, 000. 00 and general damages in
the amount of $ 175, 000. 00. The jury itemized general damages as followed:
50, 000. 00 for past physical pain and suffering; $ 85, 000. 00 for past mental pain
and suffering; $ 10, 000. 00 for future medical pain and suffering; and $ 30, 000. 00
for loss of enjoyment of life. The jury declined to enter an award for future loss of
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enjoyment of life. The jury awarded Mrs. Rushing $ 5, 000. 00 for loss of
consortium. A judgment was rendered in accordance with the jury verdict October
9, 2018.
In this appeal, defendants do not contest the jury' s fault determination or its
finding that Tristen sustained injuries as a result of the incident in question.
However, defendants contest the amount of the general damage awards and the
award for past medical expenses, contending that the awards are not supported by
the testimony or the evidence. Specifically, defendants attack the $ 10, 000. 00
award of past medical expenses, the general damage awards to Tristen for past
mental pain and suffering and loss of enjoyment of life, and the loss of consortium
award to Mrs. Rushing.
We first review the award of special damages. A plaintiff may recover
reasonable medical expenses incurred as a result of an injury. Mack v. Wiley,
2007- 2344 ( La. App. 1 st Cir. 5/ 2/ 08), 991 So.2d 479, 489, writ denied, 2008- 1181
La. 9/ 19/ 08), 992 So. 2d 932. Past medical expenses are special damages that are
capable of being determined by mathematical certainty. As such, they must be
proven by a preponderance of the evidence. Id.An exhibit itemizing Tristen' s medical expenses was introduced into
evidence. The medical expenses set forth in this exhibit total $ 8, 302. 90. However,
the jury awarded Tristen $ 10, 000. 00 for past medical expenses. We agree that the
jury' s past medical expense award is not supported by the record. Defendants do
not dispute the existence of a causal connection between the injuries and amount
set forth in the exhibit. Therefore, we reduce the past medical expense award to
8, 302. 90.
Next, we review the award of general damages. It is well settled that in the
assessment of general damages, the discretion of the jury is great and even " vast,"
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so that an appellate court should rarely disturb an award of general damages.
Mack, 991 So. 2d at 490 ( citing 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)).
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. Thus, the initial inquiry is whether the award is a
clear abuse of the " much discretion" afforded to the trier of fact. Id. It is only
when the award is, in either direction, beyond that which a reasonable trier of fact
could assess for the particular injury to the particular plaintiff under the particular
circumstances that an appellate court may increase or decrease the award. Id.We have thoroughly reviewed the record, and we find no abuse of the vast
discretion accorded to the jury in assessing general damages. The jury heard
evidence that Tristen was ostracized by his classmates for reporting the incident.
Evidence was also presented demonstrating that following the incident, the once
out -going, music -loving, friendly teenager became introverted, depressed, suicidal,
and lost his passion for music. The general damage awards to Tristen and his
mother are not beyond that which a reasonable jury could assess for the injuries
suffered by plaintiffs under the circumstances of this case. Accordingly, the
general damage award is affirmed.
CONCLUSION
For the foregoing reasons, we amend the medical expense award to award
Tristen Rushing $ 8, 302. 90. In all other respects, the judgment is affirmed. All
costs of this appeal, in the amount of $3, 713. 50, are assessed 75% to the East
Baton Rouge Parish School System and 25% to plaintiffs.
AMENDED IN PART AND AS AMENDED, AFFIRMED.
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