NEW ORLEANS – The Supreme Court of Louisiana has reversed a lower appellate court ruling, in reducing an $18.9 million damages award to a man critically injured in a 2018 motor vehicle accident and his family, to $5.6 million.
In a 5-2 ruling handed down on June 28, state Supreme Court Justices Jay McCallum, John L. Weimer, Scott Crichton, James T. Genovese and William J. Crain authorized the damages reduction, while justices Jefferson D. Hughes III and Piper D. Griffin dissented from the majority.
McCallum authored the Court’s majority opinion in this matter.
“In March 2018, Barber Brothers was working on Louisiana DOTD Project No. H10257.6, an asphalt concrete leveling job on the I-10 exits for LA-3188 in Laplace. The eastbound LA-3188 exit (Exit 206 South LaPlace) is located just east of an elevated interstate portion referred to as the ‘three-mile bridge.’ Approximately 900 feet before the end of the bridge is a ‘hump,’ which provides an elevated view of the end of the bridge down to Exit 206. The concrete bridge has a very narrow right shoulder. The project required closing the LA-3188 exits and working nights to minimize inconvenience to the public. The DOTD project engineer designed and stamped the temporary traffic control plan for the eastbound exit closure of LA-3188. The plan called for the installation of an illuminating ‘message board’ display before the three-mile bridge that warned: ‘Road Construction 8:00 p.m.-5:00 a.m.’ A reflective ‘Construction Zone Ahead’ sign was erected on the three-mile bridge west of LA-3188 as well. The bridge also displayed a permanent sign for a Louisiana weigh station located east of LA-3188 stating: ‘W-I-M Area 1 Mile All Trucks Right Lane,” McCallum said.
“The DOTD approved a traffic control plan that required Barber Brothers to close the exit by placing reflective warning “super-cones” in a line across the exit, west along the fog line of the roadway, and continuing along the fog line seventy feet onto the three-mile bridge. When work was finished for the night, Barber Brothers was to open the exit by moving the cones from the fog line into the grass beyond the shoulder, and on the bridge, as close to the guardrail as possible. The standard procedure for removing traffic control devices called for a Barber Brothers truck to back up against traffic along the shoulder of the road while a second worker on foot moved the cones to the edge of the roadway.”
On the day of the accident, March 27, 2018, Barber Brothers Traffic Control Supervisor Johnny Scott and another employee, Rashaad Winn, were removing the cones at 5:37 a.m. – Scott was backing a Barber Brothers F250 truck along the shoulder of the highway while Winn, who was wearing a reflective safety suit and located near the tailgate, moved the construction cones on foot, McCallum added.
“The F250 truck’s taillights, red brake lights and white reverse lights were functioning at the time of the accident. The truck was outfitted with a magnetic amber strobe light on the roof of the cab, however the parties dispute whether the light was attached at the time of the accident.4 Because the right shoulder of the road narrowed considerably as the F250 backed onto the bridge, Mr. Scott had to leave space for the cones to be placed adjacent to the right guardrail of the bridge as they were moved. Thus, the F250 truck’s left front tire was over the fog line into the right travel lane,” McCallum stated.
“At the time of the accident, Mr. Scott was backing the F250 truck at 1 mile per hour and Mr. Winn had three remaining super cones 70 feet to the west to move. Frank Cushenberry, an employee of Capitol City Produce Company, LLC, was driving the company’s Freightliner box truck in the right lane of I-10 East at 65 miles per hour when he struck Barber Brothers’ F250 truck near the left rear passenger door 21 feet past the end of the bridge. Upon impact, Cushenberry over-steered and lost control of the box truck, which left the roadway, flipped over and landed in the woods to the right of I-10 East. As a result of the accident, Mr. Cushenberry sustained a traumatic brain injury and bodily injuries to his face, neck, shoulder, cervical and lumbar spine, requiring numerous surgeries.”
Mr. and Mrs. Cushenberry, individually and on behalf of their minor children, filed a petition for damages against Barber Brothers and Mr. Scott. Following a trial in an East Baton Rouge Parish court, the jury returned a verdict in favor of the Cushenberrys, allocating 100 percent of the fault to Barber Brothers and awarding a total of $13,446,634.65 in damages to Mr. Cushenberry, $2,500,000 to Mrs. Cushenberry and $1,500,000 to each of the children, for a total of $18,946,634.65.
On appeal to Louisiana’s Court of Appeals for the First Circuit, this result was upheld. But on further appeal to the Supreme Court of Louisiana, those justices felt the original trial court erred by assigning 100 percent fault to Barber Brothers and none to Mr. Cushenberry, and that in comparison to similar cases, the original damages awards were excessive.
“Next, we consider whether the jury erred by assessing 100 percent of fault for the accident to defendant, Barber Brothers Contracting Company, LLC. Based on the record and our review of the relevant jurisprudence, we find the jury manifestly erred in finding Barber Brothers solely at fault in the accident and assessing no fault to Mr. Cushenberry. Keeping in mind that, in disturbing a clearly wrong allocation of fault, a reviewing court is limited to lowering or raising the fault allocation to the highest or lowest point, respectively, within the trier of fact’s discretion, we find Barber Brothers to be 80 percent at fault and Mr. Cushenberry 20 percent at fault for the accident,” McCallum said.
“Finally, we review this matter in light of our recent decision in Pete v. Boland Marine and Manufacturing Company, LLC, which held that ‘appellate courts must look at past general damage awards for similar injuries in determining whether the trier of fact ‘abused its much discretion.’ Based on the review of relevant prior cases, we find that the jury abused its discretion in awarding general damages of $10,750,000 to Mr. Cushenberry, and loss of consortium damages of $2,500,000 to his spouse, Robin Cushenberry, and $1,500,000 to each of their minor children. Those awards are beyond the pale, being excessive and disproportionate to past awards for truly similar injuries. In accordance with Coco v. Winston Indus. Inc., we lower those awards to the highest point which is reasonably within the discretion afforded the jury. Given the evidence presented at trial, we find the highest amounts that could be reasonably awarded are: $5,000,000 in general damages to Mr. Cushenberry, and loss of consortium damages of $400,000 to Mrs. Cushenberry and $100,000 to each child.”
The new damages award would then be $5.6 million, according to McCallum and his colleagues in the majority.
In his dissent, Hughes said that the circumstances of this case were not “truly similar” to the ones considered by the majority, all of which were rendered more than 14 years ago – and further, that the majority had not considered inflation with respect to the damages amount.
Griffin agreed and added a brief dissent of her own, concurring with Hughes on the point on inflation.
“I respectfully dissent from the majority’s decision to lower the amounts of general damages and loss of consortium awarded by the jury. I also reiterate my position that courts must acknowledge the realities of inflation in reviewing awards for general damages,” Griffin said.
Supreme Court of Louisiana case 2023-C-00788
From the Louisiana Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com