Lewis barbe was declared as an expert in safety and accident reconst

Page I
896 So.2d 164. 2004-325 (La.App. 3 Cir. 12
/2 9/04)
(Cite as: 896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04))
H
Co ur t of A ppe a l o f L ou is ia na .
Thi rd C ir cu i t.
Jul i e G UI D RY. e t a l.
v.
CO R EGI S IN S UR ANC E CO MP ANY, e t a l.
No. 04-325.
Dec. 29, 2004.
Background: Widow for herself and on behalf of her
children brought legal malpractice action against attor neys
for allowing cause of action for wrongful death of her
husband, who was electrocuted while repairing a sign. to
prescribe. Following a jury verdict, the Fourteenth .1u-
dicial District Court, Parish of Calcasieu. No. 98-4848,(
Michael Canada . J.. granted plaintiffs a judgment not-
withstanding the verdict (JNOV) reallocating fault among
the potential defendants in underlying case. All parties
appealed.
Holdings: The Court of Appeal, Woodard, J.. held that:
(1 ) whether aerial ladder husband was using was unrea-
sonably dangerous in design because bucket was not insu-
lated, and whether lack of insulation was a proximate
cause of husband's death, were issues for the jury:
0 whether owner of truck stop that requested signs be
repaired breached its duty to not expose widow's husband
to unreasonable risks of harm, and whether husband
would not have died but for such breach, were issues for
the jury:
(.3.4 whether sign company who had employed widow's
husband breached its duty under the Workers' Compensa-
tion Law, and whether husband would not have died but
for such breach, were issues for the jury:
(4.) evidence was sufficient to support jury's allocation of
fault to parties who would have been the defendants in the
underlying action:
(.5) child who was not a biological child of widow's hus-
band could not recover wrongful death and survivor bene-
fits:
(o) evidence was sufficient to support award of $350.000
for husband's past wages and loss of earning capacity:
and t7f award of $10,000 for husband's pre -death pain
and suffering was so low in proportion to the injury that
it shocked the conscience, and award of $75,000 was the
lowest reasonable amount.
Affirmed in part as amended, reversed in part. and
rendered.
Woodard. J.. concurred in part and assigned reasons.
West I leadnotes
J l Attorney and Client 45 C-----'129(4)
45 Attorney and Client
45111 Duties and Liabilities of Attorney to Client
45k19 Actions for Negligence or Wrongful Acts
45k129(4) k. Damages and Costs. 10,
4 Ciit:4
Aside from distress resulting from the legal malprac-
tice, plaintiffs' damages in a legal malpractice suit are
determined by the damages, if any. they would have re-
ceived had they prevailed in the underlying lawsuit.
1_;_j Attorney and Client 45 €;=.
105.5
;Lill! Duties and Liabilities of Attorney to Client
151:105.5 k. Elements of Malpractice or Negli -
gence Action in General. lost Cited
A legal malpractice plaintiff must establish a prima
facie case by showing that she and the attorney had an
attorney-client relationship and that her attorney was neg-
ligent.
1.31 Attorney and Client 45 C---)
129(2)
Actions for Negligence or Wrongful Acts
45k129(2) k. Pleading and Evidence. Moss.
Cited Cases
In a legal malpractice action. after the plaintiff estab-
lishes a prima facie case by showing that she and the at-
torney had an underlying attorney-client relationship and
that the attorney was negligent, the burden of production
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896 So.2d 164,2004-325 (La.App. 3 Cir. 12/29/04)
shifts to the defendant attorney, charging him to provide
evidence sufficient to prove the plaintiff would not have
prevailed on the underlying claim.
t_41 Attorney and Client 45 €---)129(3)
<15k129 Actions for Negligence or Wrongful Acts
45k..20 .3) k. Trial and Judgment. Most Cited
Cases
Products Liability 313A 1
:='256
313A Products Liability
"3..13,A111 Particular Products
313Ak256 k. Ladders and Scaffolds. Most Cited
caws
(Formerly 313Ak94)
Products Liability 313A 0=7
400
.3133 Products Liability
313 AI V Actions
313AIV( D) Questions of Law or Fact
313AHOO k. In General. Most Cited Cases
(Formerly 3 I 3Ak94)
Whether aerial ladder was unreasonably dangerous,
whether ladder was employed in a reasonably anticipated
use, and whether lack of fiberglass insulation was a
proximate cause of death, were issues for the jury. in
widow's legal malpractice action in which jury was required
to allocate fault among potential defendants brought
against attorneys for allowing cause of action for wrongful
death of her husband, who was electrocuted while
repairing a sign. to prescribe: witness testified that if
bucket husband was in had been insulated with fiberglass
husband would have only suffered a slight shock.
witnesses testified that aerial ladder was commonly used
in sign industry, and there was no evidence that widow's
husband was operating the ladder in an inappropriate
manner. 1..SA-R.S. 0:2800,56(2).
A duty-risk analysis is used to determine whether a party
is liable for its negligence given the particular facts of the
case.
thi Negligence 272 €202
171 Negligence
772.1 In General
k. Elements in General. Mo,
q Cited
cases
Duty-risk analysis used to determine whether a party is
liable for its negligence given the particular facts of the case
consists of four elements: (I) whether the defendant owed
the plaintiff a duty of care: (2) and if so. whether that duty
encompassed the particular risk of harm the plaintiff
suffered: (3) whether the defendant breached that duty: (4)
and if so, whether the breach was a cause-in-fact of the
plaintiff's injuries.
0, Negligence 272 C=>1010
272 Negligence
2:12xyll Premises Liability
272X Vt1(.13.) Necessity and Existence of Duty
277
1,1010 k. In General. Most CitQd Caws
Negligence 272 €=)1032
27? Negligence
272X VII Premises Liability
272X VlI(C.) Standard of Care
77.210.032 k. Reasonable or Ordinary Care in
General. Most Cited Cases
Negligence 272 C---'1033
277 Negligence
272X VII Premises Liability
272XV11(.C) Standard of Care
272k k. Reasonably Safe or Unreasonably
Dangerous Conditions. Most Cited Cases
1:5j, Negligence 272 C'202
272 Negligence
2721 In General
27k201
k. Elements in General.
Cases
1OS 4:itel,1
Generally. the owner or operator of a facility has the
duty of exercising reasonable care for the safety of per-
sons on his premises and the duty of not exposing such
persons to unreasonable risks of injury or harm.
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Pa ge 3
896 So.2d 164. 2004-325 (La.App. 3 Cir. 12,'29/04)
0.3 Electricity 145 C'14(1)
145 Electricity
145k12 Injuries Incident to Production or Use
145k14 Care Required in General
145k14W k. In General. Most Cited aces
Owner of truck stop that requested its signs he re -
paired had a duty to not expose sign company employee
to unreasonable risks of harm.
L1 Attorney and Client 45 €----'129(3)
45. 414 Dutie s a nd Liabilities of Attorne y to Clie nt
45k129 Actions for Ne glige nce or Wrongful Acts
451,1290) k. Trial a nd Judgme nt. 1 1oi Cited
Cases
Electricity 145 re=:;'19(9)
145 Electricity
145k12 Injuries Incident to Production or Use
145k 19 Actions
145k190 ) Questions for Jury
45k1919 k. Pre ve ntion of Conta ct Be -
tween Different Wires or Conductors. Most cited Caws
Whether owner of truck stop that requested its signs
be repaired breached its duty to not expose widow's hus -
band, who worked for sign company, to unreasonable
risks of harm, and whether signs' proximity to power
lines was cause of husband's death, were issues for the
. jury. in widow's legal malpractice action against
attorneys who allowed cause of action for wro ngful death
of her husband. who was electrocuted while repairing
signs. to prescribe. wherein jury was required to allocate
fault among potential defendants in underlying suit:
there was evidence that placement of one of the signs on
pole containing three signs violated Occupational Safety
and Health Administration (OSHA) rule requiring a ten -
foot clearance from overhead power lines, and that it
was impossible for widow's husband to work on such sign
without violating ten foot rule.
110( Negligence 272 0'211
37;1, Negligence
27211 Necessity and Existence of Duty
' 7' k211 k. Public Policy Concerns. lost( ite d
The scope of the duty inquiry on a negligence claim is
ultimately a question of policy as to whether the par -
ticular risk falls within the scope of the duty.
1111 Workers' Compensation 413 €----'2095
413 Workers' Compensation
413XX Effect of Act on Other Statutory or Common-Law
Rights of Action and Defenses
:413 NNI, A) Be twee n Employer a nd Employee
413X Xt /1)1 Exclusive ness of Re me dies Afforde d
by Acts
131.2095 k. Failure to Install or Maintain Safety
Devices. Most Cited Caws
Workers' Compensation Law requires employers to do
everything reasonably necessary to protect the life.
health, safety. and welfare of its employees, including
providing proper safety devices and safeguards to render
the employment safe, considering the normal hazards of
such employment. 1,SA-IU>, 23: H.
J12[ Workers' Compensation 413 €—'2095
4 I Workers' Compensation
413X X Effect of Act on Other Statutory or Common-
Law Rights of Action and Defenses
.113 X X(A) Between Employer and Employee
413 XX(A)) Exclusive ness of Re medie s At=
forded by Acts
4131.2095 k. Failure to Install or Maintain
Safety Devices. Most Cited Cases
Duty under the Workers' Compensation Law of sign
repair company to protect the life and safety of its em-
ployee encompassed the particular risk of injury by a power
line: company knew that power lines posed a nor mal
hazard to its employees, and it was a frequent topic of
conversation among its employees. 1..SA-R.S.
1131 Attorney and Client 45 c—'129(3)
4511. 1 Dutie s a nd Liabilities of Attorne y to Clie nt
45k129 Actions for Ne glige nce or Wrong ful Acts
45k129(3) k. Trial a nd Judgment. Xlo:4 Citc, 1
Cases
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896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)
Electricity 145 C19(6.1)
145 Electricity
145k12. Injuries Incident to Production or Use
145k 19 Actions
145k190_) Questions for Jury
145J:190.1) k. In General. 11i1ost Cited
Cases
Whether sign company that employed widow's hus-
band breached its duty under the Workers' Compensation
Law to do everything reasonably necessary to protect life
and safety of husband. and whether but for company's
breach of such duty husband would not have been clec-
trocuted. were issues for the jury, in widow's legal mal-
practice action against attorneys who allowed cause of
action for wrongful death of her husband. who was elec-
trocuted while repairing signs. to prescribe. wherein jury
was required to allocate fault among potential defendants
in underlying suit: witness testified that if bucket on aerial
ladder supplied by company that husband was in had been
insulated husband would have only suffered a slight shock.
and there was evidence that company failed to place
proper significance on adherence to Occupational Safety
and Health Administration's (OSHA) rule requiring persons
to maintain a ten-foot clearance from overhead power
lines. 1.SA-R..S. 23:13.
J14[ Negligence 272 ( C'371
212 Negligence
272;011 Proximate Cause
272k371 k. Necessity of Causation. I ited
Caws
Negligence 272 €379
2.72. Negligence
272N111 Proximate Cause
272k374 Requisites. Definitions and
Distinctions 2721079 k. "But-For" Causation: Act
Without Which Event Would Not Have Occurred.
Nio,t i. ited Cases
Cause-in-fact is one of the essential elements of a
plaintiffs personal injury claim, and it is usually deter-
mined by using a "but for" test: if the plaintiff would not
have been injured "but for" the defendant's conduct, the
cause-in-fact component is met.
115[ Negligence 272 C-1421
272 Negligence
272X111 Proximate Cause
27;1420 Concurrent Causes
2721.421 k. In General. Most Cited Cases
When there is more than one action that, allegedly.
precipitated an accident. the "substantial factor test."
rather than the "but for" test. is used to establish cause-in-
fact.
11(1 Electricity 145 e---19(5)
145 Electricity
1-15k12 Injuries Incident to Production or Use
-15k )9 Actions
1.4509(.5) k. Weight and Sufficiency of Evi-
dence. Mosicit..sit Cases
Evidence was sufficient to establish, in widow's legal
malpractice action against attorneys for allowing cause of
action for wrongful death of husband to prescribe, that
actions by owner of truck stop, breach by sign company
that employed husband of its duty under the Workers'
Compensation Law, husband's actions, and actions by
aerial ladder's manufacturer, were all substantial factors in
husband's electrocution: witness testified that if bucket on
aerial ladder had been insulated husband would have only
suffered a slight shock, there was evidence that company
failed to place proper significance on adherence to Occu-
pational Safety and Health Administration's (OSHA) rule
requiring persons to maintain a ten-foot clearance from
overhead power lines, manager of truck stop asked owner
to work on pole having sign that violated OSI- IA rule, and
husband failed to use a safety harness or seat belt. or re-
quest that electric company shield lines near pole to make
them safe. I
11-
[ Appeal and Error 30 0'999(3)
30 Appeal and Error
30V1 Review
30XVI(1) Questions of Fact. Verdicts, and Find-
ings
30XV11,112 Verdicts
30k999 Conclusiveness in General
30k()990 ) k. Questions of Fraud or Neg-
ligence. Most Cited. Cases
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896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
As with other factual determinations, the trier of fact
is vested with much discretion in its allocation of fault.
and therefore an appellate court should only disturb the
trier of fact's allocation of fault when it is clearly wrong
or manifestly erroneous.
118 [ Appeal and Error 30 €---)999(3)
30 Appeal and Error
3p: y I Review
30XVI(1) Questions of Fact. Verdicts, and Find-
ings
30XVI(I)2 Verdicts
30k999 Conclusiveness in General
30k999(3) k. Questions of Fraud or Neg-
ligence. Most Cited Cases
In testing for manifest error a jury's allocation of fault
when more that one action allegedly precipitated an acci -
dent, Court of Appeal looks to the following factors : (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 cir -
cumstances which might require the actor to proceed i n
haste, without proper thought.
1191 Appeal and Error 30 €=.999(3)
30 Appeal and Error
1()NV1 Review
0X V1(1) Questions of Fact. Verdicts, and Find-
ings
30XVI(1)2 Verdicts
30099 Conclusiveness in General
30k990
(3) k. Questions of Fraud or Neg-
ligence. Most Cited Cases
As evidenced by concepts such as last clear chance.
the relationship between the fault/negligent conduct and
the harm to the plaintiff are considerations in determining
the relative fault of the parties, when Court of Appeal
tests for manifest error a jury's allocation of fault when
more that one action allegedly precipitated an accident.
J20[ Electricity 145 €=17
1215 Electricity
1-151.12. Injuries Incident to Production or Use
145k 17 k. Companies and Persons Liable. Most Cited
Caies
Evidence was sufficient to support. in widow's legal
action for wrongful death of husband to prescribe, alloca-
tion of 20% of fault for electrocution of husband to owner
of truck stop whose sign widow's husband was repairing.
45% to sign company that employed husband, 30% to
husband's actions, and five percent to aerial ladder's
manufacturer: there was evidence that husband was an
experienced sign worker and was aware of danger posed
by overhead power lines, that Occupational Safety and
Health Administration (OSHA) held company responsible for
violation of ten-foot clearance from overhead line rule, that
company rather than manufacturer was in best position to
determine whether it should have used an aerial ladder
that had an insulated bucket, and that owner of truck stop
placed sign close to power line in violation of OSHA rule. I
,SA-R.S.
J21[ Judgment 228 €='199(3.5)
228 Judgment
228il On Trial of Issues
228 VI(A) Re ndition. Form. a nd Requisites in
Ge ne ra l
228k109 Notwithstanding Verdict
2281.199(3.5). k. Propriety of Judgment in
General. Most Cited Cases
Judgment notwithstanding the verdict (JNOV) is war-
ranted, only, when the facts and inferences point so
strongly and overwhelmingly in favor of one party that the
trial court believes that reasonable persons could not arrive
at a contrary verdict.
1221 Judgment 228199(3.6)
228 Judgment
_'__'8VI On Trial of Issues
228V1(A) Re ndition, Form, a nd R equisites in
General
2281.199 Notwithstanding Verdict
224100
( 3. 6) k. Where Evide nce Is Con-
flicting or Where Different Inferences May Be Reasona-
bly Drawn Therefrom. Mo! ,1(A. g tcases
A trial court may not grant a judgment notwithstand-
ing the verdict (JNOV) if there is contradictory evidence
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896 So.2d 164. 2004-325 (La.App. 3 Cir. 12,29/04)
which is of such quality and weight that reasonable and fair-
minded persons in the exercise of impartial judgment might
reach different conclusions.
1231 Judgment 228 €='199(3.2)
228 Judgment
228V1 On Trial of Issues
2.2.8 V1(1) Rendition. Form, and Requisites in
General
2281:I99 Notwithstanding Verdict
1
28k199(3.2) k. Evidence and Inferences
That May Be Considered or Drawn. Most Cited Cacs
Judgment 228 €---'199(3.3)
228. Judgment
228V1 On Trial of Issues
228V1(A) Rendition. Form, and Requisites in
General
21
8k199 Notwithstanding Verdict
2281.1990.3) k. Credibility of Witnesses
and Weight of Evidence. Most Cited Ca,
,cs
The trial court should not evaluate witnesses' credi-
bility in deciding whether to grant a judgment notwith-
standing the verdict (JNOV), and it must resolve all infer-
ences or factual questions in favor of the non-moving
party.
1241 Appeal and Error 30 €=1463
30 Appeal and Error
30 VI Review
30 X VILA Scope, Standards, and Extent, in Gen-
era l
30k862 Extent of Review Dependent on Nature
of Decision Appealed from
$0kS63 k. In General. Most. Cited Case,
.
Court of Appeal reviews a trial court's grant of judg-
ment notwithstanding the verdict (JNOV) by using the same
criterion that governs its decision.
1251 Appeal and Error 30 C'863
30 Appeal and Error
30XV1 Review
30XV It A) Scope. Standards, and Extent, n Gen-
eral
30k802 Extent of Review Dependent on Nature
of Decision Appealed from
301:803 k. In General. Most Cited Cases
In an appeal of a judgment notwithstanding the verdict
(JNOV), if reasonable persons might have reached the same
verdict as the jury. Court of Appeal should reinstate its
verdict.
1261 Evidence 157 C----)
555.7
15.7 Evidence
157 11 Opinion Evidence
57X11(I)) Examination of Experts
I 57k555 Basis of Opinion
157055,7 k. Due Care and Proper Conduct.
Most Cited Cases
Trial court did not abuse its discretion and violate the
/),./ribcrir /.-
.)rw tests, in widow's legal malpractice action
against attorneys for allowing cause of action for wrongful
death of husband, who was electrocuted while repairing
signs. to prescribe, by allowing widow's mechanical
engineering and accident reconstruction expert to testify
regarding his alternative design to include an electric brake
on aerial ladder; brakes had been incorporated in similar
devices, namely cranes, manufacturer's expert admitted
that adding a brake was a feasible design, and factual
determination of whether the primary purpose of ladder, to
carry humans rather than cargo. caused adverse effect of a
brake in a ladder to outweigh its utility was properly
submitted to the jury. 1.S A-C.I .
11211Evidence 157€,.....2519
157 Evidence
157.1I Opinion Evidence
1.57 i) Subjects of Expert Testimony
157k519 k. Nature, Condition, and Relation of
Objects. Most.Cited Cries
Evidence 1571
€555.7
.117 Evidence
157 II Opinion Evidence
157X I li.D) Examination of Experts
1..5.2.1s5.55. Basis of Opinion
157055.7 k. Due Care and Proper Conduct.
Most Cited Cases
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Pa ge 7
896 So.2d 164,2004-325 (La.App. 3 Cir. 12/29/04)
E vi denc e 157 e556
.157 Evidence
157X11 Opinion Evidence
157X1111)) Examination of Experts
157k556 k. References to Authorities on Sub-
ject. Most Cited Cases
Trial court did not abuse its discretion and violate the
Dotibert/ /7.
,,rei tests, in widow's legal malpractice action
against attorneys for allowing cause of action for wrong ful
death of husband, who was electrocuted while repair ing
signs, to prescribe, by permitting widow's expert, a
physicist and professional engineer with a specialty in
human vision, to testify that a person viewing horizontal
power lines against a clear sky could not accurately per -
ceive his distance from them because of a principle called
stereopsis; expert offered an article that had been pub -
lished on the subject showing that the theory had been
tested and discussed the known potential rates of error,
and testimony was relevant, even if it assumed widow's
husband was looking toward the power lines just before he
struck them in the absence of testimony esta blishing
same, as testimony shed light on a factual issue. I SA-(.I;.
art. 702.
1281 Appeal and Error 30 €---'984(1)
‘..t) Appeal and Error
30XV1 Review
30N.Y1.(11) Discretion of Lower Court
30k984 Costs and Allowances
30k084(.I) k. In General. Most. Cited Cases
Co sts 102 €12
102 Costs
1021 Nature, Grounds, and Extent of Right in General
102k1 I Discretion of Court
102k 12 k. In General. Most Cited Cases
The trial court has broad discretion to award and as-
sess costs, and Court of Appeal will not disturb its ruling
absent an abuse of discretion.
1291. Costs 102 €=3,187
102 Costs
102V11 Amount, Rate, and Items
1 Qzjiit3 183 Witnesses' Fees
102k187 k. Experts. Most Cited Cases
The degree to which the expert's opinion aided the
court in its decision is one of the factors to consider when
assessing costs of an expert witness's fee.
1301 Attorney and Client 45 C='129(4)
15111 Dutie s a nd Lia bilities of Attorne y to Clie nt
451.1:.', 0 Actions for Ne gligence or Wrongful
Acts 45k129(0 k. Da mage s a nd Costs. Mosi (
Cases
Trial court did not abuse its discretion, in widow's legal
action for wrongful death of husband. who was
electrocuted while repairing signs. to prescribe. by award -
ing widow fees she incurred for testimony by mechanical /
engineering and accident reconstruction expert and by i‘
engineer with a specialty in human vision, since experts'
testimony was admissible.
J311 Damages 115 C---)60
.111, Damages
I 15111 Grounds and Subjects of Compensatory Dam-
ages
I I 5111(.13) Aggravation, Mitigation, and Reduction
of Loss
k. Benefits Incide nt to Injury. Most
Cited (. ases
If a plaintiff receives benefits from a source inde-
pendent of the tortfeasor, the benefits inure to the plain -
tiff, not to the tortfeasor, and if the independent source
does not intervene to recoup the benefits it already paid.
the plaintiff may recover the same amount of the benefits
from the tortfeasor.
1321 Workers' Compensation 413 €---'2243
413 Workers' Compensation
.413 XX Effect of Act on Other Statutory or Common-Law
Rights of Action and Defenses
413X K.') Action Against Third Persons in General for
Employee's Injury or Death
413 X(. 0 t6 Amount and Ite ms of Recovery
1131;2243 k. Action by Employee, Depe nd ents,
or Persona l Represe ntative. Most Cited Cases
(C, 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
Under collateral source rule, widow, in her legal
action for wrongful death of husband to prescribe, could
recover medical and funeral expenses which husband's
workers' compensation carrier had already paid; though
attorneys were not the tortfeasors in the underlying suit,
because the two liable tortfeasors in the underlying action
could not under the collateral source rule benefit from
carrier's payment, neither could attorneys.
1.33 Attorney and Client 45
4
112
45k112 k. Conduct of Litigation. Most ( itcd
Cases
Death 117 €----
)
31(8)
117 Death
(17111 Actions for Causing Death
I I '7111(A) Right of Action and Defenses
1171(31 Persons Entitled to Sue
117101(8) k. Child or Grandchild. Most
Cited Caws
Child who was not a biological child of widow's elec-
trocuted husband could not recover wrongful death and
survivor benefits, in widow's legal malpractice action
brought on behalf of herself and her children against at-
torneys for allowing cause of action for wrongful death of
husband to prescribe, despite husband's signature on child's
birth certificate and his execution of an Act of Ac-
knowledgment of Paternity; Acknowledgment was a nullity
when both the child and the widow admitted husband had
no biological relationship to the child. 1.S.A-C .0arts.
71 5.1.23
1s2
J34[ Attorney and Client 45 €---
2
129(4)
45)11 Duties and Liabilities of Attorney to Client 5k12,9
Actions for Negligence or Wrongful Acts 45k
1.291 k. Damages and Costs. Mos
Cases
Death 117 €9.5(1)
.117 Death
117111 Actions for Causing Death
117111(11) Damages or Compensation
1.171.94 Measure and Amount Awarded
117k95 In General
1171.9SW k. In General. N10,4 Cited
,
Cases
Death 117 C--
1
95(2)
117 Death
1 171.11 Actions for Causing Death
117111(11) Damages or Compensation
117104 Measure and Amount Awarded
117k95 In General
11705(2) k. Prospective Earnings and
Accumulations of Deceased. Most '1ted Cases
Evidence was sufficient to establish award of
$350.000 for past wages and loss of earning capacity of
husband, who was electrocuted while repairing signs,
upon widow's wrongful death cause of action, although
figure did not match that calculated by experts, since jury
was permitted to substitute common sense and judgment
for that of an expert witness when such substitution ap-
peared warranted on the record as a whole; thus, award of
such amount was proper in widow's legal malpractice
action against attorneys for allowing her wrongful death
claim to prescribe.
Lit Evidence 157 €=
.
570
151 Evidence
15.711 Opinion Evidence
57X110. Effect of Opinion Evidence
157k50.9 Testimony of Experts
1511.570 k. In General. Moq Cited Case,,
Trial 388 €—'140(1)
38X Trial
388VI'Fakini.; Case or Question from Jury
:,88V1LA) Questions of Law or of Fact in General
388kI40 Credibility of Witnesses
388k140t.1.t k. In General. Most (lied Case5
Credibility determinations are for the trier of fact, even
as to the evaluation of expert witness testimony.
1361 Evidence 157 €.---'570

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
157 Evidence
157X11 Opinion Evidence
157)X11(I") Effect of Opinion Evidence
157k56> Testimony of Experts
j.57)070 k. In General. Most Cited Caves
A fact-finder may accept or reject the opinion expressed
by an expert, in whole or in part.
1371 Appeal and Error 30 €—)
1004(5)
30 Appeal and Error
30XV1 Review
30X V1(1) Questions of Fact, Verdicts, and Find-
ings
30NVI(1)? Verdicts
30k1004 Amount of Recovery
301.100-1(5) k. Mistake. Passion or Preju-
dice; Shocking Conscience or Sense of Justice. Most
Cited Cases
Damages 115
1 I 5 Damages
115V1 Measure of Damages
I 15 VI(A) Injuries to the Person
115k96 k. Discretion as to Amount of Damages.
Most Cited Cases
Damages 115 €:;'104
1. I 5 Damages
H 5V I Measure of Damages
115V1t13) Injuries to Property
115k 104 k. Discretion as to Amount of Dam-
ages. Most Cited Cases
Damages 115 €=7
119
115 Damages
I I 5V1 Measure of Damages
11.5 VIR') Breach of Contract
1 1.5k119
k. Discretion as to Amount of Dam-
ages. Most Cited Cases
A jury has vast discretion in assessing damages. and Court
of Appeal may find that it abused this discretion. only, if its
award is so low in proportion to the injury that it shocks
Court's conscience.
J38i. Attorney and Client 45 Ce•—'129(4)
4.5. Attorney and Client
-15111 Duties and Liabilities of Attorney to Client
45k.1_2) Actions for Negligence or Wrongful Acts
45k1 29(4) k. Damages and Costs. Most c:Jted
clit.!!es
Death 117 e---)98
117 Death
.44.,741.1 Actions for Causing Death
I 1.710()1) Damages or Compensation
117.k94 Measure and Amount Awarded
k. Inadequate Damages. Mos'
Award of $10.000 for husband's pre-death pain and
suffering was so low in proportion to the injury that it
shocked the conscience, and award of $75,000 was the
lowest reasonable amount that could be awarded for
wrongful death of husband, who was electrocuted while
repairing signs. in view of evidence that husband was
conscious for some amount of time after contacting over-
head power lines while working on aerial ladder and be-
ing thrown to the ground with smoke coming off his shirt:
thus, award of $75,000 was proper in widow's legal mal-
practice action against attorneys for allowing her wrong-
ful death claim to prescribe.
1391 Damages 115 €—'140.7
I_I5 Damages
1 ISVII Amount Awarded
l5V1 Mental Suffering and Emotional Dis-
tress
115k140.7 k. Particular Cases. Mos' Cited
Cases
(Formerly 115k140.5)
Award of $30,000.00 for mental anguish arising from
attorneys' malpractice was not abusively low, in widow's
legal malpractice action against attorneys for allowing cause
of action for wrongful death of husband, who was
electrocuted while repairing signs, to prescribe.
*170 Lam Lane Roy, Preis, Kraft & Roy, Lafayette.
Louisiana, for Defendant/Appellant. James Daniels.
Ringuet. Daniels & Collier.
0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Pa ge 10
896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
Gus A. Fritchie, Irwin Fritchie Urquhart & Moore. New
Orleans, Louisiana, for Defendant/Appellant. Lawrence
D. Wiedemann. Wiedemann & Wiedemann.
Gregory Paul Allen Marceam, Marceaux Law Firm., Bilk F.
Loftin, Jr., Lake Charles, Louisiana. for Plain-tiff/Appellant.
Julie Guidry:.
James Huey Gibson, Allen & Gooch, Lafayette, Louisiana,
for Defendant/Appellant, Coregis Ins. Co.
C o u r t c o m p o s e d o f C h i e f J u d g e
1-
111BODFAUX. 1111. 1. 11: CO LONMARO WO ODAR D.
and OSWALD A. IM'Cl.i1R, Judges.
**l WOO DAR D, Judge.
Both the Plaintiffs and Defendants appeal the trial
court's judgment in this legal malpractice suit. We reverse
the damages awarded to Randi Guidry because she is not a
proper party to recover wrongful death or survival dam-
ages. We vacate the trial court's JNOV. reinstate the jury's
verdict, amend its judgment to increase the quantum of
damages for pain and suffering, and render.
This appeal arises from Ms. Julie Guidry's legal mal-
practice claim against two attorneys, Mr. James L. Daniels
and Mr. Lawrence D. Wiedemann, for allowing her
potential cause of action for the wrongful death of her
husband, Melvin Guidry, to prescribe. The underlying
action arose when her husband died after being electro-
cuted in the course and scope of his employment as a bill-
board and sign repairman for Signko, Inc. (Signko). On
June 23, 1997, Signko sent him to the Lucky Longhorn
Truckstop (Lucky) to repair a "Chevron" sign. After he
arrived, Lucky's manager. Mr. James William Hayes. asked
him to work on some of the other signs. as well. To access
them, Melvin utilized a Sponco SL-55 aerial ladder. a
ladder attached to a truck that has a bucket at the end to
hold the operator. While working on the signs, he
contacted with some overhead power lines, electrocuting
him and throwing him to the ground. He died from the
injuries a few hours after the accident.
Julie retained Mr. Daniels to pursue her claims for his
death. Daniels referred her case to Mr. Wiedemann. re-
taining an interest in any potential recovery. However,
neither attorney filed her suit within one year of Melvin's
death, allowing her claim to prescribe. Consequently, she
tiled a legal malpractice action against the two attorneys.
on her own behalf and on behalf of her two daughters,
both minors at the time she filed suit. She alleged that the
attorneys' negligence prevented her from recovering
against several defendants who shared responsibility for
her husband's death. She also prayed for damages associ -
ated with the legal malpractice.
*171 Lu Aside from distress resulting from the legal
malpractice. itself, the plaintiffs' damages in a legal mal -
practice suit are determined by the damages, if any, they
**2 would have received had they prevailed in the under-
lying lawsuit.' Accordingly, in order to determine
whether the attorneys' malpractice caused her and her
daughters any damages, the jury had to determine whether
and how much they would have recovered in the underlying
suit"-
Essentially. the jury in the legal malpractice suit had to
"engage in a pretend exercise of measuring damages based
on events that never in reality occurred or can occur," I-
-
because the malpractice foreclosed their opportunity to
pursue their underlying claims against the actual persons
allegedly responsible for Melvin's death.
I NI. Jeukins r. Sr. hre• lirc ( •
422 So.2d 1109 (I.a.1982).
FN2. Id.
SHIllit r. Shift!, .0(10 4il 1101//11
95-38 CI .a.6l25/96). 676 So.2d 543. 551 n. 9,
FN4„S'inidt, 676 So.2d 541
The attorneys asserted that they would not have re -
covered any damages in the underlying suit because Melvin
and his employer were solely at fault for the accident: any
damage awards would have been reduced by his
own comparative negligence.' Additionally, because the
Louisiana Workers' Compensation Act is the exclusive remedy
for any potential claims against Melvin's employer, Signko,
the Plaintiffs could not have recovered the damages
associated with Signko's fault in the underlying wrongful
death action. Rather, the Office of Workers' Compensation
has jurisdiction over the Plaintiffs' potential claim against
Signko.' Furthermore, in the instant case, the Plaintiffs
reached a settlement with Signko under the workers'
compensation laws while their suit against the two attorneys
was pending in the trial court.
FIN15. See La.Civ.C'ode art. 2R3(A).

Page I I
896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
l'No. See La.R.S. 23:1W2.
Notwithstanding the Plaintiffs' inability to recover
from Signko in their underlying wrongful death action,
Louisiana's comparative fault law would have required a
jury in such an action to consider Signko's fault.'
if a jury had allocated 100% of the fault to Melvin and/or
to his employer, the Plaintiffs' ultimate recovery would
have been zero. Therefbre. the jury had to assess the fault
**3 of Melvin and his employer, as well as the fault of any
potential defendants in the underlying case.
Sponco Manufacturing
Kojis & Sons. Inc.
Enter:4y
Signko, Inc.
Melvin Guidry..1r.
Lucky Longhorn Truck Stop
The trial court granted Plaintiffs a Judgment Not-
withstanding the Verdict (JNOV), reallocating Signko's
fault percentage to Sponco, resulting in a 50% fault allo-
cation to it and no fault to Signko.
The jury assessed Julie's damages in the underlying
lawsuit at $750,000.00, her daughter, Randi's damages at
$70,000.00, and her daughter. Mary's damages at
$250,000.00. Additionally, it found that the Plaintiffs were
entitled to $10,000.00 *172 far Melvin's pre-death pain
and suffering and $30,000.00 for their own mental distress
associated with the Defendants' legal malpractice.
Finally, the jury found that the two attorneys. Mr.
Daniels and Mr. Wiedemann, were equally responsible
and assessed each with 50% of the fault.
Both the Plaintiffs and the Defendants appeal from
the trial court's judgment. The Defendants allege multiple
assignments of error. Concerning the fault allocation, they
argue that the jury erred in allocating any fault to Lucky
Longhorn or to Sponco and that it should have allocated
all or substantially more fault to Melvin. They also assert
that the trial court erred in granting the JNOV.
114.
Additionally, the Defendants urge that the trial court
committed evidentiary errors in admitting certain testi-
mony that Plaintiffs' expert witnesses, Stephen **4 Kill-
1-N7. See La.Civ.Code art. 2323.
The Plaintiffs maintain that the potential defendants
in the underlying case were Sponco Manufactur -
ing/Phoenix Sales (Sponco), the ladder's manufacturer:
Kojis & Sons, the company that sold the ladder to Signko:
Lucky Longhorn Truck Stop. the accident site: and En-
tergy, the custodian of the power lines.
The jury allocated fault as follows:
5 4 0
0 %
0%
4.5"/0
30%
20%
ingsworth and James Sobek, rendered; thus, they should
not have to pay these two experts' witness fees.
They also claim the trial court erred in allowing
Plaintiffs to recover medical and funeral expenses and in
permitting Randi Guidry to recover any damages.
The Plaintiffs appeal the judgment. urging us to in-
crease the amount of damages awarded for loss of sup-
port. pre-death pain and suffering, and mental distress
resulting from the malpractice.
ELEMENTS OF LEGAL MALPRACTICE CLAIM
Lin A legal malpractice plaintiff must establish a prima
facie case by showing that she and the attorney had an
attorney-client relationship and that her attorney was
negligent.' In the instant case, the two attorneys admit
these two elements, establishing the Plaintiffs' primajiicic case.
Accordingly, the burden of production shifts to the Defendant
attorneys, charging them to provide evidence sufficient to prove
the Plaintiffs would not have prevailed
on the underlying claim.' The admittedly unnatural re-
sult is that the Defendant attorneys must advocate a position in
extreme contrast to the position they previously agreed to
advocate on their client's behalf. However, the rule is justified
because we must infer that their negligence caused the Plaintiffs'
some loss, given the unlikelihood that they would have agreed to
handle the claim unless it had some merit.' `''' "Otherwise, there
is an un-

Pa ge 12
896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)
due burden on an aggrieved client. who can prove negli-
gence and causation of some damages, when he has been
relegated to seeking relief by the only remedy available
after his attorney's negligence precluded relief by means
of the original claim."
s
FN8../enkiffs. 422 So.2d 1109.
FN9.
EN10. Id.
FN I 1, Id. at I I 10.
STAND A RD OF RE VI E W
The Defendants' first two assignments of error in-
volve liability determinations, one based on the duty-risk
analysis and the other based on **5 Louisiana Products
Liability law. These determinations involve questions of,
both, law and fact. The remaining alleged errors, which
concern fault allocation, admissibility of certain testimony
that expert witnesses gave, and awards of damages and
costs, are all subject to the manifest error standard.'
FN 12. (. lenient rrey,_. 95- I I 1911.a. I 16 Q6),
666 Se] 2d. _ 607: Your, v. Ilariiimc Overeas-
tolp„. 623 So.2d 1257 (1.,t. I993 );
Shire, 03-680 (IAL 12 3;03). Md so,2d 536.
SPONCO'S FA UL T
The Defendants assert that the jury erred in finding
Sponco liable for Melvin's *173 death. Again, they had the
burden of proving that the Plaintiffs could not have
prevailed against Sponco.
Sponco is the ma nufacturer of the aerial ladder
Melvin utilized when working on Lucky's signs. The
Louisiana Products Liability Act (LPLA) establishe s the
exclusive theories for holding a manufacturer liable for
damages their products cause.' It requires that: 1) a
characteristic of the manufacturer's product renders it un-
reasonably dangerous; 2) the unreasonably dangerous
characteristic proximately caused the Plaintiffs damages; and
3) the damages arose when employing the product in a
reasonably anticipated use.' The LPLA enumerates limited
means of demonstrating an unreasonably dangerous
characteristic. Namely, a plaintiff must prove the product had
inadequate warnings, failed to conform to the manufacturer's
express warranties, or that the dangerous characteristic is
inherent in the product's design, construc
tion, or composition.' Thus, we turn first to a review of
evidence concerning any unreasonably dangerous charac-
teristics.
I. N13. L A.It.S. 9:2800.52.
FN 14. I a.R.S. 9:2800.5-1(A).
I N15. 9:2800.54(B).
Inadequate Warnings
The Defendants presented evidence of adequate
warnings. Specifically, Mr. Harold Sader, Sponco's Presi-
dent, testified that the manuals delivered to every cus-
tomer, as well as the warning decals on the equipment.
itself, admonish **6 operators that the equipment is not
to be used within ten feet of energized power lines. Mr.
Brooks and Mr. Brady Kojis, a co-owner of Signko. verified
his testimony.
Failure to Cantor,,, to Express Warranties
Neither party presented evidence of any express war-
ranties. Consequently. there was no evidence of failure to
conform to any.
Dangerous in Design
The LPLA requires several elements to show that a
product is unreasonably dangerous in design. First, it re-
quires that an alternative design existed when the ma nu-
facturer relinquished control of the product and that the
alternative had the capacity to prevent the plaintiffs dam-
ages.' "1
" Additionally. it requires that "[Ole likelihood
that the product's design would cause the claimant's dam-
age and the gravity of that damage outweighed the
burden on the manufacturer of adopting such alternative
design and the adverse effect, if any, of such alternative
design on the utility of the product."
1
":
1:T116. La.R.S. 9:2801).56(1).
IN I 7. La.R.S. 0:2800.56(2).
Furthermore, once these requirements are met, the
manufacturer can still absolve itself of liability by show -
ing that "it did not know and, in light of then -existing
reasonably available scientific and technological knowl -
edge, could not have known," either, of the dangerous
characteristic or of the alternative design.' Alterna-
tively, it can show that "in light of then-existin4 reasonably
available scientific and technological knowledge." the
2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Pa ge 13
896 So.2d 164, 2004-325 (La.App. 3 Cir. 12'29/04)
alternative design was not feasible or economically prac -
tical.
17
N118. La.R.S. 9:2800.59(A)( ) & (A)(2).
l'N19. La.R.S. 9;2800._`•9(A)(3).
The Defendants presented evidence that the ladder's
design was not unreasonably dangerous. Specifically,
Sponco's President testified that three manufacturers es-
sentially dominated the manufacture of *174 these ladders
and that all had substantially the same design which had
not changed in the last 20 years. The **7 Plaintiffs coun-
tered with three alternative designs, allegedly capable of
preventing Melvin's accident.
Mr. Stephen Killingsworth. Plaintiffs' expert witness in
mechanical engineering and accident reconstruction, first,
proposed a design which included an electric brake. While
he admitted that he developed this alternative design only
a couple of weeks before trial, he asserted that similar
devices, such as cranes, employed an electric brake at the
time of the SL-55 ladder's manufacture. Consequently, he
urges that his design simply applies me chanical
engineering principles that did exist at that time.
LA The Defendants refute his contention that his al-
ternative design existed at the time of manufacture,
urging that the LPLA requires that the design exist for the
particular product in question: its existence for similar
products is insufficient. Furthermore, they point out that
even accepting the trial court's characterization that his
design is not new but, rather, "an adaptation of an
existing mode of addressing good mechanical forces that
was in existence at the time of 1991," cranes are
sufficiently distinguishable from aerial ladders because
cranes lift or transport cargo rather than people. Mr.
Killingsworth testified that some cranes have a basket that
can be put on them for people to use. However, he did not
deny that cranes primarily carry cargo while aerial ladders
primarily carry people. This is a crucial factor, absent in
the design of cranes, that manufacturers must consider
when designing aerial ladders. Not only does it
demonstrate the flaws in Mr. Killingsworth's argument that
his design for this particular ladder existed at the time of
manufacture, it is also of dire importance in the risk/utility
analysis, as we detail below.
Risk-Utilitl• ,4nult•sis
Mr. Killingsworth testified that the coast and drift on
the SL-55 made it unreasonably dangerous and that the
proposed brake would allow the operator to stop the lad-
der immediately. eliminating any coast or drift. He de-
scribed "coast" as "when you turn the power off it takes
time for this electric motor to wind down, which means
when I flip the switch on it and I swing [horizontally] this
ladder over I can't stop that ladder immediately. It is go-
ing to coast, coast to a stop." and "drift" as "the play that
we've got in it [the gearing] so that when this unit is fi-
nally **8 stopped, in other words, it is coasting and it
stops, when I have a mass on the end of it. that ladder
can still drift over and move because the mass on the end
of it is still moving." The Defendants' experts gave similar
descriptions of coast and drift, although they explained
that both occur simultaneously rather than consecutively
as Mr. Killingsworth intimated. Mr. Killingsworth alleges
that an electric brake would prevent coast and drill and.
instead, would produce an instantaneous stop.
The Defendants had a burden of proving that his de-
sign did not pass the risk-utility test: namely, that its ad-
verse effects outweighed the likelihood that the product's
actual design, which allowed coasting and drifting, would
have caused Melvin's electrocution: in other words.
that the risk, which an electric brake would create for aerial
ladder operators. far outweighed the risk that coasting or
drifting of the ladder creates.
FN20. La.R.S. 92800.56(2).
Both Mr. Faddis, a mechanical engineering expert.
and Mr. Sader testified that, by *175 design, the ladder
nts/ have coast and drift. Mr. Sader said that "the stopping
of a unit has to be cushioned in some fashion." Oth-
erwise. "the operator out there would probably be
whipped around pretty severely." Mr. Faddis stated, Illy
design, anything that you start and stop, you have to
build in some kind of coasting by design .... it just simply
makes sure that there are not any violent motions put on
an operator that is out at the end of the thing." Further-
more. Mr. Killingsworth admitted that an immediate stop
could make the bucket swing over.
Thus, by Mr. Killingsworth's own admission, the
likelihood that "coasting and drifting" would create an
inability to avoid dangers, such as power lines, does not
outweigh the adverse effect of his design, which would
place the operator in danger in every instance he operated
the ladder, as opposed to the current design, placing the
operator in danger only when its operation is coupled with
being close to some external dangerous condition.
C.) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Pa ge 14
896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
Accordingly, the Defendants presented sufficient
evidence to prove that the Plaintiff's would not have pre-
vailed against Sponco on this particular issue.
Mr. Killingsworth proposed a second alternative de sign
using proximity warning devices. Electrical f ields trigger
alarms on such devices, and they existed at the time of
the ladder's manufacture. In fact, Sponco informed
purchasers of their existence and availability and left the
decision up to them. However, both, **9 Mr. Sader and
Dr. John Darrell Morgan. an expert in electrical engineer-
ing and accident reconstruction within the electrical engi-
neering field, testified that these devices were unreliable.
Moreover, Dr. Morgan testified that because the devices
operate by using magnetic fields, any interference within
the magnetic field may distort the device's ability to detect
the danger at the appropriate proximity. Additionally, he
testified that there are many factors which can interfere
with the magnetic field. Thus, such devices actually pro-
vided an added danger by creating a false sense of secu-
rity for the operator.
Accordingly, the Defendants proved that the absence
of proximity warning devices did not constitute a design
defect.
Finally, the Plaintiffs presented an alternative design
which insulated the ladder's bucket with fiberglass. This
design existed at the time of the ladder's manufacture. In
fact, Sponco manufactured another ladder at that lime
which incorporated the design. Sponco's 111 (insulated
hydraulic) series of ladders had insulated buckets. This
proves that such a design was feasible and that Sponco
knew of it. Furthermore, testimony revealed that this de-
sign had the capacity to prevent Melvin's accident. Spe-
cifically. Mr. Brooks testified that if the bucket were insu-
lated, Melvin would have suffered only a light shock, even
if his body made contact with the power lines. Fur-
thermore, the Defendants presented no evidence of ad-
verse effects of insulation on the ladder's utility nor did
they provide evidence of any burden, other than higher
costs, that Sponco would have incurred by incorporating
the design.
Accordingly, the jury could have found that the De -
fenda nts failed to carry their burde n of proving that the
Plaintiffs would not have recovered a gainst Sponco on
this design defect claim.
Dangerous in Construction or Composition
"illf, at the time the product left its manufacturer's
control, the product deviated in a material way from the
manufacturer's specifications or performance standards
for the product or from otherwise identical products
manufactured by the *176 same manufacturer." it is un-
reasonably dangerous in construction or composition.'
ItN2 I. 'ALIO>. 9:2800.55.
**10 Plaintiffs offered the testimony of Mr. Hayes,
who stated when watching Melvin work on the signs prior
to the accident, he observed the ladder coast to be three
to four feet. Further, Mr. Kent Langley. a Signko
employee, who retrieved the ladder from the accident site,
testified that he tested it and found it to be working
properly. However, he also said that while the normal
coast and drift of the ladder was one to two feet. it could
he up to four feet. depending on how far the ladder was
extended. The Plaintiffs elicited testimony from Mr. Sader.
agreeing that four feet of coast would be excessive. even
though Sponco has no standards delineating the amount
of coast considered acceptable.
Nonetheless, the detect in construction or composi tion
must have existed at the time the ladder left Sponco's
control. Mr. Kent Johnson stated that he had done all the
maintenance on this particular ladder when Kojis 8,1. Sons
owned it. He serviced and inspected it on a weekly basis.
When Signko bought it. he instructed Kent Langley re-
garding general maintenance.
Thus, there is no evidence of a defect in construction or
composition at the time Sponco relinquished custody of the
ladder.
However. Mr. Killingsworth testified the ladder had the
capacity to coast and drift this far when it left the
manufacturer because of its design and that the arrange-
ment of the gear box allowed it to loosen progressively
with each use, which, in turn, created more and more drift.
He presented a couple of ways to decrease the drift but
not the coast. In order to eliminate both coast and drift, he
offered the alternative design of an electric brake. which
we have already determined to be an unacceptable
alternative design.
Accordingly, we have found one theory which pro vides
a reasonable basis for the jury's determination that the
ladder had an unreasonably danuerous characteristic:
namely, that the ladder was unreasonably dangerous in
design because it was not insulated.

Pa ge 15
896 So.2d 164,2004-325 (La.App. 3 Cir. 12/29/04)
We turn to the second prong of the analysis, proximate
cause.
Proximate Cause
Mr. Brooks testified that if the bucket were insulated.
Melvin would have suffered only a light shock. even if his
body made contact with the power lines. **11 Accord-
ingly, but for the failure to insulate the bucket, Melvin
would not have been electrocuted.
Intended Use
The last prong of the analysis is that the damages must
arise while employing the product in a reasonably
anticipated use. Mr. Johnson testified that these types of
aerial ladders dominate the sign industry. While Mr. Sader
maintained that their use was broader, he acknowledged
that they were commonly used in the sign industry.
Additionally, there was no evidence that Melvin was op-
erating the ladder in an inappropriate manner.
Thus, we have identified a theory which provided the
jury with a reasonable basis for finding liability on
Sponco's part.
MELVIN GUIDRY'S FAULT
Mr. Calvin Peco. who had stopped at Lucky's because
his car was overheating, was the only person to see
Melvin make contact with the power lines. Mr. Peco
pulled his car into the parking lot to allow it to cool
down and watched Melvin as he worked on the sign.
Melvin brought the ladder down and both went into the
store to purchase a drink and made small talk *177 on
their way out. Mr. Peco returned to his vehicle. Melvin
returned to working on the signs. Mr. Peco testified that
he looked up just in time to see Melvin contact the
power lines, electrocuting him and throwing him to the
ground just behind Mr. Peco's car.
Mr. Peco stated that the power lines struck Melvin
around his right shoulder and neck area. The expert phy-
sicians testified that it was impossible to conclusively
determine Melvin's entry and exit wounds. In other words,
they could not determine which part of his body first made
contact with the lines. Thus. we do not have any evidence
as to which way Melvin was looking when he struck the
power lines.
However, Mr. Peco testified that Melvin was not
wearing any kind of body harness or safety belt. Further -
more. the Occupational Safety and Hazards Administra -
tion (OSHA) mandates that persons, unless specially li -
censed to work on power lines, maintain a ten foot dis -
tance from power lines. Both Plaintiffs' and Defendants'
experts confirmed that if Melvin had observed OSIIA's
safety rule. **12 the accident would not have occurred.
Melvin also had the responsibility of surveying the site
before beginning the work to determine any potential
hazards and to call Entergy to shield the lines.
LUCKY LONGHORN'S LIABILITY
The Defendants assert that the jury erred in finding
Lucky liable for Melvin's death. As we explained above.
they had the burden of proving that the Plaintiffs could
not have prevailed against Lucky.
1110] In Louisiana. we employ a duty-risk analysis
to determine whether a party is liable for its negligence
given the particular facts of the case. The analysis
consists of four elements: namely, whether the defendant
owed the plaintiff a duty of care; and if so, whether that duty
encompassed the particular risk of harm the plaintiff suffered;
whether the defendant breached that duty: and if so, whether
the breach was a cause-in-fact of the plaintiffs injuries.'
FN22. :Vanning r, 0(70 ,Stores,Q9-117()
.a. 12 '10 091 753 So.2d 163.
I- Cormier v. .•I//yar. 94-12.06 0.,1. App. .
Cir. 2-2:001, 758 So.2(1250.
Dilly
1711..sj "Generally. the owner or operator of a facility.
has the duty of exercising reasonable care for the safety of
persons on his premises and the duty of not exposing such
persons to unreasonable risks of injury or harm.' In
the instant case, Lucky owned the property, including the
signs, and its operator, Mr. Hayes. requested that Melvin do
additional work once he arrived on Lucky's premises. Lucky
and Mr. Hayes had a duty of not exposing Melvin to
unreasonable risks of harm.
FN24. itanniqu 753 So.2d at 165.
Breach
[9J The jury could have reasonably found that the
placement of the signs in such close proximity to the
power lines constituted a breach of that duty. However,
the Defendant attorneys introduced evidence that Lucky
C. 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)
complied with OSHA's regulations. placing the billboards a
sufficient distance away from the power lines. **13 Mr.
Frederick Brooks, Defendants' expert in electrical engi-
neering, as well as in the National Electric Safety Code and
OSHA regulations, testified that OSHA regulations at the
time of the accident required a horizontal distance of 7 1/2
feet *178 from power lines, and Lucky's closest sign
provided an 8 1/2 feet clearance. Further, OSHA required a
diagonal clearance of 8 foot, and the diagonal distance of
Lucky's closest sign was 9.24 feet.
While Lucky placed the signs themselves a sufficient
distance from the power lines under OSHA, the jury could
have found the proximity of the signs to the power lines
created an unreasonable risk of harm. Specifically, OSHA
also requires persons to maintain a ten-foot clearance
from overhead power lines. Even though Lucky positioned
the signs within acceptable horizontal and diagonal
distances under OSHA's rules. their proximity to the power
lines made it impossible to work on one of the signs
without violating OSHA's ten-foot rule. Thus, once Lucky
asked Melvin to work on the signs, it created an
unreasonable danger for him, because he could not work
on all of them without violating OSHA's rule.
Scope (#. Duo'
L10] We must now address whether the risk of
Melvin's injuries were within the contemplation of
Lucky's duty. "ITThe scope of the duty inquiry is ulti-
mately a question of policy as to whether the particular
risk falls within the scope of the duty.-
We must ex-
amine how easily we can associate his injuries with Lucky's
conduct. '‘
FN25. Roberts v. Benoit 605 So.2d 1032. 1044
0.a.199L).
l' N26, Id.
Mr. Brooks admitted that the signs' placement made it
impossible for an individual to work on the west side of
one of the signs without violating OSHA's ten-foot rule.
Moreover, Lucky knew or should have known of the close
proximity because the power lines were already in position
when Lucky installed the signs. Furthermore, because
Lucky was aware that these signs would require periodic
maintenance, it should have foreseen the risk created by
placing the signs in such close proximity to the power
lines. Accordingly. Lucky's duty encompassed the **14
particular risk that someone performing maintenance work
on the signs could come into contact with the power
lines.
Causation
And finally, the jury could have found that, but for
the sign's proximity to the power lines, Melvin would
have avoided electrocution. Additionally, but for Mr.
Hayes' request that he perform this additional work, after
he arrived on the premises to work on another sign, he
would not have been working on this particular pole. And,
while testimony did not prove that Melvin was working on
the particular sign that necessitated an OSHA violation,
three signs. including that one, were located on the same
pole, and Mr. Hayes had asked Melvin to work on any or
all of the three that needed attention.
Thus, the jury could have reasonably found that the
Defendants failed to meet their burden of producing evidence
sufficient to prove that the Plaintiffs could not have prevailed
against Lucky.
S1CNKO'S FAULT
Because the trial court reallocated all of the fault that
the _jury assigned Signko, we review whether the jury
could have reasonably determined that it was at fault.
Determining its fault, also, requires a review of the duty-
risk analysis.
Duit.
Louisiana Workers' Compensation Law requires
employers to do everything reasonably necessary to protect
the life:_ health, safety, and welfare of its employ-
ees.*179 This includes providing proper safety de-
vices and safeguards to render the employment safe, con-
sidering the normal hazards of such employment.' "
La.R,S. 21:13.
FN28„ hl.
Scope
2.1 "15 Mr. Kojis' own testimony revealed that
Signko knew power lines posed a normal hazard to its
employees. He testified that it was a frequent topic of
conversation among them. Thus, Signko's duty to Melvin
certainly encompassed the particular risk of injury by a
power line.
Breach
LIA While Mr. Kojis testified that Signko employed
a ten-foot rule for installations of new signs. he never
C) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
explicitly addressed maintenance of existing signs. Fur-
thermore, he did not describe the ten-foot requirement as
a safety rule; rather, he said Entergy would require them
to relocate the signs if they did not abide by the rule. He
did not even know that OSHA had a ten-foot rule but
thought OSHA required only a seven foot clearance. And
despite Signko's duty to provide proper safeguards to en-
sure that Melvin's work environment would be safe, it
provided him with an uninsulated ladder, even though
insulated ones were available. Thus, the jury could have
reasonably found that Signko breached its duty to Melvin
by' failing to provide him with an insulated ladder, as well
as by its failure to know and, therefore, stress the impor-
tance of safety rules.
Causation
Certainly, Melvin's accident would not have Ilap-
pened but for Signko's failure to provide him with an in-
sulated ladder, as well as Melvin's failure to place proper
significance on adherence to OSHA's safety rules.
CAUS A TI ON -S UBS T AN TI AL FAC TO R TE S T
1I4] Cause-in-fact is one of the essential elements of
the Plaintiffs' claim.'" It is usually determined by using a
"but for" test. In other words. if the plaintiff would not
have been injured "but for" the defendant's conduct. the
cause-in-fact component is met.'
EN29. Perkins v. buer,,
v 00-!372
(La.3/23/0 782 So.2d 606.
FN30. BnyAin r. Louisiana Transit Co.. 96-1932
( ,a.3/4 981,707 So.1
d 1'1
5.
[15] In the above analyses, we have reviewed the
"but-for" causation of the cause-in-fact inquiries. How-
ever, when there is more than one action that. **16 alleg-
edly, precipitated an accident, our courts have fashioned a
method that is more effective tha n the "but for" test in
establishing cause-in-fact. l
" This method is often referred
to as the "substantial factor test."
EN31. Perkins. 782 So.2d 606.
I d .
1_16j We find a reasonable basis for the jury's deter-
minations that Lucky's actions, Melvin's actions, Signko's
actions, and Sponco's failure to incorporate an insulated
bucket into the ladder's design were all substantial factors
in Melvin's accident. Specifically, Lucky placed the signs in
a dangerously close proximity to the power lines: Lucky's
operator asked Melvin to work on those particular signs
after he arrived on site: Melvin violated OSHA's ten-foot
rule and failed to use a safety harness or seat belt. or
request that Entergy shield the lines to make them safe:
OSHA held Signko responsible for Melvin's*180 OSHA
violation, and Signko provided Melvin with an uninsu-lated
ladder to perform his job, despite the availability of
insulated ones: and, finally, Sponco manufactured an un-
insulated ladder even though. as its president admitted.
aerial ladders dominate the sign industry, and are. there-
fore, likely to be operated at heights equivalent to power
lines.
FAULT ALLOCATION
[1 7][18_09j Allocating fault requires factual deter-
minations. "As with other factual determinations. the trier
of fact is vested with much discretion in its allocation of
fault. Therefore, an appellate court should only disturb the
trier of faces allocation of fault when it is clearly wrong
or manifestly erroneous." In testing the jury's alloca-
tion for manifest error, we look to the same factors that
guided its determination. Our supreme court enumerated
these factors in Watson v. State Farm Fire and Casualty
Insurance Company: I
I N Duncan v. Kansas City S. RI.. Co., 00-66,
pp. 10-11 (1.a.10.30:00), 773 Soy 1/d WO. 680 (ci-
tations omitted).
N34.469 So.2d 967,974 L....)_ 1985J,.
( I ) whether the conduct resulted from inadvertence or
involved an awareness of the danger,
**17 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 which might require
the actor to proceed in haste. without proper thought.
And, of course, as evidenced by concepts such as last
clear chance, the relationship between the
fault/negligent conduct and the harm to the plaintiff are
considerations in determining the relative fault of the
parties.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
1_20j, The jury assessed the majority of the fault to
Melvin and his employer. Signko. It allocated twenty per-
cent to Lucky and a mere five percent to Sponco. Melvin
was a very experienced sign worker. In fact, Mr. Kojis
testified that he was one of the most experienced at
Signko. Melvin had ample experience with this particular
ladder. In his deposition, Mr. Hayes admitted that Melvin
mentioned to him that he was going to have to be careful
of those power lines. Thus, Melvin demonstrated an
awareness of the danger. The risk created by violating the
10-foot rule was grave, and, in fact, proved to be fatal.
Mr. Langley testified that Melvin knew of the ten-foot rule
and that he also knew that he had the option of calling
Entergy to come shield the lines. In fact. Mr. 13rooks said
that OSHA required him to contact Entergy. Additionally,
Melvin was in a superior position to the other parties in his
ability to avoid the accident and certainly only, he. had the
last clear chance to avoid electrocution.
Further. OSHA held Signko responsible for Melvin's
violation. Moreover. Mr. Brooks confirmed that "the re-
sponsibility for OSHA Regulations or workplace safety
regulations lie with the employer, the person that is sending
people out on the job, and also the employees, both.-Again,
Signko was aware of the danger power lines presented to
the employees, yet it was uncertain of the clearance
distance that OSHA required. It also ascribed its internal
ten-foot installation rule to efficiency. more so than safety;
Mr. Kojis stated that Entergy would require them to relocate
the signs if they did not abide by the rule. And Signko
provided Melvin *181 with an uninsulated ladder even
though insulated ones were available.
The jury assessed Sponco with only five percent of
the fault for Melvin's accident. Sponco manufactured both
insulated and uninsulated ladders since around 1980. Mr.
Sader testified that while the SL-55 ladders were used in
the **18 sign industry, their potential uses were much
broader. The jury could have found that Sponco's cus-
tomer is in the best position to know its own needs be-
cause only the customer knows the environment and cir-
cumstances under which it intends to operate the equip-
ment. Accordingly, the customer is in the best position to
know how often external dangers. such as power lines, will
pose a threat. And, again, in the instant case, Mr. Kojis'
testimony that it was a frequent topic of conversation
demonstrates Signko's awareness that power lines
presented a significant risk to its employees, given the
type of work Signko does. Thus, the jury could have found
that Signko was in a superior position to know the
type of equipment Melvin needed to do his job safely and,
therefore, should bear the majority of the responsibility
for the fact that Melvin's ladder was uninsulated. Ulti-
mately, Signko had the responsibility to provide Melvin
with the proper equipment. Further, Sponco provided
manuals and decals on the ladder which warned that it
was not to be used within ten feet of energized power
lines.
And, finally, the jury assessed twenty percent of the
fault to Lucky. We find no manifest error in this determi-
nation. Lucky placed the signs in a proximity to the power
lines that required Melvin to violate OSHA's ten-foot rule
in order to work on them. Mr. Hayes asked Melvin to work
on these particular signs after he arrived at the site to
work on a different area. Furthermore. Mr. Haves'
deposition testimony revealed that Melvin had brought Mr.
Hayes' attention to the fact that the power lines were
close to the signs.
Accordingly, we find no manifest error in the jury's
fault allocation.
JUDGMEN T N OTWITHS TAN DIN G THE VER-
DICT
[21.11271[2:1..1 When the jury is the factfinder, the
standard for overturning its verdict is a rigorous one. A
Judgment Notwithstanding the Verdict (JNOV) is warranted,
only, when the facts and inferences point so strongly and
overwhelmingly in favor of one party that the trial court
believes that reasonable persons could not arrive at a con-
trary verdict. The trial court may not grant a JNOV if there
is contradictory evidence which is of such quality and
weight that reasonable and fair-minded persons in the
exercise of impartial judgment might reach different con-
clusions. The trial court should not evaluate witnesses'
credibility in deciding whether to **19 grant a JNOV. and it
must resolve all inferences or factual questions in lavor of
the non-moving party.'
FN35 I aSalle Wirt-I/art Stows, /ih • • 0 I -46 /
(IA.11.28'01)x 801 So.2d 33
[2_d_112.5j We review the trial court's grant ofJNOV
by using the same criterion that governs its decision. If
reasonable persons might have reached the same verdict
as the jury, we should reinstate its verdict.'
FN36 Id.
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896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
Because we have already determined that the record
reasonably supports the jury's determination, we vacate
the trial court's JNOV and reinstate the jury's verdict.
*182 ADMI SSI BILI TY OF E XPE RT TE STI M ONY
Louisiana Code or kk idencc Art 70:! provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge. skill, experience, training. or
education. may testify thereto in the form of an opinion
or otherwise.
In Dauhert v. Merrell Dow Pharmaceuticals, Inc
the United States Supreme Court held that trial courts
must act as gatekeepers by determining that expert testi -
mony is not only relevant but, also, reliable before admit-
ting it. Louisiana adopted this holding in State v. Forel.
Dauhert suggested several factors to aid the court in
determining whether expert testimony is reliable, including
whether the expert's theory is testable, has been peer
reviewed or a subject of publication, its known or potential
rate of error, and its degree of acceptance within the
scientific community.',

FN37 509 U.S. 579. 113 S.Ct. 2786. 125 L.Ed.2d
469 1l 993).
FN38 628 So.2d 1116 (.1..a.1993).
1:1‘139. Daubert, 509 U.S. 579, 113 S.Ct. 2786
Stephen Killingsworth
1.2.6] **20 The Defendants objected to the admission
of Mr. Killingsworth's testimony regarding his alternative
design to include an electric brake on the ladder. They
argued that this testimony did not meet the Datthert/Foret
tests. However, both Foret, as well as the United States
Supreme Court's opinion in Kumho Tire Co. v. Carmi-
chael,' reinforced that a court may use the suggested
factors if it will aid in the reliability determination, but the
reliability test is a flexible one. We find no abuse of dis-
cretion in the trial court's decision to admit this testimony.
11‘140. 526 U.S. 137, 119 S.C.1. 1167, 143 2_38
(1999J.
Mr. Killingsworth provided instructive and informative
testimony to help the jury understand the aerial lad
der's components and mechanical functions. His proposed
design had already been incorporated into similar
devices: namely, cranes. He explained that because of the
similarity in the components and mechanics of the two
devices. the brake's incorporation into cranes
demonstrated the feasibility of its incorporation into
aerial ladders. Even the Defendant's expert admitted that
adding a brake was a feasible design. Ultimately, the
Defendants proved that the primary purpose of each
device, one to carry humans and the other to carry cargo.
was a critical factor that caused the adverse effects of
such a design in the aerial ladder to outweigh its utility.
However, this factual inquiry was properly submitted to
the jury. The trial court did not abuse its discretion by
admitting Mr. Kill-ingsworth's testimony.
James Sohek
L771 The trial court qualified Plaintiffs' witness, Mr.
James Sobek, as an expert physicist and professional en-
gineer with a specialty in human vision. Mr. Sobek ex-
plained that a person viewing horizontal power lines
against a clear sky cannot accurately perceive his distance
from them because of a principle called stereopsis. lie
offered an article that had been published on the subject.
"Problems and Perception of Overhead Power Lines.-
showing that the theory had been tested and discussed the
known potential rate of errors. Thus, the trial court did not
abuse its discretion in finding Mr. Sobek's testimony reli-
able.
*183 Defendants further argue that Mr. Sobek's tes-
timony is irrelevant because it assumes that Melvin was
looking toward the power lines just before he struck them.
and they point out that no witness testified that he was
actually looking in **21 this direction. Nonetheless, the
expert testimony shed light on a factual issue and was
properly presented to the jury.
Accordingly, we find no merit to Defendants' argu-
ments. The trial court did not abuse its discretion in ad -
mitting Mr. Sobek's testimony.
E XPE RT W I TNE SS FE E S
P812911: 301 The trial court has broad discretion to
award and assess costs, and we will not disturb its ruling
absent an abuse of discretion. H
The degree to which
the expert's opinion aided the court in its decision is one of the
factors to consider when assessing costs of an expert witness'
fee.'"' The Defendants urge that they.
should not have to pay
Killingsworth's and Sobek's fees because their testimony should
have been inadmissible.
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896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
As we have already determined that the trial court prop-
erly admitted their testimony. we find no error in its as-
sessing their respective fees to the Defendants.
U1N41, Id.
FN42 Trans Louisiana Gas Co. v. Heard, 629
So.2d 50011a. App. 3 Cir.-
199;D.
MEDICAL AND FUNERAL EXPENSES
The Defendants argue that the trial court erroneously
awarded the Plaintiffs $25,250.00, which Signko's work-
ers' compensation carrier had already paid. Specifically. it
paid $16,250.00 in medical expenses and $9,000.00 in
funeral expenses.
[3 I] However, the collateral source rule does not al-
low the two Defendants to benefit from the workers' com-
pensation carrier's payments. If a plaintiff receives benefits
from a source independent of the tortfeasor, the bene-
fits inure to the plaintiff, not to the tortfeasor.' In other
words, if the independent source, here, the workers' com-
pensation carrier, does not intervene to recoup the bene-
fits it already paid, the plaintiff may recover the amount of
the benefits from the tortfeasor.
FN43 To 1: Premier' Ins. Co. o j Alassaelni-
setts, 98-1934 (La.App. 3 Cir. 6.30:991 742
5Pac1.
[32] The Defendants argue that the collateral source
rule does not apply in the instant case because they are
not the tortfeasors in the underlying suit. Nonetheless.
Lucky and Sponco, the two liable parties in the underlying
suit, could **22 not have benefitted from the workers'
compensation carrier's payments. Accordingly, the De-
fendants cannot claim the benefit either.
The Defendants argue that Gagnard v. Baldridge''`
t
stands for the proposition that the plaintiffs may not get a
double recovery in cases such as the instant one. However.
Gagnard is inapplicable. In that case, the plaintiff brought
actions against the employer, both, in workers'
compensation and in tort. The court stated that "[a]
wrongdoer should not be required to pay twice for the
same elements of damages." ' In the instant case, neither
the Defendant attorney wrongdoers nor Lucky or Sponco,
the wrongdoers in the underlying action, is being required
to pay twice for the same element of damages. Rather, the
collateral source rule is applicable. *184 Thus,
we find no error in the trial court's ruling.
FN 44. 612 Sod 732 (1..a.1993).
ist..gt....7.3b (emphasis added).
RANDI GUIDRY
The Defendants appeal the trial court's finding that
Randi Guidry is a proper party to recover wrongful death
and survival damages. Louisiana Lode ;Article 2-,
delineates the classes of persons who may recover for
these damages. The first is "[title surviving spouse and
child or children of the deceased, or either the spouse or
the child or children." Before trial, the parties stipu-
lated that Randi was Melvin's daughter. The Defendants
apparently made this stipulation based on Julie's deposi-
tion testimony. However, at trial, testimony revealed that
she was not Melvin's biological daughter, notwithstanding
his signature on her birth certificate as well as his execu-
tion of an Act of Acknowledgment of Paternity. The De-
fendants argue that because no formal adoption took
place, Randi cannot recover as Melvin's daughter.
I N40. La.(:iv.Code art. 2315.1; I .a.t.'iv.(2 ode
art '3 I S.Z.
The trial court found that Randi could recover:
The Rousseve court explained that the acknowledg-
ment---when the acknowledged fact is ultimately un-
true, the acknowledgment---and the Court is impressed
with the word "may be null" absent some overriding
concern of public policy, indicating to this Court that
**23 it is not necessarily an absolute nullity but must he
reviewed under the circumstances surrounding the spe-
cific case that is before it.
In tehrr. R,
A.Tiwn 467,
t' S. 24.N. .103 t.
77 ..1-;(1.2d 614 the U.S. Supreme Court observed that
intangible fibers that connect parent and child have in-
finite variety, and are woven throughout the fabric of our
society providing it with strength, beauty. and flexibility.
The rights of parents have long been recognized as a
counterpart of the responsibilities they have assumed.
Justice Stewart noted in his ascending [sic] opinion in
Cohan v. Vohuniniej. 441 U.S. 380. 00 S.(21, 1760, 60
1.1.-:(1.2d 207 that parental rights do not spring full
blown from biological connection between parent

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
and child. They require relationships more enduring.
Moreover, it is the actual relationship which demon-
strates a commitment to the responsibilities of parent-
hood, and has been the focal point in seeking to deter-
mine the rights and protections which should be af-
forded to natural fathers.
The court notes, and based on the evidence that was
heard at the jury trial, that there was no doubt that Mr.
Guidry spent significant time with Randi. treated her no
doubt as his daughter, raised her involved in extra-
curricular sports and activities.
[3.3j Nonetheless, the trial court did not have the
benefit of our supreme court's latest pronouncement on
this issue. In Turner v. Bushy.' a decision rendered
after the trial court's ruling, a divided supreme court held that
"an Article 203 formal acknowledgment absent a
biological relationship is a nullity." In this instance.
Melvin's acknowledgment by signing Randi's birth certificate
and his execution of an Act of Acknowledgment of Paternity
are both forms of an Article 203 formal acknowledgment.
Given Randi's and Julie's admissions that Melvin had no
biological relationship to Randi, we must *185 find that his
acknowledgment is a nullity. Accordingly, we are compelled
to reverse the trial court's ruling. Randi may not recover
wrongful death and survival damages for Melvin's death.
Thus, we reverse the $70,000.00 in damages awarded to
Randi Guidry.
1 N47. 03-3444 (I .a.9:9:20)4). 883 So.2d 412.
FN48. M. at 419.
Q U A N T U M OF D AM A GE S
**24 Loss of Support
[34j The jury awarded the Plaintiffs $350.000.00 for
Melvin's past wages and loss of earning capacity. Both
Plaintiffs and Defendants presented expert testimony re-
garding this element of damages. Plaintiffs' expert included
fringe benefits, as well as a significant salary increase,
which he based on Mr. Kojis' testimony that had Melvin
stayed with Signko. he would have received these benefits.
Defendants' expert used Melvin's past income tax returns
and did not include the added benefits because Melvin was
not receiving them at the time of his death.
He found it to be unlikely that Melvin would have worked
at Signko until retirement, given that Melvin had worked
for other sign companies in the past and the high turnover
rate in the business, generally.
(.351136,1 The jury did not award the exact figure
that either expert calculated. Nevertheless, it is permitted
to "substitute common sense and judgment for that of an
expert witness when such a substitution appears war -
ranted on the record as a whole." "Credibility deter-
minations are for the trier of fact, even as to the evaluation of
expert witness testimony. A fact-finder may accept or reject the
opinion expressed by an expert, in whole or
in part."' Thus, we find no error in the jury's determi-
nation.
1/N49. Green ( 03-2-195, p.
(J.a.5 25 04). 874 So.2d 838, 84.3.
1N50. ht at 843.
Pre-Death Pain and .Su//'ring,
[3713.8_1 The jury found the Plaintiffs were entitled
to $10,000.00 for Melvin's pre-death pain and suffering. It
has vast discretion in assessing damages. We may find that
it abused this discretion, only, if its award is so low in
proportion to the injury that it shocks our conscience.'
Indeed, we so find in the instant case. Mr. Hayes, who
came out of the store immediately after the accident. testi -
fied:
1. N51. Young.. /- ilzmuriek 03-1038 fl .a.App.
Cir. 2 4:041.,..865 So.2d 960.
A. When I come out I seen him laying on the ground.
There was a couple of people around him. I seen smoke
coming off his shirt, and I run over to see if I could help
in any way. There was another fellow there trying to do a
little CPR on him. He was making a lot of moaning
sounds, and they asked me to help hold him down and
not let him move. At that time they weren't sure, you
know, 1 **25 wasn't sure what had happened. The bas-
ket was still up in the air. So, I assumed he had had a
pretty good fall and that is the reason they wanted me to
hold him down, you know. So. two of us held him there
waiting for the ambulance to get there.
Q. You had to actually physically hold him down? A. Yes,
sir.

Pa ge 22
896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04)
Q. Did you take off his shirt?
A. No, not just myself. A few people that were there
just-it was smoldering, so we wanted it off of him.
Q. And when you took off his shirt you actually burned your
hands?
A. Yes, sir.
Accordingly. we vacate the trial court's JNOV, rein-
state the jury's verdict, amend its judgment to increase the
quantum of damages for pain and suffering and render.
We, also, reverse the trial court's $70,000.00 award to
Randi Guidry. We cast all costs of this appeal on the De-
fendants.
AFFIRMED IN PART AS AMENDED, RE-
VERSED IN PART, AND RENDERED.
*186 Q. And you said he was making noises. It ap-
peared that he was in pain?
A. Yes, sir.
Dr. Ledet testified that by the time Melvin
reached the emergency room, he had lost
consciousness. While we do not know the duration of
Melvin's consciousness, the above testimony reveals
that he did have awareness immediately following the
accident.
T h e P la i n t if f s c i te Strawder v . Zapata Haynie
Corp. in which the decedents drowned twenty to
thirty minutes after an explosion which caused severe
burning and blistering. This court upheld an award of
$500.000.00 for pre-death pain and suffering.
Additionally. in Cox r. Moore, this court upheld a
$150,000.00 award for pre-death pain and suffering
where the decedent died only a few minutes or almost
instantaneously after a car accident. While we found
the award to be on the high end of the spectrum, it
was not an abuse of discretion.
1'N52, 94-453 (1,a.App.. 3 Cir. 1E2'94). 649
So.2d 554.
Accordingly, we find $75,000.00 to be the lowest
reasonable amount for Melvin's pre-death pain and
suffering. Therefore, we increase the jury's
assessment to that amount.
Mental Anguiskfrom Malpractice
L39 **26 The jury awarded $30,000.00 for
mental anguish arising from the Defendants'
malpractice. Again, the jury has vast discretion in
assessing damages. We do not find that $30,000.00 is
abusively low. Thus. we affirm this quantum.
CONCLUSION

WOODARD, J.. concurring, in part.
Given the uncertainty of how our supreme court would view
the unusual circumstances in the instant case under the light
of its Turner v. Bushy `I opinion, I am constrained to vote with
the majority regarding Randi Guidry's legal status in her
family. Namely, Turner addressed the rights of acknowledged
illegitimate children, who are not biological children but did
not, specifically, address how legitimated children in the same
circumstances are to be treated. In fact, it intimated that
perhaps its conclusion, that acknowledged illegitimate children
could not recover wrongful death and survival damages under
La.R.S. 2315.1 and 2315.2, would be different for legitimated
children, as in Randi's situation.
EN I 03-34-W (1, a.9./9:2004 ), 883 So.2d -412.
Louisiana law classifies children as either legitimate.
illegitimate, or legitimated.' - Louisiana Civil Code provides
methods for, both, formally acknowledging illegiti mate
children and for legitimating illegitimate children. Formal
acknowledgment and legitimation are separate and
distinct acts with different effects and benefits flowing
from each. Most importantly, legitimated children enjoy
an added layer of protection from those who wish to
attack the parent/child relationship. Specifically, the Civil
Code explicitly permits. only. the father or if *187 he is
deceased, his heirs or legatees to seek to disavow a le-
gitimate child's paternity. Conversely, La.Civ.Code art.
207 provides that lelvery claim, set up by illegitimate children.
may be contested by those who have amv interest therein."
(Emphasis added).
1:N2. Id.
EN3. La.Civ.Code art. 187; La.Civ.t.'ode art,
190.
In Turner, La.Civ.Code art. 207 permitted the
defendants to attack McWright's claim because he was
a for-

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
(Cite as: 896 So.2d 164. 2004-325 (La.App. 3 Cir. 12/29/04))
mally acknowledged. illegitimate child. When he sought to
prove that he was a proper party to recover wrongful
death damages because the deceased had executed multi-
ple acknowledgments of paternity for child support pur-
poses, the defendants contested the existence of a
biological relationship and argued that the
acknowledgments were insufficient to elevate his status to
a "child" for wrongful death purposes. Ultimately, DNA
tests proved that no biological relationship, in fact,
existed, and the supreme court deemed the formal
acknowledgment to be a nullity because of this.
Before Turner, our jurisprudence, governing formal
acknowledgments, held that "[w]hen the acknowledged
fact is ultimately untrue, the acknowledgment may be null,
absent some overriding concern of public polk:v.-F4
This
permitted courts some discretion. However, essentially,
the supreme court's decision in Turner deletes the
italicized language of prior jurisprudence, finding that "an
Article 203 formal acknowledgment absent a biologi-
cal relationship is a nullity." (Emphasis added.)
FN4, /.?( TyAcyc v. ./rnicv. 97- I I 49. p
(La.12;2:97.), 704 So.2d 229. 233.
ENS. Turner. 883 So.2d 412.
Notwithstanding, the court highlighted the distinction
between a formally acknowledged illegitimate child and a
legitimated child. It concluded that the acknowledgment
of paternity, at issue, lacked a declaration of intent to
legitimate McWright, and In' Wilma this declaration. the
execution of the ... stipulation did not legitimize
McWright. Because McWright was not a legitimate child at
the time this wrongful death and survival action com-
menced, but rather a formally acknowledged illegaimated
child under Article 203, his claim as an illegitimate child
may be subject to scrutiny provided the defendants have
probed all other requirements of Article 207." (Em-
phasis added.)
FN6. Id. at 418.
This statement contemplates the possibility that. de-
spite the absence of a biological relationship between him
and the child, the deceased could have legitimated
McWright, thereby, permitting his recovery of wrongful
death benefits, if the deceased had declared his intention
to do so.
Indeed. if the supreme court intended this distinction.
it appears to contradict other portions of its Turner opin-
ion which emphasize that a biological relationship is nec-
essary for recovery. In support of its decision, the su-
preme court stressed that it is the biological relationship,
rather than the legal status, which is determinative of
whether a person is entitled to recover these damages. It
specifically stated, "it is imperative that we uphold the
critical requirement that the tort victim and the child have
a biological relationship." Consequently, the opinion gives
us conflicting guidance in resolving Randi's right to
recover, particularly, when meshed with legislative dic-
tates.
For example. the Turner opinion's prohibition on a
child's recovery, based on no biological relationship, is
inconsistent with our Civil Code which does not create
classifications*188 of biological versus non-biological
children but rather, only, legitimate versus illegitimate
children. The Code clearly contemplates the possibility.
that a child could prove legitimate filiation and receive the
attendant benefits of this classification without having a
biological relationship.
1.oti-,
;iatla Civil Code art',. 193 through .107 provide that
a party can prove legitimation through, inter cilia, "a
transcript from the register of birth or baptism" or by
reputation. Article 195 states. in pertinent part:
The being considered in this capacity is proved by a
sufficient collection of facts demonstrating the connec-
tion of filiation and paternity which exists between an
individual and the family to which he belongs.
The most material of these facts are:
That such individual has always been called by the
surname of the father from whom he pretends to be
born•
(Emphasis added.) This language implicitly recognizes
that legitimated children are not necessarily biological
children. Moreover, none of the methods of legitimating a
child require proof of a biological relationship.
The method Melvin chose to legitimate Randi is that
provided in I .a.Civ.Code art. 19S:
Illegitimate children are legitimated by the subsequent
marriage of their father and mother, whenever the
C_D' 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04)
latter have formally or informally acknowledged them
as their children, either before or after the marriage.
Melvin had elevated Randi's status to that of a "le-
gitimated child" under all of the relevant codal provisions.
By the time of the wrongful death suit, not only had he
formally acknowledged her as his daughter through an Act
of Acknowledgment of Paternity but, also, he had signed
her birth certificate as her father and, subsequently.
married her mother. Furthermore, she was his daughter
by reputation. All of these affirmative acts. evidencing his
intent, should provide her with an added layer of protec-
tion against attacks from third-party defendants,
regarding her familial status.
Nevertheless, the dilemma for Randi is two-fold: She
is not Melvin's biological child and the method Melvin
chose to legitimate her is premised, in part, on an ac-
knowledgment which, alone, the supreme court considers
null absent a biological relationship. The unanswered
question is whether this nullity can be cured and. if so.
whether Melvin cured it by taking the next step of legiti-
mating Randi.
Furthermore, there is an issue of whether the third-
party Defendants, even, have standing to contest Randi's
claim, given l.a.Civ.Cotle art,
;. 187 and 190. Essentially,
these articles imbue, only, the "father" or his heirs with
standing to strip a "child" of his or her legitimate status,
which, in essence, is the foundation of these third-party
defendants' claims in the instant case.
Given the apparent legislative intent, as well as
Melvin's, it certainly does not seem appropriate or prudent
for TUI'llerti umbrella to be held over Randi's head, deny-
ing her benefits for the loss of the man she knew to be and
treated as her father.
La.App. 3 Cir.,2004.
Guidry v. Coregis Ins. Co.
896 So.2d 164, 2004-325 (La.App. 3 Cir. 12/29/04'1
END OF DOCUM ENT
0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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further other than to say that he will be
able to testify as an accident reconstruction
expert with regard to safety analysis. He
will be able to testify as to electrical injuries
as it applies to safety analysis. He will be
able to testify as to aerial
ladders as to safety analysis for which The
Court is satisfied as to his training and
expertise in those matters. But rather than
qualify him in each of the categories as
tendered from the plaintiff, it feels that the
area that may be included as part of that
testimony will be within the areas that The
Court has delineated.
I want to make certain that I have
indicated that he will be able to testify at
this point so that we do not have objections
throughout his testimony by the defendants,
and if the defendants objections to anything
above and beyond the safety engineer, for
which The Court has previously accepted,
objections are noted.
MR. MARCEAUX:
Thank you, Your Honor.
(Break in proceedings)
(Jury returns to courtroom)
THE COURT:
All right, Ladies and Gentlemen, at this
time we are ready to proceed. Al this time
The Court would accept and recognize Mr.
Lewis Barbe as an expert in the field of
safety engineering, and also as an expert in
3 4
CYNDIE MCMANUS, CCR OFFICIAL COURT REPORTER
P.O. BOX 3210, LAKE CHARLES, LA. 70602
OFFICE (337)437-3530 - HOME 855-0344

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would be accepted as an expert in the field of accident
reconstruction until such time as
that information was to be submitted.
Now, he's before The court and offered in
various positions as an expert for which the
defendants have indicated their objections. The
Court has previously reviewed and for the reasons
stated, and if I am incorrect on the date, it was the-
-- I'm not sure. I think it was October the 10th, but
it was the hearing that was had at that time, The
Court gave the rationale the basis for Daubert, the
application of State v. Foret of Daubert to the
State of Louisiana and the basis for expert
evaluation. The Court also relied upon the case of
Mistich vs. Volkswagon of Germany, Inc. 86 So.
2d 1073, indicating that experience alone can be
sufficient to qualify as an expert.
At this time, based on the information received
and what we may be doing in part and parcel is
arguing semantics of which The Court feels that the
use of the word "design" may be inappropriate since
Mr. Barbe insists on the word "analysis." The Court
is going to continue to accept him in the field as an
expert in safety engineering. The Court is also
satisfied that he is an expert in safety analysis
based on his past history,
education, training, as well as experience. As a
result of being an expert in safety analysis, The
Court is not going to go any
3 3
OFFICE (337)437-3530 - HOME 855-0344

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previous cases in safety engineering of cranes.
That is what he's here to testify for. He has been
accepted before. He also stated, and I think Mr.
Roy is
mischaracterizing his testimony. He stated that he
is not aware of a course in college that you can
take on accident reconstruction.
However, as a safety engineer he has taken
numerous courses in accident reconstruction
and he has been accepted in court before as a
safety engineer and given opinions on
accident reconstruction. So, that is what
we're talking about, and that is what we're
tendering him as.
THE COURT:
All right. 1 am not familiar with the
specifics of the depositions that were taken,
but The Court does recall approximately
October the 10th there was a specific hearing
in which Mr. Barbe was brought in and Daubert
challenges were made at that time. The
Court, upon hearing the qualifications and
the traversal, did accept Mr. Barbe as an
expert in the field of safety engineering.
Following Mr. Barbe's release from the
witness stand it became apparent that he was
going to be tendered, or at least pursuant to
argument by the plaintiffs, as an expert in
the field of accident reconstruction. The
Court indicated at that time it felt that it
had insufficient information in fact did
defer making any decision as to whether he
3 2
OFFICE ((37)437-3530 HOME 855-0344

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