Court: Louisiana Court of Appeal; July 7, 2015; Louisiana; State Appellate Court
The LSU Board appeals a jury verdict that awarded damages to Brandy Lynn Fecke for injuries sustained in a fall from a bouldering wall at the LSU Recreation Center on December 3, 2008. Fecke, a 23-year-old LSU senior, was completing a course assignment with a classmate, Chad Culotta, when the accident occurred. The facility, converted from a racquetball court, featured three climbing options, including a 13' 1" bouldering wall, which Fecke chose to climb without harnesses or belay ropes. Prior to climbing, she signed a Rock Climbing Wall Participation Agreement and discussed her limited climbing experience with facility employees. After climbing, Fecke became stuck while descending, lost her grip, and fell, landing on her left foot and sustaining serious injuries, including a comminuted talus fracture that required multiple surgeries and potential future procedures. The court reversed and amended parts of the original judgment while affirming it as amended.
Ms. Fecke and her parents filed a lawsuit against the LSU Board for damages stemming from an accident. A jury ruled in favor of Ms. Fecke, attributing 75% of the fault to the LSU Board and 25% to Ms. Fecke, awarding a total of $1,925,392.72 in damages, including specific amounts for physical and mental pain, loss of enjoyment of life, permanent disability, medical expenses, and future earnings. Additionally, $50,000 was awarded to Karen Fecke for loss of consortium, while Stephen Fecke received no damages.
Subsequently, on October 3, 2014, the trial court adjusted the jury's awards based on the fault allocation, reducing the total damages to $1,444,044.54 for Ms. Fecke. This included specific amounts for each category of damages, and the court mandated that Ms. Fecke’s future medical care award be placed in a reversionary trust after deductions for attorney’s fees. Karen Fecke received an adjusted award of $37,500 for loss of consortium. The trial court also ordered the LSU Board to cover all court costs, including expert witness fees totaling $10,300.
The LSU Board appealed the trial court's judgment, raising three legal errors related to the case. The appellate court's review process involves assessing the factual findings under a manifest error standard, determining if there was a reasonable factual basis for the trial court's findings, and reviewing any legal errors that materially affected the outcome.
A jury's factual findings favorable to each party may not require a particular approach if legal errors affect only one finding without disrupting the entire fact-finding process. In such cases, an appellate court should evaluate each jury finding related to liability to determine the applicability of the manifest error rule, limiting its de novo review to the prejudiced finding. The LSU Board's first assignment of error contends that the trial court wrongly ordered attorney’s fees and costs to be deducted from Ms. Fecke’s damage award for future medical care and improperly awarded interest on that award. Ms. Fecke argues that she is entitled to interest by statute and that the trial court can award attorney fees from her damage award before establishing a reversionary trust for future medical care expenses. The core issue is whether Ms. Fecke and her attorneys are entitled to interest, fees, or costs from her award for future medical care. The matter involves statutory interpretation of La. R.S. 13:5106 under the Louisiana Governmental Claims Act, which governs suits against the state, agencies, or political subdivisions, capping damages for personal injury at $500,000, excluding certain benefits. For personal injury claims resulting in future medical care, the court must order that such costs be paid from the Future Medical Care Fund, with payments made directly to providers as incurred. The statute allows for settlements regarding future medical care, provided they comply with this provision.
The FMCF is managed by the Office of Risk Management under the Louisiana Treasurer. In personal injury cases against political subdivisions, if a plaintiff is awarded medical care benefits post-judgment, a reversionary trust is created to cover future medical expenses. This is governed by La. R.S. 13:5106(B)(3)(a), which mandates that such trusts pay medical care directly to providers as costs are incurred. Parties may still settle or compromise regarding medical care, but a trust must be established. Claimants retain the right to contract regarding attorney fees and costs associated with the trust. A 'reversionary trust' is specifically for the claimant's medical benefits related to injuries sustained. The trustee has fiduciary duties as defined by the Louisiana Trust Code. To determine which statutory provisions apply to Ms. Fecke’s case, the court must classify the LSU Board as either a 'state agency' or a 'political subdivision' according to La. R.S. 13:5102. The Act defines a 'state agency' broadly and a 'political subdivision' as any governmental body not classified as a state agency. Statutory interpretation starts with the clear language of the law, and any ambiguity must be avoided, adhering to common usage and context.
La. R.S. 13:5102(A) and (B) classify the LSU Board as a state agency, making La. R.S. 13:5106(B)(3)(c) applicable to this case regarding future medical care awards. The trial court erred by applying La. R.S. 13:5106(B)(3)(a) instead. Consequently, the term "Future Medical Care Trust" in the trial court’s October 3, 2014 judgment is amended to "Future Medical Care Fund." The LSU Board argues that the trial court also erred in (i) ordering costs and judicial interest to be paid from Ms. Fecke’s future medical award, and (ii) deducting attorney’s fees from that award prior to establishing the trust. La. R.S. 39:1533.2 establishes the Future Medical Care Fund, which is intended for direct payments to medical providers as expenses are incurred. It also stipulates that the fund is maintained by transferring amounts equal to expenditures from the Self-Insurance Fund at the end of each fiscal year and that any interest earned must be credited to the fund. While Ms. Fecke is entitled to costs and interest under La. R.S. 13:5112, any interest on her future medical care award should be credited to the FMCF, leading to the vacation of that part of the trial court’s judgment awarding her interest directly. Additionally, the statute does not restrict a claimant’s rights to contract for attorney fees and costs regarding a reversionary trust, allowing Ms. Fecke to seek court approval for reasonable attorney fees to be deducted from her future medical care damage award before the establishment of the trust.
Ms. Fecke's argument regarding reversionary trusts is acknowledged but deemed inapplicable to her personal injury claim against the LSU Board, as the provisions of La. R.S. 13:5106(B)(3)(a) and (D)(3) do not pertain to her case. Under La. R.S. 13:5106(D)(1), 'medical care and related benefits' include necessary medical services but explicitly exclude costs and attorney’s fees. As a result, only defined medical expenses will be paid from the FMCF directly to her medical providers, not to her attorneys. Consequently, the trial court’s judgment ordering costs and attorney’s fees to be paid from her damage award for future medical care has been vacated.
In the second assignment of error, the LSU Board contends that the trial court erred in excluding a Rock Climbing Wall Participation Agreement signed by Ms. Fecke, which purportedly contained a liability waiver. Ms. Fecke argued for its exclusion based on Louisiana law, which nullifies such waivers (La. C.C. art. 2004). The trial court granted her motion in limine to exclude the Agreement, and later, despite the LSU Board's request to admit portions unrelated to the waiver, the court opted not to introduce a redacted version to avoid jury confusion. Instead, the court instructed the jury that Ms. Fecke confirmed her good health prior to the climbing activity. The LSU Board argues on appeal that the Agreement demonstrated Ms. Fecke's understanding of the risks involved and her fitness to participate, factors that they believe should have been communicated to the jury to assess her fault.
The LSU Board asserts that the Agreement is crucial and highly relevant to its defense against Ms. Fecke’s negligence claims and breach of duty allegations regarding the rock wall climbing facility. The Board emphasizes that Ms. Fecke’s understanding of the risks involved, her acknowledgment of her physical and mental fitness, and her assertion that she would direct questions to staff demonstrate her informed consent and contribute to determining her own fault. Under Louisiana law, all relevant evidence is admissible unless otherwise specified, and the trial court has significant discretion in evidentiary matters, with appellate courts reviewing for abuse of discretion. Louisiana law mandates that when evidence is ruled inadmissible, the offering party must be allowed to make a complete record or statement about the evidence for appellate review. The Agreement, a one-page document signed by Ms. Fecke, outlines her acknowledgment of risks, her assumption of responsibility for injuries, her certification of adequate health insurance, and her assertion of being in good health and capable of deciding her fitness to participate in activities. The Board seeks a de novo review of the proffered Agreement to ascertain whether the trial court erred in excluding it and whether this exclusion harmed its defense.
The fourth paragraph of the Agreement releases the State of Louisiana, the LSU Board of Supervisors, and associated personnel from all liability related to personal injuries, illnesses, or property loss arising from participation in LSU activities. It mandates the use of protective equipment, adherence to sport rules, and states that participants must be at least 18 years old or have a guardian's consent. It prohibits using an auto-belay system for those under 90 pounds and restricts climbing behaviors. Certifications are specific to LSU’s campus and non-transferable. The Agreement clarifies that rappelling from the top of the climbing wall is dangerous and may cause injury. It also notes that LSU may use images of participants for promotional purposes without identifying information.
According to Louisiana Civil Code article 2004, any clause that limits liability for intentional or gross fault or physical injury is null. Consequently, the trial court deemed the liability release in paragraph four invalid concerning physical injury claims against the LSU Board. The court excluded this paragraph from jury consideration and instead provided a stipulation about the participant's health and age. The LSU Board contended that all Agreement paragraphs were relevant to determining fault, asserting their probative value outweighed any potential jury confusion. Additionally, during the trial, a rock climbing expert testified regarding the LSU Board’s duty to the injured party, Ms. Fecke.
Mr. Pervorse claimed that the LSU Board did not adequately warn Ms. Fecke about the significant physical risks associated with rock climbing and that LSU UREC employees failed to properly screen and instruct her before she climbed. He also testified that the LSU Board neglected to follow necessary safety protocols, such as having a spotter for climbers engaged in bouldering. The LSU Board contended that had they been permitted to present an Agreement during cross-examination, it could have undermined Mr. Pervorse's expert testimony and potentially altered the allocation of fault.
Louisiana’s duty-risk analysis, as per La. C.C. art. 2315, requires five elements for establishing liability: 1) the defendant's duty to adhere to a specific standard of care; 2) breach of that duty; 3) the breach being a cause-in-fact of the plaintiff's injuries; 4) the breach being a legal cause of the injuries; and 5) proof of actual damages. Rock climbing is recognized as a high-risk recreational activity, and while gym operators must provide a safe environment, they are not required to eliminate all inherent dangers. It is deemed obvious that falling can result in injury, leading to the conclusion that the LSU Board did not have a duty to specifically warn Ms. Fecke about gravity-related risks.
To establish negligence against the LSU Board, Ms. Fecke must demonstrate a lack of reasonable training and supervision that directly contributed to her injuries. The LSU UREC has an 'Indoor Climbing Wall Manual' that outlines the responsibilities of employees, which include being knowledgeable about the facility, enforcing rules, and maintaining a safe recreation environment. Employees are required to understand and uphold all climbing wall and LSU UREC regulations.
The manual differentiates between the climbing wall, which uses a safety rope belay system, and the bouldering wall, which does not involve ropes and requires lateral movement. Specific bouldering rules include: checking in before bouldering, limiting the number of climbers for supervision, ensuring no climber is above or below another, marking bouldering sequences with tape, allowing only staff to switch holds, requiring spotting due to the potential for falls, mandatory use of crash pads, prohibiting intentional jumping off the wall, and enforcing dress code rules such as wearing shirts and appropriate shoes. LSU UREC employees must instruct climbers as per a "safety clinic," covering danger areas, correct fall techniques, and spotting methods. The clinic emphasizes that climbers should request a spotter when needed, and outlines proper spotting techniques to ensure safety during falls. Employees must also demonstrate safe descending and landing practices to minimize injuries.
During the trial, Ms. Fecke and others testified about the incident. Ms. Fecke noted that after completing her course form and the Agreement, she received minimal instruction from Mr. Whitty, who did not clearly differentiate between climbing methods. Although Mr. Whitty offered her a harness, she declined, influenced by his indication that most climbers do not use one. Mr. Culotta suggested she wear a harness, which she interpreted as a joke, leading her to believe it was unnecessary since the employees did not require her to demonstrate her climbing skills.
Employees at the climbing facility did not adequately instruct Ms. Fecke and Mr. Culotta on the technique of climbing with a spotter, nor did they ensure that the two practiced spotting each other. Ms. Fecke testified that the climbing demonstration by an employee was brief, lasting around thirty seconds, and she and Mr. Culotta had no questions at that time. Both she and Mr. Culotta stated that they did not recall any discussion about spotting techniques during the instruction.
Employee Andrew Whitty confirmed he provided basic instruction, including a demonstration, but could not recall if a formal spotting policy existed. He also stated that climbers were not tested for proficiency before climbing. Emanuel Andrews, another employee, witnessed Ms. Fecke's fall and noted that while Mr. Culotta was positioned to spot her initially, he moved away as she fell. Expert testimony indicated that proper spotting requires specific stances and aims to mitigate the risk of injury from falls. After reviewing the evidence, it was determined that the LSU UREC employees failed to properly instruct and ensure understanding of the necessary climbing techniques for Ms. Fecke and Mr. Culotta.
LSU UREC employees did not spot Ms. Fecke and Mr. Culotta while climbing, despite discussions on spotting techniques. The LSU Board argued that an Agreement signed by Ms. Fecke acknowledged the risks of rock climbing; however, the risks were acknowledged as well-known. A significant part of the Agreement, which certified Ms. Fecke's agreement to abide by LSU UREC rules, was excluded from trial because she did not receive adequate instruction or supervision. The court ruled that paragraph four of the Agreement, which aimed to limit LSU's liability for injuries, was null. Although the trial court erred in excluding a redacted version of the Agreement, this error was not prejudicial to the outcome of the case.
In the third assignment of error, the LSU Board contended that the trial court misinstructed the jury regarding damages, equating "loss of future earnings" with "loss of future earning capacity." At the time of her accident, Ms. Fecke was an unemployed senior student, but she later graduated and became a physical therapy assistant. Due to her injuries, she took a lower-paying job. The LSU Board argued that since she was unemployed at the time of the accident, she experienced a loss of future earning capacity, which falls under a $500,000 damage cap for state agencies, unlike future earnings which are exempt from this cap. The court must assess whether the jury instruction on future earnings was appropriate, as mandated by Louisiana Code of Civil Procedure article 1792(B).
The trial court has the responsibility to minimize jury confusion and determine the applicable law. Adequate jury instructions must fairly address the issues and provide correct legal principles, without a requirement to include specific instructions from either party. Failure to include essential legal principles may lead to reversible error. An erroneous jury instruction does not automatically warrant reversal unless it has prejudiced the complaining party. Louisiana jurisprudence emphasizes caution in reversing jury verdicts due to instructional errors. If an error is found, it must be assessed in the context of the entire jury charge to determine if it misled the jury significantly. Additionally, the court must evaluate the error's impact against the overall adequacy of the jury instructions and the specific case circumstances.
The definition of “loss of future earnings” under Louisiana Revised Statutes 13:5106(D)(2) covers economic losses post-trial due to injuries. Loss of earning capacity differs from lost earnings, focusing instead on potential earnings rather than actual past earnings. The Louisiana Supreme Court has established that damages for loss of earning capacity should be based on the injured person's ability to earn, not their previous earnings. Recovery for loss of future earning capacity does not require the claimant to be employed or in a specific profession at the time of the injury.
In Brandao v. Wal-Mart Stores, Inc., the court addressed the assessment of damages for loss of earning capacity due to personal injury. It established that damages may be awarded even if the plaintiff had not yet utilized their full earning potential, emphasizing that the injury deprived the plaintiff of a capacity to earn that they were entitled to enjoy. However, such awards are inherently speculative and should be determined with sound discretion, ensuring fairness to both parties.
In evaluating a plaintiff's loss of earning capacity, factors such as age, work history, expected work life, rehabilitation prospects, and inflation should be considered. Testimony from vocational rehabilitation and economic loss experts was presented, detailing the injured party's potential career changes and salary projections under various scenarios. The jury was instructed to consider the plaintiff's pre- and post-injury physical and mental conditions, work history, and the likelihood of earning similar wages moving forward.
The jury's award for loss of future earnings must be discounted to present value, reflecting the time value of money. The LSU Board objected to the jury instructions related to loss of future earnings, noting that previous cases primarily involved plaintiffs unable to continue in their specific careers. The trial court referenced relevant case law to support its instructions.
Ms. Fecke, despite her injury, qualified as a physical therapy assistant but cannot continue in that role, necessitating her search for potentially lower-paying employment. The court determined her situation reflects a loss of future earning capacity rather than a loss of future earnings, as she was unemployed at the time of her accident. The Louisiana Supreme Court distinguishes between “pecuniary loss” and “loss of earning capacity,” emphasizing that the latter does not require proof of future monetary loss. Consequently, the jury's award for loss of future earnings was deemed erroneous and prejudicial to the LSU Board, particularly regarding the statutory liability cap of $500,000. The court amended the judgment to reflect damages for loss of future earning capacity and capped Ms. Fecke’s total damages at $500,000, excluding medical care and related benefits. This amendment also extinguished the derivative claim for loss of consortium made by Karen Fecke, as such claims are legally tied to the primary plaintiff's damages. The trial court's judgment was partially reversed, and the award for loss of consortium was vacated. The court also ordered that Ms. Fecke's award for medical care be placed in a reversionary Future Medical Care Trust.
Ms. Fecke is awarded $750,000 for medical care and related benefits to be paid from the Future Medical Care Fund, as per La. R.S. 39:1533.2. The judgment granting interest to Ms. Fecke and directing that attorney's fees and costs be deducted from her medical damage award is reversed. Additionally, the trial court's damages award is amended, capping the total damages (excluding medical care) at $500,000 in compliance with La. R.S. 13:5106(B)(1). The award for loss of consortium to Karen Fecke is also reversed, while the remaining judgment is affirmed.
Clarifications include the trial court's reference to a "Future Medical Care Trust," which is not designated in La. R.S. 13:5106 or the Louisiana Governmental Claims Act. La. R.S. 13:5106(D)(1) defines "medical care and related benefits" broadly, encompassing various medical services and necessary materials. The statutes regarding reversionary trusts for future medical care were amended in 1996 and 2000 to specifically apply to personal injury claims against political subdivisions. The LSU Board is classified as a state agency, and previous jurisprudence has applied the relevant Act provisions to the Board.
The trial court's judgment mistakenly ordered Ms. Fecke's future medical expenses to be placed in a "Future Medical Care Trust," whereas La. R.S. 13:5106(B)(3)(c) pertains to state agencies and mandates the placement of future medical expenses in the Future Medical Care Fund, not a trust. The statutory framework governing the Future Medical Care Fund is similar to that of the Patient's Compensation Fund for medical malpractice claims.
