Alex v. Rayne Concrete Service9/14/2005
Court composed of Sylvia R. Cooks, John D. Saunders, and Glenn B. Gremillion, Judges.
Cooks, Judge, concurs in part and dissents and assigns written reasons.
JUDGMENT VACATED AND RENDERED.
The plaintiff, Harold Alex, Jr., appeals from a jury verdict finding him comparatively at fault in causing his work-related accident, its award of general and special damages, and the trial court's assessment of court costs. For the following reasons, we vacate the judgment and render as follows.
FACTS
Alex was employed by Louisiana Concrete Specialist (LCS), a company involved in all aspects of concrete work. In 1984, he suffered a work-related injury to his lower back while employed by a previous employer. As a result, he underwent a posterior lumbar laminotomy, with removal of the L4-5 disc and, thereafter, received a ten to fifteen percent anatomical disability. Alex remained under doctor's care until 1988. In 1989, he compromised his claim with his employer through a joint petition, in which he alleged that he was totally and permanently disabled. Approximately six months later, he returned to work, working a multitude of jobs until his employment with LCS. Prior to this accident, Alex had worked off and on for LCS for two years. At the time of the accident, he had just returned to work with LCS and was on his second day back to work.
On October 17, 1995, LCS was pouring and finishing the decking around a swimming pool being constructed by Professional Pools at a residence in Rayne, Louisiana. Rayne Concrete Service provided the concrete for the job via a truck driven by Jerry Dugas. Alex suffered an alleged work-related injury to his lower back when Dugas lowered the trough through which the concrete was poured onto his back. As a result of this incident, he filed suit against Rayne Concrete and its insurer, Employers Mutual Casualty Company. The Louisiana Workers' Compensation Corporation intervened in this matter seeking to recoup indemnity and medical benefits paid as a result of Alex's work-related accident.
A jury trial was held in this matter in 1998, however, it ended in a mistrial. A second jury trial was held in December 2000. At the conclusion of that trial, the jury found both Alex and Rayne Concrete at fault in causing this accident, assessing Alex with 80% fault and Rayne Concrete with 20% fault. Alex was awarded $18,750 in general damages, $9,578 in past medical expenses, $32,523 in future medical expenses, $29,640 in past lost wages, and $33,280 in future lost wages. In response to this judgment, Alex filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. This motion for a new trial was granted by the trial court. Rayne Concrete and Employers Mutual appealed from this judgment; however, the trial court's judgment was affirmed by this court. Alex v. Rayne Concrete Serv., 01-1535 (La.App. 3 Cir. 4/3/02), 813 So.2d 1189.
A third jury trial was held in this matter from July 12-16, 2004. At the conclusion of the evidence, the jury rendered a verdict finding Alex, Rayne Concrete, and LCS at fault in causing the accident. The jury apportioned fault 45% to Alex, 50% to Rayne Concrete, and 5% to LCS. The jury further awarded Alex $40,000 in general damages, $13,000 in past medical expenses, $13,000 in future medical expenses, $10,000 in past lost wages, and nothing for future lost wages. A judgment was rendered in this matter on August 9, 2004. Alex then filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. Upon the denial of his motion, this appeal followed.
ISSUES
On appeal, Alex raises five assignments o
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