Shannon Bourque VS Fire Mountain Restaurants, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0555 SHANNON BOURQUE VERSUS FIRE MOUNTAIN RESTAURANTS L C Judgment Rendered October 29 2010 APPEALED FROM THE SIXTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST MARY STATE OF LOUISIANA DOCKET NUMBER 119 1 DIVISION B 42 THE HONORABLE PAUL J DEMAHY JUDGE Nicholas F Larocca Jr Morgan City Louisiana Attorney for PlaintiffAppellee Shannon Bourque Janna C Bergeron Attorneys for Defendant Appellant Keith E Pittman Fire Mountain Restaurants L C Metairie Louisiana and Leslie A Gelhar Pro Hac Vice Minneapolis Minnesota BEFORE WHIPPLE McDONALD AND McCLENDON JJ 4 CC dl N t 7c7 fitJJ McDONALD J On August 6 2008 around 8 p Shannon Bourque was dining with his 00 m family at Ryan Steakhouse in Bayou Vista Louisiana Mr Bourque carried his s twoyear old stepdaughter McKenzie to the men restroom to change her At s that time the floor had just been mopped by the restaurant dishwasher as was s customary thirty minutes prior to the restaurant closing at 8 p When Mr 30 m Bourque left the men restroom holding McKenzie he slipped and fell striking s his right shoulder and back and sustaining injuries to his low back hips right shoulder and right knee McKenzie was not injured Mr Bourque filed suit against Fire Mountain Restaurants L the owner C and operator of Ryan Steakhouse Inc asserting that the restaurant negligence s s was the cause of his injuries and damages Fire Mountain Restaurants L C denied the allegations and asserted that Mr Bourque was the sole or proximate cause of the incident that he had failed to maintain a normal lookout for ordinary and reasonable conditions which might exist that he had failed to mitigate his damages that there was thirdparty negligence and that negligence barred or reduced the amount of damages Mr Bourque was entitled to receive and further asserted it was entitled to a credit for any payments by third parties After a trial on the merits the trial court ruled in favor of Mr Bourque and against Fire Mountain Restaurants L awarding Mr Bourque 30 in C 00 000 general damages 3 in past medical expenses and 8 in lost wages 38 310 00 875 for a total award of 42 together with legal interest from date of judicial 38 185 demand until paid and cast Fire Mountain Restaurants L with costs Fire C Mountain Restaurants L appealed the judgment and sets forth four C assignments of error Fire Mountain Restaurants L asserts that the trial court C erred in finding Mr Bourque to be credible in connection with his wage loss and damage testimony that the trial court erred in awarding lost wages based on Mr 2 s Bourque testimony when it was uncorroborated impeached by a prior sworn statement as well as inconsistent and unreasonable that the trial court award for s general damages was erroneous and should be reduced and that the trial court erred in finding Mr Bourque free from fault in the accident THE ALLOCATION OF FAULT Shortly before Mr Bourque entered the men restroom that night the floor s had been mopped The restaurant general manager Jason Henry testified that he s went into the men restroom after being notified that Mr Bourque had fallen Mr s Henry testified that the floor was wet at that time and that although the restaurant policy was to have a wet floor sign out when the floor was being mopped no sign had been put out that night The restaurant assistant manager Mary Lynn Johnson testified that she s went to look at the men restroom immediately following Mr Bourque accident s s She confirmed that the floor was damp but no sign had been put out indicating the floor was wet although the restaurant policy provided that signs should be utilized during mopping to indicate wet floors Mr Bourque testified he had gone into the last stall in the restroom to use the changing table to change McKenzie and was proceeding to walk out when he encountered a wet area and slipped and fell After a thorough review of the record we cannot say that the trial court committed manifest error in finding that Mr Bourque was free from fault in the accident THE GENERAL DAMAGES AWARD On the night of the accident Mr Bourque went to the emergency room at Teche Regional Medical Center where xrays were taken and Mr Bourque was given pain medication and released On August 19 2008 Mr Bourque went to see an orthopedist Dr Jeffrey C Fitter Dr Fitter diagnosed Mr Bourque with lumbar 3 strain strained hips a strained right shoulder and a strained right knee Dr Fitter advised Mr Bourque to limit his activities to what he could tolerate At the time he was injured Mr Bourque worked as a drummer a disc jockey DJ and sometimes as a doorman at nightclubs Mr Bourque saw Dr Fitter once a month for checkups for four months after his initial visit At his October 29 2008 visit with Dr Fitter Mr Bourque stated that he had returned to work as a doorman Mr Bourque was released by Dr Fitter on January 13 2009 at which time he was almost able to resume his normal activities After a through review of the record we find that 30 in general 00 000 damages for a soft tissue injury that lasted five months was an abuse of discretion and beyond that which a reasonable trier of fact could assess for the effects of this particular injury to this particular plaintiff under these particular circumstances See Youn v Maritime Overseas Corp 623 So 1257 1261 La 1993 cert 2d denied 510 U 1114 114 S 1059 127 L 379 1994 We find that S Ct 2d Ed 00 000 20 is the highest award within the trial court discretion and thus we s amend the general damages award to 20 00 000 See Coco v Winston Industries Inc 341 So 332 335 La 1976 2d THE LOST WAGES AWARD Mr Bourque and his wife Felicia Bourque testified as to his lost wages His tax returns conflicted with his testimony but he explained at trial that he worked as a musician and as a doorman for cash and that he did not include that information on his tax return The trial court found Mr and Mrs Bourque to be credible in their testimony of Mr Bourque lost wages and also in their s explanation for the loss of Mr Bourque earnings record book when they had to s move suddenly We find no abuse of discretion by the trial court in this award However the trial court awarded Mr Bourque 8 for lost wages 00 875 without deducting the 100 a week that Mr Bourque testified he earned from 00 E November 2008 to January 2009 working as a doorman Thus the trial court should have deducted 1 100 per week times 12 weeks from 00 200 00 00 875 8 for a total lost wages award of 7 We find that the trial court 00 675 abused its discretion in not deducting that amount from the lost wages award and we amend the lost wages award to 7 00 675 DECREE For the foregoing reasons we amend the general damages award to 00 000 20 amend the lost wages award to 7 and as amended the trial 00 675 court judgment in favor of Mr Bourque and against Fire Mountain Restaurants C L is affirmed We assess the costs of this appeal against Mr Bourque AMENDED AND AS AMENDED AFFIRMED 5 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0555 SHANNON BOURQUE VERSUS FIRE MOUNTAIN RESTAURANTS LLC McCLENDON J dissents in part I believe that the trial court erred in awarding lost wages where the only evidence supporting the lost wage claim was the self serving testimony of the plaintiff and his wife which was contradicted by plaintiff tax return s Cf Barfield v Jacobs 527 So 555 559 La 3 Cir 1988 and Cooper v 2d App Lacorte 991726 p La 4 Cir 5 775 So 4 10 10 App 00 17 2d
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