Maria Cruz Maldonado, Individually and as Representative of the Estate of Ulvaldo Soto Martinez, Deceased, and as next friend and Natural Guardian of Justin Soto-Maldonado Minors, and Gilberto Soto Martinez VS Kiewit Louisiana Co., Massman Contruction Co., Traylor Bros., Inc., A Joint Venture d/b/a Kiewit Massman Traylor Constructors a/k/a KMTC JV; GEC Louisiana Timed Managers, A Joint Venture Partnership, PB Americas, Inc. f/k/a Parsons, Brinckerhoff, Quade & (2012CA1868 Consolidated With 2012CA1869)

Annotate this Case

Download PDF

STATE OF L( aUISIANA COURT OF APPEAL FIRST CIRCUIT L. L NO. 2012 CA 1868 MARIA CRUZ MALDONADO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ULVALDO SOTO MARTINEZ, DECEASED, AND AS NEXT FRIEND AND NATLJRAL GUARDIAN OF JUSTIN SOTO- MALDONADO AND USVALDO JESUS SOTO- MALDONADO, MINORS, MARIA MARTINEZ VASQUEZ, AS NATURAL MOTHER OF ULVALDO SOTO MARTINEZ AND GILBERTO SOTO MARTINEZ VERSUS KIEWIT LOUISIANA CO. DB/A KIEWIT MASSMAN TRAYLOR CONSTRUCTORS A/K/A KMTC, TRAYLOR BROS., INC., KIEWIT SOUTHERN CO., & MASSMAN CONSTRUCTION CO., A JOINT VENTURE, TRAYLOR BROS., INC. AS A GENERAL PARTNER OF KMTC, KIEWIT SOUTHERN CORP. AS A PARTNER OF KMTC, MASSMAN CONSTRUCTION CO. AS A PARTNER OF KMTC, GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, PB AMERICAS, INC. F/ K/A PARSONS, BRINCKERHOFF, QUADE & DOUGLAS, INC. AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, LPA GROUP 1NCORPORATED AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, G.E. C. INC. AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, ZURICH AMERICAN INSURANCE COMPANY, THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND JL STEEL REINFORCING, LLC. M l a,.-.. -,; a--, j`: G' V r 7 U% P' / c," g r' ,{. j,, C nc n2 .'T rr %/ i' T co vso. inAT O No, ?_1 (', TWIN CI'TY D wi rx 4 1 6 IR:; I IS IR NC, (: JIVIPAIti V: KSL S JL STEEL REINFORCI? vG, LL,C, KIEWTI LOUISIANA CO., MASSMAN CONSTRUCTION CO., AND TRAYLOR BROS., INC. DB/A KIEWITT 1VIASSMAN T1ZA C' LOR CONSTRUCTORS, A JOINT VENTiIRE, ZURICH AM. RIC:AN INSURANCE COMPANY, THE LOiJISIANA DEPARTMENT OF ' TRANSPORTATION AND DEVELOPMENT, ARCH INSL] RANCE COMPANY, LOUISIANA TIMED MANAGERS, A JO1NT VENTURE PARTNERSHIP JudgmenY Rendered: MAY 3 Z j On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of I, ouisiana Trial Court Nos. a82, I29 c! w 601, 860 Honorable Jani.ce Clarn, Judge Presiding Joseph L. McReynolds lttorneys far D fendant-Appellant, Terrence L. Brennan vIod esk Masters, Inc. Francis J. Barry Scott J. Hedlund New Orleans, LA H. Alston Joluison, III Attorne s for Defendants- Appellants, Baton Rouge, LA Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., David S. Bland Beau E. LeBlanc New Orleans, LA Inc., A 7oint Venture, Kiewit Engineering Company and Zurich American Insurance Company Charles G. Clayton, IV Allison R. Colon New Orleans, LA Madeleine F'ischer New Orleans, LA 2 Jennifer L. Simmons Richard Edward King New Orleans Kenneth H. Hooks, III Baton Rouge, LA itorne- s t'or Plaintiffs- Appellees, y 1_Vlaria Cz z 1 laidonado, Individially and as R przsentaxive of the Estate of Ulvaldo Soto Mark D. Plaisance Thibodaux, LA artinez, Deceased, and as Next Friend and N tural Guardian ef Justin Soto- Maldonado and I svaldo Jesus Sor. -? daldanado, Minors o Juan C. Hernandez Dallas, TX Robert Lyon Attorne} fc r Plaintiff-Appellee, Rowlett, TX Giiberto ' Iartinez x * x BEFORE: WHIPPLE, C. J., GliIDRY, McDONALD, McCLENU( N, AND HIGGdNBOTI3AM, JJ. 3 HIGGINBOTHAM, J. Defendants appeal a judgment rendered in favor of the plaintiffs after an eight-day jury trial in which the jury found a general contractor liable to its statutory employee for an " intentional The jury also found the engineering act." companies responsible far guy wiring and bridge design liable under a negligence theory. For the reasons assigned, we reverse the jury verdict in part, amend in part, affirm in part as amended, and render judgment. FACTS AND PROCEDiJRAL HISTORY This is a wrongful death case arising out of the collapse of a steel reinforcing bar ( rebar) cage built during a 2009 bridge- widening project on the Huey P. Long Bridge near the Westbank of the Mississippi River in Bridge City, Two men who were working on the rebar cage, Ulvaldo Soto Louisiana. Martinez and employees Martin Reyes, of J. L. died Steel as a result of the collapse.' Reinforcing, LLC (J.L. The decedents were Steel), which was the subcontractor responsible for constructing the rebar cage and securing it in place on top of a 60- foot-high footing that had been built to support one of the bridge columns. The rebar cage was actually designed and built to become the interior reinforcement for the vertical concrete column known as W-2, which would ultimately support part of the newly widened roadbed for the bridge. The rebar cage was raised by a crane and placed on top of the column footing that had been erected days prior to the collapse of the cage. ' The Louisiana Deparhnent of Transportation ' and Development ( DOTD) contracted with the design engineering' frm of Modjeski & Masters, Inc. ( M& M) to design the bridge- widening project. DOTD contracted with a joint venture of Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc., KMTGJV), a new company that was jointly formed for purposes of the project, The Reyes family filed a separate wrongful death action in Texas. Vargas v. Kiewit La Co., S. D. Tex. 6/ 17/ 09)( unpublished). 4 to KECO) the as serve hired was KMTC- JV in trae. YQt con, general 1TC- J` by congieciion wi purpose of tt e guy vairing collapse due to J. L. employer, to ki ip: e tiesi placarn rcaie Kieu it te ug- w,rir_ g a z n: af the ngineering Co. lans to be used by steei r reba- , I' The cages. i ri was tc karatect he xebar cage from forces. wind he Qn ossible i iC:- JV saib a> ntract d e it r t6ie decedents' teel, to pre- assemble and izie4a11 eteel rebar uages far the project. CMC Rebar manufactured the steel rebars that vere used on the project and also created the placement plan drau-in ior the W-2 column. On June 12, 2009, ILIVITG JV employees us d two cranes to raise the xe- constructed 62, 888- pound rebar cage that had been built by J. L. 5feel eu ployees in a harizontal position on th ground. One crane I fted the top portion of the SS to 60- foot tall cage while the other , vas used,, temporarily, tc ho! d the bottom of the cage steady. KM`I'C- JV' s crane uaperator, 3eff l Tayon, o erated the lift and placed the rebar cage on top oz xhe lumn i J. L. Steel' s warkers, footzng. Martinez and Reyes, then tied the rebar exterading from the column footing on which they were standing to the rebar cage that had just bezn set in place. KMTC-7V employees 9, 600- pound complete, c tied of the rebar ca e. 1a dea izxaan ncrete MartineL y wires from varioias Ievels of the rebar cage to anci R y s w xe ck c. Yhe ir.> icted f r:- ground. After the tie- in was rihaok the crane fro g the top Within ih r-t mine tes of the zen atial of the crane, rhe rebar cage collapsed and the twQ workers f ll p roximately i0 fee to their deaths. On September 2, 2009, suit was filed F y .'Vlartinez' s wife, Mari Cruz Maldonado, individually, a4 representativ Uf ghe de edent' s estate, and on L ehalf of their two mincar children, J stin and LJsti aldo ' Taldonado, and by the decedent' s brother, Gilberto Soto l larfinez ( hereafter referred t Made defendants were KMTC-JV, KECO, their 5 insarer as plaintiffs}. Zurich Ameriean Insurance Company (Zuricka), M&:v1 and others.2 Maldonado asserted a survival behalf on claim herself and of her two Martine' estate azid wrongful death claims on behalf of children. aaflbertc '_Vlartine damages ursuant to I, Civ. CUde aa t a. KMTC-JV for negligenc KECO M 41 and court granted were s mc ntiotzafl ne based in K1vTTGJV' 31S. F;, T'laintzffs aasc;rt d : laims against izst an "` asserted a cl im for bystander la nce. Plaintif s' ac v." ) n h first day e f trial, the trial for summary judgment, tion claims against ndin that Martinez was the statutory etnploy;ee of K. 1TC- JV, thereby. limiting the plaintiffs' recovery from KMTC-JV to workers' cqnnpensation unless plaintiffs could prove that KMTGJV acted intentionally in causing Martinez' s death. After trial, the jury rendered a verdict against KMTC- JV for intentional acts. It also concluded that KECO and M& M were negligent, in causing the accident. The jury M& M. allocated The entered a fault jury foliows: 80% to ICMTC- JV, 10°,%to KECO, awarded judgment in JV, KECO, Zurich as a totai of $ 13 M&; xllb r tb plaintiffs. 10% to The trial court i. h the jury verdact on .Ie. e 1, 2t I2. KMTC- accordance axad x and q al i. susp si;, ly a pealed thc,rudgrnznt. AS I( TNI ZF;iVTS JF' ; I2ROR Defendants I 1TC- J and I EC. Q admitting evidence of 'subs quen not and involving KMTGJV prejudicial erroneous or instructions and an lie Vrial cou ? e ally erred in err edial ir asur s; prior dis inailar accidents KEC, photographs. a var that' privileged attorney- client corlrnunications, They lso cv tend tnat the trial erroneous verdict form to the court gave jury. These defendants maintain that all of tlae legal rrors tainted the jury' s verdict, thereby 2 DOTD and Arch Insuranee Company setklvd with plaintiffs and were dismissad wi4h prejudice. J. L. Steei. was also dismissed with preiudice, 1'he ca e proceeded to xrial gainst the xemaining ctefendants, KMTC-3V, KECO, Zu ieh, anG. b2& M, ' Iwin Ci y F'ire Insurance Co., J. L. rceePs insurer, filed s it for aeclaratory judganent regarding ins urence ceeerage and t1-at suit w- s a consolidated with the Maldonado case iQr triai_ 3 As the insurer fox KMTC-JV and KECO, Zurich' s argum nts ori appeal are the sarue as its insureds; therefore, in the interest of economy, we wi11 refer n1_y to its insureds. 6 requiring de novo review by this court. These defendants further argue that, even if the trial court did not commit legai error, the jury committed manifest error in concluding that KM" TGJV acted intentionally in causing the death of Martinez; assigning 10% fault to KECO; and altexnatively, aw-arding excessive damages. Defendant M& M avers that the trial court committed legal error in allowing plaintiffs' expert to give opinion testimony on the Interpretation of M& M' s contract with DOTD; prohibiting M& M from meaningful cross- examination of plaintiffs' expert on voir dire regarding the local standard of care applicable to M&M' s performance; and refusing to allow M& M' s expert to testify as a professional engineer because, in retired status, he did not maintain his license. M& M further avers that the jury erred in finding M&M at fault and in awarding Martinez' s brother mental anguish damages without evidence to support the claim and in awarding him excessive damages. M& M also contends that the jury erred in awarding excessive damages to Martinez' s surviving wife and two minar sons and in awarding excessive general damages for suffering by Martinez before his death. STANDARD OF REVIEW The resolution of legal issues may involve questions of fact and questions of law. Wing eld v. StaYe, ex reL Dept. of Transp. and Development, 20012668, 2001- 2669 La. App. lst Cir. lll8/02), 835 So. 2d 785, 799, writs denied, 2003- 0313, 2003- 0339, 2003- 03 49 { La. 5/ 30/ 03), denied, 540 U.S. 950, I24 S. Ct. 419, 157 845 So. 2d 1059- 1060, cert. L.Ed. 2d 282 ( 2003). Factual determinations are the sole province of the trier of fact, whether judge ar jury. Id. To preserve the right to a fair trial; the function of the entity that views fhe witnesses and hears testimony firsthand must be safeguarded. Id. When the process of credibility determinations and fact- finding operates correctly, the factual findings are reviewed by this court using the manifest errar or clearly Stabart . Iclo, standard wrong tate, De ar°tmEnt of ' Transp rtation and Development, 617 So. 2d 88fl, 8 2- 3 ( T. a. 1993). When the. jury makes a factual finding based on admissible evidence, even though a di.ffei° ent fiiading woulcz nave beerA reached by thi cotzrt, that finding be will not rev ers Where there are d twa a nless pen ac i- cle issi?1 ag riy w ¢ c t;. f the ws i''in vid ld, 835 So.2c at 799. a, the factfirider' s choice between them cannot be manifestly erroneous. Rosell v. ESCQ, 549 So. 2d 840, However, if a trzal jadge comm'rts consequential errar by 844 ( La. 1989). denying the jury relevant, ad riissible evidence, or by admitting evidence that should have been ex luded, the fact finding process is interdicted; thus, the verdict is tainted. See McLean v. Hunter, 495 So. 2d 1298, 2304 ( La. 1986). A legal error occurs when a trial court applies incorrect principles of law and are errors such prejudicial, E ans v. Lungrin, 97- OS 1, 97- 0577 ( La. 2/ 6/ 98), 708 So. 2d 731, 735. If the a rnission or exclusion of evidence tainted a jury verdict, this court steps in"io the shoes of the factfinder and conducts a ' e novo review of all of De novo the review should admissable evidenc. be l mit, See Wingfield, $35 So2d at 799. ta c nseciu rati l errors, that : s, errors which prejudiced or taintecl the verdict renc e ed. Id. Absent a taint d verdict, review is limited to determining whe l,°. i r e ua c amtnitked mani e t rror. Id. We further note that allocation of fault i d fact xal fir di rig w thxz th discretion of th trier of fact. It als is revieu ed under tl e rxianifest error standarci. Id. at 804. LAW . AND ANALYSIS One of the central questions presented in this case is whether the conduct of the general contractor/ statutory employer, KMTC-JV, rises to the level of an intentional act, thus providing n exception to the rule that the Louisiana VVorkers' Compensatxon Act (Actl is the employee' s exclusi°ve remedy for a A wark-related injury or death causea3 by_lizs ernpl i r c r a co- worker: Louisiana Revised Sfatute 23: 1. 032( B) pro zd s fox the intenrional act xceptiori, as follows: Nothin in thiG Chapter shall. ffec Yhe lzabili:ly of' the em loyer ..: , civil or erirrainal, resulting from ar_i r tenYioyaal act. c ur courts frequentl cit; Yl e 6E i lat:v hi Lc r} of this Ac;: amen ed in 1976, to illuminate the fact tfiat the le;. sl.alare ar tencied to Ceep th narrow. As stated by various commentators, "[ exception t]k e only reasc nable conclusiara to be drawn from the legislative process is that both houses of the legislature rejected attempts to rnake tha exception any broader than `intenticrnai' acts of the employer, thereby giving the xception a narrow scope, limited to conduct which is truly intentional." 14 Workers' Malone & Jphnson, Louisiana Civil Law Treatise, Volume Compensation Law 8 Practice, Another commentator notes that wher 365; p. 206 ( 3rd edition 1994). the conduct goes beyond aggravated negligence and includes an employer who 1Knowingly permits a hazardous work condition to ar exist knowingl orders a claim.ant to perform n extremely dangerous job ar willfully fails tv furnish a saf place to work, this still falls short of the kind of intention to injure #nat rises Yo the le° el of intentional act. Larson, 2A Workmens' Compensation Law § 68. 1 3 ( Preservation Systems, 98- 1795 ( La. 3%1! In Bazley e ' 1989). See Reeves v. Structural 99), 731 So. 2d 208, 2fl0. 1'ortorich, 397 So. 2d 4? j, 80 ( La. 1981), the L.t uisiana Supreme Court concluded that th.e words " intentional acY' mean tihe s ne as intentional tart" in reference to civii Iiability. " lntent" is found when the person who acts either ( 1) consciously desires the' physical r stzlt of his act, whatever tihe likelihood of that result happening frc m his conduct; or ( 2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Id. at 481. 9 Since the intentional act; exception to the Act was passed in 1976, many cases have interpreted the language. The jurisprudence reveals a solid respect for the legislature' s policy decision and has narrowly interpreted the exception. Williams v. Gervais F. Favrot Co., Inc., 573 So.2d 533, 540 ( La. App. 4th Cir.), writ denied, 576 So. 2d 49 ( La. 1991). In Williams, two workers were killed when a rebar cage fell from the twenty- second floor of a building under construction. One worker was inside the cage as it was lifted. The other worker stood on the form to guide the cage in. Part of the crane contacted the form and the worker on the form tried to push it off. The concrete form had not been braced and the form with the cage fell off of the building, killing both workers. Testimony of the foreman showed that he had intended to brace the form, but that had not been done. OSHA standards were violated by having a worker in the cage during the lift. Nevertheless, the Fourth Circuit held that the employer did not know, to a substantial certainty, that an injury would occur. The court found that the trial judge may have been enerous in concluding that the method chosen was " dangerous" and " stupid." Nevertheless, it concluded that the testimony could not be interpreted to meaal that the supervisory personnel adopted a procedure that would intentionally cause personal injury. The supervisors did not intend that the form would fall and the decedents would be killed nor did they desire that result. The court of appeal concluded that the supervisory personnel did not believe those consequences were substantially certain to ollow. Id. In Reeves, 731 So.2d at 208- 209, the supreme court again addressed the question of whether the substantial certainty requirement of the intentional act exception to the exclusivity provision of the Act was met. There, the employer directed an employee to manuaTly 4 move a sandblasting pot. Although the procedure was prohibited by OSHA and the supervisor feared it would eventually 4 The pot weighed 350- 40.0 pounds empty and could.hold up to 1, 000 pqunds of sand. 1D cause injury, the supreme couxt h ld that these facts did not arfeet th strict requirement of tl In excepiic n. e df: cussing " substantially c rtazr,," the court noted the following; In human experience, substantially cert k ; that spec+fic conseq ienc s are o irl to fo lc,vs corx If the actor tiirc w a: t. a b rnb i to an of cE occupaed by 4wL pers ns, Y ut s eaz ¢s that he an.y intended" hurt to one s7f' tFiem, intentiana nonetheless- guilty of an rust conclude tfiat he is w to thQ attaer, si ace he knows toit to a virtual certainty- that 2arnifuT conseqt ences will follow his conduct, regarciless of his subjective desire. Reeves, 731 So. 2d at 212- 213, The Reeves court further noted that other ivorkers had manually moved the pot on and no several occasions, one had be n injured before. Id. at 213. The supervis r testified that he baXieved that the erriployee uould move the pot without incident. Id. The court det rmined laat the ury' s c nclusiUri that the employer' s conduct constituied a intentionai act was ior reasr nable in_light of tI e record reviewed in its entirety. Id. The Reeves decisio nated ipqat ubsf antiail,y certain to follow requires more than a reasonabl probabiliey that abg i ju: v,il.l occar and c rtain is define as inevitable or incapable of fail:rag. Id, See a so Danos v. Boh Bros. Const. 7% Co., LLC, 2013- 2605 ( La. 2% A=, 132 So. 3d 95, 959- 60. ' I'he supreme court cited numerous cases in Reeves in wkiich the exnpl yer' s conduct was held insufficient to the meet substant al cerkainty test9 to wit: ( 1) an e n loyer' s knowledge that a machine i dangerous and that it. use creaties a hig i probabilitp that someone w All eventually be injur d frvm sucb_use is not suff cie t to ir aet the requirernenE, App. 3d ' Holliday v, B. E K. C' onst: Coa, 563 Sue2d 1333, 1 34 ( La. ir. 1a90}; ( 2) knawledge and : ppreciatic n of risk d es not constitute intent; reckless or wanton conduct by an employar does not constieute intentional wrongdoing, Jasmin . 4th Cir. 1994); ( 3) HSN Cent, I2iverfronY Corp., fi42 So, d 311 1La. 1pp. gross negligence is not an ad quate basis to find that t1_ e a 11 employer knew, to a substantia; certaint, that tt;s conduct vould cause injury or Transcontinent l Drilling Co., 4; 4 Sc. 2d 858, death, Gallant v. ' 2d Cir. 1985); ( 4) failing to prci ide dequate saiety equi ament is not an adequate basis for finding that the emplc yer knew; to bl ( La: App. substantial czrcainty, that its conduct would cause injury or death, Jacobsen v. Southeast Distributors, Inc., 413 So. 2d 995, 996- 997 (La. ' pp, 4rrh C` ix.); -: ir denied; 415 So.2d 953 ( La. 1982); and ( 5) violation of OSHA standards is riot an adequate basis for fanding that the employer knew, to a substantiai, certaint}, that its conduct would cause injury or death, Wiltiams, 573 So. 2d at S4L In Reeves, 731 So. 2d at 212, he. supreme court further noted a few cases where an intentional tort wras found: ( 1) an employer' s conduct was held to rise to the level of intentional act when the emplc er repeatedly exposed the employee to a chemical where the employee had become iII on two priar occasions after exposure to it, Trahan v. Trans- Louisiana Gas Co., Inc., 618 So. 2d 30, 31 32 La. App. 3d Cir. 1993); and ( 2) when an employ- r ordered an emptoyee to work e in a ditch that had caved in the previ us ay and the ditch had not been reinforced and looked Iike it would cave an a ain. the amplover w as held to have intendedl the harm when the empic,yee w'a L 734, 739 f, a. A. ini' ared, VVainwright °. Moreno' s, Inc.; 602 So. c 3d Cir. i992j. I TTC- JV' S I I. BILIT' Before we analyze the tat atory enip'loyei'`s canduct in thi- case, vv must s first examine some videntiary lings ofthe trial court and the pertinent law. A.) Subsequent Remedial Measures Louisiana Code of Evidence article 407 provides: In a civil c.ase, when, after an event9 measures are taken which, if taken previously, would have made the event less likely td occur, evidence af the subsequent measures is not acimissibYe to prove negligence or eulpable conduct in eonneetion with the event. 12 T'lais Article does not require the exclusion of evidence of subsequent when measures another knowledge, authority, ownership, for offered purpose, control, such as proving feasibiliry ar of precautionary measures, or for attacking credibility. In Givens 1924), v. De Soto Bldg. Co., 156 La. 377, 380, 100 So. 534, 535 the Louisiana Supreme Court enunciated the policy of excluding evidence of subsequent remedial measures. The court noted that: T] he great weight of authority is that evidence of changes or repairs made subsequent to the injury, or as to precautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence. The reason for the rule is that the effect of declaring such evidence competent would be to inform a defendant that, if he makes changes or repairs, he does it under a penalty; far, if the evidence is competent, it operates as a confession that he was guilty of prior wrong. True policy and sound reason require that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. A rule, which so operates as to deter men from profiting by experience and availing themselves of new information, has nothing to commend it, for it is neither expedient nor just. In Toups v. Sears, Roebuck and Co., Inc., 507 So. 2d 809, 816 ( La. 1987), the Louisiana Supreme Court stated: In general, remedial measures taken after an incident negligent conduct are not admissible in evidence because of such evidence would discourage people from taking steps to prevent future harm. In Northern Assur. Co. v. Louisiana Power & Light Co., 580 So.2d 351, 357 ( La. 1991), the Louisiana Supreme Court noted that the prohibition against evidence of subsequent remedial measures is designed to bring within the scope of the rule any change, repair or precaution subsequent to an accident. The prohibition covers measures taken after an event, such as post- accident repairs, installation of safety devices, changes in design, the removal of dangerous conditions, changes in procedure, the dismissal of an employee charged with causing an accident, changes in regulations; and changes in labels or instructions. 13 Id. IY is with these principles ir. mix> that « e re Aetiv the trial court' s evidentiary rulings as to subsequent remedial flneasures ir, the instant case. Initially, plaintiffs aver tYiat KhZTGN 1d C' O waived their right to appeal prejudicial Ie al r' or i r fazlrng Yo obiee aY trial when 31ee e idence was offere l. I?efendants- iMTC- 7V aa d KEC' C rior to trial, Tlzu, issues evidentiarg% w i. d mctz n ra ast in 13mine n several dress whethe filing motions in limine in this case preserved thes defendants' claims of error for appeal. 1) Obiections and NTotions in Limine- The trial court has great discre`ion in its consideration of evidentiary- matters such as motions in limine. Heller v: ! TobeCIns, 'Group, 2000- Q2b1 ( La. 2! 2/ 00), 753 So. 2d 841, 841. Louisiana Code of Civil Procedure article 1635 provides: Formal exceptions to rulings or c rders af the court are unneces ary. For all purposes it is suffieient t1 at a partv; at the time the ruling or ordex of the court as made or sought; makes known to the court the action which he desires the court t take or his obje tion to the action of the caurt and his grounds therefor; and, if a partp has no opporCur ity to object to a rulirdg or. rder at the time it is made9 the absence of an objection does not thexeaft r prejudice him. Louisiana Code of Evidence article 1q3 provides; zn pertinent part: Effeet A, of erru ne s ruling. Frsc r niay zxUt L e redicated upon a ruling which admits or excludes evidence unlzss a substantial righi of t e partv is aff cted, an i idence. hen the rulirig i s one admitting evidence, a timel, obae t on or motie ri to admanisb the jury y 1) Ruling admitting to limit or disxegard appears of ez° cord, statzng the specific grQUnd of objection[.] In Whitehead v. Kansas City Sout rern Ry. Co., 99- 896-;(La. App. 3d Cir 12( 22/ 99), 758 S. 2d 211, 21, writ denaed, 2000- 0209 ( I. a. 4l7! 00), ? 59 So. 2d 767, the court stated: Opposing counsel znay object to the introduction of evidence prior o trial by filing a mation in lzmine. A party need not make a formal objection at the time a rial court ruIes on the admissibility of the evidence, but need only niake known the action he desires of the court and his grounds therefor. La. Code Civ. P, art. 1635. After ruling evidence inadmissible, the trial court shall permit the part seeking its introduction to proffer the evidence or make a statement as 14 to the adenee.- I a C'c de Cav. P. art. 1636. the nature of Tl e trial court' s rulings on the adm; ssibiiit; c f evidence are revieivable on y appeal without the necessity c f furthe f' rmxiity, In Joseph v. Williams, 2QZ4-) t 75 ( La: Ajpp: 4xkt Cir. I1I14! 12), 105 So. 3d 207, 216, piaintifffil d a motic n ira ximi e re arding trie adrnissiun of e ridence, which was danied. Pflaintiif ta k writs u z ie I' c uri i Circuit and to t' e Louisiana Supreme Court. Both writ applicatic zis s er erued. On. npeal, plaintiff re- urged that the trial court' s interlocuto y rufling denying her motion in limine was erroneous. Defendant argued that the objection was waived because there was no contemporaneous objection to the introduction of the evidence at trial. The court of appeal pretermitted the issue, but stated in a footnote: Insofar as the lack of a contemparaneous objection, the Louisiana Code of Evidence ( La. C. E, art. 103), unfike the Federal Rules of Evidence, is silent on whether a party is required to renew an evidentiary ob ection n which a defmite ruling is obtained pre- trial by motion in limine in order xo preserve that laim for. appeal. The federal expressly pro ide that "[ o] nce lche court ruIes record either before ar at trial a p rty need not rules of evidence definitively on the renew an objection or offer of pmoi to g reserve a claim of error for appeal." Federal Rules of Evide ice Rtrle 103( b). ... [ TJhis provision, which was added to the federal rule in 200G, eliminate 2he procedural trap asserted here because it " apparently eliminates the need for a party to make continuous generaP to a line objections. ar 2o make of questiv Civil Law Treatise, Evidence irig. and' ara objection Frank L. lViarazst, I roof 2. 7 the 2000 amenciment federai courts adhere 2012 ed. .. Louis: ana o. [ B efare to the nale that a mution in limine is insufficient to preser e error in the admission of evidence where the cont mparaneous objection requ r ment of Rule 103 is not met. Id. at 216 n. 10. In LaFleur v. John Deere Co., 491 So. 2d 624, 632 ( La. 19$ 6), he Louisiana Supreme Court n ted that the court of appeal errec wtien it declirced to review th.. issue of whether evidenc that d fendants fa' l d to r object should ha e been excludec't on the grounds tiznely to pr senting the evidence at trial. supreme court stated: The court of appeal was of the opinion that the defendan2s' failure to object constituted a waiver of the rigr t to object and that they could is The not urge the objection on appeal. Richard, v. Southwest Louisiana Hospital Association, 383 So.2d 83 ( La. App 3d Cir. 19$ 0), writ denied, 385 So. 2d 274 ( La. 1980). A review of the record indicates that the defendants did not fail to object to the introduction of the videotape. conclusion. The court of appeal was mistaken in its contrary In fact[,] defendants filed a Motion in Limine objecting to the introduction of the videotape, inter a1ia, and that motion was overruled by the trial judge. Id. at 632. In the instant case, defendants KMTC-7V and KECO filed motions in limine in which they objected to and fully briefed the issues of the admissibility of subsequent remedial measures, prior accidents, and evidence protected by the attorney-client and wark product privileges. 5 Defense counsel reminded the trial court of pending motions in limine and specifically sought a ruling excluding subsequent remedial measures prior to trial. With respect to the motian in limine to exclude prior accidents, the court stated that that issue would be decided later. The trial court stated that it would rule on subsequent remedial measures later, after voir dire, and advised counsel not to mention them in opening statements. At lunch hour after voir dire had been completed, the court stated, " we have about five minutes" to finish the motions. Under the circumstances in this case, we find that defendants KMTC-JV and KECO preserved the right to appeal these evidentiary rulings. They filed motions, fully briefed the issues and thereby made known to the court the action they desired the court to take and the grounds for their objections: La. Code Civ. P. art. 1635. Further, defendants repeatedly sought a ruling from the court as to these motions in limine. 2) Review of the Trial Court' s Evidentiarv Ru(ines During trial, the court declined to rule on the motion in limine on subsequent remedial measures. Instead, the court allowed the jury to determine whether an 5 The trial court granted the motion in limine as to attorney-client privilege on the first day of triaL 16 action was a subsequent remedia on priar measure.° The caurt denied the motion in limine In addition, a"though it granted the motion in limine as to l accidents. attorney- client pri rilege, KN1'I'C- JV and KECn claim that the court admitted evidenc protected Those deYendant by aflsc that ? r vilege, con rary claim t x? Yrial the grial cnurt' s earlier ruling. cou. e pe° x e ed at e;; siX witnesses to testify about chang s rriade by ILMI'C'- J i' a rer the ac ident and allowed introduction of twenty-one e ibzts pertaining tca post- accident changes in the work.' In Reichert v. State, Dept. of Transp. and llevelopment, 96- 1419, 961460 ( La. 5/ 20/ 97j, 694 So.2cl i93, 200, the Louisiana Supreme Court found that the court of appeal properly held tl-Aat four particular e iibits were improperly admitted into Thus, the appellate courk was required to conduct a de evidence. novo review of the record, giving no weight to the verdict and deciding the case by a preponderance of th.e evidence. The court found that one particular exhibit was prepared after the accident had cc; urred. 1"-Aus, the DOTD' s recarnmendation far a flashing beacon had the potential t? pr judzc the cl cision of the factfinders by raising offense." an unwarranted [ inzerence] that th: tate w s negii nt at the time of the Ido While it is tzue Lhat a tirial court l as br°oad discreti.on on evidentiary rulings, it is likewise 2rue that where the trial court abiises its diacretion, its d cision should not be the supreme court noted: allowed to stand. In McLean . " Hunter, 495 When a jury is givex incorrect instructions in the 1aw, or when a trial court makes a consequentiai 6 The tcial court stated: " o. 2d a298, 1304 ( La. 1986), rror in the exclusion of evidence, n Wherevex it says, subsequent remedial measures; take it out ( of what is read to the jury). If it doesn' t say subseqaent xemedial measu*es, then the jixry: s goi.ng to decide i£ it is a suhsequent remedial measure." The court gave tlie jury an instruction on sabsequent remedial measures, Defendants Iist the challenged witnesses and exhibit5 as follows: Rodriguez, Dz. iame lIaroid Deatherage, John Proskovec, plaintifFs' exhibits: 20, 24, 36, 39, 44, Si, y2, 9S, 183- 1& 4. i7. Cesax Rodriguez, Angel ichael Yhelps and Mike Sulser; 09, I30- 132, 134- 135; 13?, 9_ d3, 160, 152, weight should be acc rded the iudgyraent of che trzal aourt ivhicla implements the jury verdict." ( Citin Thomas v. 1Vlissouri Pacifc R. Co., 466 So.2d 1280 ( La. 1985); Otto v. State Farrrm Mut. Auto. 1ns. Co., 455 So. 2d ll75 ( La. 1984), Ragas v. Xerox Corp., tainted by Argonaut Southvv st 320 So. 2d 163 ( 1 the trial court' s In. a. Go., 3?$ S4. 2d 7 7 ( L. 1984); Gonzales v. 1A7Sp). T"he cqazrt. held that ih jury vexdict was conseque atfla?_errc r in excluding testimot_; of a doctor, and further held, in such situafrons, the jury verdict is simply not entitled to a presumption of regularity. McLean; 495 So. 2d at 1304. In the instant case, we find legal error in the admission of evidence of subsequent remedial measures.g B.) Other Accidents During questioning af M ke Sulser, a civil engineer employed by Traylar Brothers, Inc., one of the joint venture partne s in KMTC-JV, plaintiffs' counsel deal asked: " this replied that he about cages clid not know collapszng is nothirig about Iiiewit' s new evious to Kiewit, is expexien; e. it?" Sulser I{1VITGN' s counsel objected on the grounds t1 at the witness was not a K.ievvit ernployee. Plaintiffs' counsel showed plaintiffs' extiibit 131 Plaintiffs' exhibit 130 is a report prepared b o Sulser as he read it to tih jurv. K C:O ira conrecticrn with an industry- vide study on rebar cage installation, which it conducted after the instant aecident, It contained infornnation about three accidents thati had occurred more than ten years before the instant accident. Prior to Sulser' s testimony, defendants strongly objected to evidence of other unrelated accidenis and reminded the trial court that the motion in limine h' d been" filed: _In a ' response, the trial court entertained argument on the motion. Plaintiffs' counsel argued that the evidence was admissible to impeach the witness regarding testimony that KM'TC- JV w s a We acknowledge plaintiffs' assertion that the subsequent remedial measures slaowed knowledge, control and faasibility an fur[her were not voluntary. We find the assertion to be without meriY. 8 safe company. 9 and admitted The trial court overruled defendants' objection on other grounds the testimony and e ibits. Louisiana Code of Evidence articles 402 and 403 require that the evidence sought to be introduced be relevant, but relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In Lee v. K-Mart Corp., 483 So2d 609, 613 ( La. App lst Cir. 1985), writ denied, 484 So. 2d 661 ( La. 1986), this court held that evidence of other accidents is only relevant where such accidents are closely related in circumstances to the accident, injury or hazard at issue in the instant case. To be relevant, the other accident should occur at substantially the same place and under substantially the same conditions and must be caused by the same or a similar defect, danger, act or omission. Evidence of other accidents occurring at substantially different places or under different circumstances or conditions is irrelevant and inadmissible. Id. In Lee, a witness was allowed to testify to other accidents that she could not establish the cause of and that she had not witnessed. This court concluded that the failure to establish the predicate that the cause of the other accidents was the same or similar to contended stated: " the accident the evidence at issue was rendered admissible the evidence fo impeach the inadmissible. testimony. Plaintiff This court It is well settled that witnesses cannot be impeached on collateral and irrelevant matters. i10 Id. In the instant case, after the court allawed introduction of plaintiffs' e ibit 130, defendants' witness, John Proskovec, testified to the lack of similarity between the other accidents and the iristant accident. Plaintiffs did not establish 9 Plaintiffs did not establish that KMTC-JV was involved in the other incidents; thus, this evidence could not be used as impeachment of KMTGJVs safety record. In fact, the evidence shows that KMTC-JV did not exist when the other incidents occurred. The " study" merely states that a Kiewit entity or a subcontractor was involved in three accidents in 1994 or 1995 and provides scant detaiL lo In the instant case, plaintiffs' counsel azgued that the evidence was admissible for impeachment purposes. That argument fails for the same reason noted in Lee, supra. 19 how the accidents occurred, vvherE the accidents occurred; ar ih parties involved in those names of the Failure to establish the proper predicate accidenis. renders the evidence inad nissible, and thus, adsnission of the ather accidents was legal error, C.) Attorney-Client/Work-P° odu: t PrivilegeLouisiana C de of ' ivi discovery; trial preparation; Procedure a*_° tic1L 1424 is entitleei " Scope of Article 1424( A) provides that the trial materials." court shall not order the production nr nspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his cla? or defense or will cause him undue hardship m or injustice. Article 1424( A) further provides that th_ court shall not order the e production or inspection of any part of the vriting that reflects the m.ental impressions, conclusions, opinions, or theoxies of an Thus, attorney. the attorney work-product rule"' generally prohrbits the release of znformation prepared in anticipation of litigation unless prejudice ur hardship is shown to occur if access to the privileged ;nformation is denied. See Cooper ve Publie Belt R.R., 2002- 2051 ( La. App. th Cir. 1/ 22103 j, $ 5o.2d 181, 184. 39 The purposes of the work-produ; t rule are to provide an at orney a " zone of privacy" within which he is free Yo e aluate and prepare his case without serutiny by his adc ersary and to assist clients in obtaining complete iegal advice. Id.; Hodges v. Southern Farm Bureau Cas. Inso Co., 433 So. 2d La. 1983 j. 25, 131- 132 Louisiana juraspxudenee has consistentiy recognized that the privilege created by the work-product doctrine is qualified, not absolute. S, e e° g ¢ Landis v. Nioreau, 2000- I 157 ( La. 2`21l'O1), 779 So. 2d 691, 697. 20 In Cacamo v, Libert! YIut Fire Ins. Co., 99- 1421 ( La. App. 4th Cir. 10/ 10/ O1), 798 So.2d 1210, 1214, w it not con.si ered, 2001- 3087 ( Iaa, 1/ 25102), 806 So. 2d 665, writ denied, ' 0 1- 9k 5 ( La. 1/ 25! 02), 807 So. 2d 844, the court noted: Louisiana' t c. rule ro s work[-] stat tti t, ecua shall not order the production of a document prepared bg axi adverse party in anticipation of litigation or tr.al unle5s t ie denial of proc uction will i unfairly prejudice the par- y ezking production. [ La. Code Civ. P.] art: 1424. Under no circurnstances documents production of conclusions, opinions, reflecting or theories of an should fhe a court order " mental attorney or an the impressions, expert." Id. Only documents and evidence obiained in anticipation of litigation or trial are covered by the work-product docYrine. See Boc rd of Com' rs of New Orleans Exhibition Hull Authority v. Missouri Pacifc R. Co., 613 So.2d 174 ( La. App. 4[ th] Cir. 1992). Article 1424 requires a two- fold inquiry for determining if documents are protected by Yhe privilege; ( 1) ' ere the articles obtained or prepared in anticipation of litigation ar trial? and ( 2) Will the party seeking production be unfairly prejudiced, subject to undue hardship, or subject to injustice by denial of the discovery? See Smith v. Travelers Ins. Co., 418 So. 2d 689 ( La: App. 4[ th] Cir. 1982), rev' d on other grounds, 430 So2d SS ( La. 1983). To deterrnine if the wc rk- product privil.ege applies, a courk should cc nsider the content, nature, and purpose of a document, not the date or time that the document was prepared. See Federal Deposit Ins. Corp. v: Butler, 488 So.2d 741, 743 ( La. App. 4[ th] Cir, 1986). The attorney-client privilege is found irA 9rticle S06 of the Louisiana Code of Evidence. disclose, The general rule is that a client has a rivilege to refuse to and to prevent anothe. person from disclosing, a copifidential r communication between certain categories of individuals, whether aral, w? itten or otherwise, made for the purpose of facilitating the rendition of' professional legal services to the clienY, as well as h perceptions, observ°ations, and the like, of the mental, emotional or pHysical condi[ ion of tne client in connection with such a communication. La. Code Evid. art. 50(i( B). To establish the attorney- client privilege, several elements must be proven by the parky asserting the privilege: 1) the holder of the privilege is or sought to become a clzent; 2) the communication was made to an attorney or his subordinate in a professional 21 capacity; 3) the communication was made outside the presence of strangers; 4) the communication was made for the purpose of obtaining a tegal opinion or services; and 5) the privilege has not been waived. In re Shell Oil Refinery, 812 F. Supp. 658, 661 ( E.D. La. 1993}; Cacama, 798 So.2d at 1216. Under L.ouisiana law, the party asserting the privzleg has the burden of proving that the privilege applies. Cacamo, 798 So. 2d at 12I6. Further, the party asserting the privilege must adequately substantiate the claim and cannot rely on a blanket assertion of privilege. Id. In the instant case, defendants claim that the trial court initially ruled correctly that material generated by a Kiewit corporate attorney was privileged, but then later erred in admitting the attorney' s information through the video deposition of Jeffrey Travis, KMTGJV' s non-testifying expert. Travis was hired on behalf of KMTC- JV and worked with attomey Glen Summers. He investigated the accident and preserved some artifacts and evidence." Priar to trial, KMTC-JV filed a motion in Iimine as to the privileged information. KMTGJV communications and to sought to documents exclude all references identified in its privilege to privileged logs. The infarmation was submitted to the trial court for an in camera inspection. On the first day of trial, the trial court ruled on KMTGJV' s motion in limine and held that attorney Summers' Z notes were privileged. During trial, plaintiffs played portions of Travis' s video deposition testimony, who read from notes that he repeatedly testified were made pursuant to information given to him by attorney Summers. The trial caurt allowed the testimony over KMTC-JV' s objection and instructed the jury on privilege. 1 KMTGJV provided Travis for a deposition because he went to the scene of the accident and preserved evidence. 12 The trial court stated that an attorney enjoys a pxivilege with his client and unless he opens the door, " then that ruling is going to stand." 22 A review of the record leae s no doubt fhat much af Tra, is' testimonv was based on informatibn rovi.d ci to him bi ca ¢. rperrate a[ torney Sumrriers. The information was gathered by S rrsners xn anticipaY on af lixigati. n and in preparation for tnal. It was provi ed tc ' Txav. s, whc assisted Sunam rs and was a non- Louisianu ' expezk. tesiifying d i C' ivil Prc Q c uure ns.l. l rr, ws( D)( 2) restricts discovery- of f'acts known ''t a, nc3 o zii ns k eld by, e? pe ts z nplb ed in anticipation of litigation and preparation foa trial w ¢ o are not. expected to be h called aa witnesses at triaL Under Louisiana Gode of Evidence article SOti( B)( 2, communications from Summers to Travis lawyer and a representati e oi the n ere communications between a r (datined in La. Code Evid. art. a-} 506( A)( 4) as a person engaged bj the la yer to assist the lawyer in his rendition of legal services), that wex mad. in f[ urtherance ot providing professional iegal services. Accardingly, this court finds legal rro2 in thz admissio: z of tti Tra is testimony. We the jury' s that its determirAe whethez th4 af'ocementionzd "legal erresYS must no verdict as to Kl 1T- conduct would Travis' testimony cause forms experienced prolbleyns at Jti'. . harm is the basis the V'- 3 the accident oceurred at W- 2. ted abo, s s arad Sp 1t- 4, c f kev pro6f that IuTvYTC-- V kr ew pxozing I.' IT"- J' plaiaaTiffs' rr. e Y; cificall, tc j ainY d at claixtis 4calumns tha; s tiabi: it. Ii1 1TC- JV rere buzlt tiefore lazr,tifis establishec, thro a h 'I'ravis' testimony, that the rebar cages at th se ttivo prior columns leaned. Consequzntiv, plaintiffs repeated' Iy subsYantialiy certain argued to cause xhat harni. KMTt'-.T kneva that its met od wa T:'e j ary alsu heard e idence oi' oiher i accidents reiated to rebar cages, sug esting knowledge of K V 1' C- JV. despiYe proof that KMZ C- JV did not ae.tually exist when. the prior accidents occurred, The jury also heard many witnesses testify to pyocedural changes made after the accident, such as cuiting the re ar cages in hal£ and keeping the crane Qitached 23 We find that the trial court' s cumulaGive lzgal errors in admitting the longer. inadmissible evidence was of sue i a serious prejudieial nature that it jtistifies this court giving little or no wei 165. Thus, out findin of the review A c f prejudic ntire r, cord a review of tt ht to tti. jur;t' e t l e a1 error r cfuires us tc cc,rida t a c E novo I TC' T" ' adtnissibl rdict. See Gonzales, 320 So.2d at s - tia?ility. vidence in ` tie re ord ski ws tt3at nQ other witness besides Travis testified aboui leaning rebar cages constructed at any of the other columns for the project. KI ITC-JV crane uperator, Mayon, specifically testified that he was the crane operator n the W- 3 and W-4 colur ins on the Huey P. Long Bridge project, and he saw no leanin.g of any rebar cages. Angel Carona, J.L. Steel' s foreman on the job, testi ied that he had not noticed any significant bending or buckling of a rebar cage pri.oz' to this acciden:t. Michael Phelps, Kiewit field engineer, testified that he was mear the crane on the date of accident. He testi ed that he did r,. see the rebar cage at column at W-2 lean before the crane was unhooked; and he necer heard anyone say that they saw rebar similar Phelps the cage also cages testi° ied leaning tood at he before the qverni; id ht ith. o' fhink: the lift was mad and that it was onl earlier crac c was no the '-? utihooked. t ane atYached, He testi ed that onlv gu vires. x e ar cage w, s toa Iarge lbefore a twoyto-ttar e- eet taller thaai those sed on lifts. He testified tliat the W-? rebar ca e was spot checkad befare thz lift, and no problems were identified. I'helps further testified that the I? OTD enntract administraYor, Lauisiana T'imed Managers; a Jaint V"eniure Partnership ( F, TM), did ncit ereate any non-confoi inatace repozts on any of the rebar cages ior ihe proj ect. John Proskovec, vice president of Kieurit Louisiaria ai d manager of Yhe Louisiana area for the aompany, test: fied tk at KMTC-JV made a mistake in the field whexi attaching guy wires. He tesii ed thaf Ceasar Velador pulled a Yape to 4 measure the location for the blocks and thought he was putting them in the right places, but after the accident, they saw that KMTC-JV had not followed the guy wiring plan, which was prepared by KECO. Proskovec testified that, if the guy plan wiring had been followed, the accident would not have happened. He further testified that if this cage was doomed to fail, KMTGJV did not know that. "[ t] here' s no way I could have know [ sic] that, no way Dan [ Michalowski, KMTGJV supervisor] could have known that, no way anybody on site could have known ... that it was going to fail internally." Proskovec also testified that KMTGJV had never been involved before ar since this accident in an accident involving a rebar cage collapse. He testified that he did not obtain knowledge that KMTGJV or Michalowski knowingly deviated from the plan. He further stated that OSHA did not find that KMTGJV intended this ar knew that it was substantially certain to follow. Proskovec testified that mistakes were made and it was a horrible thing, but no one intended the accident. In summary, Proskovec' s testimony established that no one at KMTC-N knew that installing the W-2 rebar cage in this fashion would cause anyone to be harmed. Mike Sulser, a Traylor Brothers engineer, iestified that he is a licensed Louisiana engineer and worked as the rebar and concrete coardinatar on the project. He testified that he worked with J.L. Steel on this project every day since the wark began in 2008. He also worked closely with CMC Rebar. Sulser testified af length regarding the safety measures and procedures' followed at the job site, including a hazard analysis, a 'wo'rk plan quality analysis, and several layers of regular safety meetings witfi all parties involved. Bruce Peterson, M& M project manager, testified that no one at M& M believed that KMTC-N intentionally caused the accident nor has M& M ever believed that KMTC-JV knew ar was substantially certain that the accident was going to occur, but then did the operation 25 anyway. Frank Denton, M& M' s expert, also concluded that KM'I'C-.J' did not. know in advance that this aecident was substantially certain to happer atid Yhen prr ceeded with the project anyway. Plaintif s expert, Dr. 7ame Ha ralu Death:,rage, iesti£ied that he reviewed 30, 000 documetits, a,s well as testirnozay-4 atid did no: iin i a v e-vide ice that ars orbe from KMTC- J`- intendedl to harm concluded that TKMT(;- 7V ar vocie. was f at 4' e ur+ers ai?. 1ic vv thz jurr could ha e d ' Thexr aond ic;t was certaimly r. egligent ult. ' and perhaps even grossly negligent, but our thorough review of the admissible evidence in the record convince us that KMTC-JV' s conduct does noz rise ta the level of an intentional act. Even if we e nsidered t'tle admission of testimony about prior leaning of rebar cages as harmless errar that testimony does not suffice to prove that KMTC- JV knew that the accident was substantially certain to follow. As in Reeves; 731 So.2 at 212- 213; there had been nc prioraccident. Also similar to Reeves, the fact that tlae emplo er kneiv that the work was dangerous is not sufficient to support a fnding that. tlie mployer ntended the harm to occur. Likewise in this case, we cor cluc3a t at the tect for fin ing an intentional act is not met wnde accord with the jury these facts verdict casting nd thus, the judgment rendered in I MTC-.1V 0% at fault is re ersed. Plaintiffs' exclusive remedy against tlais atatutory empl yer is pur uant to tkae Louisiana Woxkez° Compensation s' ct. Having coticluded that K1 TTC- J' intentional act, we pretermit a s conduct did not constitate an fu11 discussio assignments of error regardin ne legal analy is of KIvITC- JV' s incomplete and confusing jury instruc[ ions c n intentional acts and prejudiciai photographs. KECO' S LIABILIT'Y KMTC-JV and KECO contend th t thE jur}%manifestly erred in concluding fhat KECO was i0°io at fault and that KECO' s fault contributed to the death of Martinez. The basis of this argument is that kECO provided a very 26 limited scope of work on tkie pro; eY; providi g c nly a guy wiring plan, which was not followed. It is weil settl d that court of appeal may not set a de a triai court' s or a jury' s finding uf fact in the absence f=` zr.anffest err r'° or unless it is gtosell, 549 Se. 2 i clearly % rong." whethex to revers t 44. T} a. two-part ie: t ? d termine a factfinder' S c e ermgnaczuns is: 1) the a4,pel ta s, airt must find from the rer.ard tFiat a reasonabie factt al, b szs does noz exast for t7ae £ inding of the trial court, and 2) thz appellate couri mus2 further determine that the record establishes La. 1987). that the finding is clearly wrong. Mart v. Hill, OS So. 2d 1120, 11? 7 The issue to be resolved by a reviewing court is not whether the trier of fact was right ox wrong; but ti- hether the factfincier' s canclusion was a v reasonable one. Sistler v. Liberty 1VIut. Ins. Co., 55 ¬s So.2d 11U6; ll12 ( La. Even though an app llate court may feel its own evaluations and 1990). inferences are more reasonable than the factfinder' s; xeasonable evaluations of credibility and reasonable inferences of°fact should nqt be disturbed upon review where conflict exlsts in the testi r?ion. y. See Rosell, 549 So.2d at 844- 45; Arceneaux v. Domingue, 365 So:2d 1330, 333{ La. 19? 8 j. Applying the standard of revievv set out above, we car:not say that the jury' s finding of fault on the part of KEC waa manifestly enroneaus, Dr. Deatherage testified that the KECO g zy vv rirag plan tailed to give Y iisibn directives for the wires. He t sti ied that IiF, O was in the iesi position to raise C the uestion of the rebar cage stability and fhat KF. U should ha e perrforin d a C stability analysis. h T" e tes imony Qf Dr. D atherage that KEC hould have mandated specific tension on the wires and shouYd have performed a c.age stability analysis is a reasonable basis on which tYie jury could have cc ne uded that ILECO vvas negligent and that KECO' s fault contributed to the callapse of the rebar cage. This is true despite the fact that ItECO' s plan was not followed. Even if legal error in connection with evi a tiary rulings interdicted the fact27 finding process as to KECO, and even after we exclude the erroneously admitted evidence, we conclude, based on our de novo review of the evidence in the record, there is still adequate evidence to support the jury' s conclusion that KECO was at fault and that its fault caused or contributed to Martinez' s death. Accordingly, this assignment of error has no merit. VIcX M' S LIABILITY M&M argues that the trial court committed reversible error when it allowed plaintiffs' expert to give opinion testimony interpreting the contract between M& M and DOTD. M&M also contends that Louisiana law requires that plaintiffs claiming professional negligence must establish that the professional failed to perform his services in accordance with the skill normally exercised by others in his profession in the same locality and plaintiffs in this case failed to establish what that standard was. M&M further argues that the trial court erred in prohibiting M& M from conducting a meaningful cross- examination of plaintiffs' expert on voir dire as to the locality standard of care, and additionally, the trial court erred in refusing to allow M&M' s engineering expert to testify regarding the locality standard of care because his license expired after he retired from practice. M&M avers that these legal errors resulted in the jury erroneously finding that M& M caused or contributed to Martinez' s death. Under Louisiana law, where the words of a contract are clear and unambiguous, interpretation of the contract is a que'stion of Iaw and subject to de novo review. See Guest House of S1idelCv: Hills; 2010- 1949( La. App. 1st Cir. 8/ 17/ 11), 76 So3d 497; 499. If a contract is ambiguous, courts are to seek the meaning based on the intent of the parties to the contract. Id. Louisiana Civil Code article 2045 provides that"[ i]nterpretation of a contract is the determination of the common contracts intent of the parties." according to the true intent We are obligated to give legal effect to of 28 the parties. La. Civ. Code art. 2045; Guest House of Slidell, 76 Sa, 3d a 449. The, true intent of the parties to a contract is to be determined by the words of the contract when they are clear, House lead to and explicit of no absurd S( idell, 76 So. 3d at - La, C' iv. Code art. 2(146; Guest consequences. In such cases, th.e meaning and intent of the 9. parties ta the written contract must be sought within the fi iar comers of the instrument Code art. and cannot be e xplained or contradicted 1848; Guest House of by paroi Slidell, ! 6 So, 3d at 499. e idenc. I,a. Civ. Such contracts are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the Guest House agreement. of Slidell, 76 So. 3d at In cases in which the 499. contract.is ambiguous, the agreement shall be copstrued according to, the intent of the parties. Id. Intent is an issue of fact, which is to be inferred from all of the A doubtful provision must be determined in Id. circumstances. surrounding light of the nature of the contract, equiry, usages, the conduct of the parties before and after the formation of the con?ract and other contracts of a like nature between the L. same parties. C; iv. l ode arf. 2i?ti3; liuest Fiouse o f Slidell, 76 So. 3d at 499. MB M filed two motior s in Ya nir e seekira; to prohabit plaintiftfs' eXpert, Dr. Deatherage, from i. estifying DOTD, and the scope of' as M c he cM' s aneanizi du ey fn af th reund r. co fi trac- be wees I A4i and IXiM sought a ruling ror i the trial court prior to plai 7tiffs' expert. ezn v fered to testify. Z3 T e trial eou aliowed Dr. Deatherage to give opinion testimony as to M& M' s duty under the contract. M&M argues that allow%g Dr. Deathe. age to give hi5 c paziion of Yhe i r meaning of the contract was prejudiaial legal errox. We agree. 13 Fox the same reasoxi pxaviousi_ discussed, we find thai the m.trtions in Iimine, as well as Yh y parties seekivag a ruling on the motions jusf prior preser ed the issue for appeaL 9 to this witness bein resen4eci tc Yestify, Admissibility of expert testimvny in Y: oui iana is governed by I,ouisiana Code of E' vidence article 7Q2, whickl pYOVides: " If sc,ientifie, [ eclulical, or other specialized knowledge will as isk th trier of fact tc understand the evidence or to determine a faet an issue, a v ritnes q alzfed as an x_ pert y _ kno Tledge, skill, experience, trainin;, or educatio otherwise." inay testi£y tihereto in the Eoir r f n oprnion or A trial court is acca xcl d l rqad isc etic r in determzn n a hethar expert testimony is admissible and who should or should not be permitted to testify as an expert. Merlin vo Fuselier Const,, Inc., 2000- 1862 ( La. App. Sth Cir. 5/ 30/ O1), 789 So. 2d 710, 718. However, Dr. Deatherage' s opinion was not reievant to assist the jury on a technical issue or in determining the contracting parties' intent. Admission of tl e testimony on this point was prejudiczal legal error. The jury could have easily concluded that M& M had a duty to invoive itsei?°in the contractor' s decisions on how to build the columns fo?-the bridge. In addition, the expert' s testimony in this regard do s not meet the stand rds ofTe hniczl or special knowZedge. See Cheairs v. State ex rel. Departrnent of Te°ans. and Development, 20Q3- 0680 La. 12/ 3/ 3), 861 So.2d 536, 5 0 541. It is .nerely conciusar5 ¢. Accordingly, w-e find that the jury verdict is ntitled to n condu t a de . aovo review ofth.e record as te u-ei t on xhis iss-ue, and u= m st e 1& M' s liability. To determine the scope of tne duty awed hy M& 1 1, this coart mu, t consider the express provisions of the contrai-t betweeri the + arfies_ See Uay v. National U.S. Radiator Corp,, 128 Su. 2d 660, 666 ( La. 196I). The contra t between DO'TD and M& M is for design services. Supplement 2$ to the contract addresses M&M' s duty to prov de design services during consfrnction. I±reads, in pertinent part: 30 SCOPE OF SERVICES The services to be performed by the Consultant as set forth in the original Contract, Supplemental Agreements No. 1 through 27 and Extra Work Letters No. 1 through 5 are hereby augmented to perform design services during construction for the Main Bridge/Westbank and Approaches Eastbank Contract, more specifically described as follows: November 1, 2008 through the duration of the construction period. Meetings and Coordination-Attend partnering meetings, LTM meetings, and other meetings as required. Shop Drawing Checking and Construction Procedure ReviewsReview and check contractor prepared shop drawings and review contractor' s construction procedures. Design RFI' s- Review contractor requests for information and requested changes in design details to accommodate contractor' s particular plant ( sic) and methods. Construction RFI' s- Review contractor request for information and requested changes in details to deal with unforeseen circumstances and events. Plan Changes- Execute and process plan changes when needed. Review of the specifications for the bridge project contained in Section 806.03 of the Red Book ( the standard specifications required by the State of Louisiana for roads and bridges) shows that M& M is required to review the reinforcing steel list the contractor intends to use on the job and the placement drawings for that steel. However, M& M argues that the contract does not require M& M to review erection Since we find that the words of the procedures. contract are ambiguous in that they are subject to different interpretations, we must review the testimony of the parties to determine their intent. Record testimony of the relevant parties is as follows. Steven Spohrer, LTM depury director of construction, testified that the Red Book did not require M& M to review erection drawings for any column used on this project. M&M was required to review shop drawings in order to determine that what the contractor planned to build was in conformity with M& M' s design. 31 However, Spohrer testifiea xl at no rebarr cage erect? n draw-ings w°ere submitted c by LTM (the SYate' s c; onfract adminisiraYor tor I) Ill O' to M& I for review. Tom Thorn, K 1TC- Ji' aroject mana ez; estzfied that he had overall responsibility for tihz project. I e t ati: hat it ed k1NITC- JV' s dut was a place the guy wires aFad tt decide hE w t ii£ he reb r cage an3 fhat 41 rM ha no duty t to observa work at the site. Tka l t stified tllszt placenzer!t e zawangs t:, or the W-2 column did not address how Yhe cc lumn would be built. He further testified that M&M had no it volvement wa.th design ui the rebar cage, b ilding the cage or hooking these " it to or ur temporary hooking structures." it fr m the crazie, 1 M had no duty relative to i 1& lbi designed the work, but it vaas ttot responsible for the methods used to build it. Bruce Peterson, senior associa e project manager far lV1& 1 1, testified that M& M had no duty to go to the site unless cailed on to do so aa d tnat Iv& lv1 vas not called to go to the site in connecC` on with an r cc lumn wark. He also testzf ed that M& M was not ask d to review anq construction procedures ior steel reinforced cc lumns. Peterson stated th: t the ked Boek spklis ut drawings are required to be ul mfltted q 1i] I Ly the ge eral contractor. Accarding to Pet rson, Lhere ia nc requireirse_ tkiat at contractor' s construction rc ceduxzs lhich shop 1&' v1 re° iew th fe r reinfoz° cea st el genera co icretz Lolixmr.s. M&M revzew= piacement drawings to ensure that the brid e was being built in ed accardance with the plans and specificationa. Peterson testified hai 1VI I 1 d e not review shop drawings for erection procedures; and the specific metlhocCs for building the bridge are ch sea exclusively b} the general oontracYar. Fie iurt ler testified that M&M never received a guy wz ing pian for any rebar eage. Aclditionally, Peterson stat d that LTM did not ask 1vI& tca r view the May 2009 guy wiring plan fox the W-2 colr mn. Peterson testified that only two items were sent ta M& 1 to review unc er Supplement 28 of the contraci with ll0` TD 32 that per[ ained ta E73B 11 shap dra xn s tar steel, and 2) the Septernber 4'- 2: 2008 guy wiring plan fcr concrete farms. Our review of the rec rd cc nviraces us that unde its , ontract with DOTD, M&M did not have construction of the items iC the vas s} a duty W- 2 c- c.ti r. proce lurvs in cr n ectiorz with the r to revie calurnn ecifically ihae d . asked to rc;vi ui 1 r er geriee, tkiat ` w anc 1Vi r viev ed anly zte serzt to at by L:L1 1. LTM was under contract witl'i D' TD to provzde cc nstruction management, and it had on- site presence throughout the prc> ject. ' Vhen M& M revi.ewed CIv1C Rebar' s placement plans for the reinforcing steel required to b included inside of the W-2 column, M& M fulfillea its contractual obligation to DOTD by verifying that KMTGJV intended to build the column as designed. Based on the admissible evidence and the applicable law, we conclude thati M&M had no duty to revie r the conYracior' s means and m etk ds for er.ecti.on of the rebar cages and ciid not review the ; rectr n plan fe,r the rebar eage involved in the accident or fnr any other ca e. The trial right to fully applicable court also carrzmitted 1ega1 cross- examine to M& M' s conducl. plaL tifi;' ercor in de ayin 1&: VT' s counsel the expezf regarding the standard of care 11sa fatial to pl intiffs' clairn aga:nst M&? vss VI their failure 7o introduce evidence of the standard of care in trie locality. Dr. Deatherage testified that the standard of care is what a reasonably pYUdent contractor or engineer would do under similar circumstances, re ardless vf w'here he is. He testified that he iiever racticed engineerir g in I ou'isiana. F e aiso adrnitted that h rnade no invesYigation regarding the sta.ndard f care applicabie to I< ouisiana engineers ar to the locatiori of the projecte In Garter 56b So2d 960. 9 conducted v. 2 Deitz, 556 So.2d 842, 843 ( La. and 993 ( La. 1990), bridge safety sYudies on App. 4th Cir.), writs denied, 1& M, a prof ssional engineering fuxn, 2h 33 Greater New f rteans Bridge and recommended that a bridge safety barrier not be installed. After an automobile accident occurred, M& M was sued for professional negligence for failing to recommend installation of the barrier. The jury cast M&M and others in liability for plaintiffs' injuries. On appeal, the judgment against M& M was reversed. The court noted that review of the record revealed that plaintiffs' expert failed to establish the professional standards by which the finder of fact was to judge defendant M&M' s safety studies and recommendations. Id. at 869. The court found that this was an essential element of plaintiffs' burden of proving that M& M committed professional negligence. Id. at 867. The court concluded that, notwithstanding that fatal omission, no competent evidence adduced at trial suggested that M& M' s recommendatiori deviated from the requisite professional standards. Id. at 869. The court noted that the e: pert testimony of another civil engineer, familiar with the practic of civil engineering in Louisiana, was needed to establish the requisite standard of care and skill against which M& M' s safety studies and recommendations were to be judged. Id. citin Sams v. Kendall Const. Co., 499 So. 2d 370, 374 ( La. App. 4th Cir. 1986)). In the instant case, Dr. Deatherage did not give testimony establishing the standard of care by which M& M' s conduct was to be judged. Instead, he testified to his personal opinion based on his own inclination or belief that the design engineer on this bridge project should have sought out the general contractor' s means and methods of building wHat M& M designed. Our review of the xecord reveals that plaintiffs failed fo establish the standard of care by which 1VI& M' s conduct was to be judged. Further, there is no evidence that suggests M&M' s design of the, bridge expansion was faulty. 34 Accordingly, the judgment findin M R1 at faul'c iz c; ausing or cc nYribufing to Martinez' s death is reversed.1 IAGES D r ll defendar ts challen; e tcikai t1 jutiry au- rd nr $ 13 Ynaliivn to the plaintifzs. I'he jun a varded dam ges as 7 a11oW s: Survival Award for L'lvaldo Soto Martinez' s sufrering prior to his death: Terror during the Bodily pain and 250, OOU fall suffering befoye deaYli Emotional nd mental anguish a£ter the fall, prior to death TOTAL 250, 000 500, 000 l, 00U, 000 WronEful Death - Maria Cruz Maldonado' s award for the wrongful death of her husband: Past emotional pain and Future errzotionaT pain and Past lost economic Future lost Loss suffering bene economic suftering 1, 500, 000 101J; U00 its benefits oflove, aifectzon and 500, 000 1, 400, OO J socie2y TOTAL 1, 500, 000 5, 000, 00 WronEful Death Justin Mald nado' s aw rd for the u= rangful deat-i of his iather. Past Fuiure Loss fferiyig emotionai pain arid s notional paan e love, af Fuiure lc ancl affecrion ar st economic uftexing dl sc iety benetits TOTAL 7 O, f l 0 75t, G(?( 1, 5!90a00( 50, OOQ 3, 00O, OOl7 Wrongful Death - LJsvaldo Maldonado' s avvard for the wrangful death of his fatlher; Past emotionat Future I;oss e of pain and su£f ring iotional pain and love; Future Yost AL TC) I" ffection econamzc suffaring and sociefiy benefts 700, 000 750,000 1, 500, 000 SQ, OQO 3, 000, 000 14 Because of our holding reversing liability as to M& M, we pretermit T& M' s specificati n of error on whether the irial court erred in refus:ng to all.ow its retired eaipert, Franlc Der:ton, to test fy. 35 Bvstander-- Gilberto Soto Martinez' s award fo. uviznessi.ng the deati of his btother: r Past Future Loss T emotior al ai ad s of love, affection anc ring SOO, OUO fferin, emotional pain anci s zff 2SO, Q00 50OUO ocze, 1 lAl. The factfnder is given mu4h discretir n Y Civ. Code art. 2324. 1. VUyVVV the a sessment of datn ges. La. The vast discretion yested in the fact inder should rarely be disturbed on appeal. Youn v. Maritime Overseas Corpe9 6Z3 So. 2d 1257, 1261 ( La. 1993), cert denied, 510 U.S. 1114, 114 S. Ct. 1059, 127 L., d_ 2d 379 1994). Damage awards on app211ate review will be disturbed onTy when. there has been a clear abuse of that discretion.: Theriot v. Allstate Ins. Co., 625 So. 2d 1337, 1340 ( I, a. 1993). The iritial inquiry must always be directed hether at the trial court' s awaa d for the particular injuries and their effects upon this particular injured person is a clear abuse of the factfnder' s ztiuch discretion. Emery v. Owens- Corporation, 2000- 2144 ( La. So. 2d 441, 457, writ of discretion appropriate, and is a then for the is reasonably which lst Cir. 11/ 9 G1), 813 denied, 2bfJ2-063S ( La. 5/ IO n2), 815 So. 2d 842; Reck v. Stevens, 373 So. 2d 498, 501 ( La. 1% abuse App. within resQrt to 9). Unly fter such a detem ination of az v corr. parati. purpose af ieterrraining that discretion. analysis tf e oY highe 9: oa pric r awards zc vest znt Youn, 623 SQ. 2d at L60 (cxting Coco v. Vinston Industries, Inc.; 3 1 So.2d 332 ( I:a: l_976) j. A plaintiff is entitled to reccive ¢ for ali daanages necessary to compensate for the physical injuries- suffered. Hymel v. HMO of Louisiana, Inc., 006- 0042 ( La. App. lst Cira 11/ 15/ 06j, 951 So. 2d 187, 204, writ denied, 2006- 2938 La. 2/ 16/ 07), 949 So,2d 425. General da ages are those tY at may nrt be fixed with any degree of pecuniary exacLitude but which, instead, involve mental or physical pain or suffering, inconvenience, the lass of gratification or intellzctual 36 or physical enjoyment, or other losses of Iife or of lifestyle, which cannot really be measured definitively in terms of money. Id. 204- 205. at In reviewing a general damage award, a court does not review a particular item in isolation; rather, the entire damage awarc is reviewed for an abuse of discretion. Graham v. Offshore Specialty Fabricators, Inc., 2009- 117 ( La. App. 1 st Cir. 1/ 8/ 10), 0 37 So3d 1002, 1018. With these principles in mind, we review the damages awarded by the jury in this case. A.) Survival DamaEes- The jury awarded a total of $1 million for pain and suffering and mental anguish suffered by Martinez, before his death. Survival damages may be awarded for the pre- death mental and physical pain and suffering of the deceased. Leary v. State Farm Mut. Auto. Ins. Co., 2007- 1184 ( La. App. 3d Cir. 3/ 5/ 08), 978 Sa2d 1094, 1098, Temple v. writ denied, 2008- 0727 ( La. 5/ 30/ 08), 983 So. 2d 900. Mut. Ins. Co., 330 So.2d 891, Liberty See also 893- 894 ( La. 1976). In determining survival damages, the factfinder should consider the severity and duration of any pain and suffering or any pre- impact fear experienced by the deceased up to the moment of death. Leary, 978 So. 2d at 1098. " Survival damages are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compensable." Leary, 978 So. 2d at 1098 ( uotin Patrick v. Employers Mu#. Cas. Co:; 99- 94 ( La. App. 3d Cir. 8/ 11/ 99), 745 So. 2d 641, 652, writ.denied, 99- 2661 ( La. 11/ 24/ 99), 750 So. 2d 987). A survival action permits recovery only for'damages actually suffEred by the deceased from the time of injury to the moment of death. Etcher v. Neumann, 2000- 2282 ( La. App. lst Cir. 12/ 28/ O1), 806 Sa2d 826, 840, writ denied, 2002- 0905 ( La. 5/ 31/ 02), 817 So: 2d 105; Samuel v. Baton Rouge Gen. Med. Center, 99- 1148 ( La. App. lst Cir. 10/ 2/ 00), 798 So. 2d 126, 129. 37 Where there is no indication tbat a decedent c nscia usiy auffereci, ara award for pre- dea*. h pain and suffering be denfed. Samuel,. 7' 8 should Charity Husp., S15 So.2 11 ll ( La. 198? 1. suffered rs a The c uestit, a factual issue, See Cavalier . State 614; il ( L.a; of gczvemed f b evh ihd Lao thraugh r e fJT D, ierre v. Lallie Iiemp w r.t d tla xr araa 129; ' C: ir.j, st g. tk at cedetit t ot ¢-c1 ? 008- hysical deni_d, e ai uall ly ar' c+ nsciously saxoca; 561 ( I_. a. _ 15 So.2d tandard. pp. ? st Cir. 9/ 12/ 08), 994 So. 2d 635, 645; Etcher, 176 Sa. 2d at 8 0. The testimony revealed that Martinez fell from a height of over 60 feet when the rebar cage collapsed. He was found 1y ing face down and wa breathin when the first person arrived to assisY him. He c ied at the scene sfit>rtly thereafter. There is no evidence in the record that Martinez was conscious at the Therefore, we find that the jury aw ard of $25U, OU0 for Martinez' s scene. physical pain and suffering beiore his death is abusively high.° The evidence supports a iyndzng ti at ,tilartznez would have been frightfulYy aware that he was likely to die or suffer seria us injury when he rebae cage started its descent. While pre- impact fear is :: qmpensaL le, we deem the jury s au ard of 250, 000 f r terror during the fail and$ S J( l, OUQ far mentai an uish. a8er i he all, bu2 prior to his death, to be so exceasive as to consGitute an buse of the jury°'s discretion. In Ra,ymond v. Government Employees Ins. Co., 2009- 1327 ( La. app. 3d Cir. 6i2! 10), 40 5 3d 1179, 1192, v r.t denied, 20Y(J- 1569 ( La. 1,'` 8! 10); 46 Soa3d 1268, an award of $SU, 000 for urai. al damag:,s was affirmed wh; re the iecedent died due to a car, crash. The caurt noted that the de cedent was aware that rhe coll sion was about to occur and he obviousY feared the collision. At he scene, the decedent_ runted and raised his head twc dr three times, and lais eyes were halfway open. He was transported to th2 hospital and was o}?serve< to have i 38 suffered severe chest and abdorn_ en trauma, multiple left rib Cxactures and pulmonary contusions. In Long v. State, Througlh the Dept. 2d Cir. 1 1` 24 03, 6/ 29/ OS), 9 1. 6 So. 2 $ 862 S, 2d 1, 7, the driver of rez ersed o A witness testified that he he rd ttl z Trans. and Dc., 37, 442 ( La. App. n och r_ rou tdso 2 04- 485 (La. g__ 0 4-Ehic' e. that <, Ptidec w*li a train , as killed. coJ.lisien ard on arrival at the cene, mbserved the decedent lying on the ground. He testified that he knelt beside the decedenY, saw that she was alive and tried to give her_ comfort. The witness stated ttiat when he called the decedenYs name, she tried to respond b}- making gurgling sounds. He further testified that in response to hi questions, the decedent' s body tensed and she appeared to try to speak, but she could not furm wards. The witness also testified that the decedent experienced diffi ulty breathing and that her b dy was mangled" with apparent seti-ere fractures of her arms and legs. He estimated that the decedent lived for approxiniatel% twenty to tlairt_ minutes after ixnpaaf. Id. aY y 156- 57. The court concluded that; ased o the testimony and the phatographs depicting the extensive damage caused to the ciecedent' s s-ehicle, there was evidence from which the jury cou1d haWe zoun l that th c ecedent Evas ; onscious for a period of time fcallowing the coYlisa n ra priar to losing consciousness, Id. t hat she ex erienced pain and s ffered 157, Thu coizrt affirmed an award of 250, OO1 in survival damages. ld. Based on our review of jurisprudence an3 considering the facts of the instant case, we find that the highest amount to he reasonabl'y within the ,jury' s discretion for survival damages in this case s$ 300, Ob0. i5 ' hus; we will decrease Yh award for urvival damages frorrt $ 1 millia: to $ 3( 10, 000, See Hutto . 1219, writ McNeil-PPC, Ine., 2011- 6f 9 ( I. A,pp. 3d C':r_ i2`7/ 1 I), 79 5o.3d 199, 1217a. danied; 2012- 0402 ( La. 4/ 27/ 12), 86 So. 3d 628, 428, 184 I,. Ed:2d 289 ( 2012) $ cert. denied, U.S. , 133 S. Ct 1 milliozi aw ¢ ard for survival damages af rmed wnere child suffered acetaminophen poisoning and uffered horrible pain in the hospital for fou: days before her death, was cognizant of parents' presence, but neither could fonch danghter te 39 Wrongful Death Damages B) Wrongful death claims do not arise until the victim dies, and they are meant to compensate the designated survi ors for their loss of the decedent. See La. Civ. Code art. 2315. 2. The elements bf the award for wrongful death include loss of love, affection, companionship, support, and funeral expenses. Wingfield, 835 So. 2d at 808. The jury awarded Maldonado the sum of $5 million in wrongful death damages. Of that sum, $ 1. 5 million is for loss of love, affection, and society, and 2 million is far past and future emotional pain and suffering. The remaining 1. 5 million awarded to Maldonado is for economic loss, which we will address separately. The jury also awarded $ 3 million in wrongful death damages to each of decedent' s minor sons, which included $ 50, 000 each for lost economic benefits. All defendants argue these awards are abusively high. Maldonado testified that she and Martinez met when she was fourteen years old. twenty- three They dated for seven years and married in 2000, when she was years old. It is ciear from the testimony that they had a loving relationship and that Maldonado misses her husband very much. They had two sons, Usvaldo Jr., born on December 25, 2001, and Justin, born on August 22, 2005. Martinez was proud of their two sons, and he supported the family doing comfort her due to the severity of the poisoning); Win eld; 835 So.2d at 809- 810 ( survival damage award of $800, 000 was affirmed to wife whose husband was killed in tractor/trailer accident was affirmed one complete amputation, one crushed leg with partial amputation, severe chest injury, fractured ribs,. massive bleeding and passenger was conscious at the scene and survived three hours after being transported to the hospital); Cavalier, 994 So.2d at 645646 ( the decedent hydroplaned, collided with another caz and died almost immediately. The trial court reduced the jury' s $ 200, 000 award to $ 50, 00 on JNOV, and this court held no abuse of discretion, because there was no evidence as to conscious suffering whatsoever, and w]hile an award for pre- impact fear is compensable; the evidence was speculative regazding the extent to which Alfred actually realized he was about to die or suffer serious bodily injury," and he probably gasped three or four times after the " original big pain"); Leary, 978 So. 2d at 1098- 1099 ( court affirmed award of $ 650, 000 in survival damages where the decedent sustained multiple severe injuries in a head- on collision, was conscious and in terrible pain, was trapped in the car for an hour, and continually asked her parents to tum her while in the hospital. She died twenty-eight,hours later. She endured pre- impact fear, pain, and suffering). 40 eonstr tction vork. On the dat of his death, !YlarrYne was thirty-tivree years old and his sons were seven and thr e, We find thaz the jury bizaed its discretion in awarding pain and Roberts suffering v. Uw and ns- loss of 1. o ¢ye, fkrcti C' orning Fi ber; las ' 4/ 2/ Q4}, 8' 8 Scs: 2c1 631, 644, > r: it d r: arr socie 3. 5 million for y to ; laldenado. ln orp., 2t 3- 0248 ( La. App. 1 t Cir. aiec ''( Ifi34 ( La. 30+ 21I'" Q4), 8n So. 2d 863, this court affirtned a $ 1 million wrongful d ath award to a surviving spquse of a 45- year. marriage whose husbancl exp rzenced an excruciatingly- painful death from mesothelioma. The w ife in that case quit her job tQ care for her dying husband and left her family horrie in order to movz hex husband into an apartnae it in closer proximity to his dociors. She took care of her husband for months a.nd held his hand when he died. This courk reduced a suzviving spUUSe' s $ 1 million wrongful death award to $ 500, 000 in Wingfield, 835 So. 2d Wingfield was 60 years o1d at the time c f dzat, at C 7$ 08. Mr. and he spent a lc t of time on the road as a truck dr'rver, but the cou} le had b ea znaz° ied f<> } eara ane had a r 27 close and loving relationship. I O' Cerenor v. Litehfield, 20Ci- 039 fLa. App. lst Cir. 12l31/ 03), 8f 4 So_2d 234, ' 33- 2 7, u rit not consid red, 20- 0 55 La. S/ 7/ 04), 87? So. d 1U69, this cuurt affit? ed a wr n; iul death a vard of 30U, 1 c 0 to the surviving spause ancl $ 200, OC U to the adult n. Mr, O' C' onnor ;xsjured hAs ankle and back in a iall and, during treatment., was diseo-vered to kiav a fatal disease, which was exacerbated by his injuries, F e was unde hcsp'rce care for the last six months of his life. Th s period was noted to be especially diffcult for his wife and son. N vertheless, the ap allate court affirmed the aforementioned award. We find that the highest ainount the juz-y c u1d have reas nably awarded for wrongful death damages to the surviving spouse of this nine-year mazriage 41 Maldonado for 16 750, Qfi. facts is these under yrongful d Therefo atl A ciaia pak s The childret we. e seti en arici r face a future withoui their frori re faihei s u+- 3. n crn the date affeetl r duce tt e jury a var idl; ori t SCa, Q00. f tk eir f'atnar' s death. Thev a e, b, i $? to assi tan: e and advice. Nevertheless, we find that tlie jury ak> a d itv da uretiov in aw ¢ rclirib each child 3 million for wror gful death dars. ages. . ;, s ry award of$ 12.5,( pG in damages to each of the decedent' s two minar children and $ 100, 000 to each of ttaree ad lt children was upheld by this court in Ratliff v. State ex rel. Dept. of Transp. and Development, 2002- 0733 ( La. App.- 1st Cir. 3128/ 03,), 844 So. 2d 926, 939, writ denied, 2003- 1739 ( La. 10I10/ 03),: 855 La. App. ir. 10125/ 00), 17 lst o. 2d 35U. In Scott v. Pyles; 99- 1775 So. 2d 492; 4 5, rit denied, 20f10 3222 ( La. 1/ 26i01), 782 So. 2d 633, this court f und tlhat the k ighest that co uld be waxded to 13- year- old and 10- year- aId daughters for the Ioss of their father = as $ 500, 000 and $ 400,000, respectively. In Iight of the edridence in the record, u e find that an award of$45(1, 000 is the highest amuunt ?he jury coulii have reas nably awardeci to each minor ahild in the instant case. Therefc re, we reduca the wrongful death damage award from 16 See Rick v, 3 miilion to State, Dept. of 450, 4 00 for ac minor child; Tr nsp. & Tlevelopment, 93- i776; 93- 1 8w ( La. iii4i94), b3U So.2d 1271, 1277, reversed on other rc;ands, Long ti. State ex reL Dept of Tc°ansp. and Development, 91b So.2d 87 ( La. 6i 9i05j (supreme c urt considared the facx ttaat a caupPe worked together every day in the faxn; ly business as grounds for reinstating the trier c f fac;Ys award of $ 400, 000 to decedenYs kcusband.), Nloss . State, 20Q7- 1686 iLa. App. Ist x. 8B/ 08), 993 So. 2d 68, 705- 706; 1t daniad, 2008- 2166 ( La. i 1/ 1+ i48i, 996 So, 2d i 9; ( the decedent died instanti} in car acciderrt duz t unreasonable road conditions, separate $ 20, OOC vas abuse o£ discrztiop; a,t ards r aised to lowest reasonable amoun? of$ 100, 00C? atad $ 300,400 respect vely;l; Shilling ex rel'. Shiiiing v. 5tate ex rei. Ilept. of Transp. Development, 200S- OY72fL. App. lst C_'ir. 1/ 22! 45), 23 a. awards fot two cY% i2dren aged 2So. 2d y5, li? 10', 1$ and 20 n3 wida vrit denied, 2G06-( 151 ( La. 4 2 fG6), 426 So. 2d 541, { azfirmed a70, G00 award to feur-yeaz- old whose fatheA was killed w re wit ess te T mony, in c-at d that the child renembered littie about hss fathex) Uibson ve State, through Dept, of Transp. and Development., 5.5- 1418; 95- 141a ( La. dat Cix. 4/ 4i96), 6iR So_2 1 19, App. 1006, . writs denied, 96- 1862, y6- 1895, and 96- 190'Z La. iaJ/ 25/461; 081 So. 2c1 373 and 3' 4, ( close xela ionship and dzff'iculty of wife in recovering froni flhe deatl ra: her spouse was Lonsi? ezed in award of $ 350, 000, which was affirmed on' appeal); Faueheaux -. Terrebonne Parish Consol. Government; 625 So.2d 683, 685 ( La. App. lst Cu. 1443j, ( loving rel tiomsl-,ip and twenty- seven- year marriage were factors eonsi3ered ; n th affinnation of a general c ama e wrongful deatli award e f $ OOG to surviving spouse); Raymond, 0 So. 3d at 1191- 119?, 300, awards of$ 1; 500, 000 Yc the surviving spouse of an accident victim and $ 750, QoG to each or his foar childxen affirmed on appeal)- 42 Bvstander DamaEes C.) Louisiana Civil Code article 2315. 6 allows recovery for mental anguish or emotional distress sustained by a The damages must result from claimant. witnessing an event that caused physical iniury to another. The brother of the decedent is among the individuals who have a cause of action. See La Civ. Code art. 2315. 6( A)( 3). In order to recover, a claimant must prove that the extent of harm sustained by the tort victim was so severe that it could reasonably be expected that the claimant would experience severe and debilitating emotional distress. La. Civ. Code art. 2315. 6( B). All defendants claim that the jury abused its discretion in awarding $ 1 million to decedent' s brother, Gilberto Martinez. Defendants KMTGJV and KECO also claim that the jury committed manifest errar in awarding damages in two categories: ( 1) future emotional pain and suffering, $250, 000; and ( 2) loss of love, affection and society, $250, 000. We agree that the damage award is excessive. A review of the testimony shows that Gilberto Martinez was working on the project on the accident date and saw the rebar cage collapse. When he ran to he1p, he saw his brother on the ground with the others present. Gilberto Martinez testified that his brother did not speak, his eyes were closed, and he was bleeding from the mouth. Gilberto Martinez was there when his brother took his last breath. He estimated that his brother lived for about twenty to twenty five minutes after the ambulance arrived. Gilberto Martinez testified that he ' Yias not consulted v ith `a doctor, nor has he seen a counselor or a .priesf as a result of witnessing nis brother' s death. There was no testimony indicating that he missed any work subsequent to' the accident. He testified that he has had nightmares about his brother since the accident. Under the circumstances of this case, we find that the jury committed manifest error in awarding $ 500, 000 to Gilberto Martinez for past emotional pain 43 and suffering combined wittz resulting from wit. essin n 25(i, 00 for f'uture emotional pa n ar d suffering the accidenx. F: xrther, che $ 2SUo0(70 awaz d for ioss of love, affection and society is nc t a Yecoverable eien ent c>f dama es for a bystander. See La. f iv. Cade art, 2315. 6( A). In Craighead 8/ 25/ 00}, vo Pr ferred Risic 1VTuirm Ins, ' 69 So. 2d 112, 123, ivrit 33, 31 ( l,a. o., deniet', 2QU0- 2,9 6 ( La t pp. 2d Cir. 12I15;' f}Q), ! 77 So. 2d 1230, an award of $50, 000 was affirmed for a brother w° witnessed his yaunger ho sister being mother hit by a testified that car and being tilro he handled the n 63 feet, resulting in her death. situation well in counseli g. His His father testified that he showed his grief,physicaliy through crying and gettinb sick, In the two years since the accident, the only change was the length of time between episodes. Pursuant to our review of the record, the highest reasonable amount for bystander damages total bystander under facts in the damages awarded this c2se is $ ta Ciilberto 100, 000." Martinez Thus, we reduce the from $ I rriillion to 100, 000. Economic Loss-- D.) Awards for loss of support ir clude l ss of support from the ciate of death to the date of trial and loss of future support from the date of trzal th rough the len th of the decedent' s App. work- life Brossett v. Howard, ZOnB- S35 ( L,a. expectanc. 3d. Cir. 12/ I Oi08 j, 99 So. 2d 916, 932, writ , denied, 2Q09- 007' ( La. 3/ 6/ 09), 3 So. 3d 492. Factors to e cor idered in deYermining a proper aw ard for i Monk v. State, ex rel. DOTD, 2005- 97 ( La. App. 3d Cix. 6% OS j, 90$ Su. 2d 688, 097, writ 29/ denied, 2005- 2337 ( La. 10/ 1?/ 06); 940 So. 2d 6aZ, ( award of $75, 0 0 to noYher of aduit daughter who vas killed near m ther' s home aftsr visiting there wzth her fnree children affirmed on ap, eal}; Cax vo 1V'Ioore, 2001- 878 ( La. App. 3d Cir. 12/ 12/ Ol), 80S Sa. 2 277, 288- 2fl9, writ denied, 2,002- 0724. La. 5/ 3L`02), Si7 So, 2 94, ( award of$ fl5G000 to znother for pain and anguisfi in vitnessing daughter' s deach in auto accident whe: e c nc of aer last memories would be seeing her daughte;r' s head lialf-tnissiri and dau hter _ xnakin a gurglin.g sound and mother suffered severe ost-tracutiatic stress and was in and out of depressioci ince date of accident was affirmed); V6' illiams v. O'' eill, 999- 25'75, f949- 257b, 199q- 2 77 ( La. App. 4th Cir. 3i13/ 02j, $ 13 So. 2d 548, 61- 562, writ denied, 2002- 1029 ( I,a- 5,? 4i+2), $ 16 So. 2d 859, ( award of $ 150, 000 to nusba d for ix. ental anguish due to complir. o ns from at wife' s bypass surgery affirmed n appeal). 44 lost future incorne are th decedent' a physical coa dition before his deat. , the h decedent' s past worrk history and cr isiste ncj tirereof, the amount the decedent probably would , earr ed absent the deatli; and the probability that the hav decedenti vould have continLied to arn wa es oi e the remaind r of his warking life. Id. ( t tir, So.2d 73 1, 749, Magee v. mit v. Pittman, 4- denied, 2Q( 3G- Y69 pp. qst Cir. 5! 1w; Oli); 761 64 ( La. V; L. Sa( 2?_ Jf}, l 768 S. 2 31), W note that, when opinions of experts differ, it is for the factfinder to deternnine the most credible evidence, and these deterrninatians wil` not be overtumed unless it is 1 proven that the expert' s stated reasons are patently unsound. Brown v, City of Madisonville, 2Q07- 2104 ( La. App. 1 st Cir. I 1/ 24I08), S So3d 874, 881, writ denied, 2008- 2987 ( La. 2/ 20% 09), 1 So. 3d 498. Defendants iniYially argue that no lost wages can be awarded in this case because Martinez was an undocum nted alian, and the federal Immigration Reform and Control Act (` IR A"), 8 . undocumented aliens.'$ v. N.L. R. B., 535 U.. S; C. 1324, prohibats the employment of Defendants rely on tioffman Plastic Compounds, Inc. 137, 122 S. Ct. 1275, 15 L. Ed. 2d 271 (( 12). Hovvever, Hoffman is inapposite to the issue c f whethe aa undUCUmented alien w or: r is entitled to recover an aw, alcd for lost wagES. VG Ym that nothing in IRCA requires that tortfeasc> should nGt be h, ld liable : or tneir negligence u kaen the rs person whom they harm is working in the cow~tr; illegall or has violated IRCA. See Madeira v. Affordable Housing Foundaltion, Inc,, 469 F. 3d 219, 243- 24 2d Cir. 2006). Lost earnings awards im wrQngful death and suroival actzons are state tort remedies and are equivalent to those authorazed und r the Longshore and Harhar 18Evidence in the record indicaYes that Martinez was a eitizen of Mexico anc u= a azi undocumented alien who procured employment through the use of faise documents. Ihe trial court excluded all evidence of decedent' s citizenship siatus, ruling that s aYus was not relevant and was highly prejudicial. 45 Warkers' Compensation Act .(LHWCA)19 and state workers' compensation statutes. Their purpose is to make the decedent, and those who relied on him for support, whole, by paying them for the amount the decedent would have eamed if not for defendant' s negligence. We see no valid reason to deny recovery of an element of damages available in tort cases, i.e. lost wages from a third-party tortfeasor, simply because the damages are sustained by an illegal, undocumented worker. However, though the legal status of an employee is not relevant to the issue of liability and will not automatically preclude recovery of lost wages, we find that the legal status of an employee is highly relevant in determining what amount to award for loss of support, In the instant case, since Martinez was not legally authorized to be in this country, he was subject to deportation at any time. Based on these facts, we conclude that defendants were entitled to establish that use of past wages to calculate future damages was improper, and they were entitled to show what a proper measure of damages should be. It was errar for the trial court to exclude that evidence. Since the record contains all necessary evidence on which to base a determination of an award, including the proffer of economic testimony, we will conduct a de novo review on the issue of economic loss. Plaintiffs' economic expert, Dr. Gerald Cassanave, calculated Martinez' s loss of earnings based on a five-year history of earnings using the years 2003, 2004, 2005, 2008 and 2009. He calculated an 2verage annual income of$ 35, 130. He testified that Martinez had a work-life expectancy of twenty-four years. He added 9. 9% far fringe benefits and calculated that loss to be $ 928,484. In addition, Dr. Cassanave testified that the value of household services that would t9 See Bollinger Shipyards, Inc. v. Director, Office of Worker' s Compensation Programs, 6Q4 F3d 864, 872- 873 ( 5th Cix, 2010),.. 46 be lo t due to Nlartin z' s deat-, 4 15, O h.' L I r. C' a saraa re calcu; ted a totai wa; economic loss of$ 1; 373, 502, Defendants° Maz i.nez' s , arnings pric r t of earnings e t econonii pert ased on a Iiie-wea. hz 1' hi the accident, K nriet Dr. t, t od p:: F is u.ain ary as- Boudreaux, aa onsecutivc years iv an calculated ual av ra e dvage of He te, tified that the dc cumex ts nonnall, rela d on tv calculate y 20, 550. economic loss, such as tax returzis and social security earnings t ¢ecords zi ere not available for review. Dr. Boudreaus critzcized T r. Gassanace fc r skip ing the years 2006 and, 2007; claiming they were recession years ?n the constnzctirn industry, since those were Boudreaux reduced represents the calculated a boom y the total projected am loss in c iistructzon unt of projected personal total economic ars ption. , onsum. qf $33Q; OQU. in soath_ ; ouisian T r. 26%, which future earning by by ?blartinez. Dr. Bou rzaux He did not add any a nount f r fringe benefits and was critical of Dr. Cassanave for doing. so sitice there v as no evidence that Martinez ev r recei` ed fringe ben fits on arry job. e also criticized Dr. Cassana e' s analyeis f r including loss of h usel- old services since b there was no evidence death. home that costs ior such serviues Revie v of the proffered Yastignc>n} oi Cax, ere incurred a er Martinez' s 3c udreaux shaws tll at in is 1tilartinez would have aa ried approximately $ 3; 699. 0.5 arinually. countr}%, He testified tl2at, using ? exi an wag rates, t!e toYa1 loss of earraings for a twenty- four-and- ne- Yhird v-ear .vork-lir expectanov is $ 66, SQS. 8. After a. thorou h re ieu vf the r card we conclude that the jury' s a vard of 1. 6 milflion for loss of ecorlomic benefits is manif reduce the award for economic loss to $ 330, 00 stly eri oneous. e thef efore tiased or li. S. wages a testi ied to by I r. Boudreaux using five consecuiive yearrs of earnings befoxe Nlartinez' s death. 20 He based this on a rate of$ 12 per hour for twelve to twenty-six hours per + eels, aYaich h.e took fr m a dollaz value for the day chart available froan the li.S. Department of Labor. 47 CO:tiCLL'SIOl This tragic accident was caused C S eirie ne li encc r f K' IT'C-JV in selection of the means and methods fc2r erection of column R'- 2 on the Huey P. Long Bridge. Our exhaustive review of the reec+ cor,vinces us that f] VITC- 7V rc neith r int nded tc, 1 arm anyone or2 this 3ob ite nor did it have kna wledge that harm was snbstantially c, rtain tu asul from th.e rneans and methods it selected to build this column. Plaintiffs' reco ery against KMTC- JV is limited to workers' compensation. Thus, we reverse the jury verdi t in part as to the Tault of KMTCJV. Although the evidence shows KECU guy wiring that th plan as not followed, there is testimony in the record Yhat KECO should have tested the rebar cage stability and should have supen ised the implementation of its guy wiring plan. Therefore, we annot say that tlxe jury' s finding that KECO was at fault zs manifestly extent it Accardingly, erroneous. cast KECO 1 Q% re affizm the jury vardict in part, to `che t faul. We also hold that 1 I&M, as design engineer, had no duty to inspect the employed methods the bridge by the enerai c Accordirigly, expansian. ntractor whc we reverse the ra=' responsibie for buYlding jur}' s T" intlirg that 1 T& 1 vas at fault: As for the damages awarded by the jury, we hereby asnend the damage awards as spouse; $ follows: survival es, $ 3OU, U00; wrongful cfeath danaages to 750, 000; wrongful death darnages support, $ 330, 000; and award dama of$ 2, 380, 000, bystander damages vhich is subj ct to the o to each child; $4_ U00, 50; loss of brother, $ 100, 000; i r a total damage 10% allocation of fault as to KECU. For all the reasons assigned, we hereby re° erse the judgtnez t reridered in. ccordance with the jury verdict in part, amend in part, affirm in part a ancianded, 48 and render judgment in favor of plaintiffs. All casts of this appeal are assessed to KECO. REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART AS AMENDED; AND RENDEREA 49 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT 2012 CA 1868 MARIA CRUZ MALDONADO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF UL;VALDO SOTO MARTINEZ, DECEASED, AND AS NEXT FRIEND AND NATURAL GUARDIAN OF JUSTIN SOTO-MALDONADO AND USVALDO JESUS SOTOMALDONADO, MINORS, MARIA MARTINEZ VASQUEZ, AS NATLJRAL MOTHER OF ULVALDO SOTO MARTINEZ AND GILBERTO SOTO MARTINEZ VERSUS E KIEWIT LOUISIANA CO. DB/A HIEWIT MASSMAN TRAYLOR CONSTRUCTORS A/K/ A KMTC, TRAYLOR BROS., INC., KIEWIT SOUTHERN CO., & MASSMAN CONSTRUCTION CO., A JOINT VENTURE, TRAYLOR BROS., INC. AS A GENERAL PARTNER OF KMTC, KIEWIT SOUTHERN CORP. AS A PARTNER OF KMTC, MASSMAN CONSTRUCTION CO. AS A PARTNER OF KMTC, GEC LOUISIANA TIMED MANAGERS, A JOINT VENTLJRE PARTNERSHIP, PB AMERICAS, INC. F/ K/A PARSONS, BRINCKERHOFF, QUADE & DOUGLAS, INC. AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, LPA GROUP INCORPORATED AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, G.E. C. INC. AS PARTNER OF GEC LOUISIANA TIMED MANAGERS, A JOINT VENTURE PARTNERSHIP, ZURICH AMERICAN INSURANCE COMPANY, THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND JL STEEL REINFORCING, LLC. CONSOLIDATED WITH No. 2012 CA 1869 TWIN CITY FIRE INSLJRANCE COMPANY VERSUS JL STEEL REINFORCING, LLC, KIEWIT LOUISIANA CO., MASSMAN CONSTRUCTION CO., AND TRAYLOR BROS., INC. DB/ A KIEWITT MASSMAN TRAYLOR CONSTRUCTORS, A JO1NT VENTiJRE, ZURICH AMERICAN INSLJRANCE COMPANY, THE LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, ARCH INSURANCE COMPANY, LOUISIANA TIMED MANAGERS, A JOINT VENTLJRE PARTNERSHIP GUIDRY, J., concurs in part, dissents in part, and assigns reasons. GUIDRY, J., concurring inpart and dissenting in part. I agree with the majority's reversal of th'e jury's determination that an intentional act was committed in this matter, and i further agree with the majarity's determination that the jury's award of damages was excessive in this case. And while I concur with the majority' s reduction of the awards for the wrongful death claims for Ms. Maldonado and her sons, I disagree with the majarity's far-reaching reduction of the survival action claim, the wife' s economic loss claim, and the brother' s bystander claim. I would award $250, 000 for the fear and terrar the victim experienced during the fall and $ 500, 000 for his pain and suffering, for a total survival action award of $750, 000. For the wife's economic loss, I believe 924, 484 is a proper award based on Dr. Cassanave' s opinion, minus amounts attributable to fringe benefits and value of household services, for which I found no basis in the record to support those additional elements of her economic loss claim. Finally, with respect to the bystander award to the brother, I believe that a proper award for that claim would be no less than $ 150, 000. Thus, I respectfully dissent from those portions of the majority opinion that reduce the awards for the survival action claim, the wife' s economic lass claim, and the brother' s bystander claim below the amounts of$ 750, 000, $ 924, 484, and $ 150, 000, respectively. STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2012 CA 1868 MARIA CRUZ MALDONADO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ULVALDO SOTO MARTINEZ, DECEASED, AND AS NEXT FRIEND AND NATURAL GUARDIAN OF JUSTIN SOTO- MALDONADO AND USVALDO JESUS SOTO- MALDONADO, MINORS, MARIA MARTINEZ VASQUEZ, AS NATURAL MOTHER OF ULVALDO SOTO MARTINEZ AND GILBERTO SOTO MARTINEZ VERSUS KIEWIT LOUISIANA CO. D/ B/ A KIEWIT MASSMAN TRAYLOR CONSTRUCTORS A/K/A KMTC, ET AL. CONSOLIDATED WITH No. 2012 CA 1869 TWIN CITY FIRE INSURANCE COMPANY VERSUS JL STEEL REINFORCING, LLC, ET AL. McDONALD, J., agreeing in part and dissenting in part: While I agree with the majority opinion reversing the jury finding that an intentional act was committed by Mr. Martinez' s employer and I agree with the conclusion that the jury award for damages was excessive, I respectfully dissent in the amount of the reduction. i believe the highest amount the jury could have reasonably awarded in most categories is less than that found by the majority. The only- awards with which I agree is the $ 100, 000 award to Gilberto Soto Martinez l for witnessing the death of his brother and the $ 330,000 award to Ms. Maldonado for economic loss. As to the survival claim, I believe the majority' s reduction of the award to 300, 000 is still too high and not supported by the evidence. The testimony indicated that Mr. Martinez fell from a height of over 60 feet when the rebar cage collapsed. He was found lying face down and was breathing, but died at the scene shortly thereafter. conscious at the There is no evidence in the record that Mr. Martinez was scene. The cases cited and relied on by the majority are distinguishable because the victim in each case was conscious and aware for hours or days after the accident. The evidence supports a finding that Mr. Martinez would have been frightfully aware that he was likely to die or suffer serious injury when the rebar cage collapsed and he fell. However, this amount should be limited to the time it took him to fall the 60 feet. It should not include anything for the time from when he landed on the ground until his death since he was unconscious and unaware of his situation. I also find the majarity' s reduction of the award to Ms. Maldonado and to each child for the wrongful death of Mr. Martinez to still be excessive. Thus, I respectfully dissent from those portions of the majority opinion that only reduces the award for the survival action claim to $300,000, the widow' s wrongful death claim to $ 750, 000 and the two children' s wrongful death claim to 450, 000. [ agree with the reduction of the widow' s economic loss claim to 330, 000 and the reduction of the brother' s bystander claim to $ 100, 000. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.