The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LISA HILLIARD, ET AL. CIVIL ACTION
VERSUS
TIKI TUBING, LLC NO. 22-00310-BAJ-RLB
RULING AND ORDER
This is a wrongful death and survival action. Plaintiffs allege that Defendant
Tiki Tubing, LLC’s negligence resulted in the death of their husband and father,
Keith Hilliard. (See Doc. 1, 7). Despite timely service, Defendant has failed to file
an answer, enroll Counsel, or otherwise defend this lawsuit.
Now before the Court is Plaintiffs’ Motion for Default Judgment (Doe. 14),
which moves the Court to enter a default judgment against Defendant pursuant to
Federal Rule of Civil Procedure (“Rule”) 55(b)(2). For the written reasons herein, the
Motion is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Alleged Facts
Plaintiffs Lisa, Christian, JaBori, and Ma’Khail Hilliard are the wife and
children of Keith Hilliard, the decedent. (See Doc. 1, {| 1-4). Defendant Tiki Tubing,
LLC is a business that provides flotation tubes for customers on the Amite River. (See
Doc. 14-1 at p. 1). For Father’s Day 2021, the Hilliard family decided to go tubing on
the Amite River. (See Doc. 1, { 11). On a date not provided in the pleadings, Mrs.
Hillard contacted Defendant “with questions about the safety of the tubing
experience.” (d.). When she called, Mrs. Hilliard told Defendant’s unnamed employee
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that her husband could not swim and asked if tubing on the river would be safe for
him. (See id.). She also asked whether life jackets were provided. (See id.).
Defendant's employee “assured Mrs. Hilliard that the Amite River was safe and
shallow, and that if anyone were to fall out of their tube they needed to only stand-up
because the water depth in the river was waist-deep or less.” (Id.). Defendant’s
employee “further told Mrs. Hilliard that life jackets were available for children only,
but that life jackets were not needed for adults because of the shallow depth of the
river.” (d.).
On June 19, 2021, relying on Defendant’s statements and assurances,
Plaintiffs and Mr. Hilliard decided to go tubing on the Amite River. (See id., | 12).
Upon arrival at Defendant’s facility, the family boarded a bus that took them
up-river. (See id., | 18). “No life jackets were provided, and no safety instructions
were provided.” (/d.).
After disembarking the bus, Plaintiffs and Mr. Hilliard were provided tubes
and shown to the location to enter the Amite River. Mr. Hilliard sat on his tube and
floated away from the riverbank. (See id., § 14). “Within minutes, Mr. Hilliard fell
out of his tube into the river.” Ud., § 15). Contrary to Defendant’s representations,
the river’s depth was more than six feet, and Mr. Hilliard was unable to stand. (See
id.). He became submerged. (See id.). Plaintiffs, along with several bystanders who
are not parties in this lawsuit, began to search for Mr. Hilliard. (See id.). “When he
was eventually found, he was unconscious, non-responsive, and dragged to land.
Prolonged attempts at resuscitation were unsuccessful, and Mr. Hilliard died.” (Id.).
The cause of death was “asphyxia due to drowning.” (Doc. 14-6).
On July 3, 2021, Plaintiffs held Mr. Hilliard’s funeral, which incurred expenses
of $15,212. (See Doc. 14-7 at p. 1; Doc. 12-2, § 11).
B. Procedural History
On May 18, 2022, Plaintiffs sued Defendant for the wrongful death of Mr.
Hilhard. (Doc. 1). They allege that Defendant’s negligence and misrepresentations
caused his death and seek, inter alia, survival damages, loss of earnings and earning
capacity, and medical expenses. (See Doc. 1, § 16-18). Defendant was served with
Plaintiffs’ Complaint on July 17, 2022, but it has failed to answer, enroll Counsel,
participate in any Court proceedings, or otherwise defend this lawsuit.
On August 15, 2022, Plaintiffs moved for a Clerk’s entry of default, which was
entered against Defendant on August 17, 2022, pursuant to Rule 55(a). (Docs. 8, 9).
On September 19, 2022, Plaintiffs filed the instant motion for default judgment under
Rule 55(b)(2). (Doc. 14). On May 30, 2028, the Court ordered Plaintiffs to submit
additional briefing limited to the issue of damages, (Doc. 18), and on July 20, 2023,
the Court held an evidentiary hearing limited to the issue of Plaintiffs’ damages, (Doc.
21). Thereafter, the Court took the matter under advisement. (/d.). This Order
follows.
Il. LEGAL STANDARD
Rule 55(b)(2) authorizes a district court to enter a default judgment against a
party who has failed to a plead or otherwise defend. See FED. R. Civ. P. 55. To obtain
a default judgment, the United States Court of Appeals for the Fifth Circuit has
adopted a three-step process. See New York Life Ins. Co. v. Brown, 84 F.3d 137, 141
(5th Cir. 1996). First, a default occurs when a party has failed to plead or otherwise
defend against an action. FED. R. Civ. P. 55(a). Next, an entry of default must be
entered by the clerk when the default is shown “by affidavit or otherwise.” See id.:
New York Life, 84 F.3d at 141. Third, a party may apply to the court for a default
judgment after an entry of default. See FED. R. Civ. P. 55(b); New York Life, 84 F.3d
at 141.
After a party files for a default judgment, courts must apply a two-part process
to determine whether a default judgment should be entered. First, the Court must
ascertain if the entry of default judgment is procedurally justified. See Lindsey v.
Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). Several factors are relevant to this
inquiry, including: (1) whether there are material issues of fact; (2) whether there has
been substantial prejudice; (3) whether the grounds for default have been clearly
established; (4) whether the default was caused by excusable neglect or good faith
mistake; (5) the harshness of the default judgment; and (6) whether the court would
think itself obliged to set aside the default on a motion by defendant. See id. Default
judgments are disfavored due to a strong policy in favor of decisions on the merits
and against resolution of cases through default judgments. See id. Default judgments
are available only when the adversary process has been halted because of an
essentially unresponsive party. See Sun Bank of Ocala v. Pelican Homestead & Sav.
874 F.2d 274, 276 (5th Cir. 1989) (citation omitted).
Second, the Court must determine whether the plaintiffs complaint
sufficiently sets forth facts establishing that it is entitled to relief. Nishimatsu Constr.
Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). “[T]he Court must
accept the well-pleaded factual allegations in the plaintiffs complaint.” Meyer v.
Bayles, 559 F. App'x 312, 313 (5th Cir. 2014) Gnternal citations omitted). “The
defendant is not held to admit facts that are not well-pleaded or to admit conclusions
of law.” Nishimatsu, 515 F.2d at 1206.
Once the process is complete, the Court must determine what form of relief
Plaintiff should receive. See United States v. 1998 Freightliner Vin #:
IFUYCZYB3WP886986, 548 F.Supp.2d 381, 384 (W.D. Tex. 2008). A defaulting
defendant “concedes the truth of the allegations of the Complaint concerning
defendant's liability, but not damages.” Ins. Co. of the W. v. H & G Contractors, Inc.,
2011 WL 4738197, *4 (8.D. Tex., Oct. 5, 2011). Generally, “damages are not to be
awarded without a hearing or a demonstration by detailed affidavits establishing the
necessary facts.” J & J Sports Prods, v. Morelia Mexican Rest., Inc., 126 F. Supp. 3d
809, 814; See also United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979).
III. ANALYSIS
A. Default Judgment Is Procedurally Justified
Here, the Lindsey factors support entering a default judgment against
Defendant. First, Defendant has failed to appear and offer its own countervailing
facts, evidence, or arguments. Thus, there are no issues of material fact for the Court’s
consideration. Second, Plaintiffs have been substantially prejudiced by Defendant’s
refusal to participate in this lawsuit. Obviously, the adversarial system requires an
adversary to proceed. Third, Defendant’s failure to defend the suit clearly establishes
the grounds for default. Fourth, nothing before the Court suggests that the default
was caused by good-faith mistake or excusable neglect. Fifth, default judgment is not
overly harsh in this case given the seriousness of Plaintiffs’ allegations and
Defendant’s failure to oppose them. Finally, nothing before the Court demonstrates
that it would be obliged to set aside default on motion by Defendant.
B. Plaintiffs’ Complaint Establishes a Viable Claim for Relief
The Court must now determine whether Plaintiffs’ factual allegations in the
Complaint, accepted as true, provide a sufficient basis for judgment in Plaintiffs
favor. Nishimatsu Const., 515 F.2d at 1206. Plaintiffs accuse Defendant of, among
other things, “falsely assuring its customers who could not swim that the Amite River
was safe and that life jackets were not necessary or required because of the alleged
shallow river depth; misrepresenting the true depth of the Amite River to its
customers; and misrepresenting the safety hazards presented by the Amite River.”
(See Doc. 1, { 16). “The elements of a Louisiana action based on negligent
misrepresentation resulting in physical harm appear to be: (a) a negligent
misrepresentation or giving of false information to another, and (b) foreseeable action
taken by the other in reasonable reliance on such information, (c) which results in
physical harm to the other or to a third person who reasonably could be expected to
be put in peril by the action taken.” Guidry v. U.S. Tobacco Co., 188 F.3d 619, 627
(5th Cir. 1999) Gnternal citations omitted).
Here, Plaintiffs have alleged facts that, taken as true, establish Defendant’s
hability and Plaintiffs right to recover on the negligent misrepresentation claim.
They allege that Defendant’s employee falsely told Mrs. Hilliard that the Amite River
was shallow—waist-deep or less—and safe for adults without a life jacket.
Reasonably relying on these assurances, Plaintiffs and Mr. Hilliard engaged in inner
tubing facilitated by Defendant. It was eminently foreseeable that, in the course of
an inner tubing excursion, Mr. Hilliard may fall into the water, and that if that water
was deeper than the depth claimed by Defendant, Mr. Hilliard would be endangered.
Ultimately, Mr. Hilliard’s death was the direct result of precisely the peril that
Defendant falsely represented did not exist. Accordingly, Plaintiffs’ Complaint
establishes a viable claim for relief.
C. Damages
A defaulting defendant “concedes the truth of the allegations of the Complaint
concerning defendant's liability, but not damages.” Ins. Co. of the W.v. H&G
Contractors, Inc., 2011 WL 4788197, *4 (S.D. Tex., Oct. 5, 2011). Articles 2315 and
2316 of the Louisiana Civil Code provide that every person is responsible for all
damages caused by his fault or negligence. See La. Civ. Code arts. 2315, 2316; Pitre
uv. Louisiana Tech Univ., 678 So.2d 585, 589 (La. 5/10/96). Generally, “[djamages must
be proven by a hearing or a demonstration of detailed affidavits establishing the
necessary facts.” Joe Hand Promotions, Inc. v. Alima, No. 3:13-CV-0889-B, 2014 WL
1632158, at *3 (N.D. Tex. Apr. 22, 2014) (citing United Artists Corp. v. Freeman, 605
F.2d 854, 857 (5th Cir. 1979)).
In this action, Plaintiffs are requesting survival action damages, wrongful
death action damages, loss of future earnings, funeral expenses, and bystander
damages. (See Doc. 20 at pp. 3-9). In support, Plaintiffs have submitted detailed
affidavits establishing their damages (Docs. 14-2, 14-3, 14-4, and 14-5), and a
memorandum outlining all the damages to which they believe they are entitled. (Doc.
20). In addition, at the July 20 hearing, the Court took testimony from Plaintiffs
regarding the various categories of damages described in the Complaint. (Doc. 21).
i. Survival Action Damages
The Court “may award damages for pain and suffering in a survival action
where there is the smallest amount of evidence of pain, however brief, on the part of
the deceased.” Etcher v. Neumann, 2000-2282 (La. App. 1 Cir. 12/28/01), 806 So. 2d
826, 840. “In determining survival damages, the court should consider the severity
and duration of any pain or any pre-impact fear experienced by the deceased, and any
other damages sustained by the deceased up to the moment of death.” Leary v. State
Farm Mut. Auto. Ins. Co., 2007-1184 (La. App. 38 Cir. 3/5/08), 978 So. 2d 1094, 1098.
In addition to the decedent’s pain or suffering, “fright, fear, [and] mental anguish
during an ordeal leading to the death is compensable.” Leary, 978 So. 2d at 1098
(internal citations omitted).
Plaintiffs seek survival damages based on the “almost unimaginable” physical
and emotional pain and trauma that Mr. Hilliard experienced during the 10-15
minutes he remained submerged. (See Doc. 20 at p. 4). Further, Plaintiffs claim that
that Mr. Hilliard’s “fear of his impending death would have been compounded by the
thought that he was accompanied by his wife and children on Father’s Day.” (See id.)
(emphasis in original). Plaintiffs also stated, however, that when “Mr. Hilliard was
eventually found, he was unconscious, non-responsive, and dragged to land.” (See
Doc. 20 at p. 2).
Faced with a similar situation to that at issue here, where there is “no evidence
in the record that [Mr. Hilliard] was conscious at the scene” following his rescue from
the river, the Louisiana First Circuit Court of Appeals awarded $300,000 in survival
damages, explaining that the decedent “would have been frightfully aware that he
was likely to die or suffer serious injury” at the moment of his accident. Maldonado
v. Kiewit Louisiana Co., 2012-1868 (La. App. 1 Cir. 5/30/14), 152 So. 3d 909, 936, writ
denied, 2014-2246 (La. 1/16/15), 157 So. 3d 1129. The evidence supports the same
finding here: Mr. Hilliard undoubtedly would have been terrified that he was likely
to die or suffer serious injury at the moment he fell out of the inner tube and realized
that the river was deeper than warranted. Guided by Maldonado, the Court
determines that Plaintiffs are entitled to an award of $300,000 in survival damages.
ii. Wrongful Death Action Damages
“Wrongful death claims do not arise until the victim dies, and they are meant
to compensate the designated survivors for their loss of the decedent.” Maldonado,
152 So. 3d at 938 (citing La. Civ.Code art. 2315.2). “The elements of the award for
wrongful death include loss of love, affection, companionship, support, and funeral
expenses.” Maldonado, 152 So. 3d at 938 (internal citations omitted).
At the July 20 hearing Mrs. Hilliard testified that she met Mr. Hilliard when
she was 18 years old. They dated for six years, were married in 1995, and had a loving
marriage for 26 years until his death. It is clear that Mr. and Mrs. Hilliard had a
loving and close relationship. Mrs. Hilliard testified that he was her best friend. They
had three sons, Christian, JaBori, and Ma’Khail. Mr. Hilliard worked for Shell as a
service processor to support his family. He was 53 years old when he died. Since losing
him, Mrs. Hilliard has experienced suicidal ideation, and was diagnosed with severe
PTSD, anxiety, and insomnia, and is currently in counseling.
Christian, JaBori, and Ma’Khail also testified at the July 20 hearing and
described the loving relationships they each enjoyed with their father. Each son
described him as an amazing dad and family man who also coached them in baseball
and football as kids. As adults, the Hilliard sons remained very close to their father.
They frequently vacationed as a family, attended church together, and saw each other
weekly. Christian testified that he works at a chemical plant because his father did.
The pair frequently enjoyed outdoor activities together, including grilling and playing
sports. They also played dominoes together and spoke on the phone all the time.
JaBori is also a father and testified that his father instructed him on how to be a good
one. They spoke regularly and attended football and baseball games together.
Ma’Khail testified that he chose to attend Louisiana State University to remain close
to his father and has tried to emulate his father by also coaching kids. At the time of
Mr. Hilliard’s death, Ma’Khail was still financially dependent on him. Since losing
their father, Christian, JaBori, and Ma’Khail have also attended counseling.
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Based on Plaintiffs’ testimony, the Court awards Mrs. Hilliard $1 million in
wrongful death damages. See Maldonado, 152 So. 8d at 938 (comparing damages
awards for surviving spouses ranging from $500,000 to $1 million). Christian and
JaBori, who were adult children at the time of Mr. Hilliard’s death and no longer
dependent upon him for support, are each awarded $500,000 in wrongful death
damages. See Glaser v. Hartford Fire Ins. Co., 2022-0534, 2023 WL 5601325, *10 (La.
App. 1 Cir. 8/30/23) (awarding $500,000 in wrongful death damages to adult children
who were no longer members of the decedent’s household or financially dependent on
the decedent). Because Ma’Khail was still financially dependent on Mr. Hilliard, he
is awarded $750,000. Finally, Plaintiffs are awarded $15,212 in funeral expenses.
iii. Economic Loss
“Awards for loss of support include loss of support from the date of death to the
date of trial and loss of future support from the date of trial through the length of the
decedent’s work-life expectancy.” Maldonado, 152 So. 3d at 940 (citing Brossett v.
Howard, 2008-535 (La. App. 3rd Cir.12/10/08), 998 So.2d 916, 932). “Factors to be
considered in determining a proper award for lost future income are the decedent’s
physical condition before his death, the decedent’s past work history and consistency
thereof, the amount the decedent probably would have earned absent the death, and
the probability that the decedent would have continued to earn wages over the
remainder of his working life.” Id.
Plaintiffs retained Ralph A. Litolff, Jy., a certified public accountant who has
previously been qualified as an expert in forensic economics in numerous state and
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federal courts, to determine the economic losses they've sustained from Mr. Hilliard’s
death. (See Doc. 20-1 at p. 1). According to Mr. Litolffs unrebutted report, Mr. Hilliard
was employed full-time by Shell Geismar as a process operator and had an annual
earnings base of $127,780. (See id. at pp. 4-7). Mr. Litolff calculated the past and
future total loss of support and total loss of production of household services from Mr.
Hilliard’s death to be $1,592,910. In his analysis, Mr. Litolff considered Mr. Hilliard’s
employment status, age, and work-life expectancy, which are all factors properly
considered. Accordingly, Plaintiffs are awarded $1,592,910 in economic loss damages.
iv. Bystander Damages
Bystander damages—or Lejeune claims—arise “when a person observes an
injury-causing event or soon after comes upon the scene of an injury and is
contemporaneously aware that the event has caused severe harm to the direct
victim.” Castille v. Loutstana Med. Mut. Ins. Co., 2014-519 (La. App. 3 Cir. 11/5/14),
150 So. 38d 614, 618. See also Lejewne v. Rayne Branch Hosp., 556 So. 2d 559, 571 (La.
1990). Lejewne claims are governed by Louisiana Civil Code Article 23.15.6. “To
recover under this article, a plaintiff must show that: (1) they viewed the event
causing injury to the direct victim or came upon the scene soon after; (2) the direct
victim suffered such harm that it can reasonably be expected that the plaintiff would
suffer serious mental anguish from the experience; (8) the emotional distress plaintiff
sustained is both serious and reasonably foreseeable; and (4) plaintiff and the direct
victim have the requisite familial relationship.” See Castille, 150 So. at 619-20.
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Here, each Plaintiff satisfies the elements of a Lejeune claim. Mrs. Hilliard,
Christian, and JaBori were all present during Mr. Hilliard’s drowning and
participated in the rescue efforts. Ma’Khail testified that he arrived at the scene
about 30 minutes after the accident and saw his father’s body. Mr. Hilliard’s
drowning on Father’s Day can be reasonably expected to cause severe mental anguish
to his wife and children, and the Plaintiffs’ testimony conveys the seriousness of their
emotional distress. As previously discussed, Mrs. Hilliard experienced suicide
ideation and was diagnosed with severe PTSD, anxiety, and insomnia. Christian,
JaBori, and Ma’Khail have daily dreams about their dad and the events of Father’s
Day weekend 2021. Finally, as Mr. Hilliard’s spouse and children, Plaintiffs have the
requisite familial relationship with the deceased. See La. Civ. Code art. 2315.6(A)(1).
Consequently, Mrs. Hilliard, Christian, and JaBori are each awarded $75,000 in
bystander damages. Ma’Khail, who arrived at the scene shortly after Mr. Hilliard
drowned, is awarded $50,000. See Maldonado, 152 So. 8d at 940 n.17 (comparing
bystander damages ranging from $50,000 to $150,000).
IV. CONCLUSION
In sum, the Court finds that Plaintiffs are entitled to the following damages:
Survival action damages: $300,000
Wrongful death action damages
Lisa Hilliard: $1,000,000
Christian Hilliard: $500,000
JaBori Hillard: $500,000
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Ma’Khail Hilliard: $750,000
Funeral Expenses: $15,212
Economic Loss: $1,592,910
Bystander (Lejewne) damages
Lisa Hilliard: $75,000
Christian Hilliard: $75,000
JaBori Hilliard: $75,000
Ma’Khail Hilliard: $50,000
TOTAL: $4,933,122
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion for Default Judgment (Doc. 14)
be and is hereby GRANTED.
IT IS FURTHER ORDERED that a default judgment in favor of Plaintiffs
and against Defendant be and is hereby ENTERED, establishing that Defendant is
hable to Plaintiffs for the wrongful death of Keith Hilliard.
Judgment shall issue separately.
Baton Rouge, Louisiana, this qe... of September, 2023
bea!
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UNITED STATESDISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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