“[W]hen the 13 court of appeal finds that a reversible error of law…was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.”
How later courts described this case
- “[W]hen the 13 court of appeal finds that a reversible error of law…was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.”
Written by the judges who cited it.
The opinion
SHEROME HANKTON * NO. 2019-CA-0557
VERSUS *
COURT OF APPEAL
THE STATE OF LOUISIANA, *
MEDICAL CENTER OF FOURTH CIRCUIT
LOUISIANA AT NEW *
ORLEANS (UNIVERSITY STATE OF LOUISIANA
HOSPITAL), THROUGH THE *******
BOARD OF SUPERVISORS AT
LOUISIANA STATE
UNIVERSITY AND DR. JOHN
DOE
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2010-08420, DIVISION “B-1”
Honorable Rachael Johnson, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge
Dale N. Atkins)
Jacques F. Bezou
Matthew L. Devereaux
Jacques F. Bezou, Jr.
Erica A. Hyla
THE BEZOU LAW FIRM
534 E. Boston Street
Covington, LA 70433
COUNSEL FOR PLAINTIFF/APPELLEE
JEFF LANDRY
ATTORNEY GENERAL
RICHARD T. SIMMONS, JR.
CHARLES G. CLAYTON, IV
Special Assistant Attorney Generals
Hailey, McNamara, Hall, Larmann &
Papale, LLP
One Galleria Boulevard, Suite 1400
P.O. Box 8288
Metairie, LA 70011-8288
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED IN PART;
AMENDED IN PART AND AFFIRMED AS AMENDED
MARCH 4, 2020
This is a personal injury case. Appellee, Sherome Hankton (“Officer
Hankton”), a New Orleans Police Department (“NOPD”) officer, was attacked by a
NOPD prisoner, Conrad Jackson (“Mr. Jackson”), while Officer Hankton was
guarding Mr. Jackson during a hospital stay. Mr. Jackson was being treated at
Medical Center of Louisiana at New Orleans (“University Hospital”) for injuries
he sustained during his arrest.
Officer Hankton filed a personal injury lawsuit against University Hospital
through the Board of Supervisors at Louisiana State University and Dr. John Doe
(herein collectively, the “Appellants”) for the injuries she sustained from the
attack. The trial court rendered judgment on December 10, 2018, in favor of
Officer Hankton, finding Appellants forty percent (40%) at fault and Officer
Hankton ten percent (10%) at fault for the injuries Officer Hankton sustained. The
trial court also awarded Officer Hankton the amount of $250,552.49 in future
medical expenses, and directed the award be placed in a revisionary trust in
accordance with La. R.S. 13:5106(B)(3)(c). Appellants now appeal this judgment.
For the following reasons, we affirm in part, the trial court’s December 10,
2018 judgment allocating forty percent (40%) of fault to Appellants and ten
1
percent (10%) of fault to Officer Hankton, and awarding Officer Hankton a total of
$250,552.49 in future medical expenses. We further amend in part, and affirm as
amended, the trial court’s judgment directing the future medical expenses award be
placed in a revisionary trust and order that Officer Hankton’s award of future
medical expenses shall be paid from the Future Medical Care Fund directly to
Officer Hankton’s medical providers as the expenses are incurred in accordance
with La. R.S. 13:5106(B)(3)(c).
FACTUAL BACKGROUND
In 2009, Mr. Jackson was arrested for armed robbery by the NOPD and was
injured jumping from a two-story building while eluding police. After Mr. Jackson
was arrested, he was admitted to University Hospital for treatment. On November
24, 2009, while Officer Hankton was assigned to guard Mr. Jackson at University
Hospital, Mr. Jackson attacked her, stabbing and biting her several times.
As a result of the attack, Officer Hankton sustained extensive injuries,
including twenty-five (25) plus stab wounds; a broken jaw; bite wounds to her
right wrist; and a crushed left thumb. She had to undergo metacarpal removal
surgery, joint replacement surgery on her right thumb and right fourth finger; a
procedure to fuse her L3-4, L4-5, L5-S1 spinal vertebrae; another procedure for
her spinal vertebrae L3-S1 post-instrumentation; a discectomy; a laminectomy; and
she had a bone graft at her L3-L5 spinal vertebrae. She also suffered from
significant nerve damage, migraine headaches, depression, and reduced libido.
2
PROCEDURAL HISTORY
On August 16, 2010, Officer Hankton filed a petition for damages against
Appellants seeking relief for the injuries she sustained from Mr. Jackson’s attack.
On April 17, 2015, the City of New Orleans (the “City”) filed a Petition of
Intervention and Motion for Leave to Intervene, requesting to intervene in this
matter and to be reimbursed expenses paid to Officer Hankton under the Louisiana
Workers’ Compensation Act.1 The parties signed a joint stipulation of intervention
agreeing that the City would be permitted to intervene in this matter. Additionally,
the parties stipulated the City had a “statutory lien in the amount of $201,094.05,”
which would be subject to any reduction after an assessment of “Moody Fee,”
comparative fault of Officer Hankton, or comparative fault of the City.
A bench trial commenced on June 18, 2018, and lasted six (6) days. The
testimony of Officer Hankton, NOPD Officer Tracy Fulton (“Officer Fulton”),
Deputy Chief of Police for University Police Department T.J. Freeman (“Mr.
Freeman”), expert life care planner Lacy Sapp (“Ms. Sapp”), John Kocke (“Mr.
Kocke”), and Dr. Ken Boudreaux (“Dr. Boudreax”) was presented at trial. Mr.
Jackson’s pre-trial deposition was also introduced into evidence at trial. Appellants
also presented George Armbruster (“Mr. Armbruster”), an expert in the field of
police policies, procedures, and training, who testified regarding industry guard
duty protocols.
After trial, the trial court permitted the parties (Officer Hankton, Appellants,
and the City) to file post-trial briefs. On December 10, 2018, the trial court
rendered the following judgment, in favor of Officer Hankton:
1
The City is not a party in this appeal.
3
(1) Assessed fault between the parties as such:
a. Conrad Jackson- 50%;
b. Appellants- 40%; and
c. Appellee- 10%
(2) The trial court awarded Appellee the following:
a. $650,000.00 in general damages;
b. $165,484.95 in past medical expenses; and
c. $68, 250.00 in past lost wages;
(3) Awarded Appellee $250,552.49 in future medical
expenses, which shall be placed into a revisionary trust;
(4) Awarded Appellee a total of $1,134,287.44 plus
judicial interest; and
(5) Reduced Intervenor, City of New Orleans,
$201,094.05 Workers’ Compensation lien by ten percent
(10%) and subject to a 1/3 Moody Fee.
It is from this judgment Appellants appeal.
STANDARD OF REVIEW
“Appellate courts review findings of fact made by the trial court judge using
the manifestly erroneous or clearly wrong standard of review.” Keller v. Monteleon
Hotel, 2009-1327, p. 2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1042 (citing
Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)). “It is well settled that a trial
court’s findings of fact will not be disturbed unless the record establishes that a
factual, reasonable basis does not exist and the finding is clearly wrong or
manifestly erroneous.” Flint v. Trolley Stop, 2002-1423, p. 2 (La. App. 4 Cir.
4/9/03), 843 So.2d 635, 638 (citing Syrie v. Schilhab, 1996-1027 (La.5/20/97), 693
So.2d 1173, 1176).
To reverse findings of fact by the factfinder, “‘an appellate court must
undertake a two-part inquiry: (1) the court must find from the record that a
4
reasonable factual basis does not exist for the finding of the trier of fact; and (2)
the court must further determine the record establishes the finding is clearly
wrong.’” Harold A. Asher, CPA, LLC v. Haik, 2012-0771, p. 4 (La. App. 4 Cir.
4/10/13), 116 So.3d 720, 723-24 (quoting S.J. v. Lafayette Parish Sch. Bd., 2009-
2195, p. 12 (La. 7/6/10), 41 So.3d 1119, 1127). In S.J., the Louisiana Supreme
Court articulated that:
Ultimately, the issue to be resolved by the reviewing
court is not whether the trier of fact was right or wrong,
but whether the factfinder's conclusion was a reasonable
one. If the factual findings are reasonable in light of the
record reviewed in its entirety, a reviewing court may not
reverse even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence
differently.
2009-2195, pp. 12-13, 41 So.3d at 1127. (Citations omitted).
“While the manifest error standard applies to our review of facts found
below, we are required to examine the record as well for legal error.” City of New
Orleans v. Badine Land Ltd., 2007-1066, p. 3 (La. App. 4 Cir. 5/21/08), 985 So.2d
832, 834. “[L]egal errors are reviewed under the de novo standard of review.” 1026
Conti Condominiums, LLC v. 1025 Bienville, LLC, 2015-0301, p. 5 (La. App. 4
Cir. 12/23/2015), 183 So.3d 724, 727. “A legal error occurs when a trial court
applies incorrect principles of law and such errors are prejudicial.” Id. “Legal
errors are prejudicial when they materially affect the outcome and deprive a party
of substantial rights.” Evans v. Lungrin, 1997-0541, p. 7 (La. 2/6/98), 708 So.2d
731, 735. “Where an error of law taints the record, we are not bound to affirm the
judgment of the lower court.” City of New Orleans, 2007-1066, p. 3, 985 So.2d at
834-35.
5
In addition, this appeal presents “‘mixed questions of law and fact,’” in
which the manifest error standard of review is applied. Harold A. Asher, CPA,
LLC, 2012-0771, p. 5, 116 So.3d at 724 (quoting Serou v. Touro Infirmary, 2012-
0089, p. 18 (La. App. 4 Cir. 1/9/13), 105 So.3d 1068, 1083).
DISCUSSION
On appeal, Appellants raise five issues, which we have consolidated into
three issues for purposes of this discussion. The issues are as follows: (1) whether
the trial court erred in assessing forty percent (40%) of fault to University Hospital
and assessing ten percent (10%) of fault to Officer Hankton, while failing to assess
any fault to the NOPD; (2) whether the trial court erred in awarding Officer
Hankton $250,552.49 in future medical expenses; and (3) whether the trial court
erred ordering that the award of future medical expenses be placed in a revisionary
trust pursuant to La. R.S. 13:5106(B)(3)(c).
I. Allocation of Fault by the Trial Court and Comparative Fault
Appellants argue the trial court erred in allocating Appellants forty percent
(40%) of fault, ten percent (10%) of fault to Officer Hankton, and no fault to the
NOPD.
“In any action for damages, the trier-of-fact must determine the percentage
of fault of all persons causing or contributing to the damage, regardless of whether
the person is a party to the action or a nonparty, and regardless of the person’s
insolvency, ability to pay, immunity by statute, or whether that person’s identity is
not known or reasonably ascertainable…”. La. C.C. art. 2323(A); See also Dupree
v. City of New Orleans, 1999-3651, p. 18 (La. 8/31/00), 762 So.2d 1002, 1015. “A
trial court’s findings regarding percentages of fault are factual, and will not be
disturbed on appeal unless clearly wrong.” Magri v. Jazz Casino Co., LLC, 2019-
6
0064, p. 9 (La. App. 4 Cir. 6/26/19), 275 So.3d 352, 359 (citing Purvis v. Grant
Parish Sch. Bd., 2013-1424, p. 4 (La. 2/14/14), 144 So.3d 922, 926).
“An appellate court’s determination of whether the trial court was clearly
wrong in its allocation of fault is guided by the factors set forth in Watson v. State
Farm and Cas. Ins. Co., 469 So. 967 (La. 1985).” Magri, 2019-0064, p. 9, 275
So.3d at 359. In Watson, the Louisiana Supreme Court established “various factors
may influence the degree of fault assigned, including:”
(1) whether the conduct resulted from inadvertence or
involved an awareness of the danger, (2) how great a risk
was created by the conduct, (3) the significance of what
was sought by the conduct, (4) the capacities of the actor,
whether superior or inferior, and (5) any extenuating
circumstances which might require the actor to proceed
in haste, without proper thought.
469 So.2d at 974 (La. 1985) (quoting Uniform Comparative Fault Act, 2(b)).
In Louisiana, it is well settled that “[a]llocation of fault is not an exact
science, or the search for one precise ratio, but rather an acceptable range.
Allocations of fault within such a range cannot be clearly wrong.” Antippas v.
NOLA Hotel Group, LLC, 2017-0798, p. 4 (La. App. 4 Cir. 2/27/19), 265 So.3d
1212, 1216. “The determination of whether comparative fault applies in a
particular case is essentially a factual one and subject to the manifest error standard
on appellate review.” Maldonado v. Louisiana Superdome Com’n, 1995-2490, p.
10 (La. App. 4 Cir. 1/22/97), 687 So.2d 1087, 1093 (citing Clement v. Frey, 1995-
1119, p. 7 (La.1/16/96), 666 So.2d 607, 610-11). “Only if the apportionment of
fault is found to be clearly wrong can an appellate court adjust percentages.” Id.
A. Officer Hankton’s Allocation of Fault
In the instant matter, Appellants argue Officer Hankton should be allocated a
greater percentage of fault as the evidence shows that she breached her duties
7
while guarding Mr. Jackson. Conversely, Officer Hankton argues the trial court, as
the fact finder, acknowledged her negligence and allocated the proper percentage
of fault.
Applying the Watson factors, we find Officer Hankton’s conduct amounted
to inadvertence. In particular, Officer Hankton testified that she did not check to
see if Mr. Jackson was restrained in the bed, but rather assumed he was restrained
because Officer Fulton was guarding Mr. Jackson prior to her arrival. Further, she
testified that she sat in the chair next to Mr. Jackson’s bed, which was within Mr.
Jackson’s reach. As Officer Hankton confirmed, sitting in a chair so close to Mr.
Jackson was an act contrary to her training. As such, her conduct inadvertently
created the risk that she was accessible to Mr. Jackson. In this instance, we agree
with the trial court’s findings that Officer Hankton did not act as a reasonable
police officer under the circumstances. However, we find that Officer Hankton’s
conduct was a mere inadvertence. She was not aware that Mr. Jackson was armed
with surgical tools and would attack her. Thus, we find the trial court was not
manifestly erroneous in allocating ten percent (10%) of fault to Officer Hankton.
B. Appellants’ Allocation of Fault
Next, we address whether the trial court’s allocation of fault to Appellants
was manifestly erroneous. Appellants, who were assessed forty percent (40%)
fault, argue the trial court erred in its assessment of fault.
Applying the Watson factors, we find the trial court’s factual finding that
Appellants created an unreasonable risk of harm for Officer Hankton was not
manifestly erroneous. Mr. Freeman, the Deputy Chief of Police for University
Police Department, testified that University Hospital’s employees did not comply
with its policies and admitted that, if surgical tools had been left by Mr. Jackson’s
8
bed by an employee, it was a violation of University Hospital’s policies. Mr.
Jackson testified, however, that a University Hospital employee (a nurse) left a pair
of scissors, a scalpel, and tweezers unattended by his bed. Mr. Jackson testified
that he used a pair of “suture removal scissors” to attack Officer Hankton. In its
written reasons for judgment, the trial court found, that “but for” University
Hospital’s failure to safeguard surgical tools in Mr. Jackson’s hospital room, he
would not have “brutally and repeatedly stabbed” Officer Hankton. We agree.
University Hospital, by admission of its own employee, Mr. Freeman,
violated its policies in failing to secure surgical tools that were used as a weapon to
attack Officer Hankton. This failure created an unreasonable risk of harm to
Officer Hankton. Notably, while Appellants contest its assessment of fault, the trial
court allocated the highest percentage of fault to Mr. Jackson, assessing him fifty
percent (50%) of fault. Thus, we do not find that the trial court erred in allocating
forty percent (40%) of fault to Appellants.
C. NOPD’s Allocation of Fault
Last, Appellants argue that the trial court erred in failing to assess any fault
to the NOPD, as the NOPD was the entity responsible for properly restraining Mr.
Jackson in the hospital room. To counter this argument, Officer Hankton argues
Appellants did not present any evidence to establish the NOPD’s negligence.
The Louisiana Supreme Court has articulated that: “[t]o the extent that a
party defendant seeks to have the benefit of comparative fault of another as an
affirmative defense…it bears the burden of proof by a preponderance of the
evidence that the other party's fault was a cause-in-fact of the damage being
complained about.” Dupree, 1999-3651, p. 18, 765 So.2d at 1014, n.13.
9
“[I]n order to apportion comparative fault for negligence, it was incumbent
upon the [defendant] to establish a standard of care and a breach in the standard of
care that caused Plaintiffs’ damages.” Sewell v. Sewerage and Water Board New
Orleans, 2018-0996, p. 15 (La. App. 4 Cir. 5/29/19), 2019 WL2305673, at *8.
Accordingly, Appellants have to prove by a preponderance of evidence that the
NOPD owed a duty to Officer Hankton and breached that duty.
The record reflects that Appellants did not meet this burden. A review of the
record shows that the NOPD’s policies and procedures were not introduced into
evidence at trial. Moreover, Appellants did not present any experts to testify
regarding the NOPD’s policies and procedures that were in place at the time of the
attack. While Officer Fulton testified as to his police training, he was not qualified
as an expert to testify as to the NOPD’s policies and procedures. Additionally, Mr.
Armbruster, Appellants’ expert in police policies, procedures, and training, could
not testify as to the NOPD’s policies and procedures because he was not qualified
as an expert on the NOPD’s policies and procedures. Thus, we find the trial court
did not commit manifest error in failing to assess fault to the NOPD.
Appellate courts must give great deference to the fact finder’s allocation of
fault. Dupree, 1999-3651, p. 19, 765 So.2d at 1015. Thus, this court must give
deference to the trial court’s allocation of fault, unless we determine it was “clearly
wrong.” Id. We do not find the trial court’s factual findings were clearly wrong.
Based on the evidence and testimony presented at trial, the trial court assessed the
percentages of fault it determined were appropriate, and we find the trial court’s
factual findings are well supported by the record and are not manifestly erroneous.
Thus, we affirm the trial court’s allocation of fault assessing forty percent (40%) of
fault to Appellants, ten percent (10%) to Officer Hankton, and no fault to NOPD.
10
II. Award of Future Medical Expenses to Officer Hankton
Next, we consider Appellants’ argument that the trial court erred in
awarding Officer Hankton $250,552.49 for future medical expenses. Appellants
argue that this amount is completely unsupported by the trial record. Conversely,
Officer Hankton argues the trial court’s award was proper. We find Appellants’
argument lacks merit.
“The proper standard for the trial court’s determination of whether a plaintiff
is entitled to future medical expenses is proof by a preponderance of the evidence
that the future medical expenses will be medically necessary.” Gaunt v.
Progressive Sec. Ins. Co., 2011-1094, p. 34 (La. App. 4 Cir. 6/8/12), 92 So.3d
1250, 1272 (citing Moody v. Cummings, 2009-1233, p. 15 (La. App. 4 Cir.
4/14/10), 37 So.3d 1054, 1064). Further,
Future medicals need not be established with
mathematical certainty…Although a plaintiff is not
required to prove the exact value of the necessary
expenses, some evidence to support the award must be
contained in the record. If the fact finder can determine
from…evidence a minimal amount that reasonable minds
could agree upon, then an award is proper.
Id. (quoting Molony v. USAA Prop. & Cas. Ins. Co., 1997-1836, pp. 2-3 (La. App.
4 Cir. 3/4/98), 708 So.2d 1220, 1221-22).
“[W]hen opinions of expert witnesses differ, it is for the jury to determine
the most credible evidence and these determinations will not be overturned unless
it is proven that the expert’s stated reasons are patently unsound.” Bass v. State,
2014-0441, pp. 8-9 (La. App. 1 Cir. 11/7/14), 167 So.3d 711, 718 (citing Brown v.
City of Madisonville, 2007-2104, p. 7 (La. App. 1 Cir. 11/24/08), 5 So.3d 874,
881). In making a factual conclusion regarding damages, great deference is
afforded a judge’s assessment of the appropriate amount of damages. Menard v.
11
Lafayette Ins. Co., 2009-1869, p. 14 (La. 3/16/10), 31 So.3d 996, 1007. “An
appellate court, in reviewing a jury’s factual conclusions with regard to special
damages, must satisfy a two-step process based on the record as a whole: there
must be no reasonable factual basis for the trial court's conclusion, and the finding
must be clearly wrong.” Id. (Emphasis in original).
We find that there is a reasonable factual basis for the trial court’s award of
future medical expenses to Officer Hankton in the record. Officer Hankton testified
that she sustained severe and permanent injuries from Mr. Jackson’s attack,
including losing the strength in one of her hands, and suffering from other ongoing
physical and psychological effects. Officer Hankton testified that she has
undergone several surgeries to repair her injuries since the attack and must undergo
more in the future. Officer Hankton testified that she is still being treated by a
neurologist, psychiatrist, and social worker. The record therefore demonstrates that
Officer Hankton proved by a preponderance of the evidence that she will undergo
medically necessary care in the future.
The parties presented expert witnesses to testify regarding the cost of Officer
Hankton’s future medical care. Officer Hankton’s expert life care planner, Ms.
Sapp, testified that Officer Hankton’s medical cost would range from $557,738.10
to $827,880.96. Appellants’ expert life care planner Mr. Kocke projected
substantially lower costs for Officer Hankton’s future medical expenses, saying
Officer Hankton’s costs would be within the range of $25,542.00 to $60,954.00.
Appellants argue that Dr. Boudreaux, Appellants’ economist, also testified to
similar ranges as Mr. Kocke and that Dr. Boudreaux estimated that Officer
Hankton’s future medical and rehabilitation costs are within the range of
$41,802.65 to $50,573.16, with a midpoint of $46,187.86.
12
We find that Appellants’ experts were unreliable. Mr. Kocke admitted that
his calculations were “screwed” and Dr. Boudreaux’s initial calculations were
based on Mr. Kocke’s calculations. Further, the trial court based the amount it
awarded for future medical treatment for the attack, including an award for “a
psychiatrist, pain management, gym membership, medication, testing and labs and
equipment and supplies,” which the record shows was medically necessary. Based
on Ms. Sapp’s calculations, which the record does not show are unreliable, we find
that the record supports the trial court’s award. Thus, we find the trial court’s
award for future medical expenses was reasonable.
III. Placement of Award of Future Medical Expenses in Revisionary
Trust
Last, we consider whether the trial court committed legal error in ordering
that the award for future medical expenses be placed in a revisionary trust pursuant
to La. R.S. 13:5106(B)(3)(c). Appellants argue that they are “state agencies,” and
thus, pursuant to La. R.S. 13:5106(B)(3)(c), the future medical care expenses
incurred by Officer Hankton should shall be paid directly to the providers from the
Future Medical Care Fund established by R.S. 39:1533.2 as the expenses are
incurred. Officer Hankton counters that the trial court properly ordered that the
future medical expenses should be placed in a revisionary trust pursuant to La. R.S.
13:5106(B)(3)(a) because Appellants are “political subdivisions” as opposed to
“state agencies.”
We find that the trial court committed a reversible error of law in ordering
that Officer Hankton’s award of future medical expenses be placed in a revisionary
trust. Therefore, we review this assignment of error de novo and render judgment
accordingly. See Rosell v. ESCO, 549 So.2d 840, 844, n.2 (La. 1989) (“[W]hen the
13
court of appeal finds that a reversible error of law…was made in the trial court, it
is required to redetermine the facts de novo from the entire record and render a
judgment on the merits.”)
La. R.S. 13:5106(B)(3)(a) provides that:
In any suit for personal injury against a political
subdivision wherein the court…determines that the
claimant is entitled to medical care and related benefits
that may be incurred subsequent to judgment, the court
shall order that a reversionary trust be established for the
benefit of the claimant and that all medical care and
related benefits incurred subsequent to judgment be paid
pursuant to the reversionary trust instrument.
La. R.S. 13:5106(B)(3)(c) provides, however, that:
In any suit for personal injury against the state or a state
agency wherein the court…determines that the claimant
is entitled to medical care and related benefits that may
be incurred subsequent to judgment, all such medical
care and related benefits incurred subsequent to judgment
shall be paid from the Future Medical Care Fund as
provided in R.S. 39:1533.2…[and] shall be paid directly
to the provider as they are incurred.
Therefore, to address the propriety of the trial court’s order that Officer
Hankton’s award of future medical expenses be placed in a revisionary trust, we
must determine whether Appellants are “state agencies” or “political subdivisions.”
La. R.S. 13:5102 defines a “state agency” as “any board, commission,
department, agency, special district, authority, or other entity of the state.”
Conversely, La. Const. Art. 6 § 44 defines a “political subdivision” as “…a parish,
municipality, and any other unit of local government, including a school board and
a special district, authorized by law to perform governmental functions.” Further,
La. R.S. 13:5102(B)(1) provides that political subdivisions also include “[a]ny
parish, municipality, special district, school board, sheriff, public board, institution,
department, commission, district, corporation, agency, authority, or an agency or
14
subdivision of any of these, and other public or governmental body of any kind
which is not a state agency.”
The Louisiana Supreme Court has already held that the Appellants in this
case, the LSU Board of Supervisors and University Hospital, are state agencies.
See Whitley v. State ex. Rel Bd. Of Sup’rs of Louisiana State University Agr.
Mechanical College, 2011-0040 (La. 7/1/11), 66 So.3d 470. Likewise, the First
Circuit Court of Appeal has found that, “[b]ased on the clear language of La. R.S.
13:5102(A) and (B), the LSU Board is a state agency.” Fecke v. Board of
Supervisors of Louisiana State University, 2015-0017, p. 10 (La. App. 1 Cir.
7/7/15), 180 So.3d 326, 337. Therefore, we hold that the Appellants in this case are
state agencies and the provisions of La. R.S. 13:5106(B)(3)(c) apply. The trial
court erred in ordering Officer Hankton’s future medical expenses be placed in a
revisionary trust pursuant to La. R.S. 13:5106(B)(3)(c). Thus, we amend the
judgment to comply with La. R.S. 13:5106(B)(3)(c), and order that Officer
Hankton’s award of future medical expenses be paid from the Future Medical Care
Fund directly to Officer Hankton’s medical providers as the expenses are incurred.
DECREE
For the foregoing reasons, we affirm in part the trial court’s December 10,
2018 judgment finding Appellants forty percent (40%) at fault and awarding
Officer Hankton a total of $250,552.49 in future medical expenses. Further, we
amend in part, and affirm as amended, the trial court’s December 10, 2018
judgment directing Officer Hankton’s future medical expenses be placed in a
revisionary trust.
15
The award for future medical expenses shall be paid directly to the medical
providers from the Future Medical Care Fund as the expenses are incurred in
accordance with La. R.S. 13:5106(B)(3)(c).
AFFIRMED IN PART;
AMENDED IN PART AND AFFIRMED AS AMENDED
16