“Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards.”
How later courts described this case
- “Only if a review of the facts reveals an abuse of discretion, is it appropriate for the appellate court to resort to a review of prior similar awards.”
Written by the judges who cited it.
The opinion
LYDIE MOULDS AND RON * NO. 2021-CA-0503
MOULDS
*
VERSUS COURT OF APPEAL
*
LOUISIANA STADIUM AND FOURTH CIRCUIT
EXPOSITION DISTRICT AND *
SMG STATE OF LOUISIANA
*******
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-04670, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore Lynn M. Luker)
ATKINS, J., CONCURS IN THE RESULT
Scott R. Bickford
Lawrence J. Centola, III
Jason Z. Landry
MARTZELL & BICKFORD, APC
338 Lafayette Street
New Orleans, LA 70130
AND
J. Lee Hoffoss, Jr.
Don McKnight
HOFFOSS DEVALL, LLC
517 W. College Street
Lake Charles, LA 70605
COUNSEL FOR PLAINTIFFS/APPELLEES, LYDIE AND RON
MOULDS
Jeff Landry
Attorney General
A. Mandina Babin
Assistant Attorney General, Lead Appellate Counsel
Wm. David Coffey
Assistant Attorney General, Appellate Counsel
Taylor M. Simon
Assistant Attorney General, Trial Counsel
LOUISIANA DEPARTMENT OF JUSTICE
1450 Poydras Street, Suite 900
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT, SMG
AFFIRMED
MARCH 23, 2022
TFL
This appeal arises from injuries plaintiff allegedly sustained after tripping on
LML
a metal rod protruding from the concrete while walking from Superdome
handicapped parking to the Superdome for a Saints football game. Plaintiff and
her ex-husband contend that her traumatic brain injury and other injuries severely
affected their lives and led to their divorce.
Following a trial, the jury found in favor of plaintiffs and against the
company managing the Superdome, finding that the company had constructive
notice of the defect. The jury awarded plaintiff $1,517,000.00 and $25,000.00 to
her ex-husband for loss of consortium. The company managing the Superdome
appealed, contending that the trial court erroneously denied a directed verdict on
notice of the defect, the jury erred by finding it had constructive notice of the
defect, and that the $1,300,000.00 general damage award was excessively high.
Plaintiffs filed an answer to the appeal contending that the general damage award
was inadequate.
Upon review, we find the trial court did not err by denying the directed
verdict, as a reasonable person could interpret the evidence presented during the
plaintiffs’ case differently. The jury was also presented with juxtaposed expert
1
testimony concerning how and when the defect began to protrude from the
concrete. As such, the jury did not commit manifest error by finding the managing
company had constructive notice. The general damages award of $1,300,000.00
was not inadequate, excessive, or an abuse of the jury’s discretion based on the
evidence presented. Further, the trial court did not err by denying the request for
judgment notwithstanding the verdict on general damages. The judgment of the
trial court is affirmed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 20, 2015, Lydie and Ron Moulds (collectively “Plaintiffs”)
parked on Level 3, Garage 1 in the handicapped parking area at the Superdome in
order to attend a Saints football game. While Ms. Moulds was walking across the
parking lot, she tripped over a piece of metal rod protruding from the concrete.
Ms. Moulds fell, striking her head and various other parts of her body and broke
her left elbow. She was examined by EMTs, but refused treatment and refused
transportation to a hospital. As a result of the fall, Ms. Moulds contends that she
suffered a traumatic brain injury, underwent ulnar nerve surgery on her left elbow,
and could no longer function as her husband’s primary caregiver, as he is
wheelchair-bound. Ms. Moulds continues to cope with depression, anxiety, and
various cognitive impairments, while also averring that the injuries led to her
divorce from Mr. Moulds.
Plaintiffs filed a Petition for Damages against Louisiana Stadium and
Exposition District1 (“LSED”) and SMG,2 as the operations manager of the
Superdome (collectively “Defendants”), seeking compensation for her injuries and
1
A political subdivision possessing ownership of the Superdome.
2
Now ASM Global.
2
Mr. Moulds’ loss of consortium.3 Defendants filed a Motion for Summary
Judgment contending that they had no actual or constructive notice of the defect
and no notice of an unreasonable dangerous condition. The trial court denied the
Motion for Summary Judgment.
The matter proceeded to trial before a jury. At the conclusion of Plaintiffs’
case, Defendants filed two Motions for Directed Verdicts. First, Defendants
contended that Plaintiffs presented no evidence of past wage loss, future wage loss,
or loss of earning capacity claims, thereby nullifying those claims. Plaintiffs
stipulated to same, and the trial court granted the directed verdict as to past wage
loss, future wage loss, and loss of earning capacity. Secondly, Defendants averred
that Plaintiffs failed to satisfy their burden as to notice of the defect. The trial
court denied the second Motion for Directed Verdict.
At the conclusion of Defendants’ case, Plaintiffs moved for a Directed
Verdict regarding Ms. Moulds’ comparative fault, which the trial court granted.
Plaintiffs then moved for a Directed Verdict averring that no evidence was
presented to demonstrate that Ms. Moulds failed to mitigate her damages, which
the trial court also granted.4 Plaintiffs then stipulated that neither SMG nor LSED
had actual notice of the defect.
The jury found as follows:
1) SMG had constructive knowledge of the defect
2) LSED did not have constructive knowledge of the defect
3) SMG had a reasonable amount of time to cure the defect before fall
4) Lydie Moulds was injured as a result of the defect:
Past medical expenses: $67,000.00
Future medical expenses: $150,000.00
Past pain and suffering: $100,000.00
3
Plaintiffs divorced prior to trial.
4
The trial court stated, “I agree with him,” instead of explicitly stating she granted the directed
verdict.
3
Future pain and suffering: $600,000.00
Loss of enjoyment of life: $600,000.00
Total for Lydie: $1,517,000.00
5) Ron Moulds suffered a loss of consortium
6) Loss of consortium: $25,000.00
The trial court entered the jury’s verdict against SMG and awarded Ms. Moulds:
$1,517,000.00, and Mr. Moulds: $25,000.00. Plaintiffs’ claims against LSED were
dismissed with prejudice. SMG was also found liable for costs, which were taxed
at $43,917.99.00.
SMG filed a Motion for Judgment Notwithstanding the Verdict or,
alternatively, a Motion for New Trial, based on liability and damages, which the
trial court denied. SMG subsequently filed a Motion for Suspensive Appeal.
Plaintiffs countered by filing an Answer to the appeal.
SMG asserts that the trial court erred by: 1) denying the Motion for Directed
Verdict; 2) finding that Plaintiffs did not prove constructive notice of the defect;
and 3) finding that the jury’s general damages award was excessive and abusively
high. Plaintiffs aver in their Answer to the appeal that the general damages award
was insufficient.
TRIAL TESTIMONY
Jason English
Jason English was qualified as an expert in safety engineering and tripping
hazards. Mr. English testified anything over a quarter inch change in elevation is a
tripping hazard and that the metal rod that tripped Ms. Moulds jutted
approximately two inches above the concrete. He classified the metal rod Ms.
Moulds tripped on as a tripping hazard and that SMG had a responsibility to have a
safety program to identify hazards. Mr. English testified that it was difficult to
determine how long the metal rod was sticking up from the concrete. However,
4
from looking at the photographs, he concluded that the metal rod was exposed for a
“good period of time . . . months, possibly years.” Mr. English believed that SMG
should have seen the hazard if there was a policy in place that someone walk the
parking lot once a month looking for tripping hazards.
When asked if he saw evidence of “management’s commitment and
employee involvement to safety,” Mr. English testified that:
At least from what I would consider a pedestrian
safety relative to tripping hazards, I saw very limited
commitment to that meaning that I did not see any
evidence of any written policies procedures, written
programs relative to identifying tripping hazards or even
specifically conducting fall inspections to identify these
types of hazards. No written program.
Anything they had really was just verbal. It is
unclear exactly we [sic] what was communicated because
as these individuals pes [sic] would list out their job
responsibilities and what they are supposed to be doing,
it seemed like they safe never listed to identify trip
hazards. That always had to be followed. Does that
include doing this. Clearly that wasn’t the forefront of
their thought processes when they are seating there, what
is job, what are you supposed to be doing and these
inspections to identify fall hazards was never voluntarily
listed until they were specifically asked about that. So
that kind of goes towards the commitment and employee
involvement. Relative to this particular issue, I did not
see that commitment or involvement.
He further opined that SMG had neither an adequate training program to identify
tripping hazards nor adequate hazard prevention and control standards or methods.
Mr. English stated that falls are the leading cause of unintentional injury in the
United States. He testified, “[b]ased on that that -- since that is going to be your
largest cause of injury in this type of environment that should be an important
aspect of your safety program from a prevention standpoint. In my opinion I do not
see that in their program.” Mr. English stated that a “see something, say
something” policy was inadequate.
5
When cross-examined, Mr. English admitted that he could not “give you
[sic] a specific time between 1975 and now as far as it that came into being,”
meaning when the metal rod became exposed. However, he reasoned that the
metal rod was exposed for months or years because:
[t]his particular wire that you can see in the photograph
has what is referred to as a sleeve which is kind of the
brownish yellowish color that is around the piece of
metal rod. At one point that -- based on what I am seeing
would be a flexible sleeve versus a hardened plastic like
you think of PVC pipe. Based on what I am seeing as far
as how it is flexing and the types of deformation that it
has.
So in my opinion because of the exposure
particularly the UV degradation over time allowed that
yellowish in color. Also it become more brittle which
you can see at the top of that rod pieces of that sleeve that
have broken off and separated from the sleeve itself.
Another thing is that this goes down into the joint
itself. It is believed to possibly be -- it actually goes into
the concrete panel so if that was something that had just -
- only way for that to get out -- if it was embedded down
in that panel in that gap, it would have that sealant going
on top of it. It would be hidden and protected by the
sealant. The only way for it to get out from beneath
would be to protrude up through that Elastomeric sealant
that you see there.
This sealant that has been there for a while. It is
well skinned over; has some cracks that you see. And
when it has been there for a while, it now has a dull
appearance to it and weathered appearance. This is in on
the top deck. It is going to get all that sun. It is not on a
lower deck. As you can imagine in your own experience
if you have ever dealt with, you know, caulking that has
been exposed to -- if you were to have a fresh protrusion
through that or a fresh cut into that caulk, you are now
going to expose a more brightly colored whitish gray
color.
You don’t see that anywhere around this rod. That
would indicate it had come up through there. You would
be able to see a more brighter or freshly indication of cuts
in that caulk that would be evident from the coloration.
We do not see that. Further which leads me to believe it
is been in there for a good period of time because as you
can see the caulk is -- kind of has the hole that the rod
goes through it is kind of wallered out. It is larger. It is
6
not something that fits up tight to the metal rod itself
indicating that the metal rod has likely been moving back
and forth as cars go over it; or just general movement
within the panels themselves over time which is kind of
wallered out that hole to be a bigger.
You can imagine the Elastomeric sealant is pretty
tough material so if something were to protrude and stick
through it, it going to kind of come like a nail through
caulk and likely to be very tight to it. So this is kind of
loose meaning it is kind of wallered out from movement
over time. To me those are all indications that it has been
there for some time. There are markings on the concrete
that you can see to the right as the way it is titled in that
direction. You can see down there are some fresh
markings on the concrete where it looks like maybe it
was run over and pressed down but then had enough
flexibility to it that it was able to not fully bend over and
stay flat.
There are multiple things in this photograph that
lead me to believe that it has been there -- I can’t tell you
the exact amount of time or the exact date that this may
have happened. Given what I am seeing it is not
something that just happened within hours or days. This
is more something that has been there for months or
longer.
At a minimum, Mr. English stated that the space should be inspected at least prior
to each major event.
Shana Holloman, M.D.
Dr. Shana Holloman testified, via deposition, that she saw Ms. Moulds three
times in 2017, after the Neurology Department referred Ms. Moulds to the
Psychiatric Department, and that Ms. Moulds indicated she lost consciousness
when she fell. Dr. Holloman diagnosed Ms. Moulds with major neurocognitive
disorder without behavioral disturbances and a traumatic brain injury (“TBI”). Dr.
Holloman stated that it was normal for patients with neurocognitive decline to
suffer from depression. Dr. Holloman was unaware of Ms. Moulds having any
previous psychiatric history and that Ms. Moulds stated she had a TBI.
Mark Ladner, M.D.
7
Dr. Mark Ladner testified, via deposition, that Ms. Moulds was hospitalized
for depression and a suicide attempt. He had not seen her since her hospitalization.
He stated that the major neurocognitive disorder was a contributing factor to Ms.
Moulds’ depression and memory loss. Dr. Ladner believed Ms. Moulds showed
cognitive impairment. Dr. Ladner confirmed that a psychiatrist or neurologist can
diagnose a TBI. Dr. Ladner stated that most TBIs resolve, but not all. Dr. Ladner
commented on TBIs as follows: “I can tell you from my years of experience, you
know, traumatic brain injuries are funny. You know, they’re not all the same. I’ve
never seen any two cases that looked alike. Sometimes you can do tests and see
structural damage, sometimes you can’t.” Dr. Ladner saw no evidence of
malingering in Ms. Moulds.
Lydie Moulds
Ms. Moulds, forty years old at the time of the fall, testified that she was her
husband’s caregiver at the time of the fall. She stated, “[w]e -- I remember
walking with Ron. We were trying to catch up with our party, and the next thing I
remember is I’m back in the car and I am hurt.” Ms. Moulds stated she was “very,
very confused and disoriented a bit. Yes, very confused.” After being checked
out, Ms. Moulds and her husband proceeded on to the football game. However,
she testified that they left during the game. Ms. Moulds stated she laid down in her
car while they waited for their friends to finish watching the game. That night, Ms.
Moulds maintained she suffered from headaches, disorientation, and her elbow
hurt. The next day, Ms. Moulds visited an emergency room, where she was
diagnosed with an elbow fracture and a concussion.
Ms. Moulds testified she could no longer take care of the house or her
husband, who is wheelchair-bound. She and her husband divorced shortly before
8
trial. Ms. Moulds stated she can no longer live alone. Ms. Moulds testified that
her need for medical treatment persists. Further, Ms. Moulds stated that she
continues to suffer from severe nonstop headaches and migraines, memory
problems, confusion, stress epilepsy, blacking out, bursts of anger, and sometimes
forgets how she arrived somewhere. When asked to describe her the confusion she
experiences, Ms. Moulds stated:
Well, there is different kinds. One of them is it is
like waking up and you are at McDonald’s you do not
know how you got there. It is scary. You are there and
you do not know how you got there or you in the store
and you do not know who brought you there and why
you there.
You get blanks. I get blanks. People tell me you
have said this and that like two hours ago. I have
absolutely no recollection of it. To me it never happens. I
also forget stuff. I cannot cook no more because I will
forget stuff on the stove or leave the stove on. I have
stress epilepsy which make me have blackouts. I forget
the names of my loved ones when they come close to me.
It is very isolating.
Ms. Moulds averred that she can no longer play the flute, requires
transportation, and needs a new service dog. Ms. Moulds contends she can no
longer read for enjoyment and cannot work. Ms. Moulds stated that her mental
symptoms worsened over time. She believes her condition is essentially the same
as in 2018. Ms. Moulds stated that she attempted suicide in 2018, and was
involved in a singular motor vehicle accident in 2020, wherein she broke her back.
Charles Bettinger, M.D.
Dr. Charles Bettinger, an economist and expert in statistics, testified, via
deposition, that he was retained to calculate Ms. Moulds’ future medical expenses.
In doing so, Dr. Bettinger utilized the life care plan created by Bob Gisclair. Dr.
Bettinger’s calculations were based upon the usual and accepted methodology and
9
included the following future medical expenses:
Speech therapy: $304.00
Cognitive behavioral therapy: $7,416.00
Bloodwork (40 years): $5,895.00
Venipuncture (40 years): $713.00
SPECT brain imaging: $1,333.00
First set of medications for six years: $16,337.00
Second set of medications for 40 years: $69,424.00
Psychiatrist office visits for six years: $9,684.00
Neurologist visits for life (40 years): $37,563.00
TOTAL $148,669.005
Todd Cowen, M.D.
Dr. Todd Cowen, Plaintiffs’ expert in physical medicine rehabilitation with
expertise in the field of TBI, was asked to assist with preparing a life care plan for
Ms. Moulds. Dr. Cowen met with Ms. Moulds in August 2018, and found her
symptoms were consistent with a TBI. Dr. Cowen found that Ms. Moulds suffered
blunt force trauma to the head, fractured her elbow, and required ulnar nerve
surgery as a result of the fall. He diagnosed Ms. Moulds with a TBI, but stated that
loss of consciousness was not required for a brain injury.
Dr. Cowen stated that Ms. Moulds suffered from TBI with neurocognitive
issues, “symptoms of deficits, chronic posttraumatic migraines and tension
headaches as well as secondary anxiety, depression, and insomnia.” Further, Dr.
Cowen characterized some of her symptoms as follows: “[s]he had fairly
significant symptoms of depression and anxiety, panic attacks, nervousness that
would typically make her headaches worse. Her headaches would make her
anxiety and depression worse which is the common cycle we see.” Dr. Cowen
testified that this was “[s]omething I commonly see in people that have brain injury
and chronic pain, chronic headaches.” Dr. Cowen stated that Ms. Moulds should
5
Dr. Bettinger stated that the total was $148,365.00.
10
continue to treat with medications, psychiatry, counseling, therapy, and cognitive
rehabilitation. He testified that Ms. Moulds’ condition was chronic and he did not
believe it would resolve. He related these injuries and lasting symptoms as being
causally related to the fall.
Dr. Cowen also collaborated with the life care planner, Bob Gisclair. When
asked on cross-examination whether he believed Ms. Moulds was motivated by
money, Dr. Cowen testified that he saw no evidence of malingering.
Bob Gisclair
Bob Gisclair, who works in vocational rehabilitation and is an expert in the
field of life care planning,6 testified that he relies upon the opinions of physicians
when he prepares plans. In preparing Ms. Mould’s life care plan, he relied up
recommendations from Dr. Cowen and Dr. Ladner. The costs he provided for
future medical expenses did not include inflation. Mr. Gisclair’s calculations were
as follows:
Speech therapy evaluation: $304.00
Cognitive behavioral therapy: $7,416.00
Bloodwork (40 years): $7,539.40
Medications: $81,335.76
Doctor visits: $44,840.40
TOTAL $141,435.56
Ron Moulds
Ron Moulds, Ms. Moulds’ husband at the time of her fall, testified that he
and Ms. Moulds had been divorced approximately two months at the time of trial
because “things changed” after her fall. He has been one hundred percent disabled
since 1992, and uses a wheelchair. On the day of Ms. Moulds’ fall, Mr. Moulds
stated that they parked in the handicapped parking area and he described the fall as
6
Mr. Gisclair is a nationally certified life care planner.
11
follows:
[w]e were trying to rush to get in there and get our seat.
Not running, just walking a little faster than normal. She
stepped -- there was a piece of rebar sticking up out of
the parking lot about that tall. (Indicating.) It just so
happened she stepped on it.
* * *
It went through her shoe into her foot and stopped
her momentum. She fell forward and put her arm out and
broke her arm. When her head – when she shit [sic] the
concrete it sounded like a watermelon hitting the
concrete. I thought she was dead. She laid there face
down. I was scared [sic] touch her. She wouldn’t respond
to me. I bent down to shook [sic] her little bit. She did
not move. She was out. When I turned her over her eyes
were rolled back in her head.
He stated that she was not conscious. He said they continued on to the football
game and stayed a “short time.”
Ms. Moulds’ headaches began “from day one.” Mr. Moulds started noticing
a change in Ms. Moulds “immediately.” He stated that she misunderstood things
and became angry. Mr. Moulds testified:
I be sitting in the house on numerous occasions
and she go outside and I look outside she be frozen out --
just be standing there in the yard. I call to her. She never
move. She was having some kind of epilepsy or some
kind of a form of epilepsy where she be frozen. She
wouldn’t know where she was. She did not even know
who I was. I talk to her, let’s go back in the house. She
wouldn’t move. She just stand there. I have to lead her
back to the house and put her in the bed, pet her. Like I
say she did not know who I was.
Times we been to the Meridian to get something to
eat at the Burger King or something and we be sitting
there and Steve Mills happen to be there and we all go.
She be sitting there kind of dazed. She said why are we
here? How did we get here? What are we doing here. I
tell her. Yes, that happened. She doesn’t know where she
was at or how she got there. That happened several times.
Even at the house out in the yard. I let her driving
a little bit at the time she call me did not know where she
was at. She would be five, six miles from the house. I
have to go find her; get her to tell me -- describe the area
12
where she was at. I might recognize and tell her which
way to turn when she got to the road.
Ms. Moulds no longer cooked or cleaned after the fall. As to her increased anger
and change in personality, he testified:
[s]he lose her temper and get made [sic] at me. I
am the only person there. Got to take it out on somebody.
I was scared she shoot me. I took my guns out the house.
She wasn’t Lydie no more. It wasn’t no wife. It wasn’t
the woman I married. It was somebody else. I wish I
would get her back. I know she never coming back from
that. It got worse and worse and worse every year.
Not necessarily year to year. All during the year
things would change in her mind. Our relationship
changed. I still love her. I wasn’t going anywhere. I was
doing my best to support and take care of her console
her, be nice to her, help her through it. That become an
issue for her too.
Mr. Moulds further stated that Ms. Moulds would think people were judging her,
she would soil herself, and was depressed all the time.
Daniel McIlhardy
Daniel McIlhardy, the parking manager at the Superdome now and at the
time of Ms. Moulds’ fall, testified the parking lot where the Moulds’ parked was
open air with no roof and that the metal rod was a portion of highway mesh that
was used to support the concrete when the concrete was poured. If the metal rod
was protruding about two and a half inches from the ground, but was not supposed
to be, Mr. McIlhardy agreed it would create a tripping hazard. Mr. McIlhardy
agreed that SMG was responsible for making sure the parking garage was safe for
fans. If an SMG employee witnessed the metal rod sticking out from the ground,
then the employee should have gotten assistance to remove it.
At the time of the fall, SMG did not have a policy that required someone
from the parking department inspect the parking lot every month for potential
13
hazards. Such a policy, however, was instituted in late 2015 or early 2016. As of
September 2015, there was no policy to document a walk-through inspection in
writing. The parking department would have walked through the parking garage
the night before the Saints game to make sure everything is as it should be and
afterwards to look for anything “out of the ordinary,” any damage, anything safety
related, or light outages.
Prior to Ms. Moulds’ fall, the employees were not formally trained on how
to look for tripping hazards. However, Mr. McIlhardy testified that:
[i]t is common policy at the Superdome people are told if
you come across something that is not safe or potentially
dangerous it becomes yours. It is your responsibility to
make sure it gets handled. I may not be the person with
the broom and dustpan, but I am going to make sure that
nobody drives through it gets flat tire or steps on it or
anything like that anything until it is cleaned up.
It basically becomes my responsibility I am
walking through the hallway and somebody spills a beer
on the floor. It becomes yours. It is not your department’s
responsibility but it is your responsibility as an employee
it is yours.
Mr. McIlhardy stated that the housekeeping and engineering departments also
work in the parking lots.
Mr. McIlhardy described the process of creating and complying with walk-
through notes as follows:
Prior to every event -- first, every event we have is
assigned an event coordinator. They are the person that
manages and makes your event happen with all of your
wishes, decisions, options. The event coordinator is
essentially the go between the client and the building
and. A walk through is done prior to every event whether
it is a birthday party or Super Bowl by the event
coordinator and they walk all areas that are affected or
within the perimeters of their event and make sure that
everything is set up; everything is like it should be.
If they ask for 20 chairs, they make sure there are
20 chairs there. If there is trash somewhere that did not
14
get picked up they -- it is a list of every defect that needs
to be fixed whether it is lights not working or trash or
there is not enough chairs or tables like they asked for.
Things of that nature. It is done for every single event.
* * *
It is Word document. It is sent to every department
as a whole. Like if there is a list of 20 items, they will
send that out to all of us. Everybody sees everything. The
reason for that is -- an event coordinator may mistake a
responsibility and put it under my department, and it is
not my department. It is this department.
So everybody reads those walk-through notes to
ensure that the items listed under your department are
taken care of and there could possibly be another item
listed under public safety or housekeeping and you know
it is not them so you take care of that too.
The parking lot where Ms. Moulds fell was used every day. Mr. McIlhardy
had never before seen a piece of metal rod sticking up from the ground and has not
since. His assistant manager arrived at the site of the fall and waited for someone
to remove the metal rod with bolt cutters. Mr. McIlhardy acknowledged that the
metal rod was a tripping hazard and did not think the hazard would be missed on a
walk-through. Because of this, he did not believe the metal rod was exposed for a
long period of time, but he admitted it could have been there ten years because he
had no idea how long the metal rod was sticking up from the concrete.
While SMG did not have “specific training just for safety,” Mr. McIlhardy
stated they had “annual trainings twice a year that encompassed safety
performance, hospitality, basically everything that falls underneath our umbrella
for hosting events. Safety and patron safety are a huge part of that.” There was no
written safety training or manual given to parking employees.
Sheria Griffin
Sheria Griffin worked as a security guard in the Superdome and testified that
she was the report writer on the day of Ms. Moulds’ fall. When she arrived at the
15
scene, Ms. Moulds was sitting on the curb and said she injured “her left elbow,
right knee, left big toe, and laceration under her right foot.” Ms. Moulds did not
indicate to Ms. Griffin that she suffered a head injury, lost consciousness, felt
dizzy, dazed, nauseous, or had a headache. Mr. Moulds’ statement to Ms. Griffin
did not mention a head injury either. Ms. Griffin’s report documented that Ms.
Moulds was examined by EMTs, but refused treatment and transportation to a
hospital.
Anson Chatman
Anson Chatman, a parking operations supervisor at the Superdome as of
October 2016, testified that he had no personal knowledge of what occurred prior
to October 2016. However, he assumed he was trained to follow the same
procedures as those before him. He was trained to conduct walk-throughs monthly
and before events to look for tripping hazards. He did not work in the parking lots
at the time of Ms. Moulds’ fall.
Charles Bourg II
Charles Bourg II, the director of engineering operations at SMG (now ASM
Global) was the facilities manager at the time of Ms. Moulds’ fall. He stated that
before every event, the general manager would conduct a walk-through. The
“parking division will normally do inspections of the garage every day since they
are there. We [engineering and operations] also conduct our own walk throughs as
well.” He testified:
We are looking for any lights that might be out.
We are looking for any defects in any rising of the
concrete curve or anything like that that could be an
impact to anybody entering into the garage. We also look
at any of the sump pumps that are at the basement; if
there is any issues with working condition because if it
rains, you know, sometimes in the city the water does not
16
get out quick enough. We do have some flooding in
basement from time to time. We have to make sure those
sump pumps are ready to get the water out.
* * *
We are looking at the condition of the expansion joints.
We are looking at any of the steps, any of the thresholds
on the risers from the steps to see if any of that needs to
be replaced. There were some times when we had to
replace the treads on the stairs going up into the garage.
We have had to fill some expansion joints that the filling
may have fallen out of them. So we do look for a lot of
different things. Sometimes it may be a cosmetic issue
where we may need to restripe the parking lot itself so
people can find the spot besides just changing lights and
things like that.
Mr. Bourg conducted quarterly walk-throughs since November 2014.
Mr. Bourg stated that if his team would have seen the metal rod sticking up
out of the expansion joint, then they “would have taken care of it immediately.”
He learned of Ms. Moulds’ fall from the command post. Mr. Bourg never saw a
metal rod sticking up from the concrete before this incident and has not seen it
again since.
Alan Stauder
Alan Stauder, assistant manager of the parking department at the
Superdome, testified that one of the primary safety policies he enforces is “see
something, say something” and that employees attend annual training. He stated
that if he had seen the metal rod protruding from the expansion joint, he would
have contacted the engineering department immediately about the tripping hazard.
After learning of Ms. Moulds’ fall, he placed an orange cone over the metal rod
and contacted command post so someone would remove the rod. He never saw a
piece of metal like that sticking up from an expansion joint before the fall or after.
Mr. Stauder agreed that SMG had a duty to ensure the parking garage was safe for
fans.
17
Laurie Ducros
Laurie Ducros, the Superdome event services manager at the time of the fall,
identified the walk-through notes from the Friday before the Saints game. In
regards to training for walk-throughs, she stated that
[i]t was basically when they trained us on the walk
through they would -- it wasn’t written. It was just our
practical training. We would follow a coordinator
throughout an event. All our new coordinators would
shadow another seasoned coordinator. During events I
would follow Ferro Bouton who [sic] the director of
event services and what was also the coordinator for the
Saints. He did a lot of my straining [sic].
Ms. Ducros had no specific knowledge about the metal rod.
Daisy Langford
Daisy Langford, the housekeeping manager at the Superdome and Smoothie
King Center since 2007, testified that the team responsible for cleaning parking
lots was trained to identify hazards. The employees “go to the training when they
[sic] hired. We all do training as -- video training as far as what to look; as far as
looking for stuff in the garages or outside or hazardous materials, anything that do
a slip, trip, or fall.” Ms. Langford stated that a class on slips, trips, and falls has
been in place since 2007, and that everyone was trained to look for those types of
hazards. There are members of the housekeeping department cleaning the parking
lots every day unless there is no event on the weekends, then no one is there on the
weekends. She stated that someone from housekeeping would have been in the
parking lot the day before the Saints game.
Michael Schilling
Michael Schilling, the assistant general manager for ASM New Orleans
(formerly SMG), testified that all departments are under his supervision and
18
explained the “see something, say something” policy as follows:
[w]ell, one of the things we encourage all of our
employees to do is to always look for safety issues and
things that may not seem right. It could be a light out,
suspicious person, and we ask them that while you are
doing your job and moving about the campus if you see
something that may not seem right to please bring it to
your supervisor’s attention so that we can with analyze it
and address it appropriately. That system works very well
during day to day and during our events.
He further elaborated on SMG’s OSHA compliance thusly:
[f]all protection which is one of the OSHA 30
requirements that we train all our personnel to make sure
that our employees are taking the appropriate measures
and are working safely. If they are working safely, if they
are working in an area where there could be a fall hazard
and then they also look for all of the areas that could
potentially be a fall hazard for our employees and/or our
guests that are attending events to make sure that those
areas are safe and appropriate.
* * *
Number 28 is slip prevention. Again that is part of
the OSHA 30 best practices. We make sure that our staff
is constantly walking and checking floors and stairs and
other surfaces to make sure there are no slip hazards
which would be spills or grease or other things and that
again that it is for our employees and for our guests that
are visiting our venue.
Overall, Mr. Schilling believes SMG takes safety seriously. When confronted with
the report prepared in August 2015, that assessed the parking garage, Mr. Schilling
stated he could not be sure that the expansion joint needing replacement was the
same one where Ms. Moulds’ fell.
Matt Dauphin
The trial transcript reflects that Matt Dauphin’s perpetuation video
deposition was played for the jury. However, neither the video of the deposition,
nor the transcript of the deposition was contained in the record. The trial transcript
documents that Mr. Dauphin’s report was introduced into evidence, however.
19
The August 14, 2015 report states that the parking “garage is structurally
sound notwithstanding the conditions noted.” The reports noted that an expansion
joint needed replacing in Garage 1, Level 3.
Leonard Quick
Leonard Quick, an expert in civil, structural, and forensic engineering,
testified that the metal rod was a specialized piece of coated mesh, referred to as
highway mesh, and was utilized to take on the tensile stresses of concrete. Mr.
Quick stated that he did not see anything that would have informed SMG that the
metal rod was protruding from the concrete. He opined that the metal rod was only
protruding for a few hours up to two days prior to Ms. Moulds’ fall based on the
vehicular load in the parking lot.
When asked about his conclusions regarding Mr. English’s opinions, Mr.
Quick stated that “[t]here was no scientific basis of fact for” Mr. English’s
“opinions that he expressed here at trial.” He elaborated thusly:
The first thing - the biggest thing is referring to what we
call a sleeve. It is shown in the exhibit. I have seen it
many times put up here. That sleeve is simply just a
temporary protective cover at the end of the
manufacturing process to protect the ends. And this is
one of what we call the raw ends or manufactured end to
protect that epoxy coating on the end for handling and
shipping until the mesh is placed in place and ready to
accept the concrete.
As far as that material is concerned that is a plastic
or PVC type of material very degradable. It has been in
there exposed to air and less oxygen and moisture for --
since 1974 beginning of 1975 when the slab was placed
in the Dome. That is anticipated expected to occur. That
has no bearing whatsoever scientifically being able to
date for a determination or opinion as to how long this
piece of mesh was above the joint.
On cross-examination, Mr. Quick admitted that he speculated the metal rod
was sticking out up to three days prior to the fall. Then he shortened his estimation
20
to about a day prior to the fall. Mr. Quick explained the change in his opinion
thusly:
By the time of my deposition I testified about that
question to you at most two to three days at the most. But
going through all the testimony and hearing all of the
testimony of all of the witnesses in the trial, that is going
to have been hours, maybe a day but hours with the
vehicular traffic.
The forensic physical evidence and the way it is
bent, the way the sheath shattered and there are a couple
of pieces right there. This is a piece of the sheath. Wind,
rain, vehicles continually to pass through here, parking
stalls pull in, pull out. These material are going to crush
and pulverize it to much smaller pieces and/or blow away
with the wind. This is very, very light like a feather
material. These are not going to hang around very - long
at all.
Dan Cliffe
Dan Cliffe, an expert in forensic accounting, testified that he examined Dr.
Bettinger’s report. He stated that he could not determine whether Dr. Bettinger’s
report was accurate or inaccurate because Dr. Bettinger did not “really explain the
methodology or how he is utilizing any assumptions what if -- even those
assumptions may be for the most part.” Mr. Cliffe did not perform any life care
plan calculations.
Paul Harch, M.D.
Paul Harch, M.D., an expert in the assessment and treatment of neurological
conditions and general medicine, categorized Ms. Moulds’ brain injury as a mild
TBI because she did not indicate that she lost consciousness in the emergency
room. Dr. Harch testified that Ms. Moulds’ level of dysfunction was not consistent
with someone who had a moderate or severe TBI. As to a perceived gap in Ms.
Moulds’ neurological treatment, Dr. Harch opined:
[w]ell, there was a period of time at least in my
21
review of the medical records and even in talking with
her between October of 2015 and roughly April of 2016
when she had her surgery on her elbow where there was -
- I did not see much in the medical records about
complaints of neurological problems and many
complaints that she had in here and it just -- there could
be reasons for it. There was a gap in there and usually
symptoms are persistent throughout in people who have
persistent postconcussion syndrome.
However, Dr. Harch concluded that Ms. Moulds did suffer from post-concussion
syndrome, but that
[w]ell, the pattern of it is unusual in that you
usually do not see an almost precipitous deterioration
years afterwards. People have an injury; they have their
postconcussion symptomatology and as we talked about
most will resolve. But the people who do have
persistence they will have some recovery over time but to
have a late major deterioration was pretty unusual.
There were parts of her exam that seemed, you
know, like she was embellishing a little bit more. I felt
she could have some residual from the accident, I thought
it was out of proportion to her degree of injury. That was
my general impression.
Dr. Harch observed that following when he met with Ms. Moulds:
[w]ell, she appeared -- her affect was a little unusual in
that most of the time she had her eyes closed talking to
me, and I did not quite understand it because she wasn't
photo phobic. It wasn’t the fluorescent lights that were a
problem to keep her eyes closed. She really could not
remember much of anything when I tried to ask about
history.
There were -- from the time of the accident
forward and in doctor's appointments that findings,
details, there was almost nothing that I could rely on by
history. As I said in the report I ended up having to go on
at least for the history part of it most of -- or the details
that were in the medical records that were submitted to
me.
* * *
Part of the exam you use that high intensity
otoscope opthalmoscope to look in ears and eyes. I
shined it in her eyes and people who are photo phobic
they do not like it. They blink or they show some type of
response. She did not do that. So I thought well photo
22
phobia is not the reason for that. Her eyes closed. It was
just very unusual.
* * *
Well, I recommended her continued care by her
medical team and psychiatric support, but I also thought
that cognitive therapy might help her micro-current
electrical stimulation which is painless, a type of
treatment for the brain has been shown to help anxiety
and depression. Finally especially for her posttraumatic
headaches that hyperbaric oxygen help her. Since that
was one of that was one of the most responsive
symptoms in the studies we have done with the patients I
have treated with over the years.
Dr. Harch classified Ms. Moulds’ speech as “very slow speech” and believed her
condition was chronic. When asked if he thought Ms. Moulds was malingering, he
stated, “I don’t think it was an overt deliberate magnification but I thought that her
presentation and complaints were a little exaggerated.” However, in Dr. Harch’s
previous deposition, he testified that Ms. Moulds was not malingering. Dr. Harch
opined that the treatment Ms. Moulds received thus far was reasonable and
necessary due to the fall.
Daniel Trahant, M.D.
Dr. Daniel Trahant, an expert neurologist, was retained “[t]o review the
record and render an opinion as to what” he thought regarding the injuries
sustained by Ms. Lydie Moulds. Dr. Trahant concluded:
Dr. Harch came to the same conclusion as did I -
that the nature of her complaints and the extent of her
complaints and duration of her complaints and the
pervasiveness of her complaints meaning the depth of her
complaints to the point she was nonfunctional for an
extended period of time in view of the nature of her head
trauma itself or facial trauma actually was inconsistent
with an individual with a traumatic brain injury.
So the long-standing nature and the type of
complaints she had was not typical of an individual that
fell in the fashion that she did suffering an abrasion of
her nose and/or on her initial presentation to Rush
Medical Center said she did not lose consciousness and
23
was able to give an adequate history of her fall and the
nurse, Ms. Tips who took the initial history, assessed her
as being alert, cooperative with normal mental status and
able to give a reliable history.
Then as time went on entered into the medical
records and her second neurology visit at University
Medical Center in Jackson it was a physician neurologist
that saw her -- the name is difficult to pronounce for me
but it was sheave –
* * *
Yes. All of a sudden, entered in the medical
records was the fact that she lost consciousness. Ever
since then that changed the diagnosis to a traumatic brain
injury with loss of consciousness. And that element
continues to appear for the next six years when actually
within 24 hours of the accident she stated to the nurse at
Rush Medical Center or emergency room that she did not
lose consciousness. That she was -- I think the word was
that she used when she talked to me and I think also the
nurse was disoriented.
I am not sure what disoriented means in her use of
that word. Now it may be she was stunned because she
fell and was not sure why she fill. It could mean she was
shocked that she fell. It could mean she was -- paid more
attention to the fact that her nose was bloody and she was
embarrassed. There are a number of different things
disoriented can mean and not necessarily that she does
not know where she was, who she was.
Then later in the medical records it shows up an
inconsistency where she states she did not remember
anything about the accident whatsoever, no recall. So
there are number of inconsistencies as we go through the
records, my records, Dr. Harch’s records, and Dr.
Manning’s records in opposition to what the neurology
records and psychiatry records at University Medical
Center in Jackson. There is a great dichotomy and
inconsistency from the initial relationship of her injury
which is, in fact, the most reliable.
The closer you get to the actual event, the more
reliable the history is. The further you get away from the
actual event, then other facts start to creep in, and the
facts are not as accurate as first related by an individual
with a history of trauma. That is an extensive answer to
your question. That sums up my thoughts.
Dr. Trahant stated that people with a concussion “[u]sually . . . improve over time,
not worsen with time. He believed Ms. Moulds “may have had a mild concussion
24
at best, at best [sic] but she did not have what I would term traumatic brain injury
of any degree.” Dr. Trahant testified that it “would be very, very unusual and
atypical for a patient to have . . . innumerable symptoms and deterioration in
cognitive or thinking about memory ability and have some such significant daily
headaches of this type in view of the fact of the nature of her head injury.”
On cross-examination, Dr. Trahant stated that he never met Ms. Moulds.
Further, he testified that he was “not sure” Ms. Moulds suffered a concussion, but
“[i]f she did [sic] it was a mild concussion.” He explained this conclusion as
follows:
But the reason why I say that I’m not sure she did
is because of the surrounding events that was described
in the medical records by a Ms. Tips who was the
registered nurse at Rush Emergency Room who took -- I
testified to this earlier -- a history in preparation for her
to be seen by Dr. Willis who was the ER physician on
duty at the time.
In any event as I testified earlier she, Ms. Tips, is
an RN assessed her as being alert and oriented two all
spheres and was for all practical purposes -- you get the
idea that she was reliable Ms. Moulds. Then in her
history that was obtained, Ms. Tips history that she
obtained from the patient that described what had
happened she fell and did not lose consciousness and
then was disoriented.
Again, I’m not sure what disoriented means. There
are several possibilities of what she meant by that. It
wasn’t gone into it any further. Then later in the medical
records she claimed to have lost consciousness for a
minute or so. Then later in the medical records did not
remember anything about falling. All that she
remembered was that she was going to fall forward and
was afraid she was going to hit her nose. Then did not
remember anything else about the accident or injury.
So there are inconsistencies there, but the way you
diagnose a concussion is the nature of trauma, the -- what
happens to the patient afterwards as far as their
orientation level of alertness, level of responsiveness, any
frank loss of consciousness and then what happens over
the next 24 hour to several days.
Typically a patient with a concussion will be --
25
have some impairment of their level of their alertness,
responsiveness, ability to answer questions, ability to
give history, and to speak clearly and succinctly.
Apparently that wasn’t the case when she was at Rush
Medical Center.
Dr. Trahant did admit that some individuals develop chronic problems from a
concussion.
DIRECTED VERDICT
SMG contends the trial court erred by denying the Motion for Directed
Verdict, averring that Plaintiffs failed to meet their burden of proof that SMG had
actual or constructive notice of the defect.7
This Court previously outlined the proper usage of a directed verdict as
follows:
A party may move for directed verdict at the close
of evidence offered by an opponent. La.Code Civ. Proc.
art. 1810. A directed verdict is proper when, considering
all of the evidence in the light most favorable to the non-
mover, it is clear that the facts and inferences point so
strongly and overwhelmingly in favor of the mover that
reasonable jurors could not reach a contrary verdict.
Davis v. Board of Sup'rs Louisiana State University and
Agricultural and Mechanical College, 2003–2319
(La.App. 4 Cir.11/17/04) 887 So.2d 722 (citation
omitted). If there is substantial evidence opposed to the
motion, i.e., evidence of such quality and weight that
reasonable jurors in the exercise of impartial judgment
might reach different conclusions, the motion should be
denied and the case submitted to the jury. Id.
Price v. Law Firm of Alex O. Lewis, III & Assocs., 04-0806, p. 2 (La. App. 4 Cir.
3/2/05), 898 So. 2d 608, 610.
Trial courts are vested with “much discretion” when granting or denying a
motion for directed verdict. Price, 04-0806, p. 2, 898 So. 2d at 610. Appellate
7
Plaintiffs stipulated prior to closing arguments that SMG did not have actual notice of the
defect. Plaintiffs sought to provide proof of constructive notice only.
26
courts review a ruling on a directed verdict by determining “whether reasonable
persons could not reach a contrary verdict under the evidence.” Id. This Court
explained:
What this means is that the discretion of the trial
court is really a discretion to deny the motion, not a
discretion to grant the motion. In other words, it would
not be error for a trial court to deny a directed verdict
where reasonable men might disagree with the trial court
decision to deny the motion for directed verdict, but it
would be error to grant the motion where reasonable men
might disagree with the decision to grant it.
Wichser v. Trosclair, 99-1929, p. 5 (La. App. 4 Cir. 2/28/01), 789 So. 2d 24, 27.
SMG asserts that the trial court erred because, when denying the directed
verdict, the trial court judge stated:
Right. First of all, guys, listen. I do not know why
we did not have something to – I will let the jury decide.
I think the argument is extremely strong. I really do. I
think this is really not an accurate depiction of what it
was that was sticking in the bottom of that ground that
even if they did walk. My whole thing is -- you chose to
have a jury. I will allow it to let them weigh it. You need
to make your argument in closing but I do believe that is
probably -- will be a charge.
Thusly, SMG contends “[t]he trial judge’s oral reasons show that it improperly
denied the Motion for Directed Verdict on the issue of notice simply because SMG
requested a jury trial.” SMG suggests that the trial court did not consider the
merits. However, there is a “well-settled rule that the district court’s oral or
written reasons for judgment form no part of the judgment, and that appellate
courts review judgments, not reasons for judgment.” Bellard v. Am. Cent. Ins. Co.,
07-1335, p. 25 (La. 4/18/08), 980 So. 2d 654, 671. As such, we will proceed with
our substantive appellate review of the denial of the directed verdict.
In the Plaintiffs’ case-in-chief, Mr. English, an expert in safety engineering
27
and tripping hazards, testified that the metal rod Ms. Moulds tripped on was a
tripping hazard and that SMG had a responsibility to have a safety program to
identify hazards. Mr. English concluded that the metal rod was exposed for a
“good period of time . . . months, possibly years” and explained his reasoning. Mr.
English agreed that SMG should have seen the hazard if there was a policy in place
that someone walk the parking lot once a month looking for tripping hazards. Mr.
English stated that a “see something, say something” policy was inadequate.
Mr. McIlhardy, the parking manager, stated that parking department
employees would have walked the parking garages the day before the Saints
football game looking for anything safety-related. He acknowledged that the metal
rod was a tripping hazard and did not think the hazard would be missed on a walk-
through. Because of this, Mr. McIlhardy did not believe the metal rod was
exposed for a long period of time, but admitted it could have been there ten years
because he had no idea how long the metal rod was protruding from the concrete.
We find that reasonable men could differ as to whether this testimony
adequately presented evidence that SMG had notice of the defect. As such, the
trial court did not err by denying SMG’s Motion for Directed Verdict.
CONSTRUCTIVE NOTICE
SMG asserts that the Plaintiffs failed to prove that SMG had constructive
notice of the defect.
“A court of appeal may not set aside the jury’s finding of fact in absence of
‘manifest error’ or unless it is ‘clearly wrong.’” Stamps v. Dunham, 07-0095, p. 3
(La. App. 4 Cir. 9/19/07), 968 So. 2d 739, 742 (quoting Stobart v. State through
Dep’t of Transp. & Dev., 617 So. 2d 880, 882 (La. 1993)). Appellate courts must
make two findings to justify reversing the findings of a factfinder: 1) “find from
28
the record that a reasonable factual basis does not exist for the finding of the trial
court”; and 2) “determine that the record establishes that the finding is clearly
wrong or manifestly erroneous.” Stamps, 07-0095, p. 3, 968 So. 2d at 743. If the
factfinders’ conclusions were reasonable, then they are not reversible. Id.
The Louisiana Supreme Court explained:
because the factfinder is best aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said, when
there is a conflict in the testimony reasonable evaluations
of credibility and reasonable inferences of fact should not
be disturbed upon review, even though the appellate
court may feel that its own evaluations and inferences are
as reasonable.
Housley v. Cerise, 579 So. 2d 973, 976 (La. 1991). Further, we “must always keep
in mind that ‘if the trial court or jury’s findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse, even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.’” Housely, 579 So. 2d at 976 (quoting Sistler v. Liberty
Mutual Insurance Co., 558 So. 2d 1106, 1112 (La. 1990)). “Thus, where two
permissible views of the evidence exist, the factfinder’s choice between them
cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So. 2d at 883.
The trial court instructed the jury as follows:
In order to find defendants liable for any damages
to the plaintiffs, you must find that the defendants had
actual or constructive knowledge, notice of the exposed
metal and a reasonable opportunity to correct the issue
before the injury occurred. Constructive knowledge in
this case means the existence of facts which infer actual
knowledge. There must be actual or constructive
knowledge of an imminent dangerous condition.
“Constructive notice can be found if the conditions which caused the injury existed
for such a period of time that those responsible, by the exercise of ordinary care
29
and diligence, must have known of their existence in general and could have
guarded the public from injury.” Maldonado v. Louisiana Superdome Comm’n,
95-2490, pp. 6-7 (La. App. 4 Cir. 1/22/97), 687 So. 2d 1087, 1092.
Mr. English concluded that the metal rod was protruding from the ground for
a “good period of time . . . months, possibly years.” He stated that SMG
employees should have seen the hazard if there was a policy in place that someone
walk the parking lot once a month looking for tripping hazards. Conversely,
Defendants’ engineering expert concluded that the metal rod protruded from the
concrete a few hours or up to a day prior to Ms. Moulds’ fall.
Mr. McIlhardy, the parking manager for the Superdome, testified that the
protruding metal rod was a tripping hazard and did not think the hazard would be
missed on a walk-through. The facilities manager at the time of Ms. Moulds’ fall
stated that walk-throughs of the parking garages would be conducted prior to every
event. Further, the housekeeping manager for the Superdome testified that
housekeeping employees responsible for cleaning the parking lots were trained to
look for hazards. She also stated that housekeeping employees are cleaning the
parking lots every day unless there are no events on the weekends.
Thus, the jury was presented with opposing expert conclusions as to how
long the metal rod was protruding from the concrete and given information on how
often the various departments and employees of SMG walk through the parking
lots looking for hazards. This evidence demonstrated regular walk-throughs of the
parking lots wherein SMG saw or should have seen the protrusion if the metal rod
was there for any length of time. Accordingly, we do not find the jury committed
manifest error by finding that Plaintiffs proved SMG had constructive notice of the
defect. See Rubino v. Louisiana Stadium & Exposition Dist., 619 So. 2d 738, 740
30
(La. App. 4th Cir. 1993) (“Plaintiff also carried her burden of proving that LSED
had constructive notice of the defect as required by R.S. 9:2800. The evidence
showed that LSED’s employees made regular inspections of the area surrounding
the stadium which LSED undertook to maintain. This area included the sidewalk
where plaintiff fell. In these inspections, maintenance personnel either saw or
should have seen this elevation that caused plaintiff to fall. LSED had a reasonable
opportunity to remedy the defect and failed to do so.”).
GENERAL DAMAGES
SMG maintains that the jury’s general damage award of $1,300,000.00 was
“excessive and abusively high under the facts and circumstances of this case.”
Conversely, Plaintiffs filed an Answer to the Appeal, contending that we should
increase the general damages award to $2,400,000.00.
“General damages are those which are inherently speculative in nature and
cannot be fixed with mathematical certainty.” Bouquet v. Wal-Mart Stores, Inc.,
08-0309, p. 4 (La. 4/4/08), 979 So. 2d 456, 458. “[T]he injury sustained is not the
sole factor for the determination of damages.” In re Med. Review Panel Boryca,
20-0670, p. 10 (La. App. 4 Cir. 8/11/21), ___ So. 3d ___, ___, 2021 WL 3555967,
*5, writ denied sub nom. In re Med. Review Panel Proceedings of Boryca, 21-
01832 (La. 2/15/22), and writ denied sub nom. In re Med. Review Panel
Proceedings of Boryca, 21-01825 (La. 2/15/22), and writ denied sub nom. In re
Med. Review Panel Proceedings of Boryca, 21-01892 (La. 2/15/22). Instead,
“factors such as mental and physical pain and permanent disabilities must be
considered in the determination of whether the trier of fact abused their discretion.”
Id.
31
Appellate courts review awards of general damages utilizing the abuse of
discretion standard. Bouquet, 08-0309, p. 4, 979 So. 2d at 459. “The trier of fact
is afforded much discretion in assessing the facts and rendering an award because
it is in the best position to evaluate witness credibility and see the evidence
firsthand.” Id. We must first examine the facts and circumstances of the present
matter. Then, “[o]nly if a review of the facts reveals an abuse of discretion, is it
appropriate for the appellate court to resort to a review of prior similar awards.”
Id., 08-0309, p. 5, 979 So. 2d at 459.
Ms. Moulds testified that prior to her fall she was her husband’s primary
caregiver, but that her injuries now prevented her from caring for him. She stated
that she and Mr. Moulds divorced. She underwent surgery on her arm due to the
fall. Ms. Moulds continues to suffer from severe nonstop headaches and
migraines, memory problems, confusion, stress epilepsy, blacking out, bursts of
anger, and sometimes forgets how she arrived somewhere. Ms. Moulds can no
longer play the flute, needs transportation, and a new service dog. Ms. Moulds
contends she can no longer read for enjoyment and cannot work.
Likewise, Mr. Moulds stated that Ms. Moulds lost consciousness when she
fell and noticed a change in his wife immediately. Mr. Moulds recounted how Ms.
Moulds would forget where she was or how she arrived there, how her personality
changed, how angry she was, and that she was no longer able to cook or clean.
During the trial, Dr. Holloman testified that she diagnosed Ms. Moulds with
major neurocognitive disorder without behavioral disturbances and a TBI. Dr.
Ladner stated that the major neurocognitive disorder was a contributing factor to
Ms. Moulds’ depression and memory loss. Dr. Ladner also found that Ms. Moulds
suffered from cognitive impairment, but saw no evidence of malingering.
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Dr. Cowen concluded that Ms. Moulds suffered blunt force trauma to the
head, fractured her elbow, and required ulnar nerve surgery as a result of the fall.
Dr. Cowen stated that Ms. Moulds suffered from TBI with neurocognitive issues,
“symptoms of deficits, chronic posttraumatic migraines and tension headaches as
well as secondary anxiety, depression, and insomnia.” Dr. Cowen concluded that
Ms. Moulds “had fairly significant symptoms of depression and anxiety, panic
attacks, nervousness that would typically make her headaches worse. Her
headaches would make her anxiety and depression worse which is the common
cycle we see.” He believed that Ms. Moulds’ condition would not resolve and did
not see evidence of malingering. Dr. Cowen related these injuries and lasting
symptoms as being causally related to the fall.
Ms. Griffin testified that, when taking the report of Ms. Moulds, Ms. Moulds
did not indicate that she suffered a head injury, lost consciousness, felt dizzy, or
had a headache. Dr. Harch characterized Ms. Moulds’ TBI as mild and stated that
Ms. Moulds’ level of dysfunction was not consistent with someone who had a
moderate or severe TBI. He did believe that Ms. Moulds suffered from post-
concussion syndrome, but thought she embellished her symptoms. Dr. Trahant
generally agreed with Dr. Harch’s observations and noted that Ms. Moulds did not
report to the emergency room staff that she lost consciousness. Dr. Trahant did not
believe Ms. Moulds had “what I would term traumatic brain injury of any degree.”
Dr. Trahant stated that Ms. Moulds’ presentation and symptomology was unusual
and opined that if she did suffer a concussion at all, it was mild.
Therefore, the jury was presented with juxtaposed expert testimony
regarding the extent of Ms. Moulds’ injuries and her continuing symptomology,
weighed the evidence, and made credibility determinations. The jury awarded Ms.
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Moulds $100,000.00 for past pain and suffering, $600,000.00 for future pain and
suffering, and $600,000.00 for loss of enjoyment of life. Given Ms. Moulds’
relatively young age at the time of her fall, the fact that her condition is unlikely to
resolve, and her continuing symptoms, we cannot conclude that the jury abused its
vast discretion by awarding $1,300,000.00 in general damages. The general
damages awards “bear a reasonable relationship to the elements of proved
damages.” Youn v. Mar. Overseas Corp., 623 So. 2d 1257, 1261 (La. 1993).
Because we find that the jury did not abuse its discretion in determining the
amount of general damages, a review of prior similar awards is unnecessary. See
Bouquet, 08-0309, pp. 5-6, 979 So. 2d at 459-60 (“Only if a review of the facts
reveals an abuse of discretion, is it appropriate for the appellate court to resort to a
review of prior similar awards.”). However, a brief review supports our finding.
This Court affirmed a general damages award of $4,750,000.00 for a man
“diagnosed with a traumatic brain injury and a delayed-onset neurological
syndrome with symptoms similar to amytrophic lateral sclerosis, or Lou Gehrig’s
disease” who also suffered from “post-traumatic stress disorder, major depressive
disorder, pain disorder, and undifferentiated somatoform disorder.” Scarberry v.
Entergy Corp., 13-0214, pp. 31-33 (La. App. 4 Cir. 2/19/14), 136 So. 3d 194, 214-
15. This Court also upheld a $40,000.00 general damages award for a non-
displaced fractured elbow, “which was treated conservatively and did not require a
hard cast.” Lino v. Allstate Ins. Co., 06-0166, pp. 8-10 (La. App. 4 Cir. 8/2/06),
937 So. 2d 888, 893-95. The Second Circuit affirmed a trial court’s award of
$175,000.00 for a radial head fracture. Locke v. Young, 42,703, p. 22 (La. App. 2
Cir. 12/12/07), 973 So. 2d 831, 845.
34
As we found the jury’s determinations reasonable, Plaintiffs’ request for
additur also lacks merit. See Harts v. Downing, 19-0620, p. 6 (La. App. 4 Cir.
6/24/20), 302 So. 3d 102, 109 (“ʻWhen a jury awards an amount that is lower than
the lowest reasonable amount, additur becomes proper.’” (quoting Accardo v.
Cenac, 97-2320, p. 9 (La. App. 1 Cir. 11/6/98), 722 So.2d 302, 307-08)).
JUDGMENT NOTWITHSTANDING THE VERDICT
SMG avers the trial court erred by denying its Motion for Judgment
Notwithstanding the Verdict on general damages.8
This Court previously outlined the standard for reviewing a JNOV:
[t]he standard of review for a JNOV on appeal is a
two-part inquiry. In reviewing a JNOV, the appellate
court must first determine if the trial court erred in
granting the JNOV. This is done by using the
aforementioned criteria, just as the trial judge does in
deciding whether or not to grant the motion. After
determining that the trial court correctly applied its
standard of review as to the jury verdict, the appellate
court reviews the JNOV using the manifest error standard
of review. Anderson v. New Orleans Public Service, Inc.,
supra, at 832. In reviewing a judgment notwithstanding
the verdict, the appellate court must determine if the trial
court erred in granting it. quoting Anderson v. New
Orleans Public Service, Inc., 583 So.2d 829 (La.1991);
Cormier v. McDonough, 96–305 (La.App. 3 Cir.
10/23/96), 682 So.2d 814, 816. It is well settled under
Louisiana jurisprudence that a JNOV is warranted when
the facts and the inferences point so strongly in favor of
one party that the court believes that reasonable men
could not arrive at a contrary verdict. Delaney v. Whitney
National Bank, 96–2144, 97–0254 (La.App. 4 Cir.
11/12/97), 703 So.2d 709, 717.
Philips v. Berner, 00-0103, p. 9 (La. App. 4 Cir. 5/16/01), 789 So. 2d 41, 47–48.
8
SMG briefed the standard of review for a motion for new trial, but failed to brief issues relative
to the trial court’s denial of its alternative Motion for a New Trial. Pursuant to Rule 2-12.4,
Uniform Rules – Courts of Appeal, any issues relative to the trial court’s denial of the Motion for
New Trial are deemed abandoned. Murungi v. Touro Infirmary, 12-0213, p. 3 n.2 (La. App. 4
Cir. 3/1/13), 110 So. 3d 1250, 1252 n.2; Hymel v. Halmar, Inc., 532 So. 2d 851, 852 (La. App.
4th Cir. 1988).
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As we found that the jury’s determinations regarding general damages were
reasonable in light of the facts and circumstances of this matter, we do not find that
the trial court erred by denying SMG’s Motion for Judgment Notwithstanding the
Verdict on general damages.
DECREE
For the above-mentioned reasons, we find the trial court did not err by
denying SMG’s Motion for Directed Verdict regarding notice because reasonable
men could differ on their interpretation of the evidence of notice presented during
Plaintiffs’ case. Additionally, the jury was presented with opposing testimony
concerning how and when the metal rod began protruding from the concrete. As
such, the jury did not commit manifest error by finding constructive notice. The
general damages award of $1,300,000.00 to Ms. Moulds was not inadequate,
excessive, or an abuse of the jury’s discretion based on the extent of Ms. Moulds’
injuries and continuing medical condition. Further, the trial court did not err by
denying SMG’s request for JNOV on general damages. Accordingly, the judgment
of the trial court is affirmed.
AFFIRMED
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