IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30470
(Summary Calendar)
JAMES R. WYKLE,
Plaintiff-Appellee,
versus
CITY OF NEW ORLEANS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(96-CV-1369)
July 23, 1998
Before SMITH, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant City of New Orleans (“the City”) appeals
the district court’s judgment in favor of Plaintiff-Appellee James
R. Wykle, finding the City strictly liable and alternatively guilty
of ordinary negligence for Wykle’s injuries suffered as a result of
his fall precipitated by tripping in a hole on Bourbon Street at
St. Peter Street. The City challenges the district court’s finding
that the hole created an unreasonably dangerous condition, as well
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
as its failure to assess any comparative fault to Wykle. The City
further contends that the damage award was excessive and that the
district court erred in failing to order that the amount awarded
for future medical expenses be placed in a reversionary trust for
Wykle’s benefit. Finding no reversible error in the district
court’s judgment following the bench trial of this case, we affirm.
I
FACTS AND PROCEEDINGS
Wykle, a 45 year old resident of North Carolina, was afflicted
with polio as a child, causing severe limitation in his upper
extremities and his left leg. While visiting New Orleans in
September 1995, he sustained permanent and disabling injuries as a
result of a pedestrian accident in New Orleans. Wykle was walking
with several friends on Bourbon Street when his right foot went
into a relatively deep, unprotected hole which was filled with
water, causing him to fall. The hole had been previously used for
the placement of a barricade pole, but because of its damaged
condition, it was no longer suitable for such use. Wykle suffered
an acute fracture of his right knee which required open knee
surgery and tendon repair, resulting in a thirty-five percent
permanent, partial functional disability to his right knee.2 Prior
to the accident, Wykle had relied heavily on his right leg, which
2
Wykle also suffered chondromalacia patella, quadriceps muscle
and tendon deficiency, displaced or patella baja, osteoarthritis
with increased likelihood of arthritis, aggravation to preexisting
poliomyelitis, genu recurvatum, left knee and ankle pain, and
arthritis of the left leg.
2
had been completely normal.
Wykle brought suit against the City urging responsibility on
the basis of strict liability and, alternatively, ordinary
negligence. The district court concluded that the City was
strictly liable, reasoning that (1) it had notice of the vice or
defect prior to the accident with reasonable opportunity to remedy
the defect, as jointly-stipulated; and (2) the defect posed an
unreasonable risk of harm, given its location and the fact that a
pole could no longer be inserted in this particular hole. The
court opined critically that the City was apparently more concerned
about vehicular traffic than pedestrian traffic, even though that
part of Bourbon Street served as a pedestrian mall at various
times.
Alternatively, the district court found “the City guilty of
ordinary negligence in failing to correct a defect in a timely and
safe manner and in failing to barricade or otherwise protect the
public from this dangerous hole.” The court observed that, “the
most nominal of prevention could have rectified this dangerous
condition . . . .” Moreover, he explained that the water in the
hold probably disguised its existence.
Next, the court considered the issue of comparative
negligence, concluding that Wykle exercised reasonable care for his
safety, and therefore assessed no percentage of comparative fault
to him. The court took into account that Bourbon Street is “a
distracting type of street which calls a pedestrian’s attention to
stores, businesses and other facilities . . . . Their attention is
3
only peripherally directed towards the street and down towards
their feet.” Further, the court found that because of his previous
health problems, Wykle was “looking ahead to make sure there was
sufficient distance between himself and those in front of him,” and
that doing so was not a breach of his duty of reasonable care.
Finally, the court noted that the existence of the hole was likely
concealed by the accumulation of rainwater “such that [Wykle’s]
attention may not, even had he seen the water, have indicated to
him that there was a hole beneath that water.”
As for the quantum of damages, the district court stated that
Wykle was entitled to general damages for pain and suffering,
scarring (there is a large scar over the surface of Wykle’s knee,
which will not reduce, and other scarring from infections),
physical disability as a result of the thirty-five percent
permanent partial functional disability to his right knee, and loss
of enjoyment of life. Regarding loss of enjoyment of life, the
court was satisfied that Wykle had participated in hiking, camping,
swimming (the court noted that he was able and had the capacity to
swim, albeit on a limited basis because of his previous
poliomyelitis), martial arts, and various other sports activities.
The court concluded that, although Wykle had not engaged in some of
these activities in a number of years, his loss of enjoyment of
life had been significantly diminished by his fall. Moreover, the
court concluded, the fall caused mental anguish which would become
exacerbated over time.
The court commented that Wykle “is a courageous and tenacious
4
individual who does not present himself to this Court as a
malingerer, nor one who does not achieve to advance himself. He
has worked for a substantial portion of his adult life and has done
so with a very serious handicap from . . . poliomyelitis.” The
court further noted that, in spite of the poliomyelitis, Wykle had
been a security guard at a hotel for a substantial period of time,
apparently functioning quite capably in that job. The district
court admired Wykle’s desire and drive, commenting that “many other
individuals who appear in this Court would not have exercised that
desire to work and continue about their normal business with a
similar sort of injury.” In considering the instant case, the
district court asked, rhetorically, “Does that make his injury more
severe?”
The court answered its own question in the affirmative,
explaining that “[t]his gentleman has had one functional leg that
was not impaired from poliomyelitis. That functional leg has now
been totally destroyed for the remainder of his life with very
limited possibilities of recovering.” The court noted that “[t]he
City must take its victim as it found him,” and determined that
“[g]iven his delicate condition and given what damage has been done
to him, . . . he has suffered a very life-altering injury which may
not have occurred to an average person of average health, but he
must be compensated for the horrific outcome that he will suffer in
the future and has suffered to date.” Accordingly, the district
court awarded Wykle general damages of $650,000, which covered
past, present, and future pain and suffering, physical disability,
5
scarring, loss of enjoyment of life, and mental anguish.
The court also awarded past wages and medical expenses as
stipulated. In addition, relying on the deposition testimony of
physicians and other experts, the court awarded future medicals of
$15,000, plus $8,500 for a leg brace. Finally, the court awarded
$50,000 for loss of earning capacity, although “there ha[d] been
little, if any, testimony with respect to comparison of past lost
wages and earnings with respect to earning capacity.”
Nevertheless, relying on Hobgood v. Aucoin,3 the court was
“satisfied, given the testimony of the experts herein, that
[Wykle’s] earning capacity —— not actual earnings lost, but his
actual earning capacity —— has been impacted because of this
injury.”
II
ANALYSIS
We review the factual findings of the district court for clear
error.4 The allocation of fault is a factual issue, reviewed under
the clearly erroneous standard.5 In addition, “[a] trial judge’s
3
574 So. 2d 344 (La. 1990)(holding that $50,000 award for loss
of earning capacity to 36 year old plaintiff, who received back
injury in automobile accident resulting in 10% disability rating,
was not an abuse of discretion despite limited evidence on the
economic impact of his partial disability on his earning capacity
or ability).
4
FED.R.CIV.P. 52(a); see e.g., United States v. Alaniz-Alaniz,
38 F.3d 788, 790 (5th Cir. 1994), cert. denied, 514 U.S. 1041, 115
S. Ct. 1412, 131 L. Ed. 2d 297 (1995).
5
Texas Eastern Transmission Corp., v. McMoRan Offshore
Exploration Co., 877 F.2d 1214, 1223 (5th Cir.), cert. denied, 493
U.S. 937, 110 S. Ct. 332, 107 L. Ed. 2d 321 (1989); Transorient
Navigators Co., S.A. v. M/S Southwind, 788 F.2d 288, 291 (5th Cir.
6
assessment of damages is a finding of fact which we review under
the clearly erroneous standard.”6 “This court will not overturn a
damage award unless the trier of fact abused its discretion.”7
A finding of fact is clearly erroneous only “when although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.”8 We cannot reverse the decision of
the district court simply because we would have decided the case
differently.9 In fact, “[i]f the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety,” we will not reverse it, even if convinced that had we
“been sitting as the trier of fact, [we] would have weighed the
evidence differently. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly
1986).
6
Hernandez v. M/V Rajaan, 841 F. 2d 582, 587 (5th Cir.)(citing
Sosa v. M/V LAGO IZABAL, 736 F. 2d 1028, 1035 (5th Cir.
1984)(citing Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 783
(5th Cir. 1983)), cert. denied, 488 U.S. 981, 109 S. Ct. 530, 102
L. Ed. 2d 562 (1988) and 488 U.S. 1030, 109 S. Ct. 837, 102
L. Ed. 2d 970 (1989).
7
Id. (citing Bartholomew v. CNG Producing Co., 832 F.2d 326,
331 (5th Cir. 1987)(citing Hawkes v. Ayers, 537 F.2d 836, 837 (5th
Cir. 1976)).
8
Anderson v. City of Bessemer City, North Carolina, 470 U.S.
564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985)(quoting
United States v. United States Gypsum Co., 33 U.S. 364, 395, 68 S.
Ct. 525, 542, 92 L. Ed. 746 (1948)).
9
Id.
7
erroneous.”10
Bourbon Street is the premier tourist attraction street in New
Orleans. While it is sometimes blocked off to vehicular traffic,
it is common knowledge that, even when it is not, there is a high
incidence of pedestrian traffic in the street and crossing the
street, and not just at the corners and intersections. Jaywalking
on Bourbon Street, at all hours, is commonplace. As noted, the
record establishes that the subject hole was filled with rainwater
at the time of Wykle’s fall. It is elemental that when a hole of
this nature on a street of this nature is filled with water,
ordinary observation would not reveal the hole’s depth, even if
only a matter of inches. We find nothing in the record to
(1) refute the district court’s determination that the hole posed
an unreasonable risk of harm, or (2) demonstrate negligence or
fault on the part of Wykle.
Admittedly, if we had tried this case without a jury, we may
not have reached the same conclusions as the district court. For
example, we may have found Wykle guilty of some slight degree of
comparative fault, or we may have awarded a lesser or greater
quantum of damages than did the district court. The point is that
after reviewing the record on appeal, the briefs of the parties,
and the opinion of the district court, we are not “left with the
10
Id. at 573-574, 105 S. Ct. at 1511 (citing United States v.
Yellow Cab Co., 338 U.S. 338, 342, 70 S. Ct. 177, 179, 94 L. Ed.
150 (1949); Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844,
102 S. Ct. 2182, 72 L. Ed. 2d 606 (1982)).
8
definite and firm conviction that a mistake has been committed,”11
absent which we cannot ascribe clear error to the district court’s
decision. As a court of error, we cannot substitute our judgment
for that of the district court under the well-known standard set
forth in the Supreme Court’s Anderson decision.12
The City’s argument that the district court erred in failing
to order the placement of future medical expenses, including the
costs of the knee braces, in a reversionary trust pursuant to
La.R.S. 13:5106 is without merit.13 The reversionary trust
requirement did not exist prior to the 1996 amendment to La.R.S.
13:5106. In Lemaire v. Estate of Harrington,14 the Louisiana third
circuit court of appeal held that the reversionary provisions
affect substantive rights and therefore cannot be applied
retroactively. As Wykle’s accident occurred in September 1995, the
reversionary trust requirement is inapplicable.
III
CONCLUSION
For the foregoing reasons, the decision of the district court
is, in all respects,
AFFIRMED.
11
Id. at 573, 105 S. Ct. at 1511 (quoting United States v.
United States Gypsum Co., 33 U.S. 364, 395, 68 S. Ct. 525, 542, 92
L. Ed. 746 (1948)).
12
470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985).
13
LA.REV.STAT.ANN. § 13:5106 (West Supp. 1998).
14
701 So. 2d 484 (La. Ct. App. 1997), writ denied, 709 So.2d
785 (1998).
9