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Antippas v. Nola Hotel Group, LLC

Court of Appeals of Louisiana, Fourth Circuit

February 27, 2019

ATHENA ANTIPPAS
v.
NOLA HOTEL GROUP, LLC, ET AL. ATHENA ANTIPPAS
v.
NOLA HOTEL GROUP, LLC, ET AL ATHENA ANTIPPAS
v.
NOLA HOTEL GROUP, LLC, ET AL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-01072, DIVISION “M” Honorable Paulette R. Irons, Judge

          Galen M. Hair David P. Vicknair Jennifer J. Greene Kassie L. Richbourg Sarah Kalis SCOTT VICKNAIR HAIR & CHECKI, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Ryan M. Malone Jade M. Wandell DUPLASS, ZWAIN, BOURGEOIS, PFISTER, WEINSTOCK & BOGART, APLC COUNSEL FOR DEFENDANT/APPELLEE

          EDWIN A. LOMBARD JUDGE

         Before the Court in these consolidated cases are the cross-appeals of Plaintiff Athena Antippas and the Defendants, Damon Young and Parking Management Services, who seek review of an August 2, 2017 district court judgment, conforming to a jury verdict rendered on June 28, 2017. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the district court, finding no abuse of discretion.

         Facts and Procedural History

         This is a bicycle-automobile collision case. Ms. Antippas avers that on the afternoon of August 10, 2014, she was cycling on Burgundy Street, in the French Quarter, with three to four feet of space between both her and the parked cars on the right side of the road as well as the passing vehicular traffic to her left. Cycling with the flow of traffic, Ms. Antippas was struck by a car door that valet Damon Young[1] had partially opened in front of the Hotel St. Pierre.[2] Ms. Antippas testified that she was thrown to the ground upon impact and was helped up by Mr. Young, who apologized to her. Ms. Antippas sustained several injuries, including to her cervical and lumber spine, sacroiliac joints and her right hand, which is her dominant hand. Ms. Antippas testified to these facts at trial, which were stipulated to by the parties.

         In 2015, Ms. Antippas filed suit against a number of defendants, including Mr. Young and Parking Management Services. At the time of trial, in June 2017, only Mr. Young and Parking Management Services (collectively referred to as "the Defendants") remained as the Defendants.

         A three-day jury trial was held in June 2017, during which four witnesses testified: Ms. Antippas; her orthopedic surgeon, Dr. Marco Rodriguez; Louis Miller, the Parking Management Services manager; and Douglas Robert, a liability expert.[3] The jury ultimately rendered a verdict finding Ms. Antippas 30% at fault and the Defendants 70% at fault for the accident. The jury awarded Ms. Antippas:

Past Medical Expenses - $15, 000
Future Medical Expenses - $100, 000
Past Physical Pain and Suffering - $10, 000
Future Physical Pain and Suffering - $10, 000
Past and Future Mental Anguish -$5, 000
Past and Future Emotional Distress- $5, 000

         Past and Future Loss of Enjoyment of Life - $5, 000 Thus, her award of $150, 000 was reduced by $45, 000, due to her percentage of fault, totaling $105, 000. The trial court signed a judgment, conforming to the jury verdict, on August 2, 2017. Ms. Antippas later timely appealed this judgment.

         Thereafter, the Defendants filed a Motion for Judgment Notwithstanding the Verdict, which the district court denied. Both parties then appealed the district court's August 2017 judgment.[4]

         Assignments of Error

         On appeal, Ms. Antippas asserts that the jury erred in apportioning her any fault. Moreover, both parties, in their respective appeals, challenge the propriety of the jury's award of past and future medical expenses. Lastly, Ms. Antippas challenges the amount of general damages awarded to her. Below we address the jury's:

• Allocation of fault;
• award of past and future medical expenses; and
• award of general damages.

         Allocation of Fault

         The jury allocated Ms. Antippas 30% of the fault for the accident at issue. Ms. Antippas maintains that the jury erred for two reasons. First, she asserts she did not deviate from the statutory degree of care required for bicyclists under La. Rev. Stat. 32:197. Second, she maintains that the undisputed facts fail to show any fault on her part to be apportioned, especially considering that the Defendants stipulated to her version of the facts at trial and failed to present testimony or evidence demonstrating that she was partially at fault. While the parties did so stipulate, we find that a reasonable factual basis exists to support the jury's determination that Ms. Antippas was partially at fault for her injuries.

         Allocations of fault are factual determinations, which are not to be disturbed by appellate courts in absence of manifest error or unless a particular finding of fact was "clearly wrong." Aetna Life and Casualty Company v. Solloway, 25, 462 (La.App.2d Cir. 1/19/94), 630 So.2d 1353, 1356; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Allocation 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. Foley v. Entergy Louisiana, Inc., 06-0983, p. 32 (La. 11/29/06), 946 So.2d 144, 166 [citations omitted].

         The jury, in the instant matter, was presented with testimony from Ms. Antippas that she was traveling equidistant from the passing vehicular traffic to her left and the parked cars to her right, when Mr. Young partially opened a car door into her from her right side. The streets in the French Quarter, according to Mr. Douglas' testimony, are narrower than average streets, measuring 22 feet wide. He further testified that a car door's length, at most, is three feet. Ms. Antippas testified that she was cycling three to four feet away from the parked cars.

         It was also established at trial that bicyclists, such as Ms. Antippas, have a statutory duty to travel nearer to the right side of the street. "Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction." La. Rev. Stat. 32:197(A); Guillot v. Valley Forge Ins. Co., 99-1044, p. 4 (La.App. 3 Cir. 12/8/99), 753 So.2d 891, 894. Bicyclists are also subject to the same duties applicable to drivers of motor vehicles, including the duty to keep a proper lookout at all times. La. Rev. Stat. 32:194; Clement v. State Department of Transportation and Development, 528 So.2d 176, 180 (La.App. 1st Cir. 1988).

         Ms. Antippas relies upon the Supreme Court's holding that "the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, where the record indicates no sound reason for its rejection." Robertson v. Scanio Produce & Inst. Foods, Inc., 449 So.2d 459 (La.1984). However, the jurors may have found sound reason for rejection of Ms. Antippas' assertion that she was not at fault based upon her own testimony.[5] Additionally, the jurors had the freedom to "believe in whole or ...


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