Wrongfull Death – Survival – Overcoming Inerta – LAJ

WRONGFUL DEATH AND SURVIVAL IN 2008;

 

OVERCOMING INERTIA

By Michael C. Palmintier

 

 

Inertia ( 0-nûrshc) n.

1. PhysicsThe tendency of a body to resist acceleration; the tendency of a body at rest to remain at rest…unless acted on by an outside force. (See Sir Isaac Newton=s first law of motion)

2. Resistance or disinclination to motion, action or change.

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The experts tell us that the loss of a loved one is among the most significant psychological events which a person can experience. Perhaps we don=t need a psychologist to verify this painful reality for us B It is a matter of simple common sense. But for practitioners in the tort arena the path to an appropriate recovery in the civil justice system is any thing but simple.

Wrongful death is a challenging area of the law for many reasons. Among those is the requirement that the attorney representing survivors must function not just as a lawyer, but as counselor, a confidante, a friend. In many cases, the trial lawyer=s role brings with it a deep emotional cost.

Another reality of wrongful death litigation is that the substantive and procedural law surrounding it is sometimes confusing and counterintuitive. Special categories of beneficiaries, adjustments in prescriptive schemes and the survival of actions, to name a few, are issues which are unique to this subject. It is the purpose of this presentation to consider an aspect of this area of the law which is perhaps the most demanding of plaintiff’s practitioners – damages for Wrongful Death and Survival.

It would be difficult to identify a more significant area of Louisiana tort law which has been in such a state of inertia as that of Wrongful Death and Survival. As we will see, the cause of action had an inauspicious beginning in the jurisprudence, remaining in a state of complete rest for decades. Though slow in coming, the cause of action eventually began to move. Over the past decade, damages for Wrongful Death have accelerated.

Although we continue to lag behind our sister states in damage awards, the gap is closing as inertia is being overcome. The force behind that movement is the trial bar, which has continued to push those recoveries higher in appropriate cases. Hopefully, within the next few years, our Wrongful Death damage awards will reach a level more compatible with those in other areas of Louisiana law and more consistent with those in other states.

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The current Louisiana Civil Code provides for Survival and Wrongful Death actions in Arts. 2315.1 and 2315.2, respectively. The story of how we got to the language of these statutes and how that language leaves many unanswered questions is a fascinating tale. In order to gain a better understanding of the current state of the law of damages in this area we must understand its history. In so doing, we are better prepared to advocate in favor of a more logical and equitable system of recovery in this significant area of tort law.

Hubgh v. New Orleans & Carrollton R.R., 6 La. Ann. 495, 496, reh’g denied, 6 La. Ann. 498 (1851) is the earliest reported case in which our Supreme Court considered claims by a widow and her children for the wrongful death of her workingman husband. It could be argued that this case was the beginning of a confused and convoluted history, in which the Court initially refused to recognize any such cause of action. The case is interesting because it ignored or abandoned principles of civilian law and attached itself to common law notions. At the time, the common law considered that the cause of action abated with the death of the injured person.[1]   Following English precedent[2], the Court reasoned that, in the absence of specific statutory authority, no cause of action existed for Mr. Hubgh’s death.

Significantly, the Court considered the eloquent arguments of plaintiffs’ counsel that Louisiana’s law on offenses and quasi offenses was taken directly from the French Code Napolean. Plaintiffs showed that the French high court (Cour de Cassation), relying on language identical to that found in Louisiana’s code, did recognize the right of widows and children to recover. Inexplicably, the Court rejected this argument and applied the Common Law, stating that the legislature had not afforded the remedy and that therefore it did not exist.

This holding led to a patchwork of legislative intervention, first involving the “survival” of the right of action of the decedent (sometimes called the “victim’s action”). In 1855, the legislature amended Art.2294 (now 2315) as follows:

“the right of this action [i.e., the survival action] shall survive in cases of death in favor of the minor children and widow of the deceased . . . for the space of one year from the death.”

It was not until 1884, in an amendment to the Revised Civil Code of 1870, that the Wrongful Death Cause of Action was recognized.   This is “an action to recover damages suffered by the survivors of the victim as the result of his wrongfully caused death.”

If the Hubgh decision’s reliance on Common Law was indeed the law of the state at that time, this amendment was the first recognition of the right of action in Louisiana law. If, instead, the French law which prevailed at the time were to be considered the source, then the action already existed and it was merely codified and clarified by this and other legislative expressions. Either way, the path to recovery on behalf of parties bearing specific relationship to the deceased was slowly cleared. As a result, concepts relative to the review of awards in death cases were likewise slow to evolve.

Eventually, the causes of action and the beneficiary groups were set forth in separate articles or sub-parts of the principle article on Offenses and Quasi Offenses, Art. 2315. In 1986, the various sub-parts of Art. 2315 were re-arranged to provide the current configuration:

Art. 2315.1. Survival Action

A.             If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:

(1)            The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

             (2)             The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3)             The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4)            The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B.            In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.

C.             The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D.             As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E.            For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

Art. 2315.2. Wrongful Death Action

A.            If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:

(1)            The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2)            The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3)            The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4)            The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B.            The right of action granted by this Article prescribes one year from the death of the deceased.

C.            The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D.             As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E.            For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

When it comes to review of damages awards, these articles have provided little in the way of guidance against the less-than-consistent application of principles of review of awards in judgments and verdicts in wrongful death and survival cases. Perhaps the checkered evolution of these causes of action have given rise to this inconsistency. As mentioned above, the history of recovery for death and survival is relatively recent at common law. Until the mid-nineteenth century, death brought an end to the cause of action, both as to the victim and his family. Thus, in that system, there was no history of awards from which to build a repertoire of cases relative to damages.

Likewise, in civilian Louisiana, no such jurisprudential line existed, even though French law contemplated such a recovery. This absence of jurisprudential foundation can also be attributed to the fact that, prior to the Industrial Revolution, death as a result of human conduct was most often the result of criminal behavior, not the subject of scrutiny in the civil justice system. The coming of industrialization and urbanization brought with it increased opportunity for the misfortune of injury and death as a result of human negligence.

The Hubgh Court knew of the passage a few years before in England of the progressive Fatal Accidents Act of 1846, known as Lord Campbell’s Act, which allowed a remedy in wrongful death. This act specifically provided that there would be no limitation on the damages which the jury could award in such cases:

“…And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought. ….”   Fatal Accidents Act of 1846, 9&10 Vict., c.93 (1846)

The Court did reject existing French law and applied Common Law principles, but it did not feel at liberty to impose Lord Campbell’s Act. It left that task to the legislature, which did not adopt wrongful death language for decades. Even then, the enabling statutes provided no guidelines relative to damages. Instead, that subject was left to jurisprudential development, which was “an object at rest, tending to stay at rest” for many years. What’s more, a review of damages awards for both Survival and Wrongful Death demonstrates inconsistencies both in terms of principles of review and as regards amounts awarded in similar cases.

In order to analyze this premise further and to set the stage for a review of some awards, let us consider two cases and the language of their holdings.

In Wingfield v. DOTD, 835 So.2d 785, 2001‑2668 (La.App. 1 Cir. 11/8/02) Writ Denied May 30, 2003, an ill-fated 18-wheeler went over the dramatic curve in the west-bound approach to the I-10 Mississippi River Bridge in Baton Rouge. The jury found the highway to be defective and that the driver had contributed to the loss. The case involved the wrongful death of a 60 year old husband, married for 27 years. The details of Mr. Wingfield’s death are ghastly and the jury award reflected as much. The verdict for Survival (Mr. Wingfield’s pain, suffering and anguish in anticipation of death) was $800,000, even though the record reflected that he died within hours of the wreck. The award to Mrs. Wingfield for wrongful death of her husband was $1,000,000.

The First Circuit review of the case presents a number of issues and provides the practitioner with valuable guidance as to the manner in which these cases must be evaluated and presented. At the trial court level, the District Court Judge granted defendant’s motion for judgment notwithstanding the verdict (JNOV). He reduced the award to Mr. Wingfield’s wife and children for his Civil Code article 2315.1 survival action from $800,000.00 to $500,000.00. He allowed to stand the wrongful death award to the wife of $1,000,000.

In the Court of Appeal, both sides assigned as error the damages awards and the changes in those awards by the lower court. The court lowered the 2315.2 wrongful death award to Mrs. Wingfield by $500,000. It said:

“As to the award of $1,000,000.00 for the other elements of the wrongful death claim, the award is excessive under the facts of this record. It is possible that the jury may have been affected by the severity of Mr. Wingfield’s injuries and tragic death before his wife and family arrived to comfort him.   Such injuries and suffering are elements of the survival action. See La. C.C. art. 2315.2; Taylor, 618 So.2d at 840.   If the jury considered such elements, it erred.   However, regardless of the actual reasons for the unusually high death award, the jury abused its discretion by awarding $1,000,000.00.   Considering all the relevant factors, the closeness of the relationship, Mr. Wingfield’s age, his time away from home, and the length of the marriage, in light of prior valid awards under similar circumstances, $500,000.00 is the highest reasonable award possible at the time of trial.”

When it came to the 2315.1 Survival action, the court reinstated the jury’s $800,000 award. It held:

“Mr. Wingfield … was conscious at the scene, where, amidst an horrific sight of truck and cattle parts and sound of injured cattle thrashing, he lay on the highway awaiting transport. ….   At the hospital, Mr. Wingfield survived for approximately three hours.   He was conscious for much of the time from the accident until his death. He repeatedly expressed concern about Mr. Clark, who was his stepson, and asked for his wife.   Unfortunately, his wife and family were not able to reach the hospital and provide comfort before Mr. Wingfield succumbed to his injuries.   Dr. Alfredo Suarez, who performed the autopsy, testified that the injuries were some of the most severe he had seen in his career, and he opined that Mr. Wingfield suffered “quite a bit” of pain.

Considering all the evidence in the light most favorable to the plaintiffs, the facts and inferences do not point so strongly and overwhelmingly in favor of defendants that reasonable persons could not have reached different conclusions on the amount of damages.   Based on the traumatic accident, the particularly egregious injuries, the level of pain and suffering, and the time of survival for this particular victim, the jury awarded $800,000.00 for Mr. Wingfield’s survival action for pain and suffering.   Although the amount awarded in 2001 by the jury may have been at the highest end of a reasonable range, we cannot say that reasonable persons, under the specific facts of this case, could not have reached such a conclusion.”

This holding gives rise to a number of questions:
1)    What is the standard of review?

The Court states that “The trier of fact has discretion in the assessment of damages. La. C.C. art. 2324.1. On appeal, consideration of the jury’s determination of damages is limited to a review for manifest error or abuse of discretion.   In determining the amount of damages, the discretion vested in the trier of fact is “great.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, Maritime Overseas Corp. v. Youn, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).   The reviewing court must evaluate the particular injuries and their effects on the particular injured persons. Reck v. Stevens, 373 So.2d 498, 501 (La.1979).   Only after a determination of an abuse of discretion or manifest error is a resort to prior awards appropriate, and then only for the purpose of determining the highest or lowest point that is reasonably within that discretion. Youn, 623 So.2d at 1260.   If the trier of fact awarded excessive damages, the reviewing court can “disturb the award … only to the extent of … lowering it … to the highest … point which is reasonably within the discretion afforded that court.” Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). But what triggers the determination of abuse of discretion?

2)            As to the reduction of the wrongful death award, under what authority did the court reduce the recovery where the death ended a 27 year marriage and a very close relationship?  Whose conscience is shocked by such a recovery?

If the answer is that the jury abused its discretion and that we must look to other, similar cases, why did the court pay selective attention to such awards, ignoring those which were in line with this one. See for example: Aime v. Seaboard System Railroad, 648 So.2d 20, (La.App. 4 Cir. 12/15/94), in which an award of $900,000 for the loss of a husband was affirmed, seven years earlier.

3)            As to the survival action, is this an area where the awards are going to be allowed to stand as a way of making amends for the inadequacy of wrongful death awards?

 

Another case of interest to our inquiry is Roberts v. Owens-Corning Fiberglas Corp, 2004 WL 691576, 2003-0248 La.App. 1 Cir. 4/2/04, (La.App. 1 Cir. 2004). This is a suit by the wife of a pipe-fitter who died of the asbestos-caused lung disease, mesothelioma. They had been married for 45 years. The disease was diagnosed a year earlier, but during the last months before he died he suffered tremendously. Jury awards for $3.5 million in survival and $1million in wrongful death were sustained.

In refusing to reduce the amounts of damages awarded, the court expressed important principles in the analysis of awards in damages cases:

“Damage awards on appellate review will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse as to the fact finder’s much discretion. Emery v. Owens-Corporation, 00-2144, pp. 21-22 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 457, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842;Reck v. Stevens, 373 So.2d 498, 501 (La.1979).   InYoun v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993) (citingCoco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)), the court instructed that, >Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.” Id.

The decision in Roberts reiterates the important principle that, as in other areas of damages determination, we do not reach the need to look to other, similar cases, unless we find an abuse of discretion. The facts in Roberts were such that the court did not find an abuse in the numbers awarded by the jury and therefore did not turn to other cases to decide if the award was “in line” with other cases. For the individual practitioner, this is further emphasis for the need to thoroughly develop the facts relative to the elements of wrongful death recovery.

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Another interesting phenomenon of damages in Wrongful Death is the creation by courts of categories by which claimants have habitually been awarded different sums for this loss, even though the nature of the loss is the same. For example, on the one hand we are told to look to the closeness of a relationship in order to determine whether an award is appropriate, but on the other, we are required to impose an age-based determinant in that same analysis?

Whether we agree or not with this kind of sub-categorization, it is well defined in the jurisprudence. This is an issue for us to address as we continue to be the force which overcomes the inertia of this important area of tort law.

Other questions:

$               Where a major dies without spouse or children, what happens to his lost wages? What is the source of the dependency rule?

$               When a beneficiary under 2315.1&2 dies with survivors, what is the measure of general damages?

$               Is there a statutory basis for limitations on general damage recovery in Wrongful Death and Survival actions?

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Quantum cases organized according to the standard categorization:

 
LOSS OF A MINOR CHILD

1)            Duncan v. Kansas City Southern Railway Co., 773 So.2d 670, 2000‑0066 La. 10/30/00, (La. 2000) The death of Bobby and Nelda Duncan’s 12 year old daughter was caused by a collision between a train and a church van. The award of $475,000 to each parent in general damages was affirmed by the Supreme Court.

2)             In re Medical Review Panel Bilello, 621 So.2d 6, (La.App. 4 Cir. 1993). In this medical malpractice case in which a mother lost her minor son who was 14 years old. The jury awarded $450,000.00 for plaintiff’s loss of love, affection, services, companionship, and society. The court of appeal affirmed.

3)            Cox v. Moore, 805 So.2d 277, 2001‑878 La.App. 3 Cir. 12/12/01, (La.App. 3 Cir. 2001). In this highway defect case, the award of $350,000 to the mother of an 11 year old for the wrongful death of her daughter was affirmed. The court said: “Wrongful death damages compensate the designated survivors for their loss of the decedent. La.Civ.Code art. 2315.2. As explained in Duncan, 773 So.2d 670, it is impossible to place a monetary value on the life of a child.”

 
LOSS OF A MAJOR CHILD

1)            Lockett v. State through DOTD, 844 So.2d 949, 2002‑0651 (La.App. 1 Cir. 4/2/03) in this important highway defect case, each parent of the decedent child was awarded $500,000. The department argued the application of the $500,000 state liability cap to both cases and that each parent should recover only $250,000. This argument was rejected.

2)            Chisholm v. Clarendon National Insurance Co., 850 So.2d 1070, 37,022 (La.App. 2 Cir. 7/9/03) Award of $350,000 per parent for the loss of their 21 year old son.

3)            Molina v. City of New Orleans, 830 So.2d 994, 2001‑1411 La.App. 4 Cir. 10/2/02, (La.App. 4 Cir. 2002) in this collision between a car and a fire engine, the parents of an 18 year old daughter killed in the crash were awarded $350,000 each. In affirming the court stated: “Because reasonable persons frequently disagree about the measure of general damages in a specific case, an appellate court should rarely disturb the trial court’s award of general damages. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess in the particular circumstances that the appellate court should increase or decrease the award.”

 
LOSS OF A PARENT; MINOR CHILD

1)            Henton Jones, Jr. v. Dupre Transport, Inc., (unpublished) 877 So.2d 358, (La.App. 1Cir. 7/14/04) This is a combination highway defect, auto accident case tried in the 18th JDC. The only child of a mother who died in the wreck, a minor, was awarded $2,000,000 for the loss of his mother. The First Circuit affirmed. The Supreme Court denied writs.

2)            Aime v. Seaboard System Railroad, 648 So.2d 20,94-0736 (La.App. 4 Cir. 12/15/94). Plaintiff’s decedent died in a Railroad crossing collision. $700,000 to a minor daughter was affirmed. “We do not find that the trial court’s award shocks the conscience and decline to disturb the trial court’s vast discretion as to general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).”

3)            McGrail v. Lee, 814 So.2d 729, 35,756 La. App. 2 Cir. 4/3/02, (La. App. 2 Cir. 2002) This case involved a fatal collision between a car and a left-turning truck. Following a trial by jury, the decedent=s minor child ( 9 years of age) was awarded $750,000 for the loss of her mother. On appeal the defendant insurer argued this amount was too high. In affirming the award, the court reviewed the closeness of the relationships and affirmed the award. Significantly, the Supreme Court has now denied writs. [852 So.2d 990, (La. 7/3/03)].

 
LOSS OF A PARENT; MAJOR CHILD          

1)            McGrail v. Lee, 814 So.2d 729, 35,756 La. App. 2 Cir. 4/3/02, (La. App. 2 Cir. 2002) Fatal collision between a car and a left-turning truck. Following a trial by jury, the deceden’s two major children ( 21 and 18 years of age) were awarded $750,000 each for the loss of their mother. Affirmed; Writs denied. [852 So.2d 990, (La. 7/3/03)].

2)            Dunn v. Consolidated Rail Corp., 890 F.Supp.1262 (M. D. La. 1995). The decedent was a railroad worker who was killed in an on-the-job accident. The jury in this 1995 case awarded his four major children more than $500,000 each. The judge, in considering the defendant’s motion to reduce the awards, struggled with the language of the jurisprudence on these cases which requires that such awards not be “greatly disproportionate” to awards in similar cases. He begrudgingly reduced them to $400,000 for each major child, including one who was not living at home.

3)            Louviere v. Louviere, 839 So.2d 57, 2001‑0089 La.App. 1 Cir. 6/5/02, (La.App. 1 Cir. 2002) This sad case involved a crime spree committed by a parish sheriff’s deputy, in which several people were killed. Plaintiffs mother was one of the victims. The award for wrongful death was $425,000.

 
LOSS OF A SPOUSE

1)            Roberts v. Owens-Corning Fiberglas Corp, 2004 WL 691576, 2003-0248 La.App. 1 Cir. 4/2/04, (La.App. 1 Cir. 2004); $1,000,000 to wife of 45 years for loss of her husband. (See above discussion.)

2) Aime v. Seaboard System Railroad, 648 So.2d 20,94-0736 (La.App. 4 Cir. 12/15/94). Plaintiff’s decedent died in a Railroad crossing collision. $900,000 to his wife for loss of her husband was affirmed.

3)            Bergeron v. Blake Drilling & Workover Company, Inc., 599 So.2d 827 (La.App. 1 Cir.1992). Wrongful death following on the job explosion. Wife awarded $900,000 for general damages. Interestingly, the court looked to other cases to lower the award, even though it did not find a general abuse of discretion.

SURVIVAL ACTIONS

1)            Wingfield v. DOTD, 835 So.2d 785, 2001‑2668 (La. App. 1 Cir. 11/8/02) Writ Denied May 30, 2003. In this case in which an 18-wheeler being driven by the decedent went over the side of the up-ramp to the I-10 bridge in Baton Rouge, the driver lingered for less than four hours. The jury awarded $800,000, but the trial judge took the award away on motion of the defendant. The court of appeal reinstated the amount, stating “Considering all the evidence in the light most favorable to the plaintiffs, the facts and inferences do not point so strongly and overwhelmingly in favor of defendants that reasonable persons could not have reached different conclusions on the amount of damages.”

2)  Long v. State, through the Dept. of Trans. and Dev.,862 So.2d 149, 37,422 La. App. 2 Cir. 11/24/03, (La. App. 2 Cir.2003); Rehearing Denied Jan. 22, 2004. In this case involving a collision between a railroad train and a car, the decedent lived for 20 to 30 minutes. The Court upheld a jury award of $250,000, even though there was no expert testimony about her conscious pain and suffering prior to death. A lay witness testified that he heard Ms. Long utter noises before she died.

3)            Pinsonneault v. Merchants & Farmers Bank & Trust , Co., 738 So.2d 172, 99‑12 La. App. 3 Cir. 7/21/99, (La. App. 3 Cir. 1999) (reversed on other grounds). The court of appeal awarded survival damages in the amount of $400,000 for a young man who died after being shot by robbers. He lived for nine hours.

4)            Strawder v. Zapata Haynie Corporation, 94‑453, 94‑454, pp. 3‑5 (La. App. 3 Cir. 11/02/94), 649 So.2d 554, 558‑59 An award of $500,000 for pain and suffering, experienced after an explosion for a period of thirty minutes until death, was held not excessive.

 


[1]See  H. Alston Johnson III, Death on the Callais Coach: The Mystery of LouisianaWrongful Death and Survival Actions, 37 La. L. Rev. 1, 23 (1976). Common Law “Intervention”: The Rights of Successors and the Uneasy History of Louisiana’s Survival Action; 77 Tul. L. Rev. 737; Jason R. Johanson, for an excellent analysis of the history of Wrongful Death and Survival Actions in Louisiana.

[2]This precedent, found in Baker v. Bolton, 1 Campbell 499 (1809), began a lengthy period of inertia throughout the common law jurisdictions and reflected in Hubgh. In fact, it had no basis in previous authority, statutory or jurisprudential, and has even been rejected in U.S. courts. [See Gaudette v. Webb, 362 Mass. 60, 284 N.E. 222 (1972)]