HORTON v. BATON ROUGE POLICE DEPARTMENT (2025)

The appellant herein appeals a judgment rendered in accord with a jury verdict, challenging the allocation of fault arising from the motor vehicle accident at issue on appeal as well as the amount of general damages awarded to the plaintiff. For the reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On the morning of April 30, 2018, Sharell Horton was travelling to work in a 2014 GMC Sierra truck owned by his fiancée Andrea Norwood. Mr. Horton was driving southbound in the left lane of Airline Highway, which has two lanes on each side. As Mr. Horton approached Airline Highway's intersection with Beechwood Drive, a Chevrolet Suburban pulled in front of Mr. Horton from the right lane. Mr. Horton applied his brakes to avoid hitting the Chevrolet Suburban and came to a stop near the intersection. Shortly after stopping, Mr. Horton was rear-ended by a 2011 Chevrolet Impala being driven by Corporal Saundra Watts, an officer for the Baton Rouge Police Department, who was also traveling to work.

Mr. Horton and Ms. Norwood filed a petition for damages on March 27, 2019, naming Corporal Watts and her employer, the City of Baton Rouge/East Baton Rouge Parish (“City/Parish”), among others, as defendants. Mr. Horton sought damages for physical and mental pain, suffering, and anguish; physical disability and/or impairment of functions and activities; and loss of income and/or loss of earning capacity. Ms. Norwood, as owner of the vehicle, asserted that she sustained property damage and sought to recover damages as a result.

This matter proceeded to a jury trial on October 24, 25, and 26, 2022. The parties stipulated that Corporal Watts was within the course and scope of her employment with the City/Parish at the time of the accident. The jury returned a verdict finding Officer Watts to be 100% at fault for the accident. The jury also awarded Mr. Horton a total of $325,000.00 in damages, consisting of the following:

(1) $66,250.00 for past medical care and expenses;

(2) $158,750.00 for past physical pain and suffering;

(3) $50,000.00 for future pain and suffering;

(4) $25,000.00 for past mental anguish and distress; and

(5) $25,000.00 for future mental anguish and distress.

A judgment to this effect was signed by the trial court on February 8, 2023. The judgment, however, did not mention the other plaintiff, Ms. Norwood. After the City/Parish appealed the February 8, 2023 judgment, this court, concluding that it lacked jurisdiction because the judgment did not dispose of the entire matter given that it did not address Ms. Norwood's claims, dismissed the appeal. See Horton v. Baton Rouge Police Department, 2023-0657 (La.App. 1 Cir. 1/19/2024), 2024 WL 204461 (unpublished). Subsequently, the trial court signed a final judgment on July 1, 2024, correcting the deficiency in the judgment previously noted by the prior appeal panel.¹ The City/Parish has timely appealed the judgment.

In this appeal, the City/ Parish urges that the jury abused its discretion in placing 100% of the fault on Corporal Watts, without apportioning any or all fault to the unknown third-party driver that pulled out in front of Mr. Horton. The City/Parish also contends that the jury committed manifest error in returning an excessive award of $258,750.00 in general damages. Each issue is addressed in turn below.

DISCUSSION

Apportionment of Fault

In its first assignment of error, the City/Parish contends that the jury abused its discretion in failing to allocate any fault percentage to the unknown third-party driver who pulled out in front of Mr. Horton. Louisiana Civil Code article 2323(A) addresses comparative fault as follows, in pertinent part:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

Allocation of fault is a factual determination. Fontenot v. Louisiana Department of Public Safety and Corrections, 2021-1213 (La.App. 1 Cir. 4/8/22), 342 So.3d 28, 33. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault; therefore, the trier of fact's allocation of fault is subject to the manifest error or clearly wrong standard of review. Fontenot, 342 So.3d at 33-34.

The appellate court's determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). These factors include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. Id. These same factors guide the appellate court's determination as to the highest or lowest percentage of fault that could reasonably be assessed. Hankton v. State, 2020-00462 (La. 12/1/20), 315 So.3d 1278, 1283-84. The allocation of fault is not an exact science or the search for one precise ratio; rather, it is the search for an acceptable range, and an allocation by the factfinder within that range cannot be clearly wrong. Fontenot, 342 So.3d at 34.

All motorists owe a general duty to observe what should be observed. Harbin v. Ward, 2013-1620 (La.App. 1 Cir. 5/29/14), 147 So.3d 213, 217, citing Mart v. Hill, 505 So.2d 1120, 1123 (La. 1987). Moreover, additional duties arise depending on the motorist's movements on the roadway in relation to other vehicles. Harbin, 147 So.3d at 217.

Pertinent here, the law has also established a rebuttable presumption that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by LSA-R.S. 32:81(A) and is therefore liable for the accident. Harbin, 147 So.3d at 218.² The rule is based on the premise that a following motorist who rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances. Id. While a following motorist may assume that the vehicle in front of him is being driven with care and caution, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the lead vehicle under circumstances which should be reasonably anticipated. Id. A following motorist, however, may rebut the presumption of negligence by proving that he had his vehicle under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances. Id. The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard that he could not reasonably avoid (a sudden emergency). Id. However, the rule of sudden emergency cannot be invoked by one who had not used due care to avoid the emergency, and the following motorist must exonerate himself from fault before he can completely avoid liability. Id.³

On appeal, the City/Parish contends that the jury erred in not placing all, or some portion of the fault, on the unknown driver of the Chevrolet Suburban that pulled out in front of Mr. Horton. The City/Parish avers that but for the negligence and inattention of the unnamed third-party driver cutting in front of Mr. Horton, the accident would not have occurred and no injury would have been sustained. Further, the City/Parish urges that the sudden emergency doctrine should be applied herein to absolve it of liability.

At trial, Mr. Horton testified that as he was approaching the red light at the intersection, the car occupying the right lane moved in front of him into the left lane. Mr. Horton indicated that “as the car jumped into my left lane,” he applied his brakes and “came to a coasting stop at the light.” He further indicated that the car in front of him proceeded through the light, and the light turned red. Mr. Horton testified that he was able to stop, and he never got close to rear-ending the vehicle in front of him. Mr. Horton also testified that he never had to lock up his brakes and that his vehicle never skidded or lost traction. He further testified that after he stopped, the rear-end impact “didn't happen immediately.”

Corporal Watts testified that it was “probably heavy traffic” at the time of the accident. Corporal Watts further indicated that she was driving an Impala and that Mr. Horton's truck “sits up a little bit higher so unfortunately [she could] not see around or what's taking place in the vehicle in front--in the vehicle in front of you.” She further testified that she “was not privy to what Mr. Horton may have seen or may not or may have reacted to at that time.” After the accident, Corporal Watts indicated that Mr. Horton apologized to her, explaining that the Chevrolet Suburban jumped in front of his vehicle and slammed on its brakes, which caused Mr. Horton to slam on his brakes. However, according to Mr. Horton, he never apologized to Corporal Watts, but “[s]he apologized for rear ending me.”

Based on our review of the record in its entirety and the deference owed to the trier of fact, we cannot conclude that the trial court abused its discretion in assessing Corporal Watts with 100% of the fault for the accident. Even assuming the Suburban abruptly pulled over into Mr. Horton's lane, Mr. Horton testified at trial that he “came to a coasting stop at the light,” never locked up his brakes, and never got close to rear-ending the Suburban. Further, he testified that the rear-end impact did not happen immediately. Moreover, while some of Mr. Horton's testimony also seems to indicate that the impact occurred immediately after he applied his brakes, it is undisputed that Mr. Horton was able to safely stop his vehicle without impacting the Suburban. In addition, given Corporal Watts's testimony that the traffic was likely heavy and that she could not see around Mr. Horton's vehicle, the jury could have found that Corporal Watts breached the duties she owed as a following motorist. Considering the foregoing, we cannot conclude that the jury was manifestly erroneous in failing to apply the sudden emergency doctrine under the circumstances herein. Further, in light of the factors set forth in Watson, we conclude that the jury did not abuse its discretion in its allocation of fault. Accordingly, the City/Parish's first assignment of error is without merit.

Quantum

In its second assignment of error, the City/Parish contends that the jury committed manifest error in awarding excessive general damages. The City/Parish notes that the jury awarded $258,750.00 in general damages, which the City/Parish maintains is excessive and wholly unreasonable under the circumstances.

General damages are those damages that cannot be fixed with any degree of pecuniary exactitude, but which instead involve mental or physical pain or suffering, inconvenience, the loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle, which cannot really be measured definitively in terms of money. Lopez v. Cosey, 2016-0812 (La.App. 1 Cir. 2/17/17), 214 So.3d 18, 24. General damages are inherently speculative in nature. Lopez, 214 So.3d at 25.

Much discretion is left to the trier of fact in the assessment of general damages. See LSA-C.C. art. 2324.1. Even so, general damage awards must not be the result of passion or prejudice and should bear a relationship to the elements of proved damages. See Barber Brothers Contracting Company, L.L.C. v. Capitol City Produce Company, 2023-0788 (La. 12/19/24), 397 So.3d 404, 408. To reduce a factfinder's award, a reviewing court must conclude from the entirety of the evidence in the light most favorable to the plaintiff, that a rational trier of fact could not have fixed the awards of general damages at the level set by the factfinder or that this is one of those “exceptional cases where such awards are so gross as to be contrary to right reason.” Id. (citing Davis v. Hoffman, 2000-2326 (La.App. 4 Cir. 10/24/01), 800 So.2d 1028, 1030, quoting Bartholomew v. CNG Producing Co., 832 F.2d 326, 331 (5th Cir. 1987)). Accordingly, to find abuse of discretion warranting the disturbance of a factfinder's award of general damages, a reviewing court must find that the award is “so high or so low in proportion to the injury ․ that it shocks the conscience.” Barber Brothers Contracting Company, L.L.C., 397 So.3d at 408 (citing Baack v. McIntosh, 2020-1054 (La. 6/30/21), 333 So.3d 1206, 1215, quoting Riley v. Maison Orleans II, Inc., 2001-0498 (La.App. 4 Cir. 9/25/02), 829 So.2d 479, 487)).

In evaluating whether the trier of fact abused its discretion in assessing the amount of damages, an appellate court is to include a consideration of prior awards in similar cases, as well as the particular facts and circumstances of the case under review. Pete v. Boland Marine and Manufacturing Company, LLC, 2023-00170 (La. 10/20/23), 379 So.3d 636, 644. If an abuse of discretion is found, the court is then to also consider those prior awards to determine “the highest or lowest point which is reasonably within that discretion.” Id. Further, in reviewing the award, a court does not review a particular item in isolation; rather, the entire damage award is reviewed for an abuse of discretion, and if the total general damage award is not abusively high, it may not be disturbed. Pennison v. Carrol, 2014-1098 (La.App. 1 Cir. 4/24/15), 167 So.3d 1065, 1078, writ denied, 2015-1214 (La. 9/25/15), 178 So.3d 568.

Further, while abuse of discretion applies to the amount of the award, the character and duration of a plaintiff's injuries is a factual issue subject to the factfinder's assessment of the credibility of the plaintiff and his healthcare providers. Flowers v. Miller, 2010-1201 (La.App. 1 Cir. 3/25/11), 2011 WL 1225903, *6 (unpublished). Accordingly, such review is subject to the manifest error standard.

On May 1, 2018, the day after the accident, Mr. Horton sought treatment from his general practitioner, Dr. Brandon Tilley, wherein Mr. Horton complained of neck pain and headaches. He was prescribed anti-inflammatories, muscle relaxers, and given an intramuscular steroid injection.

Because Mr. Horton's pain did not resolve, he sought treatment with Ozark Chiropractic Clinic, with his first visit being on May 11, 2018. Mr. Horton presented with complaints of headaches, as well as pain in his cervical spine and thoracic spine. He rated the pain in his cervical spine as a 9/10, and the pain in his thoracic spine as a 8/10. Between May 11, 2018, and August 13, 2018, Mr. Horton was treated eighteen times at the clinic.

On June 22, 2018, Mr. Horton had an MRI performed at Baton Rouge Imaging. The MRI revealed disc bulges at C5-C6 and C6-C7. In light of the MRI results and his ongoing pain, Chiropractor Gregory Nelson from the Ozark Chiropractic Clinic referred Mr. Horton to Dr. Joseph W. Turnipseed, an interventional pain management specialist.

In his initial visit with Dr. Turnipseed on August 1, 2018, Mr. Horton reported sharp and aching pain in his neck that radiated to his right shoulder, which occurred constantly. In addition, Mr. Horton was still experiencing headaches. Mr. Horton reported that his symptoms were exacerbated with any movement. Dr. Turnipseed prescribed muscle relaxers and anti-inflammatories and recommended a cervical epidural steroid injection (“ESI”).

The cervical ESI was performed on August 30, 2018, and on a follow-up visit to Dr. Turnipseed on November 8, 2018, Mr. Horton indicated that the ESI had provided him 50% relief. As such, Dr. Turnipseed recommended a second cervical ESI, which was ultimately performed on December 27, 2018.

In a follow-up visit with Dr. Turnipseed on January 15, 2019, Dr. Turnipseed noted that despite the two ESIs, Mr. Horton still continued to have significant neck pain. Mr. Horton was also experiencing ongoing facet tenderness with pain on extension and rotation. Dr. Turnipseed ordered diagnostic cervical dorsal median branch blocks (“MBB”) and indicated that if those provided relief to Mr. Horton, he would consider radiofrequency ablation (“RFA”).

In explaining RFA treatment, Dr. Turnipseed testified that when pain lasts longer than six months, it can be related to the facet joints. Dr. Turnipseed indicated that he believed Mr. Horton was experiencing facet mediated neck pain. As such, he discussed with Mr. Horton about RFA, which involves burning the nerve endings in the neck. Dr. Turnipseed indicated that when the inflammation is not resolved with steroids, the nerve endings can be burned so that pain does not transmit from that joint. Dr. Turnipseed testified that after the nerve ending is burned, it does not grow back for eight to twelve months. Dr. Turnipseed indicated that prior to burning the nerve endings, the provider identifies the segments that are causing the problem by performing diagnostic nerve MBBs with numbing medicine to see how much pain relief, if any, the patient obtains. Thereafter, the provider can burn the nerves that are transmitting the pain.

The MBBs were performed on January 22, 2019 and April 26, 2019. Following the MBBs, Dr. Turnipseed determined that Mr. Horton was a good candidate for RFA treatment. Dr. Turnipseed performed the RFAs on two occasions—May 3, 2019 and May 17, 2019. Dr. Turnipseed indicated that the RFAs were performed over two sessions because Mr. Horton experienced pain on both sides of his neck. In order to allow the procedure to have the desired result and to limit discomfort after the procedure, Dr. Turnipseed indicated that he burns the nerves on the side experiencing the most pain first, then allows the patient a week or two to recover, and follows up on the side that is not as severe.

Dr. Turnipseed testified that “[n]othing that I do is permanent. Nerves grow back.” Dr. Turnipseed indicated that people can choose to live with their pain for years until it becomes intolerable, at which point they may follow up for an ESI. With regard to the RFAs, Dr. Turnipseed testified that his hope is that the RFAs will provide relief for a year, “and maybe when the nerves grow back, the pain doesn't come back to the degree that it was before you did that procedure.” Ultimately, if ESIs and RFAs do not provide sufficient relief, the patient either has to “live with it or go see a surgeon to explore their options to see if their problem can be fixed.” Dr. Turnipseed further testified that if Mr. Horton was still experiencing pain at the time of trial, it was more probable than not that the pain was not going away.

Although Mr. Horton has not sought any treatment related to his injury following the second RFA on May 17, 2019, Mr. Horton testified that his pain has never gone away and that it is constant. He indicated that he treats it at home with hot and cold pads and over-the-counter medications such as Tylenol. He testified that he does not plan to have any additional ESIs or RFAs because the risks are too high. He indicated that he did not want to go “under anesthesia all the time” and he does not want to take “different pain pills and different medication.” Mr. Horton also testified that he does not believe his pain will ever completely go away, but he is at the point where he is just going to live with it.

On appeal, the City/Parish avers that Mr. Horton was treated for a year for his injuries, including two ESIs, two MBBs, and two RFAs performed during that time. The City/Parish points out that Mr. Horton has not sought treatment since the second RFA performed on May 19, 2019, through the date of trial, a period of roughly three and a half years. The City/Parish concludes that a general damage award of $258,750.00 is excessive and wholly unreasonable under the circumstances.

In support, the City/Parish cites Flowers v. Miller, 2011 WL 1225903, *5, wherein this court concluded that the trial court did not abuse its discretion in awarding $40,000.00 in general damages where the plaintiff was diagnosed with cervical “ligamentous facet irritation with nerve root irritation” and actively treated for approximately twenty months. The plaintiff therein underwent two cervical ESIs and one lumbar ESI.

The City/Parish also cites Tate v. Kenny, 2014-0265 (La.App. 1 Cir. 12/23/15), 186 So.3d 119, wherein this court concluded that a jury did not abuse its discretion in awarding $7,500.00 to a plaintiff who sustained injuries to her lower back and shoulder and treated for a period of approximately four years. During the course of the four years, the plaintiff underwent five separate rounds of epidural steroid injections. However, we note that the jury therein had conflicting expert testimony about the extent of plaintiff's injuries and ultimately determined that all medical treatment was not related to the accident at issue. Id. at 128.

In opposition, Mr. Horton asserts that if this court chooses to entertain the discussion of whether to disturb the jury's award given its great and vast discretion, it would be an injustice to consider the cases cited by the City/Parish given that they are vastly dissimilar to the case at hand. Rather, Mr. Horton maintains that if this court chooses to consider prior awards, this court should find that the general damage award should have been higher.⁴

Mr. Horton also cites a number of cases to purportedly support the award. The most pertinent is Bailey v. Nunez, 2004-1603 (La.App. 4 Cir. 3/2/05), 898 So.2d 589, wherein the court affirmed a general damage award of $245,000.00 to an injured motorist. The plaintiff there began experiencing neck and back pain immediately after the accident. An MRI revealed that plaintiff had a “mild to moderate” disc herniation at C5-C6 in his neck, as well as nerve impingements on the left side in the nerve roots at L5-S1 in his lower back. Id. at 593. Therein, however, according to his treating physician, the plaintiff “ha[d] enough pathology to justify consideration for surgery,” but was prevented from doing so due to health problems. Id. at 594. Further, the treating physician opined that plaintiff had a 22 percent permanent disability, and explained that plaintiff should not lift more than ten pounds and he should avoid stooping, squatting, kneeling, and climbing. Id. The treating physician indicated “that the plaintiff would require someone to manage his care in the future, whether it be he or some other doctor.” Id. The treating physician further opined that “without the surgery [plaintiff] will continue to need the treatment monitored which is controlled by medication.” Id. In the instant case, while no physician has indicated that surgery is an option at this time, Dr. Turnipseed testified that if all other options fail, Mr. Horton would have to explore his options with a surgeon.

In addition to the cases cited by the parties, our own research has produced several other cases that we find instructive in determining the highest point reasonably within the jury's discretion. See Pete, 379 So.3d at 644. In Smith v. GoAuto Insurance Company, 2023-1098 (La.App. 1 Cir. 7/1/24), 392 So.3d 899, 901, writ denied, 2024-00961 (La. 11/14/24), 395 So.3d 1188, plaintiff was injured in an automobile accident, and following her initial visit in the emergency room, she “underwent limited chiropractor care” for the next ten months. In that period, she also had an MRI, which showed a lumbar disc protrusion and disc tear, and received an injection into her left buttock and leg. Id. According to plaintiff, chiropractic treatment and physical therapy hurt her condition more than it helped; and, although the single steroid injection had given her temporary relief, she could not afford more injections. Id. at 901-02. Further, one of her physicians testified that whether plaintiff's pain was attributable to a disc or sacroiliac joint injury, she should be treated first with conservative treatment, then followed by surgery, if conservative treatment failed. Id. at 903. In addition, plaintiff was pregnant with her fourth child, and following the accident, her first concern was for her three children and her unborn child. Id. at 903. The trial court awarded plaintiff $265,000.00 in general damages, consisting of $250,000.00 for pain and suffering, $10,000.00 for fear of losing her unborn child, and $5,000.00 for loss of enjoyment of life. Id. This court noted that prior to the accident, the plaintiff was a healthy, active mother of three children, with no history of back or leg pain, but at the time of trial four years post-accident, plaintiff continued to have low back pain as well as left leg pain weakness that caused her to frequently fall. Id. at 907. This court, finding no abuse of discretion in the trial court's award, affirmed that judgment.

In Dauzat v. Rapides Parish Police Jury, 95-115 (La.App. 3 Cir. 6/7/95), 657 So.2d 484, 485, writ denied, 95-1591 (La. 9/29/95), 660 So.2d 871, a 16-year-old was injured in a motor vehicle accident, and initially sought treatment a few days after the accident. She complained of neck and low back pain, and was diagnosed as having cervical and lumbar spasms. She received conservative treatment regularly over the course of the next five months, with muscle relaxants, anti-inflammatories, and physical therapy. Id. at 485-86. The plaintiff thereafter did not seek additional treatment until more than six months later, where she was prescribed a muscle relaxant and an analgesic, and she was referred to an orthopedic surgeon, who diagnosed her with “chronic cervical and lumbar pain syndrome.” Id. A cervical MRI revealed mild bulging at C-5/C-6 and C-6/C-7 levels, with some evidence of spasm, while a lumbar MRI revealed mild bulging at the L-3/L-4 and L-4/L-5 levels, with a subligamentous central herniation at L-5/S-1. Id. The surgeon indicated that the plaintiff's obesity did impact her recovery time and while it was possible for such injuries to heal on their own, his opinion was that they would not resolve themselves given the plaintiff's present condition and the length of time between the injury and the examination. Id. The surgeon did not consider plaintiff a candidate for surgery and could only speculate as to the possible need for surgery in the future. Id. Another physician in Illinois, where plaintiff was moving to attend college “concur[red] with [the surgeon's] recommendations that plaintiff engage in an aggressive home exercise program and lose weight. [He] did not consider [plaintiff] a candidate for surgery and stated that he would place no physical restrictions on her activities.” Id. at 487. Her last contact with that physician was when she called to request that he authorize some refills on a prescription (a little more than 19 months post-accident). There was no indication that plaintiff sought treatment since that time. Id.

The Dauzat court noted that none of the doctors who either examined or treated plaintiff felt that she was a candidate for surgery at the present time. Id. The court also noted that no physician specifically assigned an anatomical rating to the plaintiff, nor that plaintiff would definitely require surgery in the future. Id. Rather, the court noted that the doctors could only say that “her back had been weakened by the accident, [and] it was likely that she would need further treatment in the future.” Id. Moreover, the physicians were of the opinion that plaintiff “was free to pursue college studies and none addressed any career or job restrictions.” Id. The court further indicated that plaintiff had not received any medications, been treated, nor seen any physician for nine months prior to trial, and that the only medication she was taking for her back pain at the time of trial was Extra Strength Tylenol. Id. at 490. Despite the fact that plaintiff claimed she experienced pain with prolonged sitting, the court noted that since the accident, the plaintiff “has made no less than three round trips by car between Louisiana and Illinois, a trip which she estimates takes between 17 and 20 hours one way.” Id. The court noted that plaintiff also acknowledged that no physical restrictions had ever been placed on her, but she was only advised to “be careful.” Id. The Third Circuit ultimately affirmed the special damage awards—$14,995.31 in past medicals, which was not contested by the appellant, and the $30,000.00 in future medical expenses, which the court found “most generous, but not so generous as to be an abuse of the trial judge's much discretion.” Id. The appellate court, however, lowered the general damage award from $350,000.00 to $225,000.00, finding it to be the “highest possible award of general damages.” Id. at 490.

Herein, the parties do not dispute that Mr. Horton's injuries are causally related to the accident. Cf. Tate. The parties also do not dispute the medical necessity of the two ESIs, two MBBs, and two RSAs. We recognize that Mr. Horton only treated for twelve months after the accident. Even so, we note that while the existence of medical treatment generally provides corroborating evidence of injury and attempted mitigation of damages, the absence of treatment for a given time period does not necessarily prove absence of pain or other symptoms of injury. Flowers, 2011 WL 1225903 at *6. Given Mr. Horton's testimony and the award of damages for future pain and suffering, the jury believed that Mr. Horton was still experiencing pain from his injuries associated with the accident at the time of trial, nearly three and a half years after his last treatment. Such a finding is consistent with Dr. Turnipseed's testimony that nothing he does is permanent, that nerve endings grow back, and that some people simply choose to live with their pain for years until it becomes intolerable.

The character and duration of Mr. Horton's injuries are factual issues subject to the factfinder's assessment of Mr. Horton's credibility and the credibility of his health care providers. Id. Under the manifest error standard, we cannot re-weigh the evidence or substitute our own factual findings for that of the jury even if we may have decided the case differently. Jackson v. Tulane Medical Center Hospital and Clinic, 2005-1594 (La. 10/17/06), 942 So.2d 509, 513. Given the deference owed to the factfinder on these credibility determinations, we cannot conclude that the jury was manifestly erroneous in finding that Mr. Horton was still experiencing pain at the time of trial, despite his lack of medical treatment.

Considering the foregoing, we are constrained to find that the jury's in toto general damage award of $258,750.00 is not an abuse of the trier of fact's great discretion. While we recognize that the general damage award under the specific facts herein is high and while we may have arrived at a different award had we been sitting as the trier of fact, we cannot conclude that this is one of those “exceptional cases where [the award is so] gross as to be contrary to the right reason” or so high that it “shocks the conscience.” See Barber Brothers Contracting Company, L.L.C., 397 So.3d at 408.

CONCLUSION

For the foregoing reasons, we affirm the July 1, 2024 judgment. Costs of this appeal in the amount of $2,656.00 are assessed to the appellant, City of Baton Rouge/ Parish of East Baton Rouge.

JUDGMENT AFFIRMED.

FOOTNOTES

1.   The July 1, 2024 judgment at issue on appeal, in addition to resolving all of Mr. Horton's claims, also provides: “[T]he claims of Andrea Norwood were resolved prior to trial and are therefore dismissed with prejudice[.]” Although a judgment had been previously signed on February 6, 2024, that judgment did not comply with this court's prior ruling on appeal, which specifically indicated that a final judgment needs to resolve the claims of “the second plaintiff, Andrea Norwood[.]” Horton, 2024 WL 204461 at *2.

2.   Louisiana Revised Statutes 32:81(A) provides:The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

3.   Courts have found sudden emergencies in cases where following motorists—whether in or not in positions of imminent peril—are faced with unanticipated hazards, provided that the motorists have not brought the hazard upon themselves by their own conduct and where the motorists have used due care to avoid the hazards. Daigle v. Scioneaux, 2015-0366 (La.App. 1 Cir. 2/17/16), 2016 WL 687157, *4 (unpublished). While the sudden emergency doctrine has not been subsumed by comparative fault, some courts have treated the sudden emergency as one of the factual considerations used in assessing the degree of fault to be attributed to a party. Harbin, 147 So.3d at 218.

4.   It is not clear if Mr. Horton is requesting this court to raise the award. In any event, Mr. Horton has not filed an answer to the appeal, and as such, we are precluded from doing so. See LSA-C.C.P. art. 2133.

McCLENDON, C.J.