THEOPHOLIA THOMAS v. BNSF RAILWAY COMPANY (2025)

This matter is before us on remand from the Louisiana Supreme Court. In Thomas v. BNSF Railway Company, 2024-01252 (La. 1/28/25), 399 So.3d 404 (per curiam) (hereinafter “Thomas II”), the supreme court vacated Thomas v. BNSF Railway Company, 2023-1209 (La. App. 1st Cir. 8/6/24), 395 So.3d 907 (hereinafter “Thomas I”), and ordered this court to consider the defendant's remaining assignments of error. The supreme court found that the plaintiff consented to a judgment allocating 15% fault to him, effectively resolving an inconsistency in the jury's verdict concerning legal causation for the accident at issue. In compliance with the Louisiana Supreme Court's order and for the reasons assigned below, we affirm the August 30, 2022 judgment awarding $8,307,050.00 in damages to the plaintiff.

RELEVANT FACTS AND PROCEDURAL HISTORY

The facts in this matter were outlined in Thomas I, wherein the defendant, BNSF Railway Company (“BNSF”) sought review of the trial court's August 30, 2022 judgment, which was rendered in accordance with a jury verdict awarding the plaintiff, Theopholia Thomas, a total of $8,307,050.00 in damages. Thomas I included the following summation of facts arising out of a collision between a garbage truck driven by Mr. Thomas and a BNSF train at a railroad crossing in Baldwin, Louisiana:

On September 16, 2016, at approximately 11:35 a.m., Theopholia Thomas 1 was driving a garbage truck on a collection route for Pelican Waste & Debris, L.L.C., in the Town of Baldwin. As Mr. Thomas drove in a southwesterly direction on Railroad Avenue, which runs parallel with multiple railroad tracks that are owned and maintained by different railroad companies, he stopped before turning off of Railroad Avenue onto Lockley Street.2 Each of the two employees working from the back of the garbage truck, known as “hoppers,” jumped off of the truck to empty garbage cans located near the intersection. One of the hoppers walked across the railroad crossing to access the few houses located on the other side of the dead-end Lockley Street. The weather was rainy, but there were no visual obstructions blocking the view of oncoming trains in either direction along the railroad tracks.

Mr. Thomas did not see or hear any oncoming trains as he proceeded to turn right onto Lockley Street in order to access the Lockley Street crossing over the railroad tracks. It is undisputed that this particular railroad crossing was maintained by [BNSF].3 The wooden plank crossing was marked with a standard railroad cross-buck sign that warned of the railroad crossing, along with a stop sign mounted on the same pole. Mr. Thomas admitted that he did not stop at the stop sign after turning onto Lockley Street, because he had stopped prior to turning. He denied seeing or hearing any oncoming trains coming from the north side of the Lockley Street crossing. There was testimony about a blind spot due to the side mirrors on the garbage truck.

When Mr. Thomas entered the Lockley Street railroad crossing, his turn was too wide, which resulted in the left front tire of the garbage truck dropping off the wooden planks on the south side of the crossing. The tire was then stuck between the railroad tracks. Mr. Thomas immediately began a process of reversing and pulling forward to maneuver the garbage truck fully up onto the crossing. Once he was successful in backing out of the area where the garbage truck's tire was stuck, he realigned all four truck tires onto the crossing, and he began to pull forward to go across. It was at that point that Mr. Thomas saw the oncoming BNSF train, which was blaring its horn and bearing down on the Lockley Street crossing at approximately 36 miles per hour. Mr. Thomas made a quick decision to accelerate the garbage truck in an attempt to clear the train's path, but before Mr. Thomas had cleared the crossing, the BNSF train collided with the rear portion of the garbage truck. The truck was knocked onto its left side, spilling garbage everywhere. The garbage truck was pushed down the railroad tracks until the BNSF train came to a stop. Mr. Thomas survived the collision, but was injured.4

As a result of the accident and injuries, Mr. Thomas filed suit against BNSF.5 Mr. Thomas alleged that the crossing was not properly maintained by BNSF. According to several witnesses and exhibits at trial, the crossing was narrower than the street and was, therefore, in violation of industry standards, as well as BNSF's internal standards, which required railroad crossings to be at least one foot wider than the traveled roadway. Following a six-day jury trial on the merits in May of 2022, the jury was given a special verdict form composed of seven interrogatories. The jury returned the verdict form with responses to the interrogatories as follows:

(1) Was BNSF Railway Company negligent?

Yes _X_ No __

If the answer to question 1 is yes, proceed to question 2. If the answer to question 1 is no, sign at the end and return to the courtroom.

(2) Was the negligence of BNSF Railway Company a proximate cause of the accident?

Yes _X_ No ___

If the answer to question 2 is yes, proceed to question 3. If the answer to question 2 is no, sign at the end and return to the courtroom.

(3) Was Theo Thomas negligent?

Yes _X_ No __

If the answer to question 3 is yes, proceed to question 4. If the answer to question 3 is no, proceed to question 5.

(4) Was the negligence of Theo Thomas a proximate cause of the accident?

Yes __ No _X_

Proceed to question 5.

(5) Please state the percentage of negligence, if any[,] attributable to the below parties.

(Note that the total of your percentage must be 100%)

BNSF Railway Company: 85 %

Theo Thomas: 15 %

Proceed to question 6.

(6) Did Theo Thomas suffer any damage as a result of the accident on September 16, 2016?

Yes _X__ No __

If the answer to question 6 is yes, proceed to question 7. If the answer to question 6 is no, sign at the end and return to the courtroom.

(7) Without deducting any sums for the percentage of negligence, if any, which you have assigned above to Theo Thomas, please state what sum of money, if any, would reasonably and fairly compensate Theo Thomas for the following:

Past Lost Wages: $ 330,000.00

Future Lost Wages: $ 491,000.00

Past Medical Expenses: $ 112,000.00

Future Medical Expenses: $ 840,000.00

Past and Future Pain and Suffering: $ 5,000,000.00

Past, Present and Future Loss of Enjoyment of Life: S 3,000,000.00

Franklin, Louisiana, this 31st day of May, 2022[.] See Thomas I, 395 So.3d at 908-911.

When BNSF objected to the jury verdict as inconsistent, Mr. Thomas indicated his willingness to accept the 15% allocation of fault to him, arguing that the jury had clearly found that BNSF was 85% at fault for the accident. The trial court subsequently denied BNSF's objection to the jury verdict and, on August 30, 2022, the trial court signed a final judgment in accordance with the jury verdict in favor of Mr. Thomas in the total amount of $8,307,050.00, that included the 15% fault allocated to Mr. Thomas. BNSF moved for a Judgment Notwithstanding the Verdict and, alternatively, moved for a new trial, which Mr. Thomas opposed. The trial court issued written reasons for judgment and denied BNSF's motions.

BNSF filed a suspensive appeal, assigning error to the trial court's entry of a judgment when there was an inconsistency in the jury's allocation of fault findings. This court determined in Thomas I that a remand for a new trial was necessary due to the inconsistency in the jury verdict. See Thomas I, 395 So.3d at 914. The Louisiana Supreme Court vacated this court's decision in Thomas I, finding that Mr. Thomas had consented to a 15% fault allocation, “effectively resolving” the verdict's inconsistency by conceding his negligence as a legal cause of the accident. See Thomas II, 399 So.3d at 405. The case was remanded to this court to consider BNSF's remaining assignments of error, including an absence of evidence that BNSF had breached any duty and an absence of evidence that BNSF legally caused Mr. Thomas's damages. Essentially, BNSF argues that Mr. Thomas was the sole party at fault because of his failure to stop, look, and listen from a position where he had a clear view of the approaching train that had the right of way; that Mr. Thomas negligently made a wide turn that caused the garbage truck's tire to become stuck off of the roadway at the crossing; and then Mr. Thomas panicked and attempted to beat the oncoming train instead of backing off of the crossing to allow the train to pass. Additionally, BNSF maintains that the general damage award is excessive and a clear abuse of discretion.⁶ On this appeal, we frame the issues for our review as to whether the jury erred in allocating fault and in awarding damages.

LAW AND ANALYSIS

Allocation of Fault

It is well-settled in Louisiana law that a jury's findings of fact may not be reversed in the absence of manifest error or unless they are clearly wrong. See Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). In this case, the jury assigned BNSF 85% fault and Mr. Thomas accepted 15% fault for the collision between the garbage truck he was driving and the BNSF train. A jury's allocation of fault is a question of fact subject to the manifest error standard of review. Rivere v. Union Pacific R. Co., 93-1132 (La. App. 1st Cir. 10/7/94), 647 So.2d 1140, 1146, writ denied, 95-0292 (La. 3/24/95), 651 So.2d 295.

A reviewing court must do more than simply review the record for some evidence that supports or controverts the jury's findings; it must instead review the record in its entirety to determine whether the jury's findings were clearly wrong. The issue to be resolved by a reviewing court is not whether the jury was right or wrong, but whether the jury's conclusion was a reasonable one. Stobart, 617 So.2d at 882. The appellate court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Parish National Bank v. Ott, 2002-1562 (La. 2/25/03), 841 So.2d 749, 754 (quoting Stobart, 617 So.2d at 883). Additionally, when conflicting evidence creates two possible views of the evidence and the jury's choice between the two views is reasonable in light of the entire record, the jury's choice between the two views can virtually never be clearly wrong. See Stobart, 617 So.3d at 882-883.

Comparative fault in Louisiana is governed by La. Civ. Code art. 2323.⁷ A jury, as the trier of fact, must consider both the nature of the conduct of each party and the extent of the causal relation between the conduct and the damages claimed in order to determine comparative fault. See Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). In Watson, the Louisiana Supreme Court outlined the following factors that may influence the degree of fault allocated to a party:

(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.

Id. Additionally, when a defendant asserts comparative fault as an affirmative defense, the defendant bears the burden of proof by a preponderance of the evidence that the other party's fault was a cause-in-fact of the damage being complained about. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So.2d 1002, 1014, n.13.

In negligence cases, we use a duty-risk analysis to determine whether liability exists under the facts. LeJeune v. Union Pacific R.R., 97-1843 (La. 4/14/98), 712 So.2d 491, 494. Under this analysis, a plaintiff must prove that: (1) the conduct in question was a cause-in-fact of the resulting harm; (2) the defendant owed a duty of care to the plaintiff; (3) the requisite duty was breached by the defendant; and (4) the risk of harm was within the scope of protection afforded by the duty breached. All four inquiries must be affirmatively answered for the plaintiff to recover. Id.

BNSF argues on appeal that Mr. Thomas was 100% at fault for the collision, because he negligently failed to yield to the oncoming train, not once but twice, as he drove through a stop sign and cross-buck sign before entering the crossing and then he unlawfully stopped on the crossing before attempting to beat the oncoming train. Mr. Thomas counters that the jury correctly found BNSF to be 85% at fault for failing to properly maintain and widen the crossing surface to protect motorists from dropping off the crossing and becoming stuck between railroad track rails.

As for duties owed by BNSF, it is important to note that there are statutory duties imposed on railroad and railway companies regarding their crossings. Louisiana Revised Statutes 45:323(A) provides, in pertinent part:

All railroads ․ [and] railways ․ whose tracks are laid on or across the public street of any municipality, shall keep in good condition and suitable for vehicular traffic that portion of the street lying between the rails of the tracks of such railroad and railways, and for a distance of two feet on the outside of each rail of the tracks used or operated by them, together with the necessary headers[.] ․ In addition[,] the railroad or railways shall in all cases install and maintain the necessary headers to separate that portion of the public street to be paved, repaved, repaired, and maintained by them from the other portions of the public street.

Also, La. R.S. 32:169(A) and (B) requires the railroad to erect and maintain cross-buck signs, and they may erect stop signs at any grade crossings, not more than fifty feet nor less than fifteen feet from crossings. However, even the correct placement of such signs does not relieve a railroad company of its responsibility to maintain safe crossings. See La. R.S. 32:169(F). A railroad crew has an affirmative duty to blow the train engine's horn continuously from at least one quarter of a mile (440 yards) out from the crossing until the train engine has crossed the roadway. See La. R.S. 32:168(B). A corresponding duty is placed on motorists by La. R.S. 32:171(A) to stop whenever approaching a railroad grade crossing and a train within 900 feet (300 yards) of the crossing blows its horn and poses an immediate hazard because of its speed or proximity to the crossing. Louisiana Revised Statutes 32:171(A)(5) also imposes a mandatory duty on motorists to stop and not proceed until it is safe to do so when there is a stop sign erected at the approach to a railroad grade crossing. Furthermore, no person shall stop a motor vehicle upon any railroad crossing. La. R.S.32:171(B).

The jury heard testimony concerning the condition of the Lockley Street crossing, which was maintained and routinely inspected by BNSF employees. Terrell Alexander, a track inspector for BNSF, testified that he inspected the Lockley Street crossing at a minimum of four times per week, looking for things like holes, high screws, vegetation/branches, and loose planks. Mr. Alexander did not drive through the crossing on the roadway while conducting inspections, but instead rode in a high-rail truck on the railway. His inspections did not include measuring the width of the crossing to see if the crossing was one foot wider than the traveled roadway, because he believed that was someone else's responsibility. When questioned about the width of the crossing, Mr. Alexander acknowledged that BNSF's Standard Plan, which he had never actually seen, called for the edge of a crossing to be at least one foot wider than the traveled roadway.

Jason Rose, a Division Roadmaster for BNSF, testified that the Lockley Street crossing is part of his territory. Mr. Rose insisted that the Lockley Street crossing is the appropriate size, meeting the industry's requirements and BNSF's Standard Plan requirements of being at least one foot wider than the roadway. He further testified that he was not aware of any other accidents or complaints about the Lockley Street crossing. A track supervisor for BNSF, Richard Journet, testified that he was never told to inspect the width of crossings to ensure they are at least one foot wider than both sides of the roadway. Mr. Journet stated that no defects were reported for the Lockley Street crossing.

The jury also heard from Brian Hanson, who was accepted by the trial court as an expert in maintenance, safety, and inspection at railway crossings, and whose testimony was at odds with Mr. Rose's testimony. Mr. Hanson testified that the Lockley Street crossing was “considerably narrower” than the roadway, with an eight-inch drop where the garbage truck's tire dropped off the crossing planks. He stated that the crossing was the opposite of what it should have been, in that it was one to one-and-a-half feet less in width from the edge of the traveled roadway. Mr. Hanson characterized the crossing as a hazard that did not meet the industry standard and BNSF's minimum standard of at least one foot wider than the traveled roadway. Mr. Hanson opined that BNSF failed to provide a reasonably safe grade crossing at Lockley Street, and that the extreme deficiencies in the crossing caused or contributed to Mr. Thomas's accident. Mr. Hanson further testified that trains have the right-of-way at crossings like Lockley Street and that all motorists have a responsibility to stop, look, and listen at crossings with cross-buck signs, which indicate an active railroad track.

The two hoppers, Larry Smith, Jr., and Edward Lightfoot, riding on the back of the garbage truck testified about the garbage truck's left front tire dropping off the crossing and getting stuck between the railroad tracks when Mr. Thomas turned too wide right onto Lockley Street. Neither hopper was actually on the back of the truck when Mr. Thomas made the wide turn, nor when the collision happened. Mr. Smith stated that he heard the train's horn blowing for the first time just seconds before the crash. Mr. Lightfoot, who was on the other side of the Lockley Street crossing, explained that he saw the train coming and he turned his back because he “knew” the truck was going to be hit by the train.

Mr. Thomas's supervisor, Kuchonnie Lewis, testified about Mr. Thomas's experience as a garbage truck driver. She also talked about the blind spots involved when making a right turn onto Lockley Street from Railroad Avenue, due to the angle of the turn and the truck's mirrors. Ms. Lewis described Lockley Street as a single lane road where two vehicles could not pass over the railroad crossing at the same time. Ms. Lewis further testified about the area where the truck's tire could drop off of the crossing, which required backing up and straightening the truck before going across the railroad tracks. She also stated that drivers should be attentive, stop, look, and listen before proceeding across railroad crossings.

Bradley Mathison was accepted as an expert in forensic visualization, analysis, 3-D modeling, surveying, and animation. He used drones to take pictures and measurements in order to make a 3-D model of the Lockley Street crossing. Mr. Mathison testified that if the crossing had been one foot wider, the garbage truck would have crossed the railway without incident. A video from inside of the train heading toward Lockley Street was played for the jury during Mr. Mathison's testimony. Mr. Mathison stated that when the garbage truck got stuck off the roadway, the BNSF train was about 19 seconds away from the crossing, but the truck was visible to the train at 28 seconds prior to impact. Mr. Thomas repeatedly maneuvered the garbage truck forward and back until it was back on the roadway. Mr. Mathison opined that the truck had an additional five feet of space to back up with 16 seconds of time to reverse before the collision. Instead, Mr. Thomas slowly drove forward and paused on top of the tracks at approximately 4 seconds before impact. At 2.1 seconds before the train collides with the back of the garbage truck, Mr. Thomas “guns” the truck forward in an attempt to clear the crossing. At the time of the collision, Mr. Mathison stated that the BNSF train was traveling 36 miles per hour and Mr. Thomas's truck was traveling 5.2 miles per hour. Mr. Mathison testified that based on his video analysis showing the path of the garbage truck, the tire would not have gotten stuck between the railroad track rails if the crossing had been one foot wider than the roadway.

Mr. Thomas testified at trial. He admitted that he did not stop and look to his right immediately before starting forward across the Lockley Street crossing, because he had not seen or heard a train when he stopped at the stop sign on Railroad Avenue. Mr. Thomas specified that when he stopped at the stop sign on Railroad Avenue he looked behind him to see if there was a train before he turned onto Lockley Street. He stated that he did not see or hear a train until right before the collision. When the garbage truck's tire dropped off the crossing he said that he was not scared because it had happened to him before. Once he got the truck back onto the crossing, he saw the train and he made a “split-second decision” to try to get off the railroad crossing by driving forward. Before that decision he was just focused on trying to get the garbage truck's tire “unstuck” so he could move off the crossing. He was aware of the possibility that a train was coming.

We cannot say, given the conflicting evidence of record, that the jury's finding of fact allocating Mr. Thomas 15% fault and BNSF 85% fault is clearly wrong. To the contrary, we find the jury's conclusion to be a reasonable one, and is amply supported by the record. When Mr. Thomas attempted to drive the garbage truck over the BNSF railroad crossing and the left front tire of the truck dropped off the too-narrow crossing and became stuck between the railroad tracks, the dangerous chain of events that led to the collision began. There is no dispute, however, that Mr. Thomas did not stop at the stop sign at the crossing after initiating a right turn toward the crossing. To the extent that the jury assigned 15% fault to Mr. Thomas for his failure to stop and then again for his split-second decision to attempt to quickly drive across the crossing after he had successfully maneuvered the garbage truck back onto the crossing surface and saw the BNSF train bearing down on him, we find such assignment reasonable and supported by the record. Thus, we find no manifest error in the jury's allocation of 15% fault to Mr. Thomas and 85% fault to BNSF.

Damages

BNSF argues that the jury's $8,000,000.00 general damage award ($5,000,000.00 for past, present, and future pain and suffering, and $3,000,000.00 for past, present, and future loss of enjoyment of life) is excessive given Mr. Thomas's injuries and treatment.⁸ Appellate courts review the law and facts before rendering a judgment on quantum based on the merits, including determining whether the jury has abused its vast discretion in awarding general damages. See Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, 2023-00788 (La. 12/19/24), 397 So.3d 404, 408 (on rehearing) (“Barber II”). In Pete v. Boland Marine and Manufacturing Company, LLC, 2023-00170 (La. 10/20/23), 379 So.3d 636, 639, the Louisiana Supreme Court discussed the inherently subjective nature of the abuse of discretion standard in the context of reviewing general damage awards and the need for some measure of objectivity to be incorporated into the determination of an award's reasonableness, so that there is some standard for comparison. In Pete, the supreme court recognized that the consideration of past awards in evaluating whether an award is an abuse of discretion provides a reasonable criterion by which courts can evaluate awards for general damages, whether for excessiveness or insufficiency. Id., 379 So.3d at 643. Clearly, prior awards in truly similar cases are a touchstone in the review performed by appellate courts. Barber II, 397 So.3d at 409. Also, appellate courts consider the particular facts and circumstances of a case in conjunction with a review of prior awards. Id.

Taking these principles into account, Pete adopted a two-step process to the review of a damage award to determine abuse of discretion. Id., 379 So.3d at 644. First, considering the particular injury to the particular plaintiff under the particular circumstances, the appellate court accumulates prior truly similar cases to determine whether an abuse of discretion is identified. Second, if abuse of discretion is found, the appellate court is to then also consider prior awards to determine the highest or lowest point which is reasonably within that discretion. See Id. See also, Jones v. Market Basket Stores, Inc., 2022-00841 (La. 3/17/23), 359 So.3d 452, 464. Thus, prior awards do not alone determine the award in a case under review, but they do provide an objective reference for determining the highest or lowest award that is not greatly disproportionate to past awards. See Reck v. Stevens, 373 So.2d 498, 501 (La. 1979). With these principles in mind, we examine the extensive facts surrounding Mr. Thomas's injuries to determine whether the jury's general damage award was an abuse of discretion.

The unrebutted medical evidence concerning Mr. Thomas's injuries was presented by Mr. Thomas himself and his treating physicians, a mental health counselor, an economist, and a vocational rehabilitation expert. The only contrary evidence the jury heard was presented by BNSF's cross examination of Mr. Thomas's witnesses. The evidence shows that Mr. Thomas suffered serious physical and psychological injuries as a result of the collision with the train. Mr. Thomas underwent a two-level fusion surgery with six screws to stabilize his low back, after which he suffered surgical complications, including a “scary” spinal fluid leak that required two more surgeries, infections for six months post-op that required painful, daily medical assistance due to an open wound at the surgical site, and residual radiating leg pain that may require future back surgeries and a spinal cord stimulator. Mr. Thomas suffers from flashbacks regarding the accident and debilitating depression related to his chronic pain and life changes since the accident.

Mr. Thomas has not been able to return to work since the accident and he is most likely unemployable because he is in too much pain and cannot get out of his house much. Prior to the train wreck, Mr. Thomas was a hard-working, physically fit, and mentally healthy 47-year-old man. His work supervisor, Ms. Lewis, testified that she had worked with Mr. Thomas for 15 to 16 years, and he was one of the best workers; he was happy and helpful. Ms. Lewis stated that Mr. Thomas was her “go-to guy” who would do whatever was needed. She described Mr. Thomas as being very different now, in that before the accident he was a “lady's man” and “confident,” but after the accident he was no longer outgoing.

Mr. Thomas testified that before the accident, he enjoyed working with his hands, performing physical labor, mechanic work, carpentry work, and work around his house. He liked to make people laugh and he was joyful and easy going. He also enjoyed fishing, playing basketball, dominos, cards, and traveling to visit his children. Mr. Thomas cannot do those things anymore and he does not spend time with friends like he used to do before the accident. He could drive and repair any type of large vehicle, and he always wanted to make a living by fixing and driving large trucks. Mr. Thomas was an outgoing and very family-oriented man, who enjoyed doing things with and for his relatives and friends. Before the accident, Mr. Thomas lived independently without pain or depression and he did many things with his five children and two grandchildren. That independent, active, and happy lifestyle all changed the day of Mr. Thomas's accident with the train on September 16, 2016, and he testified that he has not felt normal since the wreck. Mr. Thomas now lives with chronic pain and depression every day and he has lost all enjoyment in his life. Some days he cannot do anything at all and he is lonely and depressed. His days now revolve around his back pain.

Dr. Patrick Juneau testified at trial and he was accepted as an expert in neurosurgery. He is Mr. Thomas's treating neurosurgeon who performed the surgeries on Mr. Thomas's back. Mr. Thomas's general practitioner referred him to Dr. Juneau approximately five months after the accident for ongoing low back pain with radiating pain in both legs and groin, along with numbness and tingling in both legs down to the feet. Mr. Thomas was having trouble walking and was using a cane. An MRI revealed the need for spinal surgery at two levels, L4-5 and L5-S1, for a concerning disc protrusion into the spinal canal. For the five months leading up to the surgery, Mr. Thomas was treated conservatively with physical therapy and steroid injections. Mr. Thomas's spine had an abnormal alignment, which required a spinal fusion to stabilize his back. Dr. Juneau related Mr. Thomas's pain and the necessary fusion surgery to the train wreck.

One week after the fusion surgery, Mr. Thomas developed bad headaches, which is a sign of a spinal fluid leak. Mr. Thomas underwent another surgery to repair the leak. Then another leak occurred, requiring more draining to repair that leak. After undergoing three surgeries within a short span of time, Mr. Thomas's back wound from the surgeries was not healing properly. He developed a staph infection that required excruciating daily wound care consisting of cleaning and packing the wound and taking antibiotics. Mr. Thomas was in the hospital for 31 days and underwent wound treatment for six months, all of which was very painful and required him to lay on his stomach for over a week. According to Dr. Juneau, Mr. Thomas may need more surgery in the future and he is a candidate for a spinal cord stimulator to help reduce ongoing nerve pain. Dr. Juneau also referred Mr. Thomas to a psychologist for evaluation of sleep problems and flashbacks to the accident, along with treatment for anger and depression.

Dr. Adolfo Cuadra, a pain management specialist, treated Mr. Thomas for ongoing right leg pain after his back surgeries. Dr. Cuadra attributed Mr. Thomas's post-laminectomy syndrome and chronic pain to the train wreck. Mr. Thomas's pain management treatment involves injections, medications, and a possible spinal cord stimulator. Dr. Cuadra testified that Mr. Thomas could have back pain for the remainder of his life, but a spinal cord stimulator could reduce the pain up to 50%. Mr. Thomas indicated his willingness to do anything to help with his chronic pain which makes his depression worse and inhibits his activity level.

Alyssa Martin, a psychiatric mental health nurse practitioner and registered nurse, testified at trial about Mr. Thomas's mental health treatment. Ms. Martin was accepted as an expert in mental health treatment. She treated Mr. Thomas for depression with medication and counseling. She also evaluated him to determine if he was a good candidate for a spinal cord stimulator procedure. According to Ms. Martin, Mr. Thomas seemed hopeless, suffering from chronic pain and a negative outlook on his life. Ms. Martin related Mr. Thomas's depression to the life-changing train accident he had experienced, because he had no history of depression or mental health issues before the accident. Ms. Martin testified that Mr. Thomas's chronic pain was interfering with his quality of life, as he related that he could no longer engage in family or work activities. She ultimately determined that Mr. Thomas was a good candidate for the spinal cord stimulator procedure and that it could benefit him. She also testified that Mr. Thomas would benefit from psychotherapy, counseling, and trauma therapy for his depression that he will most likely suffer from for the remainder of his life. Ms. Martin further stated that Mr. Thomas had sustained a “profound traumatic event” in the train accident, which has led to not only depression, but increased anger, isolation, irritability, and issues with sleep. According to Ms. Martin, Mr. Thomas's mental health issues stemming from the train accident are permanent and he will require continuous medication and counseling.

This is the evidence that the jury considered in support of Mr. Thomas's $8,000,000.00 general damage award. We now review general damage awards in similar cases, keeping in mind that no two cases are alike. With the particular facts and circumstances of Mr. Thomas's case in mind, we consider the following cases, as they are authoritative in determining whether the general damage award is so excessive as to constitute an abuse of discretion. See Pete, 379 So.3d at 644.

Our examination of cases concerning collisions between vehicles and trains revealed that people do not typically survive their injuries. However, in Duncan v. Kansas City Southern Railway Co., 2000-0066 (La. 10/30/00), 773 So.2d 670, 674, abrogated by Pete, 379 So.3d at 636, the supreme court reviewed a case involving a collision between a train and a church van at a railroad crossing with two survivors. Three sisters, all minors, were passengers in the van that collided with the train. The oldest sister died in the accident, the middle sister was rendered a quadriplegic with a brain injury, and the youngest sister suffered less serious physical injuries. The sister who suffered the traumatic spinal cord and brain injury was awarded $8,000,000.00 in general damages for physical pain and suffering, mental anguish, and loss of enjoyment of life. The supreme court reduced the award to $6,000,000.00 after reviewing cases involving similar injuries. Id., 773 So.2d at 683. We note, however, that this case is over twenty-five years old, which must be considered when reviewing the possible effect of inflation on a similar general damage award made today. See Barr v. Smith, 631 So.2d 76, 78-79, n.1 (La. App. 2nd Cir.), writ denied, 63 7 So.2d 466 (La. 1994).

In a case from over ten years ago, Soileau v. Smith True Value and Rental, 2011-1594 (La. App. 3rd Cir. 1/30/14), 130 So.3d 1060, 1063-1065, writ denied, 2014-043 5 (La. 4/17/14), 13 8 So.3d 627, the plaintiff suffered serious injuries when a front-end loader detached from a tractor and fell onto the plaintiff's leg, shattering it. The plaintiff testified about the impact the accident had on her previously very physically active lifestyle. She stated that since the accident, she never had a day without pain, she relies on daily pain and sleep medications, she was no longer independent, she could not return to her previous work, and she had endured multiple surgeries and painful treatment to remove infected tissue in her permanently damaged and scarred leg. She was awarded $7,500,000.00 in general damages, which was upheld on appeal. Id. at 1067.

In 2018, an appellate court affirmed a $7,500,000.00 general damage award to a plaintiff who sustained second-degree burns over a third of his body and had four surgeries after a workover on an oil well unexpectedly caused the well to blow without warning. He also suffered from chronic pain, lower back pain, traumatic brain injury, and seizures. Shepherd v. AIX Energy, Inc., 51,965 (La. App. 2nd Cir. 5/23/18), 249 So.3d 194, 202-204, 215, writ denied, 2018-1266 (La. 11/5/18), 255 So.3d 1050. A co-plaintiff also sustained second-degree burns to 20% of his body, had pulmonary collapse, hearing loss, and occasional depression, but recovered well from his injuries and was able to return to work. He was awarded a general damage award of $3,000,000.00, which was affirmed. Id. at 202, 212. The appellate court in Shepherd found both general damage awards to be high, but not an abuse of the jury's discretion. Id., 249 So.3d at 212, 215.

In a recent supreme court decision, Barber II, 397 So.3d at 415, the court reconsidered and affirmed a jury's award of $10,750,000.00 in general damages for a plaintiff who sustained a serious traumatic brain injury in a vehicular accident. Using the Pete analysis, 379 So.3d at 643-644, the supreme court reflected on the strong, supportive record, which was largely unrebutted, to find that the general damage award was on the high end of the range of reasonable awards, but was not greatly disproportionate to the mass of prior awards. See Barber II, 397 So.3d at 415-416. The court outlined the plaintiff's craniofacial injuries requiring intubation and multiple surgeries, cervical spine and shoulder injuries that required surgeries, brain damage, chronic pain, anxiety, depression, and insomnia, all of which drastically changed the plaintiff's life. See Barber II, 397 So.3d at 411-414. The court found that the record amply demonstrated the particularly detrimental effect the injuries had on the plaintiff's personality, lifestyle, identity, and self-image. Id., 397 So.3d at 416. The court also observed that the jury must have accorded significant weight to the strong evidence of the 37-year old plaintiff's injuries, impairments, limitations, transformed appearance, altered personality, and resulting depression, all of which he was keenly aware. Id. Thus, on rehearing, the supreme court found that the general damage award did not “shock the conscience,” and did not constitute an abuse of discretion. Id.

In another recent case, Boyance v. United Fire & Cas. Co., 2023-442 (La. App. 3rd Cir. 4/3/24), 387 So.3d 586, 597, writ denied, 2024-00632 (La. 9/24/24), 392 So.3d 1145, the court affirmed a $1,520,000.00 general damage award for a 31-year old plaintiff who underwent non-surgical procedures on her back to reduce nerve pressure and lower back and leg pain after an accident that caused her vehicle to spin around and catch on fire while her child was inside. The back procedures relieved some, but not all of the plaintiff's physical pain. The plaintiff also suffered from post-traumatic stress disorder, anxiety, nightmares, irritability, and low-level depression. She was able to return to work, but she no longer enjoyed her preaccident activities. Id. at 598-601.

In another motor vehicle accident, Levine v. Nationwide Agribusiness Ins. Co., 2023-488 (La. App. 3rd Cir. 3/6/24), 3 81 So.3d 908, 920-921, writ denied, 2024-00426 (La. 6/19/24), 3 86 So.3d 310, the plaintiff sustained significant, life-changing injuries requiring three surgeries: a lumbar fusion, implantation of a spinal cord stimulator, and a shoulder surgery. The plaintiff struggled with activities of daily living due to chronic headaches and dizziness related to a head injury caused by the accident. The plaintiff could not return to his former job as a police officer and he suffered from post-traumatic stress disorder, headaches, and major depression. The appellate court found that the jury's general damage award of $3,231,941.87 was not an abuse of discretion. Id. at 921.

Comparing the awards in the above cases with the specific circumstances of Mr. Thomas's case, we find no abuse of the jury's vast discretion in its assessment of general damages. Mr. Thomas has suffered permanent, life-altering physical and mental injuries and endures daily, physical and mental pain that will most likely last the rest of his life. The jury recognized Mr. Thomas's suffering and must have placed significant weight to the strong record of his ongoing suffering. While the $8,000,000.00 total general damage award (subject to the apportionment of fault as confirmed herein) may be on the high side, we find that the jury's award in this case is not the “result of passion or prejudice,” does not “shock the conscience,” and does not constitute an abuse of discretion. See Barber II, 397 So.3d at 408 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993) and Baack v. McIntosh, 2020-01054 (La. 6/30/21), 333 So.3d 1206, 1215). The award is supported by the largely unrebutted evidence in the record.⁹

CONCLUSION

For the reasons expressed, we affirm the August 30, 2022 judgment in favor of Theopholia Thomas and against BNSF Railway Company. BNSF Railway Company is assessed with all costs of this appeal.

AFFIRMED.

I respectfully disagree with the majority's conclusion that the jury did not abuse its discretion in awarding $8,000,00.00 in general damages to Mr. Thomas. I believe the jury's general damage award was “the result of passion or prejudice” and does not bear “a reasonable relationship to the elements of the proved damages.” Barber Bros. Contracting Co., LLC v. Capitol City Produce Co., LLC, 2023-00788 (La. 12/19/24), 397 So.3d 404, 408 (on rehearing) (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), abrogated by Pete v. Boland Marine & Manufacturing Company, LLC, 2023-00170 (La. 10/20/23), 379 So.3d 636.) In my opinion, the jury's award of $8,000,000.00 in general damages is so high in proportion to Mr. Thomas's injuries that it shocks the conscience. See Baack v. McIntosh, 2020-01054 (La. 6/30/21), 333 So.3d 1206, 1215. See also Barber Bros. Contracting Co., LLC, 397 So.3d at 419 (Weimer, C.J., dissenting in part).

The cases cited by the majority in its general damage analysis are not “truly similar” to this case and the injuries sustained by Mr. Thomas. See Pete, 379 So.3d at 645; Barber Bros. Contracting Co., LLC, 397 So.3d at 409. For instance, the plaintiff in Duncan v. Kansas City Southern Railway Co., 2000-0066 (La. 10/30/00), 773 So.2d 670, abrogated by Pete v. Boland Marine & Manufacturing Company, LLC, 2023-00170 (La. 10/20/23), 3 79 So.3d 63 6), was rendered a quadriplegic by the accident. In Soileau v. Smith True Value & Rental, 2011-1594 (La. App. 3d Cir. 1/30/14), 130 So.3d 1060, 1065, writ denied, 2014-0435 (La. 4/17/14), 138 So.3d 627, the plaintiff sustained permanent scarring; her doctors anticipated permanent duration and distance limitations on her ability to sit and walk and opined that she would never have a fully functional recovery from her injuries.

The plaintiff awarded $7,500,000.00 in general damages in Shephard v. AIX Energy, Inc., 51,965 (La. App. 2d Cir. 5/23/18), 249 So.3d 194, 202, writ denied, 2018-1266 (La. 11/5/18), 255 So.3d 1050, had second-degree burns over 33-49% of his body, including his face, neck, flank, shoulders, forearms, and legs. He was “almost unable to describe the horrific experience, but he saw his skin falling off and ‘couldn't escape the pain’.” Shephard, 249 So.3d at 214. The plaintiff had four surgeries, including facial reconstruction to give him a “new lip.” Shephard, 249 So.3d at 202. His doctors opined he would require additional skin grafts every 18 months to maintain his skin and would likely lose his left ear. Shephard, 249 So.3d at 214.

Finally, in Barber, 397 So.3d at 410, 417, the supreme court found support for a general damages award of $10,750,000.00 to a plaintiff who sustained multiple craniofacial injuries and a traumatic brain injury and was “at risk of dying for several days following the accident.” The plaintiff had numerous surgeries related to his facial injuries, a cervical fusion, and two surgical procedures to repair left shoulder injuries and a related complication, which left him with limited range of motion of the left arm. Barber, 397 So.3d at 410. As a result of the traumatic brain injury, the plaintiff experienced a permanent change in his personality, as well as changes to his cognitive abilities and memory capacity. Barber, 397 So.3d at 411. Over two years after the accident, deficits in the plaintiff's executive function, processing speed, and language function remained. Barber, 397 So.3d at 411. Due to the brain injury, the plaintiff was at significant risk for developing neurodegenerative diseases, including dementia and Alzheimer's disease. Barber, 397 So.3d at 411.

Levine v. Nationwide Agribusiness Ins. Co., 2023-488 (La. App. 3d Cir. 3/6/24), 381 So.3d 908, writ denied, 2024-00426 (La. 6/19/24), 386 So.3d 310, appears to be the most comparable case cited, and the award there was less than half of the award in this case.

I would reverse and vacate this portion of the judgment and award general damages to Mr. Thomas in an amount more in line with “truly similar” cases and in light of the particular facts and circumstances of this case and the particular injuries suffered by Mr. Thomas. See Pete, 379 So.3d at 643.

FOOTNOTES

1.   The plaintiff's name is spelled and referenced several ways throughout the record, including “Theo Thomas.” We note the correct spelling is “Theopholia Thomas.”

2.   Both streets are public and are maintained by the town, and the crossings are owned and maintained by the various railroad companies.

3.   While there are multiple sets of railroad tracks at the Lockley Street crossing, this case involves only the first wooden crossing that Mr. Thomas encountered, which was owned and maintained by BNSF.

4.   Mr. Thomas has not been able to return to work since the accident. His most significant injury required a two-level fusion surgery to stabilize his low back. Mr. Thomas suffered surgical complications, including a spinal fluid leak that required two more surgeries, infections for six months post-op due to an open wound at the surgical site, and residual radiating leg pain that may require future back surgeries, as well as spinal cord stimulator treatment. Mr. Thomas also suffers from flashbacks regarding the accident and depression related to his chronic pain and life changes since the accident.

5.   Mr. Thomas initially brought suit individually and on behalf of his daughter, Azyria O. Thomas. His daughter's loss of consortium claim was later dismissed. All other defendants, including the Town of Baldwin, Chris Gary and Sir Johnson (BNSF employees), and Pelican Waste & Debris, L.L.C., were dismissed prior to trial.

6.   In an alternative assignment of error, BNSF argues that if the liability finding is reversed, then the award of costs against BNSF should be vacated or modified.

7.   Louisiana Civil Code Article 2323(A) provides, 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 ․ or that the person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

8.   BNSF does not challenge the $1,773,000.00 award for special damages. With the 15% allocation of fault to Mr. Thomas, the total amount awarded to Mr. Thomas was $8,307,050.00 ($1,773,000.00 special damages + $8,000,000.00 general damages = $9,773,000.00 less 15% fault of $1,465,950.00 = $8,307,050.00 total damage award to Mr. Thomas).

9.   We also note that general damage awards will fluctuate and increase over time given changes in economic conditions, including inflation and cost of living increases to calculate more accurate current-day numbers. See Walker v. Anco Insulations, Inc., 2022-0763 (La. App. 4th Cir. 5/3/23), 382 So.3d 243, 252.

WOLFE, J.

Penzato J., agrees in part, dissents in part and assigns reasons