Opinion
CIVIL ACTION, SECTION "C" (4), NO. 01-0527
November 18, 2002
ORDER AND REASONS
This matter was tried before the Court, without a jury, on November 13, 2002, and taken under advisement. Having considered the evidence and testimony adduced at trial, the record, the memoranda of counsel and the law, the Court now issues its opinion.
FINDINGS OF FACT and CONCLUSIONS OF LAW
Findings of Fact
1. The Plaintiffs, Kelli Larkin, Joseph Larkin and Austin Larkin ("Plaintiffs") filed this suit for damages arising out of injuries to Kelli Larkin, a spectator to the Captain's Cup Softball Game held on May 21, 1999, at the Naval Air Station Joint Reserve Base, in Belle Chasse, Louisiana.
2. The United States is sued vicariously under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-2680, for the alleged negligence of David Campbell, a Navy serviceman at the time of the accident and a player/participant on a participating team.
3. The Court has previously ruled that David Campbell was acting in the course and scope of his employment with the United States Navy while participating in the Captain's Cup Softball Game. (Rec. Doc. No. 109).
4. On Friday, May 21, 1999 at 8:00 p.m., a Captain's Cup Softball Game was held between an Aviation Intermediate Mechanics Department ("AIMD") team nicknamed the "Brewhounds" and another Navy affiliated team. Joseph Larkin and David Campbell were members of the Brewhounds.
5. The baseball diamond was surrounded by a standard chain-link fence typical of many baseball fields. The height of the fence was not determined, but apparently it well exceeded the height of a person standing by it. The fence surrounded home plate and ran parallel to the first and third base lines. On the spectator side, the fence was approximately four to five feet from the first row of bleachers.
6. In the bottom of the last inning, Joseph Larkin was at bat with one out. David Campbell was "on deck," or warming up to bat next, along the first base line.
7. Kelli Larkin watched the majority of the game seated in the bleachers along the first base line. When her husband came to bat, she rose, left the bleachers and stood between the first row of the bleachers and the fence, close to the home plate end of the spectator area.
8. Joe Larkin hit a ball that was caught by a player on the opposing team. A double play ensued, and the game was over. Upset and angry because of the double play, the outcome of the game or the fact that his turn at bat was cut short, David Campbell swung his bat several times, then deliberately threw the bat with significant force in the direction of the backstop.
The Court credits the factual version of events as related by plaintiffs' witness, Mark Lee. Defense witness Damon Anderson testified that Larkin struck out and Campbell's arm came back and he "released" the bat. For reasons states herein, the Court found Anderson's testimony unreliable.
9. The bat penetrated the mesh in the chain-link fence "like an arrow" and struck Kelli Larkin in the face. Plaintiffs' witness, Mark Lee testified that after impact the bat landed on the spectator's side of the fence, whereas, defense witness, Damon Anderson testified that the bat landed on the field side of the fence, indicating that did not penetrate the fence. The Court credits Mark Lee's testimony over Anderson's. Anderson testified he was holding an infant in his lap at the time, which would necessarily be a distraction. Anderson stated that Joseph Larkin struck out, whereas, for example, all three other witnesses testified that he had hit the ball. Babe in arms, Anderson was not focused on the game or Kelli Larkin. Also, Anderson has spent 19 years in the Navy, is still in the Navy, and appeared to have been coached to testify favorably to the Navy on matters that had already been decided by the Court. Lee, on the other hand, is no longer with the Navy, lives in another part of the country than the Larkins and displayed no bias towards the, Larkins. It is unclear whether the bat passed through the fence completely or only partially, however, the Court finds Lee to be the more credible witness.
Testimony of Mark Lee.
10. There is no physical or medical evidence to suggest that the fence made contact with Kelli Larkin's face. (See Deposition of Dr. Kamran Khoobehi, p. 44) ("its hard to imagine that the fence would be able to transmit that much force to cause that much bone injury" and "[the fence] would have left a marking on the face of the fence's outline.
11. On July 31, 2000, Plaintiffs Kelli Larkin and Joseph Larkin presented an administrative claim to the Navy pursuant to the FTCA. The claim was denied on March 6, 2001. No administrative claim was filed on behalf of minor Austin Larkin. The Court has previously prohibited evidence of Austin Larkin's claim for loss of consortium. (Rec. Doc. No. 140)
12. The parties stipulate that as a result of Kelli Larkin's injury, Plaintiffs have incurred medical expenses in the amount of $32,674.42.
13. Because Kelli Larkin is the spouse of a military serviceman, TRICARE, formerly Civilian Health and Medical Program of Uniformed Services ("CHAMPUS") has paid $5,701.96 of the total medical expenses. The parties acknowledge that TRICARE is not a source collateral to the United States, and therefore, in the event of judgment, the United States is entitled to a set-off or credit against damages for medical expenses in the amount of $5,701.96. Kennedy v. United States, 750 F. Supp. 206, 213 (W.D. La. 1990). Accordingly, Kelli Larkin has personally incurred medical expenses in the amount of $26,972.46 ($32,674.42 less $5,701.96 paid by TRICARE).
14. Dr. Khoobehi diagnosed Kelli Larkin as having a left zygomaticomaxillary complex fracture, requiring reconstructive surgery involving titanium plates. (Deposition of Dr. Kamran Khoobehi, pp. 17-23)
15. At present Kelli Larkin has a scar on her left check and a very slight distortion to her left eye socket. The Court does not find Kelli Larkin to be disfigured, and the present day effect of the accident on her appearance is minor.
16. Kelli Larkin suffers from headaches, attributable to the presence of the metal hardware used to repair her facial bones. A future surgery to remove the plates and another surgery to reduce the impact of the scar are required. According to Plaintiffs, the combined cost of these two surgeries is estimated at $13,000.
17. Kelli Larkin suffers emotionally and psychologically as a result of her physical injury, because she perceives herself to be disfigured. The Court, however, finds her subjective sense of the extent of the injuries and changed appearance to be inconsistent with the objective facts. The damage to her face is simply not particularly noticeable.
18. As a result of the accident and Kelli Larkin's inability to come to terms with what she perceives to be a disfigured appearance, her husband Joseph Larkin has suffered emotionally and psychologically. The result has been a deterioration of their marital relationship.
Conclusions of Law
1. Under the FTCA, the Court applies the law of the state where the act or omission occurred in order to determine liability. 28 U.S.C. § 1346(b); Gordy v. Burns, 294 F.3d 722, 726, n. 3 (5th Cir. 2002) Accordingly, the principles of Louisiana tort law apply.
2. In order to prevail on a negligence claim under La. Civil Code Art. 2315, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care, (2) the defendant breached the duty by failing to conform his conduct to the appropriate standard, (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries, (4) the defendant's conduct was a legal cause of the plaintiff's injuries, and (5) the existence of actual damages. Mathieu v. Imperial Toy Corporation, 646 So.2d 318 (La. 1994)
3. Duty is a question of law. Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 292 (La. 1993); Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984).
4. David Campbell had no duty, as a participant in a sporting activity, while acting in the normal course of the game, to refrain from accidentally injuring a spectator, who is fully aware of the risks involved. See Turner v. Caddo Parish School Board, 214 So.2d 153 (La. 1968) (finding no duty owed to elderly spectator on football field sideline because her injury was reasonably foreseeable); Creel v. Washington Parish Fair Association, 517 So.2d 467, 468 (La.App. 1st Cir. 1987) ("[N]o statutory or jurisprudential duty placed upon a participant in a sports activity abiding by the rules of the game to refrain from accidentally injuring a spectator who is fully aware of the risks involved.") (emphasis added); Melder v. State Farm Fire Casualty Company, 498 So.2d 1095 (La.App. 3rd Cir. 1986); Lear v. United States Fire Insurance CO., 392 So.2d 786 (La.App. 3rd Cir. 1980) (finding no duty existed, because plaintiff should have reasonably foreseen the injury); Bendetto v. Travelers Insurance Company, La. App. 4th Cir. 1965) (finding no duty to protect student sitting on third base line from errant bat tossed or dropped by batter).
Yet, David Campbell did have a duty to not to engage in unsportsmanlike conduct that was unreasonably dangerous. Unlike the defendants in the above cited cases, David Campbell was not "abiding by the rules of the game" when he forcefully hurled his bat in anger at the backstop. There must be some limit to the degree of risk assumed by the spectator concurrent with the nature of the specific sporting activity involved. A spectator to a softball game should reasonably anticipate the dangers of foul balls flying over the backstop or even, bats splintering on impact with a particular pitch. But, regardless of the presence of the backstop, David Campbell had a duty to abide by the rules of the game. One rule that every Little Leaguer is taught from an early age is never to throw a bat. David Campbell had a duty not to throw his bat in anger with the degree of force with which he threw it at the chain link fence behind which the spectators stood.
In Benedet to, the Court refrained from distinguishing between whether Julia Cullen, the batter, threw or dropped the bat after hitting a pitched softball into rightfield, because there was no evidence that the girl "had a propensity to throw bats" and "she acted as any normal 12 or 13-year old child would in the accepted game of softball." Id., 172 So.2d at 356. In contrast, David Campbell was not acting as an ordinary prudent person when, in anger, he purposefully threw his bat.
5. David Campbell breached this duty when he forcefully hurled a softball bat at the chain link fence behind which the spectators stood.
6. David Campbell's throwing of the bat was the cause-in-fact of Kelli Larkin's injuries. The evidence clearly established that Kelli Larkin was hit in the face with the bat thrown by David Campbell.
7. David Campbell's throwing of his bat was the proximate or legal cause of Kelli Larkin's injuries. Defendant argues that "it was reasonable for David Campbell to assume that the backstop would repel all errant balls and bats back into the field of play, " and that "it was not foreseeable that a bat of large dimension would pass through a tiny 2x2 square inch opening and injure Kelli Larkin on the opposite side of the playing field." (Defendant's Suggested Finding of Facts and Conclusions of Law). Yet, Defendant also argues that Kelli Larkin was negligent in standing too close to the fence, and that by placing "herself in an unprotected area of a ballpark" she "assumed the risk of resultant hazards and dangers." ( Id.). Defendant's logic is flawed because, what is unreasonable and unforeseeable to David Campbell must be equally unreasonable and unforeseeable to Kelli Larkin. Likewise, what is reasonable and foreseeable to Kelli Larkin must be equally reasonable and foreseeable to David Campbell.
8. Kelli Larkin did not assume this risk. Under Louisiana law "the absolute defenses of assumption of the risk and contributory negligence are no longer viable as they have been subsumed by comparative fault principles." Joseph v. Broussard Rice Mill, Inc., 772 So.2d 94, 99 (La. 2000), citing Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La. 1988). If Kelli Larkin was "dangerously close behind the backstop," as Defendant contends, then from that position she cannot complain of an injury due to an errant ball or bat. This is so, not because she assumed the risk of injury, but because, a player in a softball game, abiding by the rules and standards of conduct, is not negligent if a spectator is accidently injured by an errant ball or bat. See Murray, 521 So.2d at 1125 (finding a hypothetical defendant incapable of negligence in "the textbook example [of] the sports spectator who has the misfortune of being hit by an errant ball"). But, unlike the hypothetical textbook defendant in Murray, David Campbell's bat was not errant; it was purposefully thrown in anger and with considerable force in the direction of the spectators. Mark Lee testified that David Campbell was extremely angry after the game was lost and that he hesitated momentarily, seeming to ponder whether to throw the bat or not, before he "just lost it."
9. "The essence of the legal cause inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the duty." Haydin v. Crescent Guardian, Inc., 818 So.2d 1033, 1040 (La.App. 4th Cir. 2002), citing Roberts v. Benoit, 605 So.2d 1032, 1044 (La. 1991). Thus, the proper question posed is whether David Campbell's duty not to throw his bat in the direction of the spectators encompassed the risk and harm occasioned by Kelli Larkin. The prohibition on the throwing of bats is precisely intended to prevent the type of injury suffered by a plaintiff like Kelli Larkin, regardless of the presence of the protective backstop.
The backstop is designed to protect spectators from errant balls and bats. It's presence is not a general release to engage in dangerous and unsportsmanlike conduct.
10. Medical Expenses. The parties have stipulated that Kelli Larkin has personally incurred medical expenses in the amount of $26,972.46 ($32,674.42 less $5,701.96 paid by TRICARE). Further, credible evidence exists that future surgeries to remove the metal hardware used to repair the facial bones and to reduce the impact of the scar would cost $13,000.
Accordingly, the Court awards Plaintiffs the cost of medical expenses in the amount of $39,972.46 ($26,972.46 paid, plus $13,000 in anticipated costs).
11. General Damages. The evidence at trial revealed that Kelli Larkin suffered a severe injury to her face, including facial laceration, fractures and scarring. She testified that she was scared to death" and experienced searing physical pain on route to the hospital. As a result of her injury she was incapacitated for a period of up to 3 weeks and with bruising to her face for 1 to 2 months after surgery. She undoubtedly experienced legitimate anxiety for some months regarding any lasting effect of the injury to her face. She continues to suffer from anxiety and depression in connection with her perceived altered physical appearance.
already noted, although Kelli Larkin's appearance has been affected by the injuries sustained in the accident, her subjective perception of her appearance does not comport with objective reality. The scarring on her cheek is barely noticeable, and the Court cannot characterize her face as disfigured.
Accordingly, the Court awards General Damages in the amount of $110,000.
12. Loss of Consortium. Joseph Larkin testified that his wife's. injuries and her reaction to them have had a significant impact on their marriage. Before the accident the couple shared a healthy, jubilant relationship and active social life. Now, Kelli Larkin no longer enjoys going outside the home and complains about her appearance. As a result of the accident, their intimate and sexual relationship has suffered. The Court finds Joseph Larkin's testimony concerning the couple's changed relationship to be credible and compelling.
Accordingly, the Court awards Joseph Larkin $15,000 for loss of consortium.
The Court does not award any amount for the loss of consortium claim of minor, Austin Larkin. Previously, the Court granted Defendant's motion in limine to prohibit any evidence of Austin Larkin's loss of consortium claim, effectively dismissing it altogether for lack of subject matter jurisdiction. (See Rec. Doc. No. 140).
13. Summary of Award:
Medical Expenses $26,972.46
Future Medical Expenses $13,000.00
General Damages $110.000.00
Loss of Consortium $15,000.00
Total $164,972.46