IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30572

Summary Calendar

EDMOND STOKES, substituted as proper party for deceased plaintiff 

McKinley Polk; JEREMY STOKES, substituted as proper party for deceased 

plaintiff McKinley Polk, 

 Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC NO. 2:17-CV-1164

Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

McKinley Polk was injured while riding on a bus that hit a pothole on 

Canal Street in New Orleans. Because the Department of Veteran’s Affairs 

(VA) operated the bus, the negligence suit that followed was filed in federal 

court. After a bench trial, the magistrate judge found that the VA driver was 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 18, 2018

Lyle W. Cayce

Clerk

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negligent and assessed damages of $10,000 for pain and suffering and just over 

$1,000 for medical expenses. The judge then reduced those amounts by 15% 

based on the negligence of the City of New Orleans in not fixing the dangerous 

pothole. Edmond and Jeremy Stokes, Polk’s sons who took over the lawsuit 

when Polk passed away for reasons unrelated to the bus accident, challenge 

the judgment on two grounds. They argue that the pain and suffering award 

is inadequate and that New Orleans should not be held partly responsible for 

the accident. Seeing no clear error in the trial court’s factual determinations

to the contrary, we AFFIRM.

I.

Polk was on his way to a VA mental health facility when the driver of 

the bus hit a bump on Canal Street. He was thrown into the air and hit the 

back of his neck when he landed. The driver testified that he knew the pothole 

was there because he had driven that route so often. He estimated he was 

driving around 30 or 35 miles per hour at the time. A passenger testified that 

the VA bus had gone over that same bump “hundreds of times.” He also stated

that the bump had been there since an evidently unsuccessful attempt to fill a 

previous pothole. The passenger recalled that the driver quickly accelerated 

just before hitting the bump, causing the front of the bus to dip and tossing the 

passengers into the air. Finding the testimony of both the driver and the 

passenger credible, the magistrate judge hearing the case by consent

determined that the driver had been negligent.

The federal government was not the only actor the trial court found 

responsible. Concluding that New Orleans knew the pothole created an 

unreasonable risk but had not repaired it, the magistrate judge apportioned 

15% of liability to the city.

As for damages, Polk alleged the incident caused neck and lower back 

pain. But Polk was no stranger to those symptoms. He had been experiencing 

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recurrent back pain for at least the previous 37 years. In fact, just three weeks 

before the accident he had visited Dr. Michael Zeringue and complained of 

severe back and neck pain. Polk returned to Dr. Zeringue after the accident

and stated that his condition had worsened. Dr. Zeringue testified that the 

accident had aggravated Polk’s preexisting pain but had not produced any 

substantial changes in Polk’s physical condition. Polk received treatment for 

his pain from the time of the accident until he passed away three years later.

In light of Polk’s long history of back and neck pain, the testimony of Dr. 

Zeringue, and the testimony of one of Polk’s sons, the magistrate judge 

concluded that $10,000 was an appropriate award for pain and suffering. After 

adding the medical expenses, which barely exceeded $1,000, and then reducing 

for the 15% attributable to New Orleans, the trial court entered judgment 

against the United States for $9,386.13.

II.

The district court’s factual findings are reviewed for clear error. Tokio 

Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 970 (5th Cir. 2001) 

(addressing apportionment of liability); Moore v. M/V ANGELA, 353 F.3d 376, 

384 (5th Cir. 2003) (addressing assessment of damages). We can only override 

them if we have a “firm and definite conviction that a mistake has been made.” 

Id. at 382 (cleaned up).

A.

That error is not present in the magistrate judge’s comparative fault 

finding. State law provides the substantive law for Federal Tort Claims Act 

cases like this one. 28 U.S.C. § 2674. Louisiana is a pure comparative 

negligence state, meaning that a factfinder must assess the relative fault not 

just for parties like the United States but also for nonparties like New Orleans. 

La. Civ. Code Ann. art. 2323(A). The city has a duty of care over property it 

owns or that is in its custody. McClelland v. City of Shreveport, 108 So. 3d 810, 

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813–14 (La. App. 2d Cir. 2013). That duty is breached if the city “had actual 

or constructive notice of the particular vice or defect which caused the damage 

prior to the occurrence” and had “a reasonable opportunity to remedy the 

defect.” La. Rev. Stat. § 9:2800(C). A city is charged with constructive notice 

when a defect existed long enough that ordinary diligence would have led city 

officials to discover it. LeBlanc v. City of New Orleans, 573 So. 2d 1274, 1276 

(La. App. 4th Cir. 1991).

The magistrate judge’s finding of that constructive notice was largely 

based on the testimony from Polk’s fellow passenger that we have already 

mentioned (that passenger also sued the United States, but his case settled 

before this trial). According to him, the bump that the bus had gone over 

“hundreds of times” resulted from a completed construction job on Canal 

Street. The driver corroborated the testimony that the bump had existed for a 

long time. This is enough to support the conclusions that the road hazard 

existed long enough for New Orleans to do something about it, especially given 

the reasonable inference that the city created the defect during the 

construction project. 

The Stokes also argue that the evidence was insufficient to support the 

finding that the bump created an unreasonable risk. A Louisiana municipality 

has no duty to repair a defect unless it creates an unreasonable risk of harm. 

Joseph v. City of New Orleans, 842 So. 2d 420, 423 (La. App. 4th Cir. 2003). 

The Stokes contend that it was the VA bus driver who created the risk when 

he drove over the bump at a speed of 30 to 35 miles per hour. But the 

magistrate found that it was the driver’s speed in addition to his prior 

knowledge of the bump that made his conduct negligent. That an experienced

driver should have known to slow down does not mean the bump did not pose 

an unreasonable risk to drivers less experienced with this particular stretch of 

Canal Street. Then again, most drivers understand that they should be on the 

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lookout for potholes. But even if the risk question is debatable, the magistrate

judge did not clearly err in finding that the bump created an unreasonable risk 

that New Orleans had a duty to repair.

B.

The Stokes’ appeal of the pain and suffering award faces, if anything, an 

even more daunting standard of review. Because of the “intangibility” of 

nonpecuniary harms like pain and suffering or emotional distress, we are 

“exceedingly hesitant” to overturn a factfinder’s judgment calls in this area. 

McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 484 (5th Cir. 2015). 

The magistrate judge engaged in a thorough review of damages awarded in the 

Eastern District of Louisiana for aggravation of a plaintiff’s preexisting back 

pain. Those pain and suffering awards ranged from $4,000 to $25,000. The 

magistrate judge did not clearly err in awarding damages at the lower end of 

that range given his determination that the accident led only to a small 

exacerbation of Polk’s pain. Contrary to the Stokes’ contention, the magistrate

judge did consider the duration of Polk’s pain. He determined that the slight 

increase in Polk’s already substantial pain over the remaining years of his life 

was adequately compensated by an award of $10,000. We will not disturb that 

finding made by the judge who heard the testimony.

* * *

The judgment is AFFIRMED.

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