* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30470

(Summary Calendar)

JAMES R. WYKLE,

Plaintiff-Appellee,

versus

CITY OF NEW ORLEANS,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

(96-CV-1369)

July 23, 1998

Before SMITH, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM: *

Defendant-Appellant City of New Orleans (“the City”) appeals

the district court’s judgment in favor of Plaintiff-Appellee James

R. Wykle, finding the City strictly liable and alternatively guilty

of ordinary negligence for Wykle’s injuries suffered as a result of

his fall precipitated by trippi ng in a hole on Bourbon Street at

St. Peter Street. The City challenges the district court’s finding

that the hole created an unreasonably dangerous condition, as well2 Wykle also suffered chondromalacia patella, quadriceps muscle

and tendon deficiency, di splaced or patella baja, osteoarthritis

with increased likelihood of arthritis, aggravation to preexisting

poliomyelitis, genu recurvatum, left knee and ankle pain, and

arthritis of the left leg.

2 as its failure to assess any comparative fault to Wykle. The City

further contends that the damage award was excessive and that the

district court erred in failing to order that the amount awarded

for future medical expenses be placed in a reversionary trust for

Wykle’s benefit. Finding no reversible error in the district

court’s judgment following the bench trial of this case, we affirm.

I

FACTS AND PROCEEDINGS

Wykle, a 45 year old resident of North Carolina, was afflicted

with polio as a child, causing severe limitation in his upper

extremities and his left leg. While visiting New Orleans in

September 1995, he sustained permanent and disabling injuries as a

result of a pedestrian accident in New Orleans. Wykle was walking

with several friends on Bourbon Street when his right foot went

into a relatively deep, unprotected hole which was filled with

water, causing him to fall. The hole had been previously used for

the placement of a barricade pole, but because of its damaged

condition, it was no longer suitable for such use. Wykle suffered

an acute fracture of his right knee which required open knee

surgery and tendon repair, resulting in a thirty-five percent

permanent, partial functional disability to his right knee. 2 Prior

to the accident, Wykle had relied heavily on his right leg, which3

had been completely normal.

Wykle brought suit against the City urging responsibility on

the basis of strict liability and, alternatively, ordinary

negligence. The district court concluded that the City was

strictly liable, reasoning that (1) it had notice of the vice or

defect prior to the accident with reasonable opportunity to remedy

the defect, as jointly-stipulated; and (2) the defect posed an

unreasonable risk of harm, given its location and the fact that a

pole co uld no longer be inserted in this particular hole. The

court opined critically that the City was apparently more concerned

about vehicular traffic than pedestrian traffic, even though that

part of Bourbon Street served as a pedestrian mall at various

times.

Alternatively, the district court found “the City guilty of

ordinary negligence in failing to correct a defect in a timely and

safe manner and in failing to barricade or otherwise protect the

public from this dangerous hole.” The court observed that, “the

most nominal of prevention could have r ectified this dangerous

c ondition . . . .” Moreover, he explained that the water in the

hold probably disguised its existence.

Next, the court considered the i ssue of comparative

negligence, concluding that Wykle exercised reasonable care for his

safety, and therefore assessed no percentage of comparative fault

to him. The court took into account that Bourbon Street is “a

distracting type of street which calls a pedestrian’s attention to

stores, businesses and other facilities

. . . . Their attention is4

only peripher ally directed towards the street and down towards

their feet.” Further, the court found that because of his previous

health problems, Wykle was “looking ahead to make sure there was

sufficient distance between himself and those in front of him,” and

that doing so was not a breach of his dut y of reasonable care.

Finally, the court noted that the existence of the hole was likely

concealed by the accumulation of rai nwater “such that [Wykle’s]

attention may not, even had he seen the water, have i ndicated to

him that there was a hole beneath that water.”

As for the quantum of damages, the district court stated that

Wykle was entitled to general damages for pain and suffering,

scarring (there is a large scar over the surface of Wykle’s knee,

whic h will not reduce, and other scarring from infections),

physical disability as a result of the thirty-five percent

permanent partial functional disability to his right knee, and loss

of enjoyment of life. Regarding loss of enjoyment of life, the

court was satisfied that Wykle had participated in hiking, camping,

swimming (the court noted that he was able and had the capacity to

swim, albeit on a limited basis because of his previous

poliomyelitis), martial arts, and various other sports activities.

The court concluded that, although Wykle had not engaged in some of

these activities in a nu mber of years, his loss of enjoyment of

life had been significantly diminished by his fall. Moreover, the

court concluded, the fall caused mental anguish which would become

exacerbated over time.

The court commented that Wykle “is a courageous and tenacious5

individual who does not present himself to this Court as a

malingerer, nor one who does not achieve to advance himself. He

has worked for a substantial portion of his adult life and has done

so with a very serious handicap from

. . . poliomyelitis.” The

court further noted that, in spite of the poliomyelitis, Wykle had

been a security guard at a hotel for a substantial period of time,

apparently functioning quite capably in that job. The district

court admired Wykle’s desire and drive, commenting that “many other

individuals who appear in this Court would not have exercised that

desire to work and continue about their normal business with a

similar sort of injury.” In considering the instant case, the

district court asked, rhetorically, “Does that make his injury more

severe?”

The cour t answered its own question in the affirmative,

explaining that “[t]his gentleman has had one functional leg that

was not impaired from poliomyelitis. That functional leg has now

been totally destroyed for the remainder of his life with very

limited possibilities of recovering.” The court noted that “[t]he

City must take its victim as it found h im,” and determined that

“[g]iven his delicate condition and given what damage has been done

to him,

. . . he has suffered a very life-altering injury which may

not have occurred to an average person of ave rage health, but he

must be compensated for the horrific outcome that he will suffer in

the future and has suffered to date.” Accordingly, the district

court awarded Wykle general damages of $650,000, which co vered

past, present, and future pain and suffering, physical disability,3 574 So. 2d 344 (La. 1990)(holding that $50,000 award for loss

of earning capacity to 36 year old plaintiff, who received back

injury in automobile accident resulting in 10% disability rating,

was not an abuse of discretion despite limited evidence on the

economic impact of his partial disability on his earning capacity

or ability).

4 F ED .R.C IV .P. 52(a); see e.g.

, United States v. Alaniz-Alaniz

, 38 F.3d 788, 790 (5th Cir. 1994), cert. denied

, 514 U.S. 1041, 115

S. Ct. 1412, 131 L. Ed. 2d 297 (1995).

5 Texas Eastern Tran smission Corp., v. McMoRan Offshore

Exploration Co.

, 877 F.2d 1214, 1223 (5th Cir.), cert. denied

, 493

U.S. 937, 110 S. Ct. 332, 107 L. Ed. 2d 321 (1989); Transorient

Navigators Co., S.A. v. M/S Southwind

, 788 F.2d 288, 291 (5th Cir.

6 scarring, loss of enjoyment of life, and mental anguish.

The court also awarded past wages and medical expenses as

s tipulated. In addition, relying on the deposition testimony of

physicians and other experts, the court awarded future medicals of

$15,000, plus $8,500 for a leg brace. Finally, the court awarded

$50,000 for loss of earning capacity, althoug h “there ha[d] been

little, if any, testimony with respect to comparison of past lost

wages an d earnings with respect to earning capacity.”

Nevertheless, relying on Hobgood v. Aucoi n

, 3 the court was

“satisfied, given the testimony of the experts herein, that

[Wykle’s] earning capacity —— not actual earnings lost, but his

actual earning capacity

—— has been impacted because of this

injury.”

II

ANALYSIS

We review the factual findings of the district court for clear

error. 4 The allocation of fault is a factual issue, reviewed under

the clearly erroneous standard. 5 In addition, “[a] trial judge’s1986).

6 Hernandez v. M/V Rajaan

, 841 F. 2d 582, 587 (5th Cir.)(citing

Sosa v. M/V L AGO IZABAL , 736 F. 2d 1028, 1035 (5th Cir.

1984)(citing Caldarera v. Eastern Airlines, Inc.

, 705 F.2d 778, 783

(5th Cir. 1983)), cert. denied , 488 U.S. 981, 109 S. Ct. 530, 102

L. Ed. 2d 562 (1988) and 488 U.S. 1030, 109 S. Ct. 837, 102

L. Ed. 2d 970 (1989).

7 Id. (citing Bartholomew v. CNG Producing Co.

, 832 F.2d 326,

331 (5th Cir. 1987)(citing Hawkes v. Ayers

, 537 F.2d 836, 837 (5th

Cir. 1976)).

8 Anderson v. City of Bessemer City, North Carolina

, 470 U.S.

564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985)(quoting

United States v. United States Gypsum Co.

, 33 U.S. 364, 395, 68 S.

Ct. 525, 542, 92 L. Ed. 746 (1948)).

9 Id.

7 assessment of damages is a finding of fact which we review under

the clearly erroneous standard.” 6 “This court will not overturn a

damage award u nless the trier of fact abused its discretion.” 7

A fin ding of fact is clearly erroneous only “when although

there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.” 8 We cannot reverse the decision of

the district court simply because we would have decided the case

dif ferently. 9 In fact, “[i]f the district court’s account of the

evidence is plausible in light of the record viewed in its

entirety,” we will not reverse it , even if convinced that had we

“been sitting as the trier of fa ct, [we] would have weighed the

evidence differently. Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly10 Id. at 573-574, 105 S. Ct. at 1511 (citing United States v.

Yellow Cab Co. , 338 U.S. 338, 342, 70 S. Ct. 177, 179, 94 L. Ed.

150 (1949); Inwood Labs., Inc. v. Ives Labs., Inc. , 456 U.S. 844,

102 S. Ct. 2182, 72 L. Ed. 2d 606 (1982)).

8 erroneous.” 10

Bourbon Street is the premier tourist attraction street in New

Orleans. While it is sometimes blocked off to vehicular traffic,

it is common knowledge that, even when it is not, there is a high

incidence of pedestrian traffic in the street and crossing the

street, and not just at the corners and intersections. Jaywalking

on Bourbon Street, at all hours, is commonplace. As noted, the

record establishes that the subject hole was filled with rainwater

at the time of Wykle’s fall. It is elemental that when a hole of

this nature on a street of this n ature is filled with water,

ordinary observation would not reveal the hole’s depth, even if

only a matter of inches. We find nothing in the record to

(1) refute the district court’s determination that the hole posed

an unreasonable risk of harm, or (2) demonstrate negligence or

fault on the part of Wykle.

Admittedly, if we had tried this case without a jury, we may

not have reached the same conclusions as the district court. For

example, we may have found Wy kle guilty of some slight degree of

comparative fault, or we may have awarded a lesser or greater

quantum of damages than did the district court. The point is that

after reviewing the record on appeal, the briefs of the parties,

and the opinion of the district court, we are not “left with the1 1 Id. at 573, 105 S . Ct. at 1511 (quoting U nited States v.

United States Gypsum Co.

, 33 U.S. 364, 395, 68 S. Ct. 525, 542, 92

L. Ed. 746 (1948)).

12 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985).

13 L A .R EV .S TAT .A NN . § 13:5106 (West Supp. 1998).

1 4 701 So . 2d 484 (La. Ct. App. 1997), w rit denied

, 709 So.2d

785 (1998).

9 definite and firm conviction that a mistake has been committed,” 11

absent which we cannot ascribe clear error to the district court’s

decision. As a court of error, we cannot substitute our judgment

for that of the district court under the well-known standard set

forth in the Supreme Court’s Anderson decision. 12

The City’s argument that the district court erred in failing

to order the plac ement of future medical expenses, including the

costs of the knee braces, in a reversionary trust pursuant to

La.R.S. 13:5106 i s without merit. 1 3 The reversionary trust

requirement did not exist prior to the 1996 amendment to La.R.S.

13:5106. In L emaire v. Estate of Harrington

, 14 the Louisiana third

circuit court of appeal held that the reversionary provisions

affect su bstantive rights and therefore cannot be applied

retroactively. As Wykle’s accident occurred in September 1995, the

reversionary trust requirement is inapplicable.

III

CONCLUSION

For the foregoing reasons, the decision of the district court

is, in all respects,

AFFIRMED.