United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's request for
damages pursuant to the Court's entry of default
judgment. An evidentiary hearing was held on March 24, 2017
in which Defendant did not appear. The Court has reviewed the
evidence and Plaintiff's submissions and is prepared to
rule. As stated more fully below, the Court awards Plaintiff
damages in the amount of $760, 000.00.
brought this action against Defendant for injuries suffered a
parachute jump. Plaintiff contended Defendant (1) provided
inadequate training in preparation for the parachute jump,
(2) selected a person to provide radio assistance who had no
prior experience, (3) provided old equipment that
malfunctioned during the jump, and (4) permitted Plaintiff to
use a parachute she was ill prepared to use and which was
inappropriate for her skill level. The Court granted
Plaintiff's Motion for Default Judgment against Defendant
as a sanction for his repeated failure to comply with its
pretrial orders and otherwise participate in these
proceedings [Doc. No. 71]. In accordance with Rule
55(b)(2)(B), Federal Rules of Civil Procedure, a hearing was
held to determine the amount of Plaintiff's damages.
Defendant did not appear at the hearing.
an entry of default, a defendant cannot defend a claim on the
merits.” Olcott v. Delaware Flood Co., 327
F.3d 1115, 1125 n. 11 (10th Cir. 2003) (citations omitted).
However, a default judgment does not establish the amount of
damages; Plaintiff must establish that the amount requested
is reasonable under the circumstances. Mathiason v.
Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269,
1274-75 (D. Kan. 2016). “Damages may be awarded only if
the record adequately reflects the basis for [the] award via
a hearing or a demonstration by detailed affidavits
establishing the necessary facts.” Id.
(citation omitted); Regional Dist. Council v. Mile High
Rodbusters, Inc., 82 F.Supp.3d 1235, 1243 (D. Colo.
2015) (“Actual proof must support any default judgment
for money damages where there is an uncertainty as to the
amount. … This requirement ensures that a plaintiff is
not awarded more in damages than can be supported by actual
evidence.”) (citing Klapprott v. United
States, 335 U.S. 601, 611-12 (1949)). “The Court
accepts as undisputed any facts set forth by the moving party
in affidavits and exhibits.” Id.
award of damages is appropriate in this case. “Under
Oklahoma law, all negligence claims require proof of a duty,
a breach of that duty, and causation.” Martinez v.
Angel Exploration, LLC, 798 F.3d 968, 974 (10th Cir.
2015) (citing Scott v. Archon Group, L.P., 2008 OK
45, ¶ 17, 191 P.3d 1207, 1211). The general rule under
Oklahoma law is that a defendant owes a duty of care to all
persons who are foreseeably endangered by his conduct with
respect to all risks that make the conduct unreasonably
dangerous. Trinity Baptist Church v. Brotherhood Mut.
Ins. Services, LLC, 2014 OK 106, ¶ 8, 341 P.3d 75,
84. Defendant owed a duty to ensure Plaintiff had proper
equipment and received adequate instruction prior to her
jump. The Court accepts as true Plaintiff's allegations
via her expert's affidavit that her training time (four
hours) was inadequate and the parachute assigned to her was
too small and fast for a person of her young age and relative
requests actual damages in the amount of $1, 500, 000 and
punitive damages in the amount of $1, 500, 000. Mot. for
Entry of Default Judgment at 8. A plaintiff bears the burden
of providing evidence in support of her damages claim.
Niemi v. Lasshofer, 770 F.3d 1331, 1355 (10th Cir.
2014). The applicable standard is a preponderance of the
evidence. Brown v. USA Truck, Inc., No.
CIV-11-856-D, 2013 WL 4848837, at *20 (W.D. Okla. Sept. 11,
2013) (“A plaintiff bears the burden of proving [her]
damages by a preponderance of the evidence.”).
damages in a tort action consist of the amount that will
compensate for all harm proximately caused by the tortious
conduct. See 23 Okla. Stat. § 61 (“For
the breach of an obligation not arising from contract, the
measure of damages, except where otherwise expressly provided
by this chapter, is the amount which will compensate for all
detriment proximately caused thereby, whether it could have
been anticipated or not.”). The Court may consider the
following elements in determining an appropriate award: (1)
Plaintiff's physical pain and suffering, past and future;
(2) her mental pain and suffering, past and future; (3) her
age; (4) her physical condition immediately before and after
the accident; (4) the nature and extent of her injuries; (5)
whether the injuries are permanent; (6) the physical
impairment; (7) the disfigurement; (8) loss of earnings/time;
(9) impairment of earning capacity; and (10) the reasonable
expenses of the necessary medical care, treatment, and
services, past and future. See Oklahoma Uniform Jury
Instructions - Civil § 4.1 (2016 Supp.); Brown v.
USA Truck, Inc., No. CIV-11-856-D, 2013 WL 4848837, at
*19 (W.D. Okla. Sept. 11, 2013) (citing Shebester, Inc.
v. Ford, 1961 OK 67, ¶¶ 11-14, 361 P.2d 200,
testified that she was a straight A student in high school at
the time of her accident. She is currently enrolled at Sam
Houston State University, where she is studying biomedical
sciences and hopes to be a trauma surgeon. Plaintiff
testified credibly regarding her injuries, physical
condition, and pain and suffering. She stated that she has
substantially recovered, but suffers certain deficits and
health conditions as a result of the accident that are
probably permanent. The Court concludes Plaintiff has proved
by a preponderance of the evidence that she sustained
substantial injuries caused by the accident and has incurred
expenses for medical treatment and that these expenses were
the result of the accident. The evidence establishes
Plaintiff suffered the following injuries: severe brain
trauma, compression fractures in her thoracic spine, rib
fractures, collapsed lungs, scapula fracture, pelvic
fracture, broken teeth, and bleeding from her liver and
kidneys. The evidence further establishes that Plaintiff
suffers from high blood pressure, experiences frequent severe
headaches, will experience arthritis due to her fractures,
and continues to deal with complications from the accident.
During her fall, Plaintiff blacked out and woke up in the
hospital, where she remained hospitalized for three weeks and
thereafter completed one month of outpatient treatment.
evidence also establishes Plaintiff was clinically diagnosed
with post-traumatic stress disorder (PTSD) because of the
accident; she frequently suffers nightmares and panic
attacks. Although Plaintiff is physically active, her
headaches and other complications substantially impair her
concentration and she has trouble sleeping at night. The
evidence establishes that a significant medical issue is her
recurring kidney infections. Plaintiff will continue to have
problems with her kidneys and will need continued treatment,
counseling, and further evaluations.
on the foregoing, the Court concludes Plaintiff is entitled
to recover damages for her past and future physical pain and
suffering. “Damages for pain and suffering are not
susceptible to proof by a specific dollar amount, and
accordingly, the [trier of fact] has wide discretion in
rendering a particular amount.” Woolard v. JLG
Industries, Inc., 210 F.3d 1158, 1174 (10th Cir. 2000)
(citing Blanke v. Alexander, 152 F.3d 1224, 1237
(10th Cir. 1998)). A reasonable amount to compensate her in
this regard is $400, 000. To this end, the Court also
concludes Plaintiff is entitled to recover damages for her
mental pain and suffering, both past and future, and that a
reasonable amount to compensate her in this regard is $350,
000. Plaintiff's doctor estimated her future medical
expenses for treatment of her kidneys would be in the range
of $5, 000-$10, 000. The Court concludes a reasonable amount
to compensate her for future medical expenses is thus $10,
000.Based on the extent of Plaintiff's
injuries, the necessary medical procedures, the probable need
for future medical attention and the pain she has
experienced, the Court finds the damages awarded herein are
supported by the weight of the evidence. Compare
Blanke, 152 F.3d at 1237.
also requests an award of punitive damages. Title 23 Okla.
Stat. § 9.1 is the current statutory vehicle that
governs claims for punitive damages. It allows an award of
punitive damages based upon several enumerated factors such
as: the seriousness, profitability, duration, concealment,
and awareness of the misconduct; and the attitude and
financial condition of the defendant. 23 Okla. Stat. §
9.1(A). Categories of the defendant's conduct are created
which limit punitive damages to $100, 000 where the defendant
has acted in reckless disregard of the rights of others and
to $500, 000 where the conduct is intentional and with
malice. Id. §§ 9.1(B), (C).
“[P]unitive damages may be awarded if the [trier of
fact] finds by clear ...