Opinion
No. CA-8420.
August 16, 1988. On Rehearing March 14, 1989. Writs Denied May 12, 1989.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE THOMAS A. EARLEY, JR., J.
Carl J. Barbier, J. Michael Cumberland, Barbier Cumberland, New Orleans, for plaintiff-appellant.
John W. Waters, Jr., Bienvenu, Foster, Ryan O'Bannon, New Orleans, for defendant-appellee.
Before GARRISON, LOBRANO and WILLIAMS, JJ.
Before GARRISON, KLEES, LOBRANO, WILLIAMS and PLOTKIN, JJ.
This is an appeal from a judgment of the district court in conformity with a jury verdict and providing as follows:
"IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein favor of the Plaintiff, Theodore Jones, and against the Defendants, Manny's Sanitary Supply, Inc., Gulf Insurance Company, and Burnell Cummings, in the full sum of $3,750.00, together with legal interest thereon from date of Judicial demand, until paid, and for all cost of these proceedings."
Expert fees were also awarded.
The jury had responded to a number of interrogatories and were polled thereon. The results of the jury interrogatories are as follows:
"1. Do you find that Burnell Cummings, the employee of the Defendant, Manny's Sanitary Supply, was guilty of negligence herein which negligence was a proximate cause of the accident?
YES 11 NO 1"
* * * * * *
"2. Was the Plaintiff, Theodore Jones, guilty of negligence, which negligence was a proximate cause of the accident?
YES 10 NO 2"
"3. What percentage of fault do you, the Jury, attribute to the Plaintiff, Theodore Jones?
25%"
"4. What is the total amount of damages, both general and special, that the Plaintiff, Theodore Jones, suffered as a result of this accident and that you the Jury award?
$5,000.00"
From this judgment plaintiff appeals, raising two specifications of error, namely (1) the amount awarded is so low as to constitute a clear abuse of discretion and (2) the jury's finding of 25% negligence on the part of plaintiff is clearly wrong.
On July 3, 1984 Theodore Jones was driving his Volkswagon Quantum on Louisiana Avenue riverbound. Burnell Cummings, driving his employer's truck, was parked in the riverbound parking lane. Cummings pulled from a parked position crossing two lanes of traffic at a 90 degree angle and collided into Jones' vehicle in the left turn lane. Cummings admitted that he was attempting to create a shortcut in order to avoid traveling an extra block or so down Louisiana Avenue to the u-turn lane.
Jones went to the hospital the same day. He initially underwent conservative treatment until a bulging disc was discovered and eventually underwent lumbar surgery resulting in permanent disability. In addition the accident aggravated a pre-existing hip condition which had been symptom-free for 15 to 20 years before the accident.
Turning to the question of damages first, there is something deeply wrong with the amount awarded. Initially, both sides stipulated to past medicals of $14,337.20. In addition, Jones has a percentage of permanent disability such that his treating physician believes that Mr. Jones should not work. At the time of the accident Jones was unemployed. He was a draftsman with Ebasco, working on the Waterford job, but he was laid off in a general cutback when Ebasco didn't have enough work after the completion of that job. He is eligible for rehire with Ebasco. Prior to the layoff he was making $25,061.00 as a draftsman with two years of college in engineering. His performance evaluations were excellent. Dr. Mel Wolfson calculated past lost earnings since the accident (2.35 years) at $59,047.00.
We find the minimum amount that the jury could have awarded is $78,384.20 and that any lesser amount constitutes a clear abuse of discretion. Accordingly the judgment will be amended to reflect that increase.
$59,047.00 Lost Wages (Past) 14,377.20 Medicals (Past) $ 5,000.00 Pain and Suffering ---------- $78,384.20
Finally turning to the comparative negligence argument, the jury found Jones 25% negligent and Cummings 75% negligent. Jones was proceeding lawfully in the left turn lane on a favored street. Cummings was traveling on a 90 degree angle to traffic. While a driver has a duty to watch in front, back, and on his sides, even sideview mirrors are not designed for 90 degree angles. As a precedent, this Court hesitates to impose such a duty which is clearly not imposed by statute. Accordingly, the percentage of fault is hereby reduced to 0%.
For the reasons discussed, the judgment of the district court is amended as follows and, as amended is affirmed:
"IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the Plaintiff, Theodore Jones, and against the Defendants, Manny's Sanitary Supply, Inc., Gulf Insurance Company, and Burnell Cummings, in the full sum of $78,384.20 together with legal interest thereon from date of Judicial demand, until paid, and for all cost of these proceedings."
AMENDED AND AFFIRMED.
ON APPLICATION FOR REHEARING
On rehearing, additional arguments were heard by a five judge panel regarding the adequacy of plaintiff's general damages award. After considering the following cases in which plaintiffs suffered injuries similar to those suffered by the plaintiff in the instant case, we have determined that the amount awarded to plaintiff for general damages in our original opinion was inadequate.
In Riley v. Winn-Dixie Louisiana, Inc., 489 So.2d 931 (La.App. 5th Cir. 1986) writ denied at 494 So.2d 329 (La. 1986), the plaintiff slipped and fell on smooth tile in a grocery store. Shortly thereafter, she began to experience pain and stiffness in the neck and lower back. An orthopedic surgeon who examined the plaintiff diagnosed her as having sustained "soft tissue injuries, contusions and strains superimposed on a pre-existing disease in the neck and hip." Riley, supra. After conservative treatment received from that doctor and two others did not result in any relief to the plaintiff, she consulted a neurologist who recommended surgery for a possible herniated disc which was causing plaintiff's low back pain. The neurologist referred her to a neurosurgeon who agreed that plaintiff's condition required surgery. Subsequently, the neurosurgeon performed a lumbar laminectomy on plaintiff.
The court in Riley found that the jury's general damages award to plaintiff of $30,000.00 was inadequate in light of the medical evidence and record in that case. The Riley court increased plaintiff's general damages award to $100,000.00, finding that amount to be the low end of the range for general damages awards for plaintiffs with similar injuries citing the following cases and general damages awards: Johnson v. Wicks, 356 So.2d 469 (La.App. 1st Cir. 1977) — $113,024.00; Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir. 1983) — $125,000.00; Abshire v. Dubois, 422 So.2d 611 (La.App. 3rd Cir. 1982) — $100,000.00.
In Redondo v. Consolidated Freightways Corporation of Delaware, 529 So.2d 1296 (La.App. 4th Cir. 1988), writ denied, 533 So.2d 363 (La. 1988), the plaintiff suffered a lower back injury in a vehicular collision. After receiving conservative treatment for the low back pain, he underwent a microsurgical laminectomy to remove a portion of a ruptured disc. The jury verdict of $100,000.00 to plaintiff included lost wages and medical expenses, leaving only $16,568.05 of the total verdict for general damages. This court concluded, on the basis of the cases cited above, that the minimum award to plaintiff for general damages should have been $100,000.00. Therefore, this court increased plaintiff's total damages to $183,431.85.
In the instant case, the plaintiff sought treatment for injuries suffered in a vehicular collision. He underwent conservative treatment for neck and back pain until an orthopedic surgeon suspected that plaintiff had a herniated disc in the lumbar region. That surgeon later performed lumbar disc surgery on plaintiff to correct that problem. This accident also aggravated plaintiff's pre-existing hip problems.
In light of these injuries and the jurisprudence cited above, we conclude that the general damages award to plaintiff must be increased to $100,000.00. Accordingly, judgment is rendered in favor of plaintiff and against defendants for the total sum of $173,384.20 together with legal interest from the date of judicial demand until paid and all costs of these proceedings.
AMENDED AND AFFIRMED.
WILLIAMS, J., dissents with reasons.
I agree with my brethren in holding that the trial court clearly erred in finding plaintiff partially at fault and in proportionally reducing his damage award. I disagree, however, with the readjustment of the quantum.
I initially disagree with their alteration of the quantum of the award due to the inconsistency in its breakdown. The readjustment of the award as to past lost wages, without readjusting it for future lost wages, appears to be logically and legally inconsistent.
If the appellate alteration of the jury award had been for the reason of plaintiff's pain and suffering rather than for the reason of past lost wages without providing for future lost wages, I would have found the basis for the increase sounder than that of the present award. My principal disagreement with the altered award, however, would have remained as it is founded upon the belief that the jury award is legally acceptable and should therefore stand.
Although the award may appear to be unusual, as there are no answers to interrogatories to clarify the reasoning that the jury used in determining the quantum, I would be reluctant to reverse as there may have been a number of factors involved in the jury's reasoning such as the credibility of the parties, etc.
For the foregoing reasons, I respectfully concur in part and dissent in part.
Even though the $5,000.00 awarded to plaintiff by the jury was a legally acceptable quantum, this court on original hearing increased the award to $78,384.20, reflecting past lost wages ($59,047.00), past medicals ($14,337.20) and pain and suffering ($5,000.00). On rehearing, this panel has now increased the general award from $5,000.00 to $100,000.00, without showing the $5,000.00 was an abuse of discretion and the additional quantum was the lowest award reasonably within the discretion of the jury, as required by Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977).
Moreover, the panel majority has ignored the directive in Coco v. Winston, by placing entirely too much emphasis on the amounts awarded to other plaintiffs:
. . . heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are every fully alike. And whether two cases are so fully similar as to produce the quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal . . . 341 So.2d at 335.
Consequently, as indicated in my dissent on original hearing, in determining the plaintiff's quantum this court should not second-guess the reasoning behind the jury's award. From a cold record, this court cannot know the subtle factors that influenced the jury's quantum determination. Although some may consider the jury's award low, the award did not fall below the lowest point reasonably within the discretion afforded the trier of fact; therefore, this panel should not tamper with the jury's and/or the original panel's award. See Coco v. Winston Industries, Inc., 341 So.2d at 335.
For the reasons assigned, I respectfully dissent.