Arnold v. Dufrene

815 So. 2d 136, 1 La.App. 5 Cir. 1179, 2002 La. App. LEXIS 764, 2002 WL 389667
CourtLouisiana Court of Appeal
DecidedMarch 13, 2002
DocketNo. 01-CA-1179
StatusPublished
Cited by2 cases

This text of 815 So. 2d 136 (Arnold v. Dufrene) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. Dufrene, 815 So. 2d 136, 1 La.App. 5 Cir. 1179, 2002 La. App. LEXIS 764, 2002 WL 389667 (La. Ct. App. 2002).

Opinion

| ¡.DALEY, Judge.

Plaintiff Carolyn Arnold appeals a jury verdict against her in her suit for personal injuries against her landlord, Allen Du-frene. Ms. Arnold alleged that in October of 1994, she fell through a hole in the floor of the house that she rented from Mr. Dufrene, sustaining herniated discs and other injuries. The matter proceeded to a five day jury trial in January of 2001. The jury rendered a unanimous verdict that Mr. Dufrene was not negligent. Ms. Arnold filed a Motion for New Trial and Alternatively JNOV, which was denied. This appeal follows.

On appeal, Ms. Arnold alleges that the trial court erred in allowing the defense to call her treating physician, Dr. Sudderth, as a rebuttal witness, when his name failed to appear on the pre-trial witness list. She also argues that the jury verdict was manifestly erroneous under the law.

Arnold testified that the accident in question happened on October 10, 1994. Arnold lived at 7424 St. Rita Street with her companion, Mr. East, for about four Lyears, with their two small children. She testified that she and her landlord, defendant Mr. Dufrene, had an amicable relationship until she moved out.

Plaintiff described the house on St. Rita Street that they rented from Mr. Dufrene as an old shotgun house. She said that the carpet in the living room was wall to wall. The accident happened the day she was moving out of St. Rita Street. They had been evicted for nonpayment of the rent. Mr. East, his two brothers, and Joshua Cavanaugh were helping with the move. She testified that Cavanaugh was with her when she fell through the floor. He was unable to testify at trial because he had since been in an automobile accident that rendered him “a vegetable.”

Arnold testified that she was moving the entertainment center to unplug the TV. As she pulled on it, her left leg went through the floor. “The carpet was still there, but it was through the hole, with my left leg.” Plaintiff testified that she had abrasions on her left leg and shin. Joshua helped her up and to the sofa. She called her friend Edith Oddo, who took her to the emergency room at East Jefferson Hospital. She testified that the house was raised off the ground, and her leg pushed through to about one or two inches from touching the ground.

Arnold testified that her leg hurt from the abrasions, and her ankle swelled up. She didn’t report feeling lower back pain until later that evening while at the hospital. She denied having neck pain or pain [138]*138in the middle of her back. X-rays of her back were taken at the hospital. After she left the hospital, she went to Edith Oddo’s home in Jefferson (on St. George Street), and stated that she stayed there about a month. She returned to the West Bank to look for another apartment and moved in January.

Arnold described the pain in her left ankle that prevented her from walking on it. She testified that she had to have a splint on her leg. She had burning sensations in her back. She had to do a lot of therapy, heat treatment, and used a TENS unit. |4She said that she was unable to care for her children or cook meals for them. She was treated by Dr. Altman at this time.

Arnold testified that she started going to Dr. Batherson, a chiropractor, on referral from her lawyer. At some point, he referred her to Dr. Altman, with whom she treated for “a few months,” she couldn’t recall exactly how long. She testified that Dr. Altman recommended that she see an orthopedic surgeon. Arnold said that Dr. Altman had treated her when she slipped and fell at a motel years before. Dr. Altman referred her to Dr. Kueharchuk, an orthopedist, who told her she had something wrong with a disc in her lower back. She had a total of three MRIs performed at different points in this litigation. She also recalled seeing Dr. Olson, a neurologist, who concurred with Dr. Kueharchuk as far as problems with her disc.

Arnold testified that since the accident, she had gotten worse and could do fewer things. She couldn’t move furniture anymore, mop, or bend over to pick up things. She reported that her left leg had “gone numb” several times, and she had fallen down stairs. She couldn’t pick up her baby when she cried, because she weighed too much and it would strain her back. She had to go the emergency room for falling down the stairs. Arnold had lost weight. Her physical problems put a strain on her relationship with Mr. East and with her children. (At the time of trial, her children were nine and six years old.) Arnold said that she would have returned to work once her children were in school, but now has to depend on East for everything.

Plaintiff testified that she was in a car accident in 1981. Her car was rearended, and she hurt her neck. She received treatment for muscle spasms in her neck, but did not think she sued anyone for the accident.

| sBetween 1981 and 1985, plaintiff testified she hurt herself when she slipped and fell in a puddle of water in a motel room. She hurt her elbow, and thought she fractured her skull. She was treated for her injuries by Dr. LeClercq. Plaintiff testified that the next incident in which she ever received any physical trauma was on St. Rita Street, the accident that is the subject of this litigation. She denied having an auto accident in 1991.

Arnold reported hurting herself while waitressing at Shoney’s. She dropped a large iced tea dispenser on herself. She saw Dr. Olson as a result of this accident. She said this was prior to 1990. Dr. Olson treated her for migraine headaches.

Up until the St. Rita Street incident, plaintiff testified that she had no injuries to her lower back. When asked about accidents that defense counsel referred to in his opening statement, Arnold testified that she only remembered the motel incident and the teapot accident at Shoney’s. Plaintiff also remembered that she had cervical fusion surgery performed as a result of the car accident with her mother in 1981.

Plaintiff reported that after the St. Rita Street incident, she was hit by a garbage [139]*139truck in November of 1995, and went to East Jefferson Hospital. Her chest hit the steering wheel. She reported back pain right behind her chest.

On cross, Arnold stated that she had only two accidents prior to this one, and couldn’t recall any others. She denied remembering going to East Jefferson Hospital on January 18,1992, reporting low back pain from a fall two days prior. Upon looking at the records, Arnold said they said “two years prior” and related it to the slip and fall at the motel, which she now thought must have occurred in 1990 instead of 1991.

Arnold also remembered a car accident that occurred in Long Beach, Mississippi around 1982 or 1988 when she was about 18 years old. She said she filed |fisuit in that accident, but that it neither settled nor went to trial; she just moved back to Louisiana.

Arnold’s cross examination is profuse with her inability to recall previous deposition testimony, or previous accidents of any kind. Defense counsel repeatedly confronted her with inconsistent deposition testimony and medical records, and Arnold's overwhelming response to all questions was that she could not recall either the event or giving the inconsistent testimony.

In the deposition Arnold gave in connection with her accident with the garbage truck in 1995, she claimed that she sustained “lower back” injuries. She also said, in that deposition, that the only other time she had hurt her back was when she was working as a waitress at Shoney’s.

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Bluebook (online)
815 So. 2d 136, 1 La.App. 5 Cir. 1179, 2002 La. App. LEXIS 764, 2002 WL 389667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-dufrene-lactapp-2002.