Augillard v. Gaspard

820 So. 2d 1177, 2001 La.App. 5 Cir. 1333, 2002 La. App. LEXIS 1724, 2002 WL 1065933
CourtLouisiana Court of Appeal
DecidedMay 30, 2002
DocketNo. 01-CA-1333
StatusPublished
Cited by5 cases

This text of 820 So. 2d 1177 (Augillard v. Gaspard) 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
Augillard v. Gaspard, 820 So. 2d 1177, 2001 La.App. 5 Cir. 1333, 2002 La. App. LEXIS 1724, 2002 WL 1065933 (La. Ct. App. 2002).

Opinion

SUSAN M. CHEHARDY, Judge.

In this personal injury lawsuit, after a bench trial, the trial judge found that Severin Gaspard and a third-party non-defendant were equally responsible for the accident which caused Darryl Augillard’s injuries. The trial judge awarded Augil-lard damages of $68,500.00, property damages of $800.00 and medical damages of $12,302.31. The trial judge cast Ray Gas-pard’s insurer, Allstate Insurance Company,1 and the third-party non-defendant each liable for 50% of Augillard’s damages. The trial judge also dismissed Albert Jasmine’s claims and dismissed all claims against Ray Gaspard personally. For the following reasons, we amend and affirm the trial court’s ruling.

Facts

In the early morning hours of August 1, 1998, Juan Aexander (“Aexander”) and a friend were walking on East 13th Street2 in Reserve, Louisiana when a black Nissan truck pulled up next to them. When the driver asked Aexander to |ssell him drugs, Aexander indicated that he did not sell drugs. The driver, who was later identified as Severin' Gaspard, then pulled his gun' and demanded the gold chain that Aexander was wearing. When Aexander refused, Gaspard began to open the door of his truck. Aexander fired a shot at the driver’s side door as he ran toward the rear of the truck. He continued to fire shots at the.doors and bed of the truck in an attempt to scare Gaspard away and to avoid being shot himself. Gaspard closed the door and drove away. Aexander, who fired eleven shots in all, stopped when Gaspard drove away.

[1179]*1179As Gaspard drove away, he'sideswiped an unoccupied parked car .owned by Albert Jasmine then collided head-on-with a second parked car occupied by the appellee, Darryl Augillard. Augillard, who was sitting in his car outside of Albert Jasmine’ house waiting for Jasmine, heard gunshots, saw the truck coming toward his vehicle and ducked down to protect himself. After the collision, the truck driven by Gaspard crashed into an apartment building.

When the police arrived at the scene, they determined that Severin Gaspard had a gunshot wound to the back of his head. Although Gaspard received emergency medical attention at the scene, he was later pronounced dead.

As a result of the head-on collision, Au-gillard sustained injuries to his chin, neck, back, right shoulder, right hip and right knee. Augillard was transported from the accident scene to River Parishes Hospital and received emergency medical treatment for a laceration on his chin. He was also diagnosed in the emergency room with a cervical strain.

On August 12, 1998, Augillard visited Robert Dale, a chiropractor, complaining primarily of headaches, muscle spasms, and pain in his neck, upper back, and right shoulder and secondarily of lower back and hip pain. Dr. Dale treated Augillard until April of 1999 when Augillard, although he continued to | ¿complain of pain in his back, hip and knee, requested that Dr. Dale discharge him.

Augillard’s car, which he purchased for $800.00, was severely damaged when Gas-pard’s truck collided with it. At the request of St. John Parish Sheriffs Office, which was investigating Gaspard’s death and the collisions, Augillard’s car was towed to Pete’s Body Shop where it was stored at a cost of $9.00/day.3

On June 16, 1999, Augillard, Jasmine, and Joseph Torres, the owner of Pete’s Body Shop, filed suit against Ray Gaspard and Severin Gaspard and their insurers for damages each received as a result of the automobile accident.

In August of 1999, Augillard returned to Dr. Dale complaining of pain in his lower back, right hip and right leg. When Augil-lard did not respond to treatment, Dr. Dale ordered an MRI. Dr, Daniel Johnson, Jr., a radiologist with Clearview Medical Imaging, reviewed Aguillard’s MRI and found a “considerable abnormality” of “bilateral posterolateral bulging” in Augil-lard’s two lowest lumbar discs “consistent with broadly based disc herniation.” Dr. Dale referred Augillard to Dr. Stuart Phillips, an orthopedic surgeon, for further medical treatment and surgical consultation.

In September of 1999, Dr. Phillips examined Augillard, reviewed x-rays and an MRI of his neck and back, and determined that Augillard had a torn ligament and two herniated discs in his back. In Dr. Phillips’ opinion, which was consistent with Dr. Johnson’s diagnosis, although the examination reflected degenerative changes in the discs in Augillard’s back which are a normal result of aging, the nature of the “protruding” or “bulging” discs in Augil-lard’s lower back indicated that they were probably “new” and the result of trauma. Dr. Phillips recommended conservative, non-surgical treatment of Augillard’s herniated discs.

| ¡¡After a bench trial on April 16, 2001, the trial judge took the matter under advisement. In her written reasons dated July 20, 2001, the trial court found that:

[1180]*1180... [Severn Gaspard] voluntarily placed himself in a. situation that led to 'his demise .... his very presence, at that time of the morning and his interaction with Mr. Alexander, strongly suggests criminal activity was afoot.
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This court agrees that Mr. Gaspard found himself in a position of imminent peril. However, the emergency situation he found' himself in was brought about by his own intentional act. Therefore, the [Sudden Emergency] doctrine would not be applicable to this situation. Hence, Mr. Gaspard would not be shielded from responsibility. The evidence strongly suggests that Mr. Alexander’s actions played a substantial role in this accident.... What is know [is], that the battery of gunshots [fired by Alexander] contributed to Mr. Gaspard’s actions in the operation of his vehicle, resulting in this accident. For this reason, this [C]ourt found Mr.' Alexander equally responsible.

The trial judge found for Darryl Augillard in the amount of $68,500.00, with property damages of $800.00 and medical damages of $12,302.31 with legal interest and for Joseph Torres d/b/a Pete’s Body Shop in the amount of $920.00. The trial court cast Allstate, the Gaspards’ insurer, and third-party non-defendant, Juan Alexander, each in judgment for 50% of the plaintiffs’ damages and court costs. On September 7, 2001, the trial judge denied Allstate’s Motion for New Trial.

On appeal, Allstate argues: (1) the trial court erred in finding that Gaspard was at fault in the accident that caused the plaintiffs’ damages; (2) the trial court erred in finding that the third-party non-defendant was only 50% at fault in the accident, and (3) the trial court erred in the amount of damages awarded to Darryl Augillard. Augillard answers Allstate’s appeal contending that the trial court erred in assigning fault to Juan Alexander and that the trial court’s award of general damages was abusively low.

The determination of the causation and extent of a plaintiffs injuries are questions of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). It is well | ^settled that, on appellate review of a'factual determination, the reviewing court may not set aside the trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Id.

The issue to be resolved by the reviewing court is not whether the factfin-der was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State Through DOTD,

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Bluebook (online)
820 So. 2d 1177, 2001 La.App. 5 Cir. 1333, 2002 La. App. LEXIS 1724, 2002 WL 1065933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/augillard-v-gaspard-lactapp-2002.