Bacle v. Wade

607 So. 2d 927, 1992 WL 310303
CourtLouisiana Court of Appeal
DecidedOctober 28, 1992
Docket24074-CA
StatusPublished
Cited by14 cases

This text of 607 So. 2d 927 (Bacle v. Wade) 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
Bacle v. Wade, 607 So. 2d 927, 1992 WL 310303 (La. Ct. App. 1992).

Opinion

607 So.2d 927 (1992)

Everett Lynn BACLE and Nell Bacle, Plaintiffs-Appellees,
v.
James WADE, Ed Free, Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, Defendants-Appellants.

No. 24074-CA.

Court of Appeal of Louisiana, Second Circuit.

October 28, 1992.

*929 Bruscato, Loomis & Street by C. Daniel Street, Monroe, for plaintiffs-appellees.

Cotton, Bolton, Hoychick & Doughty by John Hoychick, Jr., Rayville, for defendants-appellants.

Before NORRIS, VICTORY and BROWN, JJ.

NORRIS, Judge.

The plaintiffs, Everett and Nell Bacle, sued James Wade, his employee, Ed Free, and their insurer, Louisiana Farm Bureau, for damages arising from an incident in which a trailer being pulled by Mr. Free struck and injured Mr. Bacle. After a bench trial, the court allocated fault 25% to Mr. Bacle and 75% to the defendants; awarded general and special damages and loss of future earnings; and awarded Mrs. Bacle $2,000 for loss of consortium. The defendants appeal, urging the allocation of fault to Mr. Bacle is too low, and the awards for pain and suffering and lost future earnings are too high. The Bacles answer, urging Mr. Bacle was free of fault *930 and that the awards for pain and suffering, lost future earnings and loss of consortium are too low. The trial court's findings as to fault, general damages and economic losses are not plainly wrong and are affirmed. The award for loss of consortium, however, is abusively low and the judgment is amended accordingly.

The Accident

Everett Bacle is a retired fireman who was engaged in farm-related businesses, including artificial insemination of cattle, and selling cattle equipment and feed supplements for livestock. On October 13, 1988 he went to defendant James Wade's farm off Hwy. 33 in Union Parish to pick up some feed troughs. One of Wade's employees, Jimmy Davis, asked Bacle to help him attach a hay cutter to a tractor. This operation required Bacle to push the heavy cutter arm until predrilled holes on the cutter aligned with the tractor and Davis could insert the stabilizing pin. Because the cutter was so heavy Bacle had to heave then relax, and heave then relax, repeatedly until the pin could be inserted.

The tractor was parked on the east side of a 60-foot wide roadway and work area between farm buildings. On appeal the litigants have made much over whether this area was really a "roadway." It is definitely not a paved street. However, the photos admitted in evidence (especially exhibits P-5 and P-7) show a broad gravel road through which cars and trucks must pass to get to Wade's dairy farm. This road curves gently to the right and vehicles park along either side. Bacle himself referred to it as "the road going towards the dairy." R.p. 108. Given these facts we consider the passage to be a "roadway."

As he was pushing the cutter with his hand and shoulder, Bacle heard the sound of an oncoming pickup truck driving down the roadway toward the dairy. This truck was being driven by an employee of Wade's, Ed Free. In between heaves, Bacle looked up and saw the truck approaching. His view was not continuous, however, being partly blocked by the upright cutter arm draped with canvas. He waited for the truck to pass; when he thought the truck had cleared him, he resumed heaving, planting his right foot in the roadway gravel for leverage. Bacle had not noticed, however, that Free was hauling a gooseneck trailer that was slightly wider than the truck. Immediately after the truck passed the tractor and cutter, it started to make a right turn. The gooseneck trailer cut the turn short and one of the trailer wheels ran over Bacle's outstretched right foot. He testified that he looked down and saw a wheel rolling over the calf of his right leg; he was then thrown to the ground.

Ed Free testified that he saw the tractor and cutter on the right side of the roadway as he drove toward the dairy. He saw Bacle standing by the cutter and was familiar with the process of stabilizing it. He did not veer away from Bacle to make room, but he drove by "real slow" and when he saw the truck had passed Bacle without incident, he "eased on through." He testified that he intended to go to the dairy, but he pulled over to get something from one of the sheds. He was not immediately aware that the trailer had struck Bacle.

Another witness, Rodney McGowin, who was also an employee of Wade's, was driving a truck behind Free and the gooseneck trailer. He testified that Bacle stuck his foot out after the truck driven by Free passed; and that Free's right turn was not very sharp, really no more than following the bend of the roadway. He also testified that with the tractor running, Bacle might not have noticed the truck, and intimated that Free might not have been paying enough attention.

The Injury

Experiencing great pain, Bacle was carried to a doctor's office in Farmerville and then to St. Francis Medical Center in Monroe. There he was examined by Dr. Douglas Liles, who diagnosed a bimalleolar ankle fracture. Dr. Liles, whose testimony is given by deposition, placed Bacle's right leg in a long cast which prevented him from bending his knee, and instructed him *931 to apply ice, elevate the leg and use crutches without applying weight to the leg.

On a return visit eight days later, Dr. Liles found that Bacle had been trying to drive and run his business, contrary to instructions. The ankle was still swollen and in pain; Dr. Liles reiterated his instructions, even "if that requires not working." On the next visit, October 27, Dr. Liles removed the long cast and put on a short one to allow greater motion; he testified it was really too soon for a short cast, but Bacle was adamant about regaining his mobility. The doctor advised him not to work full-time lest the fracture become displaced. On the November 10 visit, Dr. Liles found the heel of the cast worn out, which is uncommon for a patient who is supposed to be "touch weightbearing." Although Bacle had no complaints of pain, Dr. Liles advised him he was doing too much, running the risk of displacing the fracture. Even so, Dr. Liles permitted Bacle to advance his weightbearing and installed a new short cast. On December 6, he removed the cast.

Ten days later Bacle came to Dr. Liles with intense pain in the medial ankle and numbness in the bottom of his foot. Although this was Bacle's first complaint of such symptoms, he told Dr. Liles it had been "some days coming on." Dr. Liles again felt that Bacle had been too vigorous in his activities and had not followed orders very closely. Bacle admitted he was doing his usual work, making sales calls, driving, and artificially inseminating cattle. Dr. Liles diagnosed a developing tarsal tunnel syndrome with pressure on the tibial nerve. He treated it by injecting steroids and anti-inflammatory agents, but with no success.

He performed surgery on January 16, 1989 to release the right tarsal tunnel. The operation, however, was not as successful as Dr. Liles had hoped; Bacle had only a slow return of sensation and had a residual numb spot on his heel. Dr. Liles testified that the operation "most likely" would have been unnecessary had Bacle simply followed doctor's orders. By March Bacle was complaining of swelling whenever he used the foot for a couple of hours, a condition Dr. Liles had not anticipated.

By April, Bacle's ankle was better but he complained for the first time about pain in his right knee. Bacle explained that this pain had been hard to differentiate from the ankle pain, and had been with him for some time. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
607 So. 2d 927, 1992 WL 310303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bacle-v-wade-lactapp-1992.