Barker v. City of New Orleans

503 So. 2d 536, 1987 La. App. LEXIS 8665
CourtLouisiana Court of Appeal
DecidedFebruary 12, 1987
DocketNo. CA-5424
StatusPublished
Cited by1 cases

This text of 503 So. 2d 536 (Barker v. City of New Orleans) 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
Barker v. City of New Orleans, 503 So. 2d 536, 1987 La. App. LEXIS 8665 (La. Ct. App. 1987).

Opinions

GULOTTA, Judge.

The City of New Orleans appeals from a trial judge’s award of $544,101.191 to a plaintiff, a college student, who suffered a gunshot wound to his upper right thigh when struck by a stray bullet from a policeman’s pistol. Because the City stipulates that it was solely liable under the doctrine of respondeat superior, the sole issue is quantum. We conclude that the amount awarded is excessive, and reduce the award to the sum of $84,101.19.

On March 1, 1981, while watching the Bacchus carnival parade on Canal Street, John Barker was accidentally struck in his upper right thigh by a bullet from a New Orleans policeman’s .45 caliber pistol. During emergency treatment at Charity Hospital, it was determined that the bullet was lodged in soft tissue, and the treating physicians decided that it should be left alone rather than surgically removed. Plaintiff was discharged from the hospital on March 8, and resumed his university studies a week later.

In its claim that the award is excessive, the City points out that plaintiff has only a minimal 8% disability of the leg as a result of the accident, has successfully completed his college studies, and is now married and the father of two children. On the other hand, plaintiff contends that the award is justified because he continues to feel pain in his right leg, has suffered nightmares and psychological problems, and faces either major surgery to remove the bullet or the possibility of future lead poisoning if the bullet is not removed.

Dr. James A. Freeman, an expert in family practice and pathology, first saw plaintiff on April 15, 1982, about one-year post-accident, with complaints of a “pulling sensation” in his right groin adjacent to the injury. This physician testified that the bullet is located close to the hip joint in front of the upper end of the femur, near the femoral artery. Although Dr. Freeman testified that tests run on plaintiff were negative for lead poisoning, he compared X-rays and concluded that there had been some movement in the bullet since the accident. This indicated to this expert that lead poisoning could occur in the future if the bullet moved into the fluid near the hip joint and began to erode.

Although there is some danger of severing the artery during surgery, Dr. Freeman testified that a good surgeon would have no difficulty in removing the bullet. Based on this observation, he recommended this surgery. On plaintiff’s complaints of soreness, this physician suggested that plaintiff refrain from any activities involv[538]*538ing walking, running, standing or driving for long periods of time. Although he could not calculate long term disability or predict whether plaintiff would have any further complications, Dr. Freeman felt that the possibility of lead poisoning is “significant” unless the bullet is removed.

Dr. David G. Kline, a neurosurgeon, stated in his report that plaintiff has no evidence of significant pathology involving nerves in his leg that would warrant surgery, even though his mild symptoms of tingling and decreased sensation may be due to mild involvement of the femoral nerve sensory branch. Dr. Kline noted that the bullet appeared to be lodged in soft tissue and that patients who encounter difficulty with lead poisoning usually have the bullet lodged in or near a major joint, unlike plaintiff. This physician stated that the bullet could be removed by a well-skilled orthopedic or general surgeon.

The trial judge also had the benefit of the written report of Dr. Gary T. Guidry, an orthopedist, who noted that plaintiff had complained on November 18, 1982 of aching sensations in the right hip area. Although this physician found plaintiff had a full range of motion in the hip and a good gait, he felt that plaintiff may encounter difficulty in finding employment in the heavy labor market and would be a good candidate for vocational rehabilitation because of the bullet fragment adjacent to the bone.

Dr. Donald C. Faust, an orthopedic surgeon, examined plaintiff on October 14, 1984, on complaints of discomfort when ascending stairs, and when walking or driving for any extended period. Dr. Faust found that plaintiff has suffered a mild loss of motion of the hip, but he recommended that plaintiff use his leg fully without any further treatment. This physician concluded that plaintiffs loss of function to his extremity was about 8% and further noted that the risk of removing the bullet is much greater than leaving it in place.

Dr. Charles T. O’Connor, a psychiatrist, first saw plaintiff on October 10, 1984, on complaints of recurring nightmares about the accident and a limiting of his physical activities to guard his right thigh and hip area. Dr. O'Connor recommended desensitization and bio-feedback therapy, but plaintiff has not undergone the treatment. On June 7, 1985, this physician examined plaintiff again and found that he had not changed greatly, although his nightmares had subsided and he had forced himself to return to the area of the accident.

A second psychiatrist, Dr. David Shra-berg, evaluated plaintiff on October 19, 1984. At that time, plaintiff complained of discomfort in the area of the bullet, fears of walking and exercising, and recurring nightmares about being shot. Dr. Shra-berg stated that plaintiff’s mental status examination was within normal limits without evidence of severe psychotic sympto-mology or neurosis. He stated that plaintiff does not have post-traumatic stress disorder or any chronic disabling psychiatric impairment, but has rather an adjustment disorder that is limited to the gunshot incident. This physician saw no medical or psychological reason for plaintiff to curtail his physical activities and felt that the shrapnel type injury should be left alone. He further felt that plaintiff has no physical limitations and that his psychological limitations appear to be exaggerated beyond the proportion of the sustained injury. Dr. Shraberg saw no reason for further treatment and felt that plaintiff should “pick up his life where he left off”.

Corroborated by a friend who was with him at the shooting, plaintiff testified at length about the hysteria and chaos at the accident scene. He related that he had been embarrassed as TV cameras focused on him after the shooting and that he had feared that he might lose his leg or be paralyzed. He further described his pain during an angiogram at the hospital and his difficulty in resuming walking and attending classes in the weeks following the accident.

Although plaintiff has done renovation work on his apartment since the accident, he testified that his leg bothered him during that work and still hurts daily when he uses his stairway, when the weather changes, when he attempts to play golf, or [539]*539when he drives for long distances. He stated that he has changed his formerly athletic lifestyle, has gained 25 pounds, and is unable to do any exercises to keep himself in physical condition.

Barker further testified that he suffered nightmares of the incident and is not fond of violent television shows. He is confused about the conflicting medical opinions on whether to leave the bullet in or have it removed, and whether to restrict his activities or use his leg fully.

We note, in passing, that we do not have the benefit of a meaningful statement of the trial judge’s reasoning in this case.

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503 So. 2d 536, 1987 La. App. LEXIS 8665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-city-of-new-orleans-lactapp-1987.