Breaux v. Larkin

637 So. 2d 1313, 93 La.App. 4 Cir. 2544, 1994 La. App. LEXIS 1553, 1994 WL 220494
CourtLouisiana Court of Appeal
DecidedMay 26, 1994
DocketNo. 93-CA-2544
StatusPublished
Cited by2 cases

This text of 637 So. 2d 1313 (Breaux v. Larkin) 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
Breaux v. Larkin, 637 So. 2d 1313, 93 La.App. 4 Cir. 2544, 1994 La. App. LEXIS 1553, 1994 WL 220494 (La. Ct. App. 1994).

Opinion

PLOTKIN, Judge.

Plaintiffs, Sally Breaux and her husband Michael Breaux, appeal a jury verdict holding the plaintiffs and the defendants each 50 percent at fault for causing an accident which resulted in injuries to Ms. Breaux. The plaintiffs also appeal the damage award of $200, saying it is insufficient to compensate Ms. Breaux for her injuries. Finally, the Breauxs appeal the trial court’s rejection of Mr. Breaux’s claim for loss of consortium.

The Breauxs filed suit for personal injuries, loss of consortium, and medical expenses against Janie Larkin, the defendant driver; her insurer, State Farm Insurance Co.; Vivian Manis, the vehicle owner; and their own uninsured/underinsured (UM) insurance carrier, USAA Insurance Co. By consent judgment, plaintiff’s action against Vivian Manis was dismissed.

Following a trial on the merits, the jury found Ms. Breaux and Ms. Larkin equally responsible for causing the accident and awarded Breaux $200 in general damages, which was reduced to $100 for her 50 percent comparative negligence. Mr. Breaux’s loss of consortium claim was rejected. jaFAULT OF THE PARTIES

The accident occurred on October 4, 1991 at approximately 10:55 a.m., on the Interstate 10 East access road, just east of Clearview Parkway in Metairie. At the time of the accident, Ms. Breaux was driving her vehicle on the access road with the intention of merging onto I — 10. She had been stopped for 30 to 60 seconds in obedience to a yield sign, waiting for a traffic opening, when her vehicle was struck from the rear. The force of the impact knocked the ashtray out of the dash board and the radiator from its mounts.

Ms. Larkin testified that she was behind the Breaux vehicle when it stopped at the yield sign. She stopped her car until she saw the Breaux vehicle moving forward. Ms. Larkin then looked to the rear and saw an opening in the I — 10 traffic, at which time she started accelerating forward at a speed of 10 to 12 mph, before looking ahead. After proceeding forward, she discovered that the Breaux vehicle was stopped, but rear-ended the forward car before she could stop.

[1315]*1315LSA-R.S. 32:81 imposes a duty on a motorist not to follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicle and traffic upon and the condition of the highway. For the strong policy reason of consistency and predictability, Louisiana courts have uniformly held that a following motorist in a rear-end collision is presumed to have breached this duty, and hence, is negligent. Mart . Hill,v 505 So.2d 1120,1123 (La.1987). Therefore, a heavy duty is imposed upon the operator of a following vehicle to keep his car under control and to observe the forward vehicle and follow it at a safe and prudent distance. The motorist has a duty to maintain a careful lookout, observe any obstructions present, and exercise care to avoid them. Ly v. State Department of Public Safety, 633 So.2d 197 (La.App. 1st Cir.1993).

Fault allocations are factual findings which generally cannot be overturned in the absence of manifest error. In reviewing the trial court’s factual findings, an appellate court utilizes a manifest error — clearly wrong standard. Stobart v. State DOTD, 617 So.2d 880 (La.1993); and Rosell v. Esco, 549 So.2d 840 (La.1989).

In this case, the jury was clearly wrong in finding Ms. Breaux and Ms. Larkin each 50 percent at fault in causing the accident. Ms. Breaux testified that she was rear-ended Iswhile stopped at a yield sign. Ms. Larkin confessed that, believing that Ms. Breaux had moved forward, she accelerated ahead, while looking to her rear. Therefore, Ms. Larkin negligently failed to maintain a careful lookout ahead and observe that the Breaux vehicle was stopped, a fact which was readily apparent when she proceeded forward. We find that the sole cause of the accident was Ms. Larkin’s negligence; accordingly, we assess 100 percent of the fault for causing the accident to Ms. Larkin and the other defendants.

QUANTUM

The plaintiffs also claim that the $200 quantum award is inadequate.

Ms. Breaux suffered with diabetes prior to the accident, but enjoyed good health in all other respects. The parties stipulated that her internist, Dr. R. James Mahr, would testify that she never complained of neck or hand injuries prior to October 4, 1991, and that he treated her solely for her diabetic condition.

Following the accident, that evening, Ms. Breaux experienced headaches and general stiffness. She was sore the next day. Thereafter, her condition worsened as she began to suffer from acute headaches, blurred vision, and stiffness in the neck and upper shoulder. She contacted Dr. Mahr, who referred her to Dr. Bernard Manale, who examined her on October 21, 1991. He diagnosed her injuries as a cervical sprain and recommended physical therapy and pain-relieving medications. However, Ms. Breaux did not undergo physical therapy because she experienced a diabetic crisis.

Ms. Breaux returned to Dr. Manale on February 17, 1992, stating that she was still experiencing neck, shoulder and headache pain. Dr. Manale’s examinations revealed muscle spasm and restricted cervical range of motion. He ordered an MRI test, which revealed, on March 14,1992, a posterior inferior fissure herniation at C5-6 and a small disc protrusion between C4-5. Additionally, Dr. Manale referred Breaux to Dr. Gerald Burns, an expert in physical rehabilitation. On March 4, 1993, Dr. Burns conducted both a nerve root study and an electromyogram (EMG).

The tests confirmed that Ms. Breaux had bilateral carpal tunnel syndrome; the suggestion of a C-5 or C-6 nerve root lesion was also found. She returned to Dr. Manale uon May 4,1992 and June 29,1992, when, for the first time, she complained of subjective weakness and tingling in her hands and arms. She noted also that she dropped objects. Her final visit was October 12, 1992. After extensive conservative physical therapy, which failed to relieve her symptoms, Dr. Manale discussed the option of spinal surgery. Ms. Breaux testified that she intended to delay the surgery as long as possible, but that the pain was becoming unbearable and that she believed that she would have to undergo surgery soon.

[1316]*1316Dr. Manale testified that Ms. Breaux suffers from bilateral carpal tunnel syndrome. Ms. Breaux received five injections of cortisone, an anti-inflammatory hormone, into the carpal tunnel of both wrists in an effort to reduce the swelling in the carpal tunnel that was causing constriction of the nerve. Dr. Manale recommends separate surgeries for each wrist. Dr. Manale concluded that Ms. Breaux’s injuries were causally connected to the October 4, 1991 accident.

Dr. Manale testified that his fee for the neck fusion would be approximately $6,000 and that it would require a three- to five-day stay in the hospital, which would cost $10,000 to $20,000. Further, the surgery for Breaux’s carpal tunnel syndrome would be done on an outpatient basis and would cost about $2,000 for each hand.

Dr. Burns opined that bilateral carpal tunnel syndrome usually manifests in a week or so following trauma and that the outside range for appearance of the problem was four to five months. He testified that the symptoms of carpal tunnel syndrome are numbness and tingling in the fingers; pain is not a prominent symptom.

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Bluebook (online)
637 So. 2d 1313, 93 La.App. 4 Cir. 2544, 1994 La. App. LEXIS 1553, 1994 WL 220494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breaux-v-larkin-lactapp-1994.