Brown v. Trask

998 So. 2d 131, 2008 WL 4724077
CourtLouisiana Court of Appeal
DecidedOctober 15, 2008
Docket2008-CA-0006
StatusPublished
Cited by2 cases

This text of 998 So. 2d 131 (Brown v. Trask) 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
Brown v. Trask, 998 So. 2d 131, 2008 WL 4724077 (La. Ct. App. 2008).

Opinion

998 So.2d 131 (2008)

Eunice B. BROWN and Felton Lewis
v.
Josephine B. TRASK, Albert Brown, and State Farm Mutual Automobile Insurance Company.

No. 2008-CA-0006.

Court of Appeal of Louisiana, Fourth Circuit.

October 15, 2008.

*132 Derek D. Gambino, Benjamin J. Birdsall, Jr., Birdsall Law Firm, Inc., New Orleans, LA, for Plaintiffs/Appellants.

Sheryl M. Howard, Evans & Clesi, P.L.C., New Orleans, LA, for Defendants/Appellees, Josephine B. Trask and *133 State Farm Mutual Automobile Insurance Company.

(Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).

EDWIN A. LOMBARD, Judge.

This matter arises out of an automobile accident between Defendant, Josephine Trask ("Ms.Trask"), and Plaintiff, Eunice Brown ("Ms.Brown"). Ms. Brown appeals the judgment of the trial court, based on a jury verdict, in favor of Ms. Trask and her insurer, State Farm Mutual Automobile Insurance Company ("State Farm"). For the following reasons, we affirm.

Relevant Facts

On May 21, 2004, Ms. Brown was driving on U.S. 90B (I-10 West), near the Louisiana Superdome, in bumper-to-bumper traffic. According to Ms. Brown, while stopped in traffic, her vehicle was rearended by the automobile being driven by Ms. Trask.

Ms. Trask's version of the accident is quite different. While she agrees that the traffic was bumper to bumper, she maintains that Ms. Brown's vehicle rolled backward into her car while it was stopped on an incline. Photographs introduced at trial by the Defendants showed no damage to the front of Ms. Trask's automobile. There were no photos introduced depicting damage to Ms. Brown's vehicle.

Immediately after the accident, Ms. Brown told Ms. Trask that she was not injured in the accident. She also told the police officer on the scene, Officer Kramer, that she had only a headache and did not need an ambulance. In fact, Ms. Brown felt well enough to go shopping immediately after the accident.

Nevertheless, beginning four days after the accident and continuing for the next two years, Ms. Brown sought treatment for soft tissue injuries of the neck and back with several doctors, including Dr. Gary Stevenson, Dr. L.S. Kewalramani, Dr. Vogel, and Dr. Bradley Bartholomew. With the exception of Dr. Stevenson, who had previously treated Ms. Brown for back injuries resulting from a 2003 accident, Ms. Brown neglected to tell her doctors that she had previously sought treatment for neck and back pain that resulted from an accident just one year earlier. X-rays and MRI scans taken of Ms. Brown's spine after the May 21, 2004 accident showed evidence of degenerative changes and a herniated disc in her lower back. Based on her subjective complaints of pain in the neck, left shoulder, left leg, and lower back, as well as the evidence of degenerative changes indicated in the scans and x-rays, Dr. Vogel recommended and subsequently preformed a discogram on Ms. Brown's back. Despite the fact that Ms. Brown told Dr. Vogel that her neck and back pain had "gone away" after the discogram, she then sought treatment from Dr. Bartholomew, who ordered more testing and subsequently recommended a two-level lumbar fusion. However, as of the date of trial, the surgery had not been performed.

On April 21, 2005, Ms. Brown filed suit against Ms. Trask and her insurer, State Farm, alleging that she suffered severe and debilitating injuries as a result of the accident. At trial, Ms. Brown and Ms. Trask testified as to their versions of the accident. Ms. Brown's treating physicians were called to testify as to her medical damages.

On July 26, 2007, after a four-day jury trial, the jury rendered a verdict in favor of Defendants, Ms. Trask and State Farm. In connection with their verdict, the jury answered three Jury Interrogatories. In the first interrogatory, the jury found "by *134 a preponderance of the evidence, that the defendant, Josephine Trask, was negligent in the accident on May 21, 2004." In the second interrogatory, the jury found "by a preponderance of the evidence that Ms. Brown suffered injuries as a result of the accident on May 21, 2005." However, in the third interrogatory, the jury did not find, "by a preponderance of the evidence that the negligence or fault of Defendant, Josephine Trask, was a cause-in-fact of any injury or damage to the Plaintiff, Eunice Brown." Since its answer to this interrogatory was "no," the jury was instructed not to move on to the subsequent interrogatories, which dealt with the issues of Ms. Brown's negligence and whether she was entitled to damages, but rather to have the foreperson sign and date the verdict form and notify the bailiff that a verdict had been reached.

On August 24, 2007, the trial court entered judgment on the jury's verdict. Ms. Brown then filed a Motion for Judgments Notwithstanding the Verdict, or in the Alternative, a New Trial, which came before the trial court on October 5, 2007, and was denied in total. Ms. Brown now appeals from these judgments.

Specifications of Error

On appeal, Ms. Brown cites five distinct specifications of error. She argues that:

1. the jury erred in not awarding her damages even though it found Ms. Trask negligent in the accident and that Ms. Brown suffered injuries as a result of the accident;
2. the trial court erred in not ordering the jury to return a damage award[1];
3. the trial court erred in not granting a judgment notwithstanding the verdict as to damages;
4. the trial court erred in not awarding her damages; and
5. the trial court erred in not granting her a new trial.

On appeal, Ms. Brown claims that she is entitled to damages for medical specials in the amount of $74,865.24, future medicals in the amount of $124,070.00 and hundreds of thousands of dollars in damages for her alleged pain and suffering.

Discussion

In essence, Ms. Brown's specifications of error all relate to the jury's failure to award damages for the injuries she claims to have suffered as a result of the accident. Ms. Brown argues that because the jury found that Ms. Trask was negligent, and that Ms. Brown suffered damages as a result of the accident, it is illogical that the jury did not award Ms. Brown any damages for the injuries she claims to have sustained. However, Ms. Brown completely misses the point in this regard. A finding of negligence on the part of the defendant and injury on the part of the plaintiff does not necessarily mean that the defendant is liable to the plaintiff for her alleged injuries. See. e.g., Detraz v. Lee, XXXX-XXXX (La.1/17/2007), 950 So.2d 557 (wherein the jury found defendant nail salon was negligent but that its negligence was not the cause-in-fact of the plaintiff's skin infection).

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct *135 was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). (Emphasis added.) Fowler v. Roberts,

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998 So. 2d 131, 2008 WL 4724077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-trask-lactapp-2008.