Carollo v. Wilson

345 So. 2d 601, 1977 La. App. LEXIS 3840
CourtLouisiana Court of Appeal
DecidedApril 27, 1977
DocketNo. 7696
StatusPublished
Cited by5 cases

This text of 345 So. 2d 601 (Carollo v. Wilson) 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
Carollo v. Wilson, 345 So. 2d 601, 1977 La. App. LEXIS 3840 (La. Ct. App. 1977).

Opinion

REDMANN, Judge.

Defendants appeal on both liability and quantum from a judgment on jury verdict for personal injuries and property damages in an omnibus-automobile intersectional collision.

LIABILITY

Defendants’ contrary evidence from independent witnesses could have supported a contrary conclusion on liability. We nevertheless find that the jury’s conclusion on liability is sufficiently supported by evidence that defendant bus driver drove (at a speed of about 20 mph) through a red light which had been red during about the last half block of her travel towards the intersection. The testimony of one independent witness who resided at the intersection is perhaps the most consistent and supportive (although his estimate of the bus’s speed is higher than most witnesses’). His testimony is deemed suspect by defendants, both because he was not discovered as a witness until 15 months after the accident (the weekend before trial) and because he testified that he said to himself, as he saw the bus approaching a half block away as its light turned red, “I bet this bus runs the light.” That neither plaintiff nor defense counsel earlier discovered an eye-witness who lives above a shop at the corner of a serious intersectional collision does not make the witness suspect, much less justify rejecting his testimony. Nor does the witness’s remark that, before the bus ran the red light, he would have bet it would do so. This remark but reported a common experience of recognizing that a driver is failing to make appropriate initial response to some stimulus, such as the changing traffic light here, from which failure one infers that the driver has not perceived the stimulus and will not react at all.

QUANTUM

General Observations

In reviewing general damage awards, a court of appeal finds itself in a dilemma. On the one hand, because the scope of our appellate review includes facts, La.Const.1974, art. 5 § 10(B), we are obliged on an appellant’s request to determine the appropriateness of the amount of damages awarded for the injuries suffered. See Coco v. Winston Industries, Inc., La.1976, 341 So.2d 332. On the other hand, because the lower court has by law “much discretion” in fixing quantum of general damages, La.C.C. 1934(3), we are frequently reminded by the Supreme Court that we may not merely substitute our opinion of appropriate quantum for that of the trier of fact, see Coco, supra: to which admonition Coco now adds, obiter dictum, that after finding a clear abuse of the “much discretion” of the trial court we can disturb an award “only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” 341 So.2d at 335.

Coco, even so, points out that the question whether the much discretion has been abused is “a judgment call,” id. at 335.

Our judgment is that the much discretion has here been abused in the three quanta appealed. Upon our review of the record [604]*604we reach an opinion of what the maximum quantum should be and we compare the jury award. We have found the awards far exceed our estimate of the maxima — by multiples, rather than minor amounts or percentages explainable by the natural differences among reasonable evaluators.

We therefore reduce the three quanta appealed, confessing doubt as to our understanding of Coco’s obiter dictum which would limit our reduction to the “highest” point of the trial court’s discretion. For example, we reduce a $500,000 award to $80,000 (with some question whether that is still too generous) — an amount which we believe approximates the highest .award that is “reasonably within the discretion” of the trial court. Yet, had the trial court awarded $81,000, we admit we would probably not have reduced. Why not, then, acknowledge that $81,000 is “within the discretion” and award it? Or $82,000? And what of $85,000? Can we pretend that when $80,000 is acceptable for general damages, $90,000 is not? Or $100,000? If $100,-000, why not $125,000?

We conclude that Coco’s dictum must be interpreted to require us to do no more than approximate the limits which we deem overstepped by the trial court. That is what we now do in considering the quanta individually, although in two of the three we find errors which might justify ignoring the jury’s quantum rather than merely treating it as excessive.

Janis Caroilo

Perhaps most evidently excessive is the $500,000 for Mrs Carollo’s bad but surgically revised facial burn and other facial scarring, a compression fracture of a vertebra, and other injuries.

The third-degree burn on Mrs. Carollo’s left cheek came from a light bulb from her automobile’s instrument panel. The burn was four or five centimeters in diameter and took three months to cover itself with scar tissue without skin graft. Five months thereafter plastic surgery excised that principal scar and other scarring from lacerations in the area of left cheek ahd temple. The excision removed an area ten centimeters long and four centimeters wide (at its widest), and left a fairly regular thin-line scar. To the casual observer this thin scar is not very noticeable and — as the plastic surgeon observed — “professional cosmetic help” would make the scar less visible. An important related item of damage is an estimated five per cent permanent paralysis of the left facial muscles.

The compression fracture of Mrs. Carol-lo’s fifth cervical vertebra was treated by traction and then “four-poster” brace until six weeks post-accident and thereafter by soft cervical collar for seven weeks. The injury which caused the fracture also caused some arthritic change from which Mrs. Caroilo experiences at times a burning sensation in her neck.

Counsel’s repeated references in argument to the jury to five broken ribs and 400 sutures are unsupported. The medical testimony and the hospital records give no hint that any rib was broken (except that one doctor agrees that Mrs. Caroilo said she had five broken ribs) and makes no reference to sutures except to note that a deep facial laceration was sutured. Mrs. Carollo’s testimony that she had five broken ribs is obviously hearsay (perhaps double hearsay from her husband, who testified that he was told she had five broken ribs) and the failure of the hospital records to mention broken ribs suggests that this hearsay was erroneous. Similarly her testimony of 400 sutures is presumably hearsay of undisclosed source.

Mrs. Caroilo did have other injuries, among which was one to the pericardium evidenced by a “friction rub” which lasted several days although electrocardiograms and chest x-rays were normal.

We conclude that the maximum award for the proven injuries of Mrs. Caroilo would approximate $80,000, to which we reduce her award.

Scott Caroilo

Scott was four years old at the time of the accident. He had impaired hearing, for which he wore a hearing aid. While [605]*605Scott had some facial laceration on the left side leaving minimal scarring, his most serious physical injury in the accident was a bilateral basilar skull fracture, which healed without incident or residual problem. Perhaps more frightening to young Scott was awakening in a strange hospital, without his hearing aid, and not understanding his circumstances.

The jury’s $20,000 award exceeds even the “much discretion” of C.C. 1934(3).

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Related

State v. Edgar
140 So. 3d 22 (Louisiana Court of Appeal, 2013)
Spencer v. Children's Hospital
432 So. 2d 823 (Supreme Court of Louisiana, 1983)
Spencer v. Children's Hosp.
432 So. 2d 823 (Supreme Court of Louisiana, 1983)
Carollo v. Wilson
349 So. 2d 336 (Supreme Court of Louisiana, 1977)

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Bluebook (online)
345 So. 2d 601, 1977 La. App. LEXIS 3840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carollo-v-wilson-lactapp-1977.