Chaney v. Our Lady of Fatima Cath. Church

391 So. 2d 501, 1980 La. App. LEXIS 4662
CourtLouisiana Court of Appeal
DecidedNovember 12, 1980
Docket7846
StatusPublished
Cited by11 cases

This text of 391 So. 2d 501 (Chaney v. Our Lady of Fatima Cath. Church) 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
Chaney v. Our Lady of Fatima Cath. Church, 391 So. 2d 501, 1980 La. App. LEXIS 4662 (La. Ct. App. 1980).

Opinion

391 So.2d 501 (1980)

Michael CHANEY, Plaintiff-Appellee,
v.
OUR LADY OF FATIMA CATHOLIC CHURCH et al., Defendants-Appellants.

No. 7846.

Court of Appeal of Louisiana, Third Circuit.

November 12, 1980.

*502 Voorhies & Labbe, E. Gregory Voorhies, Lafayette, for defendants-appellants.

Robert E. Keaty, New Orleans, for plaintiff-appellee.

Before FORET, DOUCET and LABORDE, JJ.

FORET, Judge.

This is an action ex delicto. The corporation of Our Lady of Fatima Catholic Church (Fatima) and its primary automobile liability insurer, Reliance Insurance Company (Reliance), are made defendants. The plaintiff, Michael Chaney, is seeking to recover damages for personal injuries received in a collision between a motorcycle driven by him and a pickup truck owned by the defendant Fatima, which was being driven by one of its employees, Darren Sharlow, who was not made a defendant to this suit. The action was tried before a jury which returned the following verdict in favor of the plaintiff:

The trial court rendered judgment pursuant to this verdict and awarded plaintiff the sums assessed by the jury. The defendants bring this appeal.

The appellants assign three specifications of error in the brief which they submitted to this Court. Our decision with regard to specification of error number two pretermits any need for a discussion of the others.

ISSUE

The only crucial issue raised by appellants is whether the plaintiff met his burden of proof in relation to his claim for damages resulting from a loss of future earnings. There is no dispute as to the awards for medical expenses and loss of past earnings.

The accident occurred on the morning of May 9, 1978. The plaintiff had just left the apartment complex where he resided and was traveling down the Guilbeau Road in Lafayette, Louisiana. Sharlow was proceeding on the same road in the opposite direction. Sharlow was attempting to make a left turn and had crossed the center line of the road when he saw plaintiff coming at him. Sharlow then stopped or was almost stopped in plaintiff's lane of traffic *503 when plaintiff saw him. Plaintiff tried to avoid the collision by laying down the motorcycle in an effort to get off of it. He was unsuccessful in doing so and slid under the front end of the truck, sustaining bodily injury in the ensuing collision.

The plaintiff was taken by ambulance to a Lafayette hospital where he was treated and released. Plaintiff later visited local physicians complaining of continuing pain in his lower back and right leg.

There were two medical experts who testified by deposition. Dr. Kenneth Vogel, a neuro-surgeon practicing in the city of New Orleans, first examined the plaintiff on August 31, 1978. His preliminary diagnosis was that plaintiff was suffering from either a low back strain or a herniated disc. He also found evidence of hypoalgesia or numbness in the right foot and a teardrop fracture of one of the vertebra. Dr. Vogel confirmed his diagnosis of a herniated disc after running a series of tests on the plaintiff. The doctor eventually performed a posteromedial rhizotomy in an attempt to relieve the chronic pain from which plaintiff was suffering.

Dr. Stephen Goldware, also a neuro-surgeon, practicing in Lafayette, Louisiana, testified as to his treatment of plaintiff. He first examined plaintiff on January 19, 1979. His diagnosis was that plaintiff had a lumbar root compression, probably due to a herniated disc or root contusion. He also found evidence of numbness in plaintiff's right foot.

Plaintiff filed suit against Fatima and Reliance on February 21, 1979. He alleged that the negligence of Sharlow was the sole cause of the accident.

Appellants concede their liability on appeal and contest only the award of $100,000.00 to the plaintiff for loss of future earnings. Appellants argue that plaintiff failed to present any evidence at trial which tended to show his right to recover for those damages.

LOSS OF FUTURE EARNINGS

A plaintiff who seeks to recover for loss of future earnings has the burden of proving the extent of his injuries resulting from the accident. He must also prove whether such injuries have incapacitated him from, in the future, doing work of a reasonable character, that is, work for which he was fitted by training and experience, of the same or similar kind in which he was engaged at the time of the accident. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968).

Dr. Vogel testified on behalf of plaintiff. That testimony as to his long-term prognosis with regard to plaintiff's recovery was as follows:

"A. ... It was felt at that time maybe he would have incurred an approximate ten (10) to fifteen (15) percent medical impairment of the body as a whole, or disability, for a period of one (1) year. And during that time of one (1) year, he should avoid activities which would require him to lift things over fifty (50) pounds or bend repeatedly. After the one (1) year, it is anticipated that at this time that these lifting restrictions would be lifted if his healing goes on as optimistically anticipated."

Dr. Vogel further testified on cross-examination that:

"Q. And it's your opinion today, doctor, that this herniation will, in fact, heal itself?

A. Yes.

Q. So is it safe to say then, doctor, one (1) year from now Mr. Chaney should be almost as good as new?

A. Correct.

Q. You have mentioned the possibility of arthritis in the area of the little teardrop chip that you talked with us about. How much of a problem would that be, doctor?

A. I don't think it is going to be a problem at all."

The only other evidence presented by the plaintiff, regarding this element of damages, consisted of his testimony as to his own fears and apprehensions that he would *504 be permanently disabled. We find that this falls far short of proving, by a preponderance of the evidence, that plaintiff would suffer a permanent decrease in earning capacity. His own medical expert testified that he anticipated full recovery within a time period of one year.

Our finding is also supported by other evidence in the record which indicates that plaintiff has not suffered any decrease in his earning capacity. Plaintiff is employed by the Baker Sand Control Company in Lafayette. The appellants called William Owens, an officer of Baker Sand, as their own witness. He testified that plaintiff was earning approximately $700.00 per month more at the time of the trial than at the time of the accident.

The defendants called Dr. Stephen Goldware as a witness. He testified that his examination of the plaintiff and the tests he performed showed no indication of any permanent injury.

The plaintiff must prove his loss with reasonable certainty to support an award for loss of future earnings. Speculation, probabilities and conjecture cannot form the basis for such an award. Watson v. Hartford Accident & Indemnity Company, 339 So.2d 480 (La.App.2 Cir. 1976), writ denied, 341 So.2d 1124 (La.1977); Burrows v. Louisiana Department of Highways, 319 So.2d 867 (La.App.3 Cir. 1975); Heard v. Sanders, 223 So.2d 212 (La.App.2 Cir. 1969).

Plaintiff has failed to prove any permanent decrease in his earning capacity in our opinion. Consequently, we will amend the judgment of the trial court to delete the award of $100,000.00 to the plaintiff for loss of future earnings.

INADEQUACY OF JURY AWARD FOR GENERAL DAMAGES

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Bluebook (online)
391 So. 2d 501, 1980 La. App. LEXIS 4662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chaney-v-our-lady-of-fatima-cath-church-lactapp-1980.