Cole v. City of West Lake

517 So. 2d 928, 1987 La. App. LEXIS 10360, 1987 WL 809
CourtLouisiana Court of Appeal
DecidedOctober 7, 1987
DocketNo. 86-829
StatusPublished
Cited by3 cases

This text of 517 So. 2d 928 (Cole v. City of West Lake) 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
Cole v. City of West Lake, 517 So. 2d 928, 1987 La. App. LEXIS 10360, 1987 WL 809 (La. Ct. App. 1987).

Opinion

DOMENGEAUX, Judge.

Jay M. Cole was injured when a fragment of steel from a screw extractor struck him in the eye. He brought suit against Belknap, Inc., the distributor of the extractor, Vermont American Corporation, the manufacturer of the extractor, The Home Insurance Company, the liability insurer of Belknap and Vermont, and the City of West Lake. After a trial on the merits, the district judge held in favor of the plaintiff and against the defendant distributor, manufacturer, and their insurer. He also rendered judgement in favor of the city of West Lake, rejecting plaintiffs demands against it. The district judge further dismissed all third party demands.

On July 23,1984, Jay M. Cole reported to the city of West Lake to perform community service work required of him in connection with a DWI conviction. Mr. Cole was not a regular employee of the city, nor was he to be paid for his services. Mr. Cole was assigned to a maintenance crew which proceeded to repair leaking pipes in the city’s water system. After completing repairs at one location, the crew proceeded to another location where a leak had occurred. Using a backhoe, a member of the crew dug down to the leaking pipe. Because the leaking water was filling the hole, Mr. Cole and another member of the crew took a gasoline powered pump from the maintenance truck and began pumping water from the hole. Upon investigation of the leak, two members of the crew discovered that it resulted from a rusted pipe. The three quarter inch rusted pipe formed a tee connection with a larger two inch main line. In trying to remove the rusted pipe from the two inch line, the pipe broke, making it difficult to unscrew the broken off piece. In order to complete removal of the broken piece, Charles Baker, a city employee, used a “screw extractor,” also called an “easy out”, and a wrench to attempt the removal. In trying to seat the screw extractor into the broken pipe, Mr. Baker hit it with a ball peen hammer. This task was made more difficult because water continued to run from the pipe. Mr. Baker was unable to seat the extractor after striking a number of blows and gave up, allowing Clyde Malb-rough to attempt the operation. Mr. Malb-rough climbed into the hole and attempted to seat the extractor by hammering it into the pipe. It took him a couple of blows before he successfully seated the extractor and was able to remove the broken pipe. However, during one of these attempts, a hammer blow dislowed a metal fragment from the extractor, which struck Mr. Cole in his right eye. At the time, Mr. Cole was standing approximately fifteen feet away, on a small mound of dirt, watching the removal of the pipe.

After Mr. Cole was injured, another employee of the city, and member of the crew, took Mr. Cole to see Dr. Gary F. Roberts of the Medical Arts Group in West Lake. Dr. Roberts examined Mr. Cole and had a number of x-rays taken. Dr. Roberts found that the metal fragment had penetrated [930]*930Mr. Cole’s right eye lid and had lacerated the eyeball, but was not embedded in it. He then removed the metal fragment from Mr. Cole’s eye, and referred him to the Eye Clinic for further examination.

Dr. Larry Stewart, an ophthalmologist with the Eye Clinic, examined Mr. Cole approximately forty-five minutes after Dr. Roberts had removed the metal fragment. Dr. Stewart discovered that the fragment had penetrated Mr. Cole’s eyeball, that blood had entered the eye, and he determined that surgery was required to close the injury. Mr. Cole was subsequently taken to the hospital, where the surgery to close the injury was performed. Mr. Cole was discharged from the hospital on July 28, 1984, after a five day stay. The doctor released him for bed rest and recommended a number of prescribed medications. His overall impression at that time was that Mr. Cole was doing extremely well.

Mr. Cole continued to see Dr. Stewart until July 1, 1985. Over this period, Dr. Stewart monitored Mr. Cole's eye, noting its visual acuity, and adjusting his medication as needed. Dr. Stewart indicated that, at this time, Mr. Cole’s visual acuity in his right eye was 20/40. Dr. Stewart also placed Mr. Cole on artificial tears because of dryness caused by damage to his eye. He indicated that Mr. Cole would probably need this for the remainder of his life. Dr. Stewart also indicated that as a result of his injury, Mr. Cole has a greater chance of developing glaucoma than had he not been injured. He therefore suggested that Mr. Cole visit an ophthomologist at least once a year for the rest of his life.

In rendering judgement, the district court awarded Mr. Cole $35,000.00 in general damages plus $7,090.87 in stipulated special damages, for a total of $42,090.87. He, also, rejected the demands of Mr. Cole against the city of West Lake and dismissed all third party demands.

On appeal Mr. Cole makes the following assignments of error: (1) the trial court’s award of $35,000.00 to plaintiff was in error as it did not adequately compensate plaintiff for his injuries; (2) the trial court erred in failing to award the plaintiff the future medical expenses proven at trial; (3) the trial court erred in failing to award attorney’s fees; (4) the trial court erred in dismissing plaintiff’s claims against the city of West Lake.

Vermont American, Belknap, and Home Insurance answered the appeal and assigned as error the trial court’s dismissal of their claims for indemnity or contribution brought against the city of West Lake.

In his first assignment of error, Mr. Cole argues that the trial judge’s award of $35,000 in general damages is inadequate.

Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after concluding that the record supports a finding that the lower court abused its much discretion can the appellate court disturb the award, and only then to the extent of raising or lowering it to the lowest or highest point which is reasonably within the trial court’s discretion. Coco v. Winston Industries, 341 So.2d 332 (La.1976). The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion. Coco v. Winston Industries, Supra. Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case. Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

Mr. Cole sites Martin v. Gulf South Beverages, Inc., 454 So.2d 250 (La.App. 5th Cir.1984), in arguing that his award is inadequate. The facts in that case and the injuries resulting to the plaintiff therein are sufficiently different from those before us that it is of no help to us in deciding whether the trial judge in this case abused his much discretion.

A review of the record here shows that the injury to Mr. Cole was indeed painful. It was necessary that he take pain medication in order to control that pain. He also was required to stay in the hospital for five days following his surgery. His visual acuity in his right eye was significantly [931]*931diminished after the accident and surgery, primarily from medication causing dilation of the pupils, but was only slightly diminished when Dr. Stewart last saw him on July 1, 1985. In fact, Dr. Stewart testified that when considering the visual acuity of both of Mr. Cole’s eyes when used together, he had essentially 20/20 vision.

Dr. Stewart also indicated that Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Powell v. Chabanais Concrete Pumping, Inc.
82 So. 3d 548 (Louisiana Court of Appeal, 2011)
Trahan v. Savage Industries, Inc.
692 So. 2d 490 (Louisiana Court of Appeal, 1997)
Cashio v. Kojis & Sons Signs
568 So. 2d 1388 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
517 So. 2d 928, 1987 La. App. LEXIS 10360, 1987 WL 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-city-of-west-lake-lactapp-1987.