Davis v. Sewerage and Water Bd.

555 So. 2d 664, 1989 WL 156393
CourtLouisiana Court of Appeal
DecidedDecember 29, 1989
Docket89-CA-0388
StatusPublished
Cited by8 cases

This text of 555 So. 2d 664 (Davis v. Sewerage and Water Bd.) 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
Davis v. Sewerage and Water Bd., 555 So. 2d 664, 1989 WL 156393 (La. Ct. App. 1989).

Opinion

555 So.2d 664 (1989)

Raymond DAVIS, Jerry Lewis, Maurice Hall and Anthony Alexander
v.
SEWERAGE AND WATER BOARD OF NEW ORLEANS.

No. 89-CA-0388.

Court of Appeal of Louisiana, Fourth Circuit.

December 29, 1989.
Writ Denied March 30, 1990.

*665 Patrick G. Kehoe, Jr., Birdsall, Rodriguez, Robelot, New Orleans, for plaintiff/appellee.

Harold D. Marchand, Sewerage and Water Bd. of New Orleans, New Orleans.

Before BARRY, BYRNES and PLOTKIN, JJ.

BARRY, Judge.

The only issue is the amount of personal injury damages awarded against the Sewerage and Water Board of New Orleans.

On January 27, 1987 at about 7:00 p.m. a car driven by Anthony Alexander and occupied by Maurice Hall, Raymond Davis and Jerry Lewis went into a three feet by eight feet hole in the 1300 block of Mandeville Street. The Board had dug the hole in order to repair a sewer line, but the backfill had eroded.

After a bench trial the court found that the accident was caused solely by the Water Board and awarded Raymond Davis $3,000 general damages and $325 medical expenses; Jerry Lewis $3,500 general damages and $1,020 medical expenses. Anthony Alexander was awarded general damages of $100,000, lost earning capacity $50,000, past medical expenses $16,361, lost wages $4,020, a total of $170,381. Maurice Hall was awarded general damages of $225,000, lost earning capacity $75,000, past medical expenses $18,272, future medical expenses $15,000, lost wages $13,199, a total of $346,471.

The Water Board appealed the awards as excessive, but made no arguments specifically as to Lewis and Davis. Davis, Lewis, Alexander, and Hall answered and asked for increases in their awards. However, *666 their brief does not argue as to Lewis' award. The brief argues the trial court abused its discretion: by awarding Alexander $100,000 general damages instead of $175,000, $50,000 for loss of future earning capacity instead of $184,874, and failing to award future medical expenses of $23,100; by awarding Hall $225,000 for general damages instead of $300,000, $13,199 in past lost wages instead of $13,235, $75,000 for loss of future earning capacity instead of $238,113, and $15,000 for future medical expenses instead of $99,512; by awarding $325 to Davis for medical expenses whereas $825 was incurred.

THE LAW

A trial court has much discretion in assessing damages. La.C.C. art. 2324.1 (pre-1984 art. 1934(3)). A reviewing court should not disturb a trial court's award absent an abuse of discretion. Because a trial judge has closer contact with the injured parties, he is better able to decide the actual loss. Sherlock v. Berry, 487 So.2d 555 (La.App. 4th Cir.1986), writ not considered 489 So.2d 912 (La.1986).

An appellate court must first analyze the facts and circumstances peculiar to an individual case and determine that there has been an abuse of the trial court's "much" discretion in awarding damages. If the award is excessive or insufficient an appellate court may examine comparable cases for guidance to determine an appropriate award. Reck v. Stevens, 373 So.2d 498 (La.1979); Redondo v. Consolidated Freightways Corp. of Delaware, 529 So.2d 1296 (La. 4th Cir.), writ denied 533 So.2d 363 (1988); Fitzgerald v. Gulf International Cinema Corporation, 489 So.2d 306 (La.App. 4th Cir.1986). An appellate court can only raise or lower the award to the highest or lowest point which was within the lower court's discretion. Coco v. Winston Industries, 341 So.2d 332 (La.1976).

ALEXANDER'S AWARD

Dr. Bogran, general surgeon, testified he first saw Alexander two days after the accident. Alexander had a laceration of the lower lip and broken incisor. Alexander complained of back pain radiating down his right thigh. Dr. Bogran observed positive straight leg raising and back muscle spasms. Dr. Bogran told Alexander not to work or lift and prescribed conservative treatment. A subsequent CAT scan showed a herniated L5-S1 disk and Dr. Bogran referred Alexander to Dr. Vogel.

Dr. Vogel, neurosurgeon, testified he examined Alexander on April 21, 1987 and found an acute lumbosacral strain with a possible herniated disk. He reviewed the CAT scan which showed a midline bulge at L4 and L5-S1. Alexander was hospitalized June 28, 1987 and underwent further testing which showed a herniated disk at L5-S1 level. Dr. Vogel removed part of the disk which was compressing the nerve root. Six weeks later Alexander still had mild low back and right leg pain and mild persistent muscle spasm. Six weeks later he had mild low back pain with intermittent right leg pain.

Dr. Vogel estimated Alexander had a 10-15% permanent partial total body medical impairment. He advised against bending repeatedly at work. Dr. Vogel permanently prohibited lifting, pushing, or pulling more than fifty pounds. Dr. Vogel saw Alexander on February 23, 1988 and May 10, 1988. Dr. Vogel used a sacral epidural block, an analgesic and cortisone injection, to diminish lumbosacral irritation. He last saw Alexander on June 23, 1988 when he still had muscle spasms and low back and right leg pain although he was continuing to work.

Dr. Vogel reviewed a May 2, 1988 MRI (magnetic reasonance imaging) which indicated a normal L3 and L4 disk with mild degeneration plus a minimum bulge at L5-S1 level where Dr. Vogel had operated. Dr. Vogel recommended continued conservative treatment and another epidural block. Alexander would reach 80-90% relief of pain, but would require medical treatment three or four times a year for the rest of his life, and maybe one or two courses of physical therapy yearly.

Dr. Vogel felt Alexander could maintain gainful employment within his restrictions but would experience episodes of discomfort. *667 If his employment caused him to lift more than fifty pounds, he would experience flare-ups and the possibility of a lumbar fusion in the future. Dr. Vogel attributed the herniated disk to the accident. Maximum improvement would occur about one year after surgery and Alexander would have pain the rest of his life.

Dr. Kewalramani, orthopedic surgeon, testified that he evaluated Alexander on January 4, 1988 (incorrectly transcribed as 1986) as having chronic lumbar musculoligamentous pain syndrome in the lumbar L4-5 and S1 area. Alexander complained of pain and an electromyography indicated an abnormality compatible with a right L5 radiculopathy (spinal nerve root disease). The EMG showed a change in the L5 nerve root probably caused by a spur pinching the nerve or by the presence of a disk bulge.

Although Alexander was working, Dr. Kewalramani permanently recommended that he was not to lift more than 50 pounds occasionally and 35 pounds on a regular basis and to avoid bending and stooping. A CAT scan and MRI confirmed EMG and thermography abnormalities. Dr. Kewalramani encouraged home therapy, exercises for the abdominal muscles, medication and a doctor's supervision and care. He concluded Alexander could possibly avoid future surgery if he did not bend and lift beyond his limits. Dr. Kewalramani stated Alexander would have pain the rest of his life with a 15-20% anatomical disability. A pain clinic would be helpful. If he did heavy lifting, Alexander might require surgery to remove the disk.

Dr. Richard Levy, neurosurgeon, testified he saw Alexander once on June 24, 1988. He complained of low back and right leg pain. Alexander told Dr. Levy he returned to work in September, 1987 but missed two to three months during a nine month period. After reviewing reports and x-rays and conducting a neurological exam, Dr.

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Bluebook (online)
555 So. 2d 664, 1989 WL 156393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-sewerage-and-water-bd-lactapp-1989.