Day v. Ouachita Parish School Bd.

823 So. 2d 1039, 2002 WL 1805539
CourtLouisiana Court of Appeal
DecidedAugust 8, 2002
Docket35,831-CA
StatusPublished
Cited by16 cases

This text of 823 So. 2d 1039 (Day v. Ouachita Parish School 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
Day v. Ouachita Parish School Bd., 823 So. 2d 1039, 2002 WL 1805539 (La. Ct. App. 2002).

Opinion

823 So.2d 1039 (2002)

Amy Kelly DAY, et al, Plaintiff-Appellee
v.
OUACHITA PARISH SCHOOL BOARD, et al, Defendant-Appellant.

No. 35,831-CA.

Court of Appeal of Louisiana, Second Circuit.

August 8, 2002.

*1040 Elmer G. Noah, II, Monroe, for Appellant.

Donald R. Brown, Robert A. Breithaupt, Monroe, for Appellee.

Before WILLIAMS, KOSTELKA and DREW, JJ.

WILLIAMS, Judge.

The defendants, Ouachita Parish School Board and John Green, appeal a judgment in favor of the plaintiffs, Amy Day and her son, Morgan Day. The trial court found that defendants were liable for a back injury sustained by Morgan Day and awarded damages for his injuries. For the following reasons, we affirm and remand.

FACTS

In August 1997, Morgan Day ("Morgan") was a freshman at West Monroe High School ("WMHS"). As a member of the freshman football team, Morgan was required to participate in a weight training *1041 class held during school hours. The weight lifting program was directed by the school's strength coach, John Sanders, who was assisted by coach John Green ("Green") and two other coaches. The sixty student players were divided into four or five lifting groups, each of which was supervised by one of the coaches. Several senior students on the team assisted the coaches with supervising and instructing the class participants.

In October 1997, Morgan injured his back while lifting weights in class. The next day, Morgan played in a freshman football game even though his back was bothering him. On October 7, 1997, Morgan sought treatment from Dr. Douglas Brown, an orthopedic surgeon. After an examination, Dr. Brown diagnosed Morgan's injury as lumbar strain and a dehydrated L-5 disc. Dr. Brown provided Morgan with a written medical excuse, which stated "(1) No football for 1 week (2) No weightlifting, squats or power cleans. Diagnosis-lumbar strain and injured L-5 disc."

Morgan presented the medical excuse to George Bell, the freshman coach, and the note was posted on a bulletin board in Coach Sanders' office. Coaches Bell, Green and Sanders testified that they interpreted the doctor's note to mean that Morgan could not participate in football or weightlifting for a period of one week. Morgan and his mother, Amy Day, testified that they interpreted the note to mean that he could not play football for one week and could not lift weights for an indefinite time period.

According to Morgan, who did not recall the exact date, at some point after the medical excuse was posted he was observing in class but not lifting weights, when Green instructed him to perform a "dumbbell power clean push press." When Morgan reminded Green that he was medically excused, the coach insisted that the lift was an upper body exercise and would not affect his lower back. After performing several repetitions of the lift, Morgan felt severe pain in his back and needed to lie down on a mat.

On October 21, 1997, Morgan again saw Dr. Brown with a complaint of back pain. Dr. Brown ordered an MRI of the lumbar spine that indicated a disc protrusion between the fourth and fifth vertebrae. Dr. Brown diagnosed Morgan with a herniated disc at the L-4 level and issued another medical excuse that prohibited him from all weightlifting and football activities until further notice. Morgan was referred to Dr. Ronald Ellis, an anesthesiologist specializing in pain management. Dr. Ellis recommended a series of epidural steroid injections, which were declined by Morgan and his mother. Morgan went to see two other orthopedic surgeons, Doctors David Trettin and Don Burt, and a neurosurgeon, Dr. Jose Bermudez.

Morgan next visited Dr. Brown in August 2000. Dr. Brown found that Morgan continued to experience lower back tenderness with a mild muscle spasm. Another MRI reflected, as in the previous study, a central disc protrusion at the L-4 level.

After the disc injury, Morgan was unable to play high school football or baseball. Morgan lost interest in school and failed his courses due to excessive absences. He withdrew from WMHS and enrolled in Richardson High School, an alternative school, where his grades improved.

Morgan's injury caused his mother to incur medical expenses of $7,485. Dr. Brown estimated that surgery to relieve the herniated disc would cost $16,000. As of the trial date, Morgan had not pursued the recommended series of epidural steroid *1042 injections or participated in physical therapy for his back.

The plaintiff, Amy Day, individually and as tutrix of her minor son Morgan, filed a petition for damages against the defendants, Ouachita Parish School Board and John Green. Morgan was later added as a party plaintiff upon reaching the age of majority. After a trial, the court issued written reasons for judgment, finding that the defendants were liable for Morgan's back injury and awarding the plaintiffs damages of $7,485.45 for past medical expenses, $195,500 for pain and suffering, $30,000 for future medical expenses and $50,000 for loss of enjoyment of life. Judgment was rendered in favor of the plaintiffs. Defendants appeal the damage award.[1]

DISCUSSION

In two assignments of error, the defendants contend the trial court erred in awarding general damages of $195,500 for Morgan Day's pain and suffering and an additional $50,000 for loss of enjoyment of life. The defendants argue that the award for pain and suffering is excessive.

General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment or other losses of lifestyle that cannot be definitively measured in monetary terms. Robbins v. State Dept. of Labor, 31,590 (La.App.2d Cir.2/24/99), 728 So.2d 991. Before an appellate court may disturb such an award, the record must clearly show that the factfinder abused its broad discretion in making the award. Robbins, supra. The finding of an abuse of much discretion must be based on the particular injuries sustained and their effect on the particular injured person. After a determination that an award constitutes such an abuse of discretion, the appellate court may reduce or increase the award to the highest or lowest amount reasonably within the factfinder's discretion. Dauzat v. Rapides Parish Police Jury, 95-115 (La.App. 3rd Cir.6/7/95), 657 So.2d 484.

In the present case, Dr. Brown first saw Morgan on October 7, 1997, with a complaint of severe pain in the left lower back. During the physical exam, Dr. Brown noted that Morgan was only able to bend approximately 45 degrees at the waist. Dr. Brown did not find any evidence of nerve injury, but reported that Morgan's low back muscles were very tight, with spasms. Morgan was diagnosed with an acute lumbar strain.

Morgan returned to Dr. Brown on October 21, 1997, with severe back pain radiating down to the right leg. The straight leg raising maneuver was positive, indicating a possible ruptured disc. The MRI results were consistent with a herniated disc at the L-4 level. Dr. Brown referred Morgan to Dr. Ellis for epidural steroid injections to reduce the pain. In his deposition, Dr. Brown testified that the patient and his mother decided against the injections to see if the condition would resolve itself.

In November 1997, Morgan saw Dr. Don Burt, an orthopedic surgeon, with a complaint of pain in the lower back, right hip and right leg. Dr. Burt examined Morgan and noted muscle tightness in the back and a positive sciatic stretch test on the right side, made worse by flexion of the neck. Dr. Burt recommended continued conservative treatment.

In March 1998, Morgan visited Dr.

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Bluebook (online)
823 So. 2d 1039, 2002 WL 1805539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-ouachita-parish-school-bd-lactapp-2002.