Doss v. Second Chance Body Armor, Inc.

794 So. 2d 97, 2001 La. App. LEXIS 1910, 2001 WL 946422
CourtLouisiana Court of Appeal
DecidedAugust 22, 2001
Docket34,788-CA
StatusPublished
Cited by6 cases

This text of 794 So. 2d 97 (Doss v. Second Chance Body Armor, Inc.) 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
Doss v. Second Chance Body Armor, Inc., 794 So. 2d 97, 2001 La. App. LEXIS 1910, 2001 WL 946422 (La. Ct. App. 2001).

Opinion

794 So.2d 97 (2001)

Donna J. DOSS, et al., Plaintiffs-appellees,
v.
SECOND CHANCE BODY ARMOR, INC., et al., Defendants-appellants.

No. 34,788-CA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 2001.

*99 Usry & Weeks by T. Allen Usry, John F. Weeks, II, Fred Schroeder, New Orleans, Counsel for Appellants.

A. Scott Killen, James M. Wilkerson, Farmerville, Counsel for Appellees.

Before NORRIS, CARAWAY and KOSTELKA, JJ.

CARAWAY, J.

In this tort action where defendants concede liability, the appeal concerns the trial court's awards for past and future economic damages to plaintiffs chicken farming business due to his injured condition and inability to efficiently manage his farm. Finding an abuse of discretion in the trial court's award, we now amend the trial court's judgment.

Facts

This suit arises from the accidental shooting of Lieutenant Tommy C. Doss ("Doss"), a Ruston police officer, by a fellow law enforcement officer, Union Parish Deputy Curtis Batten, that occurred during a drug interdiction operation in Ruston conducted by a joint task force. Deputy Batten does not contest his fault on appeal, nor does his employer, Sheriff Robert G. Buckley, contest that he is liable under the doctrine of respondeat superior.

The accident occurred on June 24, 1994 when Deputy Batten lost his balance exiting an automobile and accidently discharged his service pistol. The bullet traveled through the front seat of the car and struck Doss to the left of the spine in his lower back. Doss was wearing body armor at the time of the shooting, so the bullet did not penetrate his body.[1] Although the vest kept the bullet from penetrating Doss's back, it did not diminish the blunt trauma Doss received from the force of the bullet. Doss was taken to Lincoln General Hospital's emergency room, where he was examined, treated, and released the same day. He returned to his job with the Ruston Police Department the following Monday.

Doss visited several physicians over the five and one-half years before trial and went to physical therapy on a few occasions. Ultimately, an MRI showed that Doss has a mild bulging disc near the point of the bullet's impact. Overall, Dr. Thomas L. Morris ("Dr. Morris") testified at trial that Doss's injury and subsequent pain stems from an injury to his left paraspinus muscle. Dr. Morris stated that he noticed some asymmetry, in that the left paraspinus muscle is larger and more firm than the right muscle, and that in the future, the muscle could become weak and lose its flexibility, or atrophy. Doss also complains of neck pain and headaches, and Dr. Morris testified that an injury to the paraspinus muscle can cause neck pain and headaches, since the muscle is large and runs from the lower back up to the neck area.

Doss described his pain as occurring "off and on," and stated that some activities, such as certain tedious work on his farm, aggravate his injury. However, in order *100 to try to remain in good physical health, Doss plays racquetball for a half hour or so, four to five times per week. Doss did not testify as to whether his pain increased after playing racquetball.

Between the shooting and the date of trial, Doss received cortisone injections in the paraspinus muscle to help with the pain, as well as prescriptions for anti-inflammatory drugs. He stated that the cortisone injections gave him the most relief from the pain, but that ultimately, he continues to suffer with back and neck pain, as well as headaches.

Also, during this time frame, Doss continued working as a full-time police officer, as well as continuing his work with his chicken farming operation. Doss's chicken farm consists of six chicken houses, each of which can hold approximately 20,000 chickens. Having missed only a day and one-half from work as a police officer, Doss sought recovery of his economic losses for the decline in his chicken farming business. This appeal, which no longer includes the issue of general damages,[2] concerns the economic impact to Doss's farm.

In its reasons for judgment, the trial court stated that Doss suffered "severe and debilitating injuries" as a result of the enormous "force of the blast which slammed his head into the steering wheel." The trial court also concluded that the gunshot wound caused permanent damage to Doss's left paraspinus muscle. More specifically, the trial court summarized Doss's condition by quoting, in part, a letter dated January 31, 2000, from one of Doss's treating physicians, Dr. Richard I. Ballard:

His pain has been very consistent in the thoracolumbar junction area and would go along with the blunt trauma which he sustained. He has had spasm, trigger points and decreased motion in his back and on review of his previous clinic chart, there is no previous history of any back complaints whatsoever. Although there was no evidence of any bony injury, I would liken the soft tissue injury to his back to that of being hit with a board or a bat in the mid to low back. This man's problem is definitely related to his activity. The more farm work which he does, the more pain he has in his back. The more he lifts and twists, the more frequent are his recurrences.
He has continued to take anti-inflammatory medication, muscle relaxant (sic) on an intermittent basis and has continued to have to have trigger point injections intermittently.

In his chicken operation, Doss raises young chickens provided to him by ConAgra. ConAgra also supplies the chicken feed at its cost. Doss is compensated by ConAgra when he delivers the flock back to ConAgra at full growth and his production results are ranked against the results from other ConAgra producers. Doss was in the poultry business approximately two years before his injury.

Doss called upon Dr. Robert Shelor ("Dr. Shelor"), an associate professor of Finance at Louisiana Tech University, to testify about the past and future economic damages from the decline in his poultry farming business. Dr. Shelor presented his opinion of Doss's past and future lost opportunities using what he termed as a "standard of excellence" analysis. Dr. *101 Shelor claimed that he established the "standard of excellence" analysis based on Doss's testimony that before his accident, he consistently ranked first and second among his competitors, thus receiving the highest pay from ConAgra.

In the trial court's reasons for judgment, it ruled that Doss was entitled to $366,961.16 for past economic loss for the 5-½-year period before trial. Apparently, the trial court averaged Dr. Shelor's figures for producer ranks one and two to arrive at the $366,961.16 figure. For future economic loss, the trial court refused to follow Dr. Shelor's trends and projections analysis, and rendered judgment in the amount of $260,000, based on Doss's testimony that he recently hired a new farm worker for $200 per week ($200 × 52 weeks × 25 years = $260,000). Appellants' appeal primarily seeks the review of the propriety of the trial court's awards for the alleged losses to Doss's poultry business. Appellants also challenge whether Doss's residual pain was the cause-in-fact of any economic loss, past or future, to his poultry operation. Plaintiffs answered the appeal seeking an increase in the award for future economic losses, claiming that the trial court misapplied the law regarding future lost income and earning capacity.

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Bluebook (online)
794 So. 2d 97, 2001 La. App. LEXIS 1910, 2001 WL 946422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doss-v-second-chance-body-armor-inc-lactapp-2001.