Dowe v. Grady

540 So. 2d 1040, 1989 WL 14330
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1989
Docket20,293-CA
StatusPublished
Cited by16 cases

This text of 540 So. 2d 1040 (Dowe v. Grady) 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
Dowe v. Grady, 540 So. 2d 1040, 1989 WL 14330 (La. Ct. App. 1989).

Opinion

540 So.2d 1040 (1989)

Ralph DOWE, Administrator of the Estate of the Minor, Ralph Oliver Dowe, Appellees-Appellants,
v.
John H. GRADY and Louisiana Farm Bureau Insurance Company, Appellants.

No. 20,293-CA.

Court of Appeal of Louisiana, Second Circuit.

February 22, 1989.

*1041 Cotton, Bolton, & Hoychick by Terry Doughty, Rayville, Louisiana, for appellants.

Raymond Lee Cannon, Tallulah, for appellees-appellants.

Before MARVIN, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

The plaintiffs, Ralph Dowe Sr. and Jr., sued the defendant, John Grady, and his insurer, Farm Bureau, for damages resulting from a collision between Grady's pickup truck and Dowe Sr.'s ATV 3-wheeler, on which Dowe Jr. ("Ralph") was a passenger. The trial judge assigned all fault to Grady and set damages at $23,299.75, including $20,000 for generals and $1,750 for future medicals. Grady appeals, urging that Ralph was comparatively negligent and that the damages are excessive. The Dowes also appeal, contending the damages are inadequate. For the reasons expressed, we amend the judgment to delete the award of future medicals but otherwise affirm.

Facts

The accident occurred on a Friday afternoon, January 13, 1984, around 5:00 p.m. Ralph was 16 years old at the time; when he reached majority he was added as a party plaintiff. Ralph and his brother-in-law Tommy Brooks were riding down LaSalle St. in Tallulah on Mr. Dowe's ATV 3-wheeler. Tommy Brooks was driving and Ralph was passenger on the one-seat 3-wheeler, which was not licensed for on-road use. They headed north on LaSalle toward its intersection with Louisiana St.; LaSalle is favored. As Brooks entered the intersection, going about 15 m.p.h., he noticed a pickup truck coming from the left and apparently not fully stopping. Brooks *1042 veered to the right to avoid getting hit but was unable to avoid the truck. The truck hit the left rear portion of the 3-wheeler, striking Ralph's left leg. The 3-wheeler wound up under a tree on the side of the road. Brooks was not hurt. Ralph was bleeding on the rear part of his left leg, where his jeans leg had been torn; his left foot was also hurt. Ralph was nevertheless on his feet almost immediately.

Grady denied that he ran the stop sign, insisting that he stopped and looked well, but admitted he "just didn't see the boys." Although it was late afternoon there was enough light in the sky for everyone to see fairly well; neither Grady nor Brooks had his headlights on. Grady estimated his speed at impact as 1 m.p.h., but Ralph said it was 15 or 20 m.p.h. and the trial judge accepted this estimate.

At the scene Ralph declined an offer of an ambulance but later his father brought him to the emergency room at Madison Parish Hospital. He was treated and released that evening without being admitted. At home Ralph's knee began to swell and a large bruise began to develop. The following Monday Mr. Dowe carried him to Vicksburg to see Dr. Rowlett, an orthopedic surgeon who is now deceased. His medical reports were admitted as attachments to the other doctors' depositions. Dr. Rowlett drained a quantity of bloody fluid from Ralph's knee. He found large contusions but no bone fractures. He placed Ralph on pain medicine and suggested that he use his leg within the limits of pain. Ralph used crutches for a few weeks. Dr. Rowlett saw Ralph a total of six times. By March 5, he noted the knee was a little sore but that it should be fully weight-bearing; Ralph should be able to do "whatever he wants." On April 3, he noted a lump on the left posterior thigh. He thought it was a lipoma and suggested conservative heat treatment. On August 8 he saw Ralph for the last time and described him as asymptomatic. The lipoma was still present, but he did not feel it required surgical attention. He recommended that Ralph settle with the insurance company.

That fall Ralph resumed his major sports activities, playing both offensive and defensive tackle for his high school, Tallulah Academy. He started every game and garnered All-District honors. He also weightlifted, but has given up hunting. He complains of some periodic pain and swelling, especially if he leans on his foot, climbs stairs or carries anything heavy. He testified at trial in August 1987 that pain is still a problem if he uses his leg a lot. He also complains of the indention and lump on his thigh; this has never gone away. Since high school Ralph has worked on local farms, on a construction project in Virginia and as a lineman for Cablevision. He has never quit a job because of the injury. At the time of trial he was enrolled at NLU, majoring in criminal justice.

Two experts testified by deposition. Dr. Rambach, an orthopedist in Shreveport, examined Ralph in September 1985. He observed no contusions or knee problems, but noticed Ralph was slightly limping on his left lower extremity. He thought the lump on the back of the thigh was a hematoma, not a lipoma. He said Ralph's prognosis was good but he would still experience some pain. He assigned a 10% disability rating to the left leg, explaining that any trauma of this type would result in some functional disability. Dr. Brown, an orthopedist in West Monroe, examined Ralph in April 1986 and reported that Ralph denied any instability, swelling or real pain in the left leg. All tests were normal and he assigned no disability. As for the lump, he felt it was a lipoma which could be surgically removed, but surgery would be chiefly cosmetic and was not necessary. He did not project a price for the surgery.

In detailed written reasons for judgment the trial judge concluded that Ralph Dowe Jr. was not comparatively negligent in the accident. He awarded Mr. Dowe $1,761.25 for medical expenses and property damage to the 3-wheeler. He awarded Ralph $5,000 for disability and future pain and suffering, $10,000 for past pain and suffering, $5,000 for disfigurement, and $1,750 for future medicals. He denied claims for loss of companionship and lost earning capacity.

*1043 Discussion: Comparative Negligence

By this assignment Grady urges the trial judge erred in not finding Ralph at least partly at fault. He asserts that Ralph violated a statute prohibiting two-to-a-seat riding, LSA-R.S. 32:191, and allowed Brooks to violate statutes regarding on-road licensing and footrest requirements, LSA-R.S. 32:51, 32:191.3. All these statutes, he argues, were enacted to protect against the type of harm that occurred, and Ralph's failure to observe them was a legal cause of the accident.

At the outset we note that the statutes cited do indeed prohibit certain conduct. LSA-R.S. 32:51 provides:

§ 51. Vehicle license required

No person shall operate, or permit to be operated, any motor vehicle upon the highways of this state unless it is registered with the commissioner, the license tax is paid thereon, and it is operated in accordance with the provisions of this Chapter and other laws of this state.

Appellant claims this section recognizes that small vehicles like 3-wheelers have limited maneuverability and visibility on public highways and are for this reason not permitted to enter regular traffic with cars and trucks. He offers, however, no legislative or jurisprudential authority for this. When a statute does not provide a specific basis for imposing civil liability, the court must endeavor to interpret legislative intent as to the risk contemplated by the statute, often resorting to the court's own judgment of the scope of the protections intended. Wright v. O'Neal, 427 So.2d 852 (La.1983); Carter v. City Par. Govt. of E.

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Cite This Page — Counsel Stack

Bluebook (online)
540 So. 2d 1040, 1989 WL 14330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowe-v-grady-lactapp-1989.