Esco v. Smith

478 So. 2d 153, 1985 La. App. LEXIS 9934
CourtLouisiana Court of Appeal
DecidedOctober 8, 1985
DocketNo. 83 CA 1055
StatusPublished
Cited by4 cases

This text of 478 So. 2d 153 (Esco v. Smith) 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
Esco v. Smith, 478 So. 2d 153, 1985 La. App. LEXIS 9934 (La. Ct. App. 1985).

Opinions

CARTER, Judge.

Plaintiff, Lester Arcard Esco, suffered personal injuries by electrical shock when a [154]*154cherry picker operated by his foreman struck an overhead live electrical transmission line. Among others, he sued four supervisory employees or co-employees of the company for which he worked, all of whom were allegedly insureds under a liability policy issued to his employer, Fremin-Smith Services, Inc., by defendant United States Fire Insurance Company.1 The trial judge rendered judgment in favor of the four named defendants and dismissed plaintiffs suit with prejudice upon finding that there was “victim fault here sufficient to bar plaintiffs right to recovery.” The trial judge found it unnecessary to decide whether each or all of the four named defendants were individually negligent. The Court of Appeal affirmed the judgment of the trial court.2

Thereafter, on plaintiffs writ application, the Louisiana Supreme Court granted cer-tiorari.3 The Supreme Court concluded that the trial judge was clearly wrong in finding that plaintiff was contributorily negligent and/or had assumed the risk. The Supreme Court reversed this determination, found that two of the four individual defendants, together with their liability insurer, are responsible to plaintiff, and remanded the case to this court for determination of damages.4

DAMAGES

On the date of the accident, May 28, 1976, Esco was taken to Terrebonne General Hospital, where he was hospitalized for four days. Following his initial treatment at Terrebonne General Hospital, Esco was then referred by Fremin-Smith Construction Co. to Dr. Pierre Espenan, who first saw Esco on June 7, 1976. Dr. Espenan’s initial examination revealed third-degree burns on the heel of Esco’s left foot about the size of a silver dollar and second-degree burns on the palm of his left hand.

On July 20, 1976, Dr. Espenan hospitalized Esco at Touro Infirmary for eight days and performed a skin graft on the left heel using donor skin from the same leg. Dr. Espenan found no other tissue damage aside from the skin underneath the heel of Esco’s left foot. Espenan opined that the skin graft took 100%.

Dr. Espenan continued to see Esco on the following dates: August 2, 1976; August 4, 1976; August 9, 1976; August 16, 1976; August 23, 1976; September 6, 1976; September 13, 1976; October 4, 1976; October 18, 1976; October 25, 1976; November 1, 1976; November 4, 1976; November 8, 1976; November 15, 1976; November 22, 1976; November 29, 1976; December 8, 1976; December 15, 1976; December 29, 1976; January 12, 1977; January 19, 1977; and March 8, 1977. On these dates, Esco voiced complaints of pain in his leg and foot, as well as headaches and numbness in his left hand, arm and shoulder. At this time, Dr. Espenan referred Esco to Dr. Hoffman, a plastic surgeon, who determined there was nothing wrong with the graft and that the pain would improve without treatment.

On March 23 and 28, 1977, Esco again went to Dr. Espenan with complaints of pain in his left foot. Dr. Espenan, however, advised Esco to return to work. On April 6, 1977, Dr. Espenan noticed a callus on the graft when Esco returned with complaints of pain in his left leg. Esco reiterated his complaints of pain at the graft site on April 20 and May 4, 1977, and Dr. Espenan then referred Esco to Dr. Martin, a neurologist. Dr. Martin reported that in his opinion Esco did not suffer from any nerve damage.

On June 8, 1977, Esco informed Dr. Es-penan that he was improving. Dr. Espen-an excised the callus around the graft, which caused bleeding and discomfort, and [155]*155then discharged Esco. About a week later, on June 13, 1977, Dr. Espenan again discharged Esco.

Esco continued to see Dr. Espenan with complaints of pain in his left foot and leg and headaches. Dr. Espenan examined Esco on the following dates: July 5, 1977; July 12, 1977; July 20, 1977; August 3, 1977; August 10, 1977; August 17, 1977; and August 24, 1977. Esco also saw Dr. Espenan five times in November and twice in December and was then referred by Dr. Espenan to Dr. Richard Palmer, a neurologist. Dr. Espenan testified that Dr. Palmer had found no neurological deficit in the left leg, but later admitted that Dr. Palmer’s correspondence to him acknowledged a slowing of the nerve conduction velocity to Esco’s lower left extremity.

Dr. Espenan saw Esco again on January 10, 1978, and on January 18, 1978, at which time he diagnosed diabetes. He, however, found no contraindication of Esco returning to work. Esco also saw Dr. Espen-an on February 6, 1978, complaining of pain. Dr. Espenan’s physical examination was negative, and he again discharged Esco.

The last time Dr. Espenan saw Esco, Esco complained of headaches and pain in his left foot, and he had developed calluses over the graft site. Dr. Espenan again excised the callus, found no objective reasons for Esco’s complaints of pain, and told Esco to return to work.

Dr. Espenan testified that over the two year period he treated Esco, Esco’s motivation to return to work was not good. He admitted, however, that from 1976 through 1977, Esco constantly complained of pain in his left foot.

Dr. George Hoffman, a specialist in general surgery and plastic surgery, who had been referred by Dr. Espenan, examined Esco on August 18, 1976. Dr. Hoffman’s examination of Esco showed a well-healed skin graft about an inch and a half in diameter. On this same date, Dr. Hoffman ordered x-rays which were negative. Esco returned to Dr. Hoffman on August 23, 1976, September 23, 1976, November 29, 1976, and March 17,1977. Throughout this time, Esco complained of pain in his left heel. Esco acknowledged to Dr. Hoffman that the special shoes prescribed by Dr. Espenan had given him some relief from the pain.

On March 17, 1977, Dr. Hoffman discharged Esco and recommended that he return to Dr. Espenan for follow-up treatment. Dr. Hoffman’s records do not reflect that Esco was discharged to return to work, but Dr. Hoffman testified in his deposition that at that time Esco should have attempted to return to light duty employment.

Dr. Hoffman saw Esco again on April 30, 1980. Esco complained of continued pain in his left foot. Dr. Hoffman’s examination revealed no problems or objective reasons for Esco’s complaints. On September 29, 1982, Esco once again was presented to Dr. Hoffman, whose examination of Esco’s left heel revealed a well-healed skin graft and a small amount of callus in the graft site. At the time of Esco’s last visit with Dr. Hoffman, Dr. Hoffman determined that he had found nothing which would prevent Esco from returning to work.

In August of 1976, Dr. Hoffman had determined that Esco had pain on a weight-bearing portion of his heel; however, a later report by Dr. Hoffman (August 1980) noted that the injury was on a non-weight-bearing area of the foot.

Dr. Richard Palmer, a neurologist, examined Esco on December 29, 1977. Dr. Palmer also examined Esco on January 5 and January 6, 1978. Esco at this time complained of severe pain in his left leg and foot, as well as headaches. Dr. Palmer’s examinations revealed a slowing of one of the nerves in the left lower extremity, which Dr. Palmer attributed to Esco’s diabetes. Dr. Palmer also determined that Esco was having muscle contraction or tension headaches. Dr. Palmer also found that although Esco was able to walk on his toes, he had difficulty in rising to his heels.

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Bluebook (online)
478 So. 2d 153, 1985 La. App. LEXIS 9934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esco-v-smith-lactapp-1985.