Evans v. Kilbert

660 So. 2d 167, 1995 WL 497591
CourtLouisiana Court of Appeal
DecidedAugust 23, 1995
Docket27101-CA
StatusPublished
Cited by7 cases

This text of 660 So. 2d 167 (Evans v. Kilbert) 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
Evans v. Kilbert, 660 So. 2d 167, 1995 WL 497591 (La. Ct. App. 1995).

Opinion

660 So.2d 167 (1995)

Tommy N. EVANS, Jr., Plaintiff-Appellant,
v.
Lynn J. KILBERT, et al., Defendants-Appellees.

No. 27101-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1995.

*168 Comegys, Lawrence, Jones, Odom & Spruiell by James W. Davis, Shreveport, for appellant.

Hicks & Hubley by Craig O. Marcotte, Shreveport, for appellees.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

HIGHTOWER, Judge.

In this personal injury case tried before a jury, plaintiff, Tommy N. Evans, Jr., appeals his awards for past and future general damages. Finding no abuse of discretion, we affirm.

Background

On December 29, 1991, Evans stopped on the Spring Street access ramp to I-20 in Shreveport as he waited for the preceding vehicle to enter heavy, interstate highway traffic. Suddenly, Lynn J. Kilbert rear-ended the automobile driven by plaintiff.

Several months later, plaintiff filed suit against Kilbert and her insurer for various soft-tissue injuries sustained in the accident. Following a two-day trial, the jury awarded general damages totaling $7,500 (encompassing $2,500 for past physical pain, suffering, and mental anguish, together with $5,000 for future physical pain, suffering, and mental anguish). Concerning medical expenses, the verdict further provided $1,500 for past outlays (the insurer had previously paid $5,000 toward the $6,500 total) and $2,700 for future costs. These figures, when combined with $270 for other special damages, resulted in an aggregate judgment of $11,970. Thereafter, regarding the issue of quantum, the trial judge denied plaintiff's motion for JNOV, new trial, or additur. This appeal ensued.

Discussion

Quantum

The first two assignments of error challenge, as inadequate, both elements of the general damage award. In such a case, despite Evans's argument that the verdict inconsistently fixes future damages to exceed past damages, the proper question does not require a belaboring of each individual item but, instead, a decision as to whether the total award constitutes an abuse of discretion. See Sledge v. Continental Casualty Co., Inc., 25,770 (La.App. 2d Cir. 06/24/94), 639 So.2d 805.

In assessing damages in cases of offenses, quasi-offenses, and quasi-contracts, much discretion must be left to the judge or jury. LSA-C.C. Art. 2324.1. Before an appellate court may disturb such an award, the record must clearly reveal that the trier of fact abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Reck v. Stevens, 373 So.2d 498 (La.1979); Sledge, supra; Underwood v. Dunbar, 628 So.2d 211 (La.App. 2d Cir.1993), writ denied, 94-0026 (La. 02/25/94), 632 So.2d 767. In determining whether the jury abused its discretion by making an inadequate award, the evidence must be viewed in the light most favorable to the defendant. Higginbotham v. Ouachita Parish Police Jury, 513 So.2d 537 (La.App. 2d Cir.1987). Of course, upon observing an award below that which reasonably could be assessed, the reviewing court may increase the general damage total to the lowest amount that could appropriately be granted. Youn, supra; Sledge, supra. It is only after an articulated factual analysis discloses such an abuse, however, that guidance from prior awards will become relevant. Youn, supra; Reck, supra; Sledge, supra.

Plaintiff presently pastors an 1,800 member Methodist church in New Orleans, having transferred there from a similarly large congregation in Shreveport in June 1992. Prior to the accident, according to his testimony, he had a healthy, active lifestyle. Not only did he devote 60-65 hours per week to various church activities, some requiring extensive local and out-of-town driving, but he also engaged in a rigorous daily exercise regime and enjoyed golfing, sailing, and camping.

*169 According to Evans, then age 45, the December 1991 rear-end collision rocked him back in his seat, producing a degree of pain. When he arrived at home, his back, neck, and right foot became very sore. His wife then drove him to Schumpert Medical Center, where an emergency room physician took x-rays, dispensed pain medication, and recommended that he see an orthopedist.

The next day, Evans saw Dr. Edward L. Morgan, an orthopedic surgeon. This expert, later presented by the defense, testified that plaintiff complained only of pain in his neck, middle and lower back, and right ankle. A physical examination and review of the hospital x-rays revealed no objective signs of injury but, relying on the patient's subjective complaints, the physician diagnosed a mild to moderate muscular strain of the neck and back, as well as an arthritic condition causing some minor degenerative disc changes. The doctor continued the pain medications, recommended heat and physical therapy, and restricted repetitive bending, lifting, pushing, or pulling. Three days later another clinical examination revealed the same symptoms, prompting a suggestion that plaintiff secure a lumbar support to assist with his frequent driving, and that he return in ten days if necessary. Although Evans never came back,[1] Dr. Morgan expected him to be feeling much better in two to three weeks and on the road to recovery. Despite questions that would later arise concerning the sacroiliac, the orthopedist further testified that his two examinations disclosed no traumatic injuries in that area.

Apparently concerned about the diagnosis of arthritis, Evans next saw Dr. Susan Williams, a rheumatologist and member of his church. Although this physician did not testify at trial, plaintiff stated that she recommended physical therapy, gave him injections, and changed his medication. But, with the doctor being a church member and friend, Evans soon found it difficult to openly discuss various personal problems stemming from his injuries. Consequently, after only three visits, he stopped seeing her.

Upon the recommendation of Dr. Williams and his physical therapist, plaintiff next went to Dr. Craig Springmeyer, another orthopedic surgeon, on January 17, 1992. At that time, Evans complained of neck pain radiating into both shoulders, back pain with the worst manifestations in the lower region, pain radiating into the left groin and down the leg, pain in the left arm, intermittent tingling in all four extremities, periodic numbness in the little and ring fingers of both hands, and ptosis (drooping) of the left eyelid together with difficulty in focusing. Dr. Springmeyer's initial examination revealed that the patient walked with a normal gait, had some mild limitations of neck and back motion, and could not touch his toes, but showed no signs of a significant injury to his sacroiliac. The resulting diagnosis listed a neck and back strain involving the muscles and ligaments supporting the spine. Most of the reported problems resolved by early April, save the lower back pain, and even that had so markedly improved that the physician decided Evans could return to his normal routine, including running and lifting weights. By June 1, 1992, the date of his last office visit before moving to New Orleans, Evans had regained his normal strength, while presenting few complaints and only nonspecific symptoms in the neck and lower back.

Shortly after transferring to New Orleans, plaintiff began seeing Dr. Edna Doyle, a physiatrist[2] who concentrates on sacroiliac disorders.

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Bluebook (online)
660 So. 2d 167, 1995 WL 497591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-kilbert-lactapp-1995.