Ezzell v. Miranne

84 So. 3d 641, 11 La.App. 5 Cir. 228, 2011 WL 6821413, 2011 La. App. LEXIS 1626
CourtLouisiana Court of Appeal
DecidedDecember 28, 2011
DocketNo. 11-CA-228
StatusPublished
Cited by12 cases

This text of 84 So. 3d 641 (Ezzell v. Miranne) 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
Ezzell v. Miranne, 84 So. 3d 641, 11 La.App. 5 Cir. 228, 2011 WL 6821413, 2011 La. App. LEXIS 1626 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

|2This is an appeal by Lucien Miranne, Jr., defendant/appellant, from the judgment totaling $435,513.69, with interest, in favor of Christopher Ezzell, plaintiff/appel-lee, in his intentional delictual action. Ez-zell has also answered the appeal. For the following reasons, we award Ezzell an additional $75,000 for future pain and suffering. In all other respects, the judgment is affirmed.

Facts and Procedural History

The underlying facts, i.e., that Miranne struck Ezzell, are not seriously in dispute. On January 4, 2008, Miranne, his wife, their daughter and their son, went to Oscar’s, a bar and grille, to play pool. While Miranne and his son were at the bar ordering drinks, his wife and daughter sat down at a table. A waitress asked Mir-anne’s daughter for an ID, and because the 19 year old did not have one, she was told to leave, which she did. When Mir-anne arrived at the table and learned what had happened, he began arguing with the waitress. His wife and son left the [,-.building at that point, and Miranne went back to the bar and paid the tab. Miranne continued to be so boisterous that another waitress decided to call the police. As Miranne was leaving he passed behind Ez-zell, who was sitting on a bar stool facing the back bar and waiting for a to-go order. Ezzell turned toward Miranne and told him he should just leave. Ezzell and three disinterested witnesses all testified that Ezzell then turned back toward the back bar. They all agreed that Miranne passed Ezzell, then suddenly turned and came back toward him, and punched him on the right brow. Miranne’s version was that Ezzell called him an “a-e,” that he then turned to confront Ezzell face to face, and at that point he thought that Ezzell had moved his upper body toward him in what he considered a threatening manner so he hit him. There is no dispute that Ezzell did not raise his hands or arms and was thus defenseless when struck. After the blow, Miranne left the building.

[645]*645Ezzell filed a petition for damages alleging serious injury as a result of Miranne’s punching Ezell in the face.

Intentional Tort

The jury determined that Miranne had committed an intentional tort, but also found that Ezzell had contributed to the incident. It apportioned 95% of the fault to Miranne and 5% to Ezzell. Miranne does not contest the fault determinations made by the jury. He does urge, however, that the trial judge erred in not reducing the total damage award made to Ezzell by his contributory negligence of 5%. We disagree.

La.C.C. art. 2323(C) provides that when a person suffers injury partly from his own negligence and partly as the result of an intentional tort, his recovery shall not be reduced by the percentage of his own negligence. The issue here is whether Ez-zell’s actions constituted negligence or an intentional tort on his part. An almost identical factual situation was presented in Daniels v. Essex Ins. Co., 04-579 (La.App. 5 Cir. 11/30/04), 890 So.2d 599. There, a man and a woman got into an argument at a bar. The man kicked the woman in the stomach and punched her in the jaw. The trial judge determined that the woman was partially at fault for engaging in the argument, but declined to reduce her recovery because her behavior did not amount to an intentional tort. This Court affirmed that judgment. Daniels, supra, 04-579 at 4, 890 So.2d at 602. We similarly find here that Ezzell was at most improvident in injecting himself into a dispute that appeared to have resolved itself when Miranne started to leave the bar. However, his actions clearly did not constitute an intentional tort, and therefore, even though his actions contributed to his injury, his damages may not be reduced.

The Awards

The more serious disputes here concern the severity of Ezzell’s injuries, and the effect that those injuries had on his employment. When Ezzell was struck, he fell off of the bar stool onto the floor. He was dazed, but it does not appear that he ever lost consciousness, and after a brief time on the floor he got up. He then proceeded out of the bar to see if he could further identify his assailant. It turned out that Miranne lived a few blocks from the bar and that he and his family had walked there from his house. Ezzell encountered the Mirannes on the street and there were discussions among them about the incident, but no further violence occurred. Ezzell learned Miranne’s identity and then returned to the bar. Several hours later, Ezzell drove himself to the East Jefferson General Hospital emergency room where he was examined by Dr. Gregory Caplan.

Dr. Caplan testified for the defense as an expert in emergency medicine. He identified the hospital record of the morning of January 5, 2008. According to that record, he examined Ezzell at 12:19 AM on January 5, 2008. Ezzell sustained a two centimeter laceration just above his right eyebrow. This is roughly the width [ 5of his thumb. He repaired the laceration with two sutures. Ezzell did not complain that he lost consciousness. He did not indicate that he had any amnesia. Ezzell did not complain of any other problems associated with being punched. Dr. Ca-plan performed a complete examination. That examination was negative except for the laceration. Ezzell did not exhibit any abnormal neurological deficits. He did not appear to have sustained a concussion.

Over the next several days, Ezzell began complaining of increasingly severe headaches. On January 9, 2008, he saw Dr. D.C. Mohnot, a neurologist specializing in the treatment of headaches. Over the [646]*646next few days, this doctor ordered a CAT scan which was normal. An EEG showed mild abnormalities, but “nothing specific to talk about.” An MRI was similarly normal. His diagnosis as of January 14 was a closed head injury with post-traumatic “intractable headaches.” The doctor prescribed medications for the headaches. Ezzell returned for a January 23 visit still complaining of headaches, but additionally exhibiting slurred speech, slow thought processes, decreased word finding ability and impaired memory. He also reported that he had been sent home from his job because of these problems. He returned to Dr. Mohnot several times during February still complaining of headaches, and his medications were adjusted to try and find the best drug for his complaints. A second MRI done during this period was also normal. A third MRI done in March 2009 was also normal.

Dr. Mohnot saw Ezzell as recently as a month before trial and found that the medications he prescribed for the headaches had not yet resolved his problems. He had not released Ezzell to return to work because he continued to have symptoms with headaches and memory. In July 2008, Ezzell complained of tremors.

On August 14, 2008, Dr. Mohnot ordered a spec scan, a diagnostic tool to show the blood flow in the brain. Dr. Mohnot testified that the spec scan was not | ¿indicative of a brain injury. Further, the fact that Ezzell’s MRI and CAT scans were normal did not mean there was no head injury. It is more the rule than the exception that patients suffering mild head trauma or mild head injury show normal findings on MRI and CAT scans. Dr. Mohnot testified that the more frequent and intense the headaches, the less chance there is for long-term recovery.

Dr. Mohnot testified that in his opinion, the cognitive deficiencies regarding memory, speech, stuttering, and forgetfulness were related to the January 4, 2008 incident. He opined that at the time of trial, Mr. Ezzell had a poor prognosis for recovery.

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84 So. 3d 641, 11 La.App. 5 Cir. 228, 2011 WL 6821413, 2011 La. App. LEXIS 1626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezzell-v-miranne-lactapp-2011.