Faciane v. Carter

381 So. 2d 1312
CourtLouisiana Court of Appeal
DecidedMarch 11, 1980
Docket10861
StatusPublished
Cited by4 cases

This text of 381 So. 2d 1312 (Faciane v. Carter) 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
Faciane v. Carter, 381 So. 2d 1312 (La. Ct. App. 1980).

Opinion

381 So.2d 1312 (1980)

Hilda FACIANE
v.
Janice CARTER, New Orleans Public Service, Inc., and Southeastern Fidelity Insurance Company.

No. 10861.

Court of Appeal of Louisiana, Fourth Circuit.

March 11, 1980.

Darleen M. Jacobs, New Orleans, for plaintiff-appellee.

A. R. Christovich, Jr., New Orleans, for defendants-appellants.

Nelson, Nelson & Lombard, Ltd., Irving H. Koch, New Orleans, for defendant-appellant Southeastern Fidelity Ins. Co.

Before GULOTTA, SCHOTT and GARRISON, JJ.

GULOTTA, Judge.

In this personal injury suit arising out of an accident between an automobile and a *1313 New Orleans Public Service, Inc. bus, the trial judge awarded a judgment in favor of the plaintiff-automobile passenger for the following amounts:

Past pain and suffering ........  $ 50,000.00
Future pain and suffering ......   100,000.00
Past lost income & benefits ....    16,332.34
Diminished earning capacity &
 loss of retirement benefits ...    50,000.00
Medical expenses ...............    18,988.16
                                  ___________
      TOTAL.....................  $235,320.50

Based on an apparent finding of concurrent negligence, New Orleans Public Service, Inc. and Southeastern Fidelity Insurance Company (the liability insurer for the driver of the automobile) were cast in judgment in solido, subject to Southeastern's liability limit of $5,000.00.

New Orleans Public Service, Inc. (NOPSI), appealing, claims the trial judge erred in finding negligence on the part of the bus driver. Alternatively, NOPSI complains the award is excessive. In a cross-appeal, plaintiff complains of the inadequacy of the award.[1]

Between 6:00 and 6:30 p. m. on April 7, 1977, plaintiff was riding in the right-front seat of an automobile owned by her but being driven by Carleen Jacobs in a westerly direction on Chef Menteur Highway. The NOPSI bus was also traveling on this highway in a westerly direction. The highway, as it approaches the Industrial Canal bridge, has three westerly traffic lanes and three easterly traffic lanes, separated by a median. The three lanes merge into two lanes in each direction crossing the bridge. The automobile was traveling in the left traffic lane. The bus, traveling in the extreme right traffic lane, was merging left in order to cross the bridge in the right lane of the two bridge-traffic lanes. While crossing the bridge, the left front bumper of the bus struck the middle of the right door of the automobile, apparently near where plaintiff was seated. The automobile damage amounted to $280.16. Of the three occupants of the automobile, only plaintiff was injured.[2]

According to plaintiff's version of the accident, as the automobile was entering the bridge, the bus driver, attempting to merge left while approaching the bridge, crossed over into and invaded the automobile's lane of traffic, thereby striking the right door of the vehicle. Plaintiff's version is supported by her own testimony and by that of the driver and the other passenger of the automobile. According to defendant NOPSI's version of the accident, as stated by the bus driver, when the two vehicles reached the middle of the bridge the bus was traveling in the right lane of the two bridge-traffic lanes. The driver testified the automobile (traveling in the left traffic lane) in an attempt to avoid heavy traffic traveling in the opposite direction, came into and invaded the bus lane of traffic, striking the left front bumper of the bus.

The bus driver had been employed by Public Service for approximately five weeks at the time of the accident. A trainee, she was accompanied on the route by her trainer, who was sitting directly behind her when the accident occurred. Although the bus driver testified, the trainer did not. Unexplained is whether there were passengers on the bus at the time of the accident or whether the trainer was unavailable to testify. When we consider the testimony of the automobile driver and its occupants, together with the testimony of the bus driver, as well as the physical surroundings of the merger to the left of the three traffic lanes into two, we are led to conclude it is more probable than not that the Public Service bus invaded the automobile's lane of traffic. We find no manifest error in the judgment in favor of the plaintiff and against New Orleans Public Service, Inc.

*1314 QUANTUM

At the outset, NOPSI makes no claim that the medical expenses in the sum of $18,988.16 were erroneously awarded. Nor is it seriously contended that the award for past lost income and benefits, in the sum of $16,332.34, is an abuse of the trial court's discretion. Suffice it to say that Lilly Mae Jarrell, who is responsible for the payroll and payroll records at Southeast Memorial Hospital (where plaintiff had been employed at the time of the accident), testified that plaintiff's lost wages and benefits total $16,332.34. An economist witness computed the total lost wages, health insurance and life insurance benefits up to the date of the trial at $15,180.04. We cannot say the trial judge erred when he accepted the lost wages and benefits as determined by the representative from the hospital, plaintiff's employer.

The primary thrust of NOPSI's attack on quantum is at the $50,000.00 award for past pain and suffering, the $100,000.00 award for future pain and suffering, and the $50,000.00 award for diminished earning capacity and loss of retirement benefits.

DIMINISHED EARNING CAPACITY AND LOSS OF RETIREMENT BENEFITS

At the time of the accident in which she suffered neck and back injury (hereinafter more fully discussed) plaintiff was fifty-four years of age. She had been employed by Southeast Memorial Hospital for thirteen and one-half years. According to Lilly Jarrell, the personnel record keeper at the hospital, Hilda Faciane would have been eligible for a $327.61 monthly pension after she had completed fifteen years of service. In addition, she would have received life insurance benefits and hospitalization, along with the pension, for the remainder of her life.

Plaintiff was employed at the hospital from March 2, 1964 until July 14, 1975 as an attendant responsible for the care of mental patients. Her duties included lifting patients when necessary. In July 1975 she was promoted to a psychiatric attendant, which involved administering medication to the patients and accompanying the patients off the hospital grounds. This job also required lifting, pulling and pushing her patients, particularly when they became violent. Some overhead arm movement was also necessary. Subsequent to her injury, Mrs. Faciane was tranferred to the job of a beautician; however, because of a neck brace, pain and restriction of movement resulting from the injury sustained in the accident, she was not able to continue with her employment. Plaintiff was paid through September 8, 1977 and was granted a leave without pay from September 8, 1977 until her termination of employment on December 28, 1977. Because of her loss of employment at the hospital caused by the injuries sustained in the accident, plaintiff was deprived one and one-half years short of qualifying for a fifteen-year pension.

Mrs. Faciane underwent surgery on two different occasions, the first for removal of two cervical discs and a fusion and the second for decompression of a compressed nerve caused by a displacement of a fused graft. However, New Orleans Public Service, Inc. contends that plaintiff failed to show that she was unable to become reemployed as a beautician after her condition had improved.

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381 So. 2d 1312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faciane-v-carter-lactapp-1980.