Gardner v. Campbell

532 So. 2d 292, 1988 WL 103170
CourtLouisiana Court of Appeal
DecidedOctober 5, 1988
Docket87-743
StatusPublished
Cited by6 cases

This text of 532 So. 2d 292 (Gardner v. Campbell) 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
Gardner v. Campbell, 532 So. 2d 292, 1988 WL 103170 (La. Ct. App. 1988).

Opinion

532 So.2d 292 (1988)

John L. GARDNER, Jr., Plaintiff-Appellant,
v.
Kenneth W. CAMPBELL, et al., Defendants-Appellees.

No. 87-743.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1988.
Writ Denied December 9, 1988.

*293 Robert L. Dow, Scofield, Bergstedt, Gerard, Mount & Vernon, Rudie R. Soileau, Lake Charles, for plaintiff-appellant.

Barnett, Pitre, Davis & Yoes, Clayton Davis, Lake Charles, for defendants-appellees.

Before GUIDRY, FORET and STOKER, JJ.

GUIDRY, Judge.

This is an action for damages for personal injuries suffered by plaintiff, John L. Gardner, Jr., in a fall at the Annex Mini-Storage in Lake Charles, Louisiana, in September 1984. Named as defendants in the suit were Kenneth W. Campbell and George K. Parkman, co-owners of the facility, and Unigard Mutual Insurance Company, their insurer (hereafter collectively referred to as "defendants").

The case was tried to a twelve person jury which returned a verdict finding defendants to be 52% at fault and plaintiff *294 48% at fault. The jury determined plaintiff's total damages to be $220,000.00. In accordance with the verdict, judgment was rendered in favor of plaintiff and against defendants, in solido, for $114,400.00 plus interest and costs.

Plaintiff appeals alleging that the jury erred in finding him partially at fault and in awarding an insufficient amount of damages. Further, plaintiff urges that the trial court erred when it excluded evidence of the condition of the drains at the Mini-Storage other than the one involved in plaintiff's accident. Defendants answered the appeal arguing that the jury erred in both finding them negligent and strictly liable, i.e., in finding the drain defective and unreasonably dangerous, and in awarding plaintiff excessive damages. Defendants also argue that the trial judge erred in denying their motion in limine seeking to exclude evidence of the condition of other drains at the Annex Mini-Storage.

FACTS

On September 16, 1984, Darlene Mills called her brother, John Gardner, to seek his help in moving into storage the personal belongings of Bonnie Parker, a mutual friend. The assistance of Robert Boyd, John's nephew, was also enlisted. Bonnie Parker had previously rented a small storage unit at the Annex Mini-Storage located at 2215 Common Street, in Lake Charles, Louisiana, in which she had stored a washer, a dryer, and several boxes of personal belongings. As the result of the recent death of her father and other developments, she had additional items to be stored, and consequently, she rented a new and larger unit at the facility.

The four met and proceeded, in John's pickup truck, to an apartment where the additional items to be stored were located. These were loaded into the truck and transported to Annex Mini-Storage Unit # 263, where they were unloaded. The smaller unit, # 397, whose contents had to be transferred to Unit # 263 was located within the building across the alleyway from the new, larger unit, but near the opposite end.

While Robert Boyd, Darlene Mills and Bonnie Parker walked down the alleyway between the buildings, the plaintiff backed his truck down the alley to a point approximately even with the doorway leading to the interior hallway on which Unit #397 was located. Unit # 397 was no more than five feet wide by ten feet deep with a three foot wide doorway leading into a five foot wide hall. These narrow constraints combined with the shape and weight of the dryer (about three feet wide and 70 pounds) necessitated that Robert and John pick up the dryer while facing each other. Robert then walked facing forward while John had to back out of the building.

After clearing the building, Gardner continued walking backwards toward his truck which was situated in the middle of the twenty-one foot wide alley between the storage buildings. As plaintiff, walking backwards, neared the rear of his truck he stepped on the raveled edge of asphalt surrounding a drain in the alleyway. The drain had become recessed from the road surface to a depth of some two to three inches when the original alleyway was overlaid during an expansion project at the facility. When Gardner backed into this drop-off, he lost his balance and fell backward. The dryer fell on him. The full force of the impact was taken by plaintiff's right wrist and hand.

Following the fall, there was an immediate onset of severe pain which prevented plaintiff from continuing to help with the moving. Since Gardner, unemployed at the time and receiving unemployment compensation, was fearful of losing those benefits, he delayed seeking medical attention for approximately one month. Finally, on October 19, 1984, because of persistant pain and limitation of motion, Gardner went to the emergency room of Moss Regional Hospital in Lake Charles. When plaintiff's wrist failed to respond to the conservative treatment prescribed by the doctor at Moss, he was referred to the University Medical Center in Lafayette, Louisiana.

At University Medical Center (U.M.C.), Gardner was treated by Drs. Charles Roth and Alvaro Hernandez, who diagnosed *295 plaintiff as suffering from a scaphoid-lunate disassociation. The failure of his condition to respond to treatment finally required surgical intervention. On December 11, 1984, the disassociation was surgically reduced by pinning the two bones together. Subsequently, Gardner's condition was followed by Dr. Raymond Fletcher (also at U.M.C.) who discharged plaintiff in November 1985 as having reached maximum recovery. Dr. Fletcher was of the opinion that Gardner has a 15% disability of his right arm. The doctor opined that plaintiff could return to his former occupation as a pipefitter but that: (1) he would not be able to perform to 100% of the ability he had before his accident; and, (2) the continued stress produced on his wrist by his occupation would accelerate the arthritic changes in the wrist one would normally expect following plaintiff's surgery.

In January 1986, Gardner consulted Dr. Norman Paul Morin of Lake Charles, an orthopedist. Dr. Morin, after reviewing Gardner's medical records and after examining the patient, assigned plaintiff a disability rating of 25% of the wrist or 8% of the right arm. Dr. Morin agreed with Dr. Fletcher's assessment that appellant could return to his former occupation, but that to do so would exacerbate any pain or arthritic changes Gardner was experiencing. Both Dr. Morin and Dr. Fletcher were also in agreement that Gardner would be better off finding a less physically demanding occupation.

As a pipefitter, plaintiff had earned as much as $20.98 per hour. However, this was at the height of the oil/petro-chemical boom. A representative of the Plumbers and Steamfitters Union, William V. Johnson, testified that the current prevailing wage for journeymen pipefitters did not exceed $15.46 per hour in total benefits and in many instances "sweetheart" deals had been entered into with companies for as little as $12.60 per hour "packages". Johnson further testified that the current employment picture for pipefitters was not bright, with only 200 to 500 jobs available for the more than 1200 members of the union. Additionally, Johnson verified that plaintiff had neither worked nor paid his union dues since May of 1984, some four months prior to his accident; and, in November of 1984, he had been expelled from the union for non-payment of dues.

Dr.

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Bluebook (online)
532 So. 2d 292, 1988 WL 103170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-campbell-lactapp-1988.