Goldman v. Mullin

612 So. 2d 901, 1993 La. App. LEXIS 30, 1993 WL 5569
CourtLouisiana Court of Appeal
DecidedJanuary 14, 1993
DocketNo. 91-CA-2291
StatusPublished
Cited by1 cases

This text of 612 So. 2d 901 (Goldman v. Mullin) 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
Goldman v. Mullin, 612 So. 2d 901, 1993 La. App. LEXIS 30, 1993 WL 5569 (La. Ct. App. 1993).

Opinions

WALTZER, Judge.

This appeal is from a June 13, 1991 judgment of the Civil District Court for the Parish of Orleans, the honorable Richard J. Ganucheau, Judge, presiding. The trial court awarded plaintiff $520,882.43 consisting of $50,882.43 past medical expenses, $20,000.00 future medical expenses, $200,-000.00 lost earning capacity and $250,-000.00 general damages. The judgment also found Louis Stubbs 100% at fault, found plaintiff free from fault, awarded expert fees, granted an intervention for amounts paid the plaintiffs hospitalization insurer and noted policy limits. From that judgment, defendants appeal1.

[902]*902The judgment awarded damages for injuries sustained by plaintiff Shirley Goldman on July 12, 1984 when her stopped vehicle was rear-ended by an 18 wheel tractor-trailer cab owned by his employer and driven by Louis Stubbs, an employee of Gervin A. Mullin d/b/a “Moon Enterprises, Inc.” The 18 wheeler cab topped the crest of a raised portion of the Pontchartrain Expressway. On the other side of the crest, however, traffic was stopped due to a prior accident. Mr, Stubbs was unable to stop the 18 wheeler cab and rear-ended the plaintiffs vehicle, spinning it 180 degrees and totaling plaintiff’s vehicle.

The trial judge provided the following written reasons for judgment:

“Plaintiff, Shirley T. Goldman, was injured on July 12, 1984 when her vehicle was rear-ended by a large truck owned by defendant, Gervin A. Mullen and driven by Mullen’s employee, Louis Stubbs.
This Court is of the opinion that the accident and injuries to Mrs. Goldman on July 12, 1984 was caused solely by the fault of Louis Stubbs.
INJURIES:
Shirley Goldman sought treatment at the emergency room of East Jefferson General Hospital on the day of the accident. She was referred to Dr. Russell Levy, an orthopedic surgeon, who treated her from July 19, 1984 until June 1988, when he referred her to a neurosurgeon. She underwent surgery, performed by Dr. John Jackson on June 10, 1988 to remove the C5-6 and C6-7 inter-vertebral discs and fusion of the disc space at each of those levels.
During the term of Dr. Levy's treatment, Mrs. Goldman was seen and treated conservatively by Dr. William Johnson, a neurosurgeon, between July 1985 and November 1985, with no improvement in her pain.
Mrs. Goldman was involved in a second automobile accident on May 17, 1986 which, it is contended by defendants was the cause of her injury and which necessitated the surgery of June 1988 and caused her subsequent pain and disabilities.
The Court feels that the testimony of plaintiff’s treating physician, Dr. Levy, is most helpful in resolving the question of whether the May 1986 accident or the June 1984 accident was the cause in fact of Mrs. Goldman’s present condition and her pain and disabilities.
Dr. Levy testified that the 1984 accident put Mrs. Goldman’s cervical discs “on a down hill course” and that it was, in his opinion, “the main insult which sent this woman on her downhill course”. His opinion was to the effect that the 1984 accident caused her neck problems. His testimony and office records support his belief that the 1986 accident was of minor significance as to her present state of health.
Dr. Jackson, who performed the surgery, diagnosed a bulge in Mrs. Goldman’s intervertebral disc at the L5-S1 level and some degenerative narrowing of the disc space at the L4-5 level. He speculated that she may need surgery for those problems in the future.
DAMAGES:
Plaintiff sustained back and neck injuries as a result of the automobile accident which forms the basis of this lawsuit. Her injuries caused urological problems, cervical vertigo, depression and she continued to have objective signs of injuries in her lumbar area as late as September 1989. That episode of lumbar pain, which necessitated hospitalization for traction therapy, was preceded by and probably caused by an attempt at bicycling.
Psychological disorders secondary to her anxiety and depression required hospitalization and treatment for one month and continuing therapy in the form of visits to Dr. Mielke every two or three weeks. Dr. Mielke, a psychiatrist, and Judith Linde, a Vocational Rehabilitation Counselor, both testified that Mrs. Goldman was not employable because of her physical limitations and depression.
Mrs. Goldman is a sculptress and has produced works of art which, in the opinion of George Rowan, fine arts professor at the University of New Orleans, [903]*903was(sic) technically superior and which were described by him as superb. He believes she had the potential to be a successful candidate for graduate studies but for her lack of current art work.
Commercial success in the field of sculpture was not achieved by Mrs. Goldman and she can no longer do the large sculpture projects she did prior to the accident in July 1984. She is qualified to work as a commercial artist and art instruction. The Court feels that plaintiffs future earning potential as a sculptress is too speculative to support an award for loss of future earnings in that field.
She is, however, entitled to an award to compensate her for loss of earning capacity as a result of the automobile accident of July 12, 1984.
The Court feels plaintiff Shirley Goldman is entitled to the following damages:
General Damages $250,000.00
Loss of earning capacity past and future $200,000.00
Past Medical Expenses $ 50,882.48
Future Medical Expenses $ 20,000.00
The intervention of Louisiana Health & Indemnity Company in the amount of $16,477.36 was stipulated and the judgment will reflect that agreement.”

On appeal, defendants raise the following specifications of error:

The trial court erred:
1. in dismissing the City and in not allowing an amendment to cure an exception of no cause of action granted on behalf of the City.
2. in finding Mr. Stubbs at fault where he was neither speeding nor following too closely.
3. in finding defendants liable for medical conditions they did not cause.
4. in awarding $200,000.00 for lost earning capacity.

Turning to defendant’s first specification of error, we note that the issue of amendment is moot. Even if the trial court had allowed such an amendment, the City still would not have been found liable based on the testimony of Officer Anthony Ritter and defendant’s lack of rebuttal thereto.

At the time of the Stubbs-Goldman accident, Officer Anthony Ritter was on the scene engaged in traffic control as a result of an accident prior to the Stubbs-Goldman accident.

Officer Ritter’s testimony indicates that he performed the routine procedures in which he was trained for the purpose of accident control.

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Bluebook (online)
612 So. 2d 901, 1993 La. App. LEXIS 30, 1993 WL 5569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldman-v-mullin-lactapp-1993.