Goldsby v. Blocker

244 So. 3d 703
CourtLouisiana Court of Appeal
DecidedSeptember 27, 2017
DocketNo. 51,584–CA
StatusPublished
Cited by10 cases

This text of 244 So. 3d 703 (Goldsby v. Blocker) 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
Goldsby v. Blocker, 244 So. 3d 703 (La. Ct. App. 2017).

Opinion

BLEICH, J. (Pro Tempore)

*708This appeal is from the Fourth Judicial District Court, Ouachita Parish, Louisiana. After an automobile collision, Terany Goldsby filed suit against the State of Louisiana through the Department of Transportation and Development ("DOTD") and its employee, David Blocker. After a trial, the jury returned a verdict assigning comparative fault and awarding to Goldsby general damages and medical expenses, and judgment was entered. Goldsby appeals. For the following reasons, we affirm the trial court's judgment.

FACTS

On November 11, 2013, around 1:50 p.m., Terany Goldsby was driving west on "Perryville" Highway 554, Ouachita Parish, Louisiana, to bring her niece to the Navy recruitment office. Perryville Hwy. is a two lane stretch of highway with no improved shoulder and is marked "no passing." As Goldsby pulled up behind a DOTD dump truck, she stopped her Chevrolet Cobalt and waited for the dump truck to move forward. The dump truck, operated by David Blocker, a DOTD employee, did not pull forward, but instead reversed into Goldsby's vehicle, crushing her vehicle's front end with the dump truck's open tailgate.

At the time of the incident, Blocker had two other DOTD employee passengers with him, and they were using the dump trunk full of asphalt to patch potholes on Perryville Hwy. Blocker had stopped the dump truck to fix a pothole, but had overshot it, requiring him to reverse for a better position. It is undisputed that neither of the other two DOTD employees acted as a "spotter" for Blocker before he began to reverse the dump truck, a DOTD policy requirement. Blocker was cited as "at fault" by the responding officer, reprimanded by his manager for not following policy, and fully accepted fault for the collision at trial.

About one month before this collision, Goldsby had returned to Louisiana after a five-year tour serving with the U.S. Navy. After a full physical examination, she was discharged in good medical condition. On the day of the collision, Goldsby did not complain of injury, but began to have neck and back pain in the following days. She sought treatment with Dr. Gordon Grant, chiropractor, from December 9, 2013, until January 13, 2014.

In January 2014, Goldsby moved to New Orleans, Louisiana, and began seeing Dr. Ryan Russo for continued chiropractic treatment. Dr. Russo referred Goldsby to Dr. Kenneth Vogel, neurosurgeon, for an MRI and evaluation. The MRI was taken in March 2014, but Goldsby did not review this MRI with Dr. Vogel until after she was involved in a second vehicular collision.

On April 2, 2014, Goldsby's vehicle was rear-ended by another driver while stopped at a traffic signal. Subsequent to this second collision, Goldsby went to an appointment with Dr. Vogel, who went over her March 2014 MRI results, which showed disc bulging at L5-S1. Dr. Vogel recommended continued conservative treatment; however, Goldsby discontinued all recommended treatment. A year later she returned to Dr. Russo, who again referred her to Dr. Vogel. In May 2015, Dr. Vogel sent Goldsby for a CT scan which also revealed disc bulging at L5-S1. In July 2015, Goldsby elected to have an intradiscal electrothermal therapy procedure *709("IDET"), which is a minimally invasive treatment for spinal disc-related chronic low back pain. The IDET was successfully performed by Dr. Vogel without complications.

Goldsby ultimately filed suit against Blocker and DOTD, claiming her injuries were caused by Blocker during the first collision with the DOTD dump truck. Multiple motions for partial summary judgment were filed by both Goldsby and DOTD, and all were denied. A five-day jury trial commenced in April 2016.

A primary issue at trial was what role each collision played in causing the disc bulging and eventual surgery. During opening statements, defense counsel stated to the jury that Goldsby had received a settlement from the second collision which covered the cost of her medical bills. Goldsby objected to the statement and later testified that the settlement she received was from an unrelated matter with Sallie Mae concerning student loans and not related to the second collision. Goldsby requested a curative instruction be given to the jury to clarify the matter, but the parties could not agree on the wording for a curative jury instruction, and none was given.

After all testimony and evidence was presented at trial, Goldsby made oral motions for directed verdict as to fault and causation. The trial court denied the motion in regard to fault, finding there were some potential comparative fault issues. The trial court partially granted the motion for directed verdict concerning causation, finding that this collision clearly caused some damage to Goldsby, but that it was for the jury to determine the extent of the damage caused by the collision with the DOTD dump truck.

The jury returned a verdict finding both parties to the collision at fault, allocating 95% of the fault to Blocker/ DOTD and 5% to Goldsby. The jury awarded Goldsby the following amounts as compensation for the damages she sustained as a result of the collision: $15,000.00, pain and suffering; $15,000.00, mental anguish; $25,000.00, medical expenses; and, $15,000.00, loss of enjoyment of life. A subsequent judgment was rendered in Goldsby's favor awarding to her $66,500.00 together with legal interest-the total amount of damages awarded to her by the jury, less the 5% of her allocated fault. Goldsby appeals.

DISCUSSION

Allocation of fault

In assessing Goldsby with 5% of the fault, the jury found that her conduct of stopping too close to the dump truck, approximately one to two feet behind it, partially contributed to the cause of the collision and her resulting injuries; thus she is entitled to recover her damages reduced by a percentage thereof corresponding to her portion of comparative fault. In her first assignment of error, Goldsby argues the jury erred by charging her with 5% fault for the collision. We disagree. Based on the trial testimony, it was not clearly wrong for the jury to conclude that Goldsby stopped her vehicle too close to the back of the dump truck, and that her conduct contributed to the cause of the collision.

Since the Louisiana legislature's adoption of a comparative fault system, it has been the task of the fact finder to allocate shares of fault. La. C.C. art. 2323 ; Socorro v. City of New Orleans , 579 So.2d 931 (La. 1991). In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed.

*710Watson v. State Farm Fire & Cas. Ins. Co. , 469 So.2d 967, 974 (La. 1985) ; Upchurch v. State ex rel. La. Dep't of Transp. & Dev. , 48,34 (La. App. 2 Cir. 08/07/13), 123 So.3d 228, 232, writ denied , 2013-2153 (La.

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244 So. 3d 703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldsby-v-blocker-lactapp-2017.