Higginbotham v. Ouachita Parish Police Jury

513 So. 2d 537
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1987
Docket19,013-CA
StatusPublished
Cited by48 cases

This text of 513 So. 2d 537 (Higginbotham v. Ouachita Parish Police Jury) 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
Higginbotham v. Ouachita Parish Police Jury, 513 So. 2d 537 (La. Ct. App. 1987).

Opinion

513 So.2d 537 (1987)

Emily Sue Green HIGGINBOTHAM, Plaintiff-Appellant,
v.
OUACHITA PARISH POLICE JURY & Employers Fire Insurance Company, Defendants-Appellees.

No. 19,013-CA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1987.

*538 Bruscato, Loomis, Street & Anzelmo by C. Daniel Street, Monroe, for plaintiff-appellant.

Theus, Grisham, Davis & Leigh by Thomas G. Zentner, Jr., Monroe, for defendants-appellees.

Before SEXTON, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff, Emily Sue Green Higginbotham, appeals the decision of the trial court awarding her $30,775.40 in damages against the defendants, Ouachita Parish Police Jury and its insurer, Employers Fire Insurance Company. Liability was admitted by the defendants in the trial court. In this appeal, the plaintiff claims the trial court award was so low as to constitute an abuse of discretion. For the following reasons, we affirm.

FACTS

On July 30, 1983, while driving an antique 1940 Ford coupe, the plaintiff attempted to drive over a cattle gap located on a parish road in Ouachita Parish. Several of the bars on the cattle gap collapsed and the front of the vehicle struck the edge of the hole covered by the cattle gap. Plaintiff was thrown into the steering wheel and was then thrown backward in a whiplash action.

Plaintiff's face struck the steering wheel. She was also cut by glass from the car's windshield and dash which broke upon impact. The plaintiff suffered a cut on her neck requiring two stitches. In addition, several of the plaintiff's front teeth were injured and subsequently died. This necessitated extensive dental work, including root canals on three teeth, and crowns on four teeth. The plaintiff also suffered whiplash-type soft tissue injuries and was diagnosed as having fibromyalgia, a condition causing muscle "knotting" and spasms in the plaintiff's neck and back. Plaintiff's muscle tension results in severe migraine type headaches which sometimes include nausea. The plaintiff claims her condition is made worse by overexertion. As a result, she claims the activities she can perform as a licensed practical nurse are limited and her ability to work overtime has been curtailed. The plaintiff also contended that she could no longer take long car trips and that she ceased playing in neighborhood baseball games.

On July 26, 1984, the plaintiff filed suit against the defendants claiming $41,000 in medical expenses, $300,000 in lost future wages, and $300,000 in general damages. The case was tried June 6, 1986. Because liability was stipulated on the part of the Ouachita Parish Police Jury, the only issue at trial was the quantum due the plaintiff.

The accident resulted in various cuts and bruises, all of which resolved themselves within a short period of time and produced no disability. Plaintiff's major injuries consisted of a noticeable scar left by the cut on her neck, the pain and suffering surrounding *539 her extensive dental treatment and her condition of fibromyalgia. Plaintiff is able to work full time as a licensed practical nurse, but she claimed loss of wages due primarily to her inability to work overtime and to work double shifts.

Following the trial, the case was taken under advisement. In written reasons for judgment, the trial court reviewed the medical testimony presented by the plaintiff relative to her injuries, including the treatment received for her cuts and bruises, her dental treatment and her fibromyalgia. With respect to plaintiff's condition of fibromyalgia, the court determined that the condition had improved and it was uncertain whether the condition would continue to restrict the plaintiff's activities. The court made an award for lost wages based upon lost overtime prior to trial. As to lost future wages, the trial court awarded the plaintiff an amount equivalent to that which she could have earned for overtime for an additional one year period. As to future medical expenses, the court also used a period of one year to fix the amount to be awarded.

Pursuant to his written reasons, the trial court rendered judgment on December 11, 1985, awarding the plaintiff $30,775.40, plus costs. This amount includes $22,000 in general damages, $1,287 in lost past wages, $3,042 in lost future earnings and earning capacity, $1,176.60 in future medical expenses and $3,269.80 in past medical and drug expenses.

The plaintiff has appealed the trial court decision, claiming the court abused its discretion in awarding only $22,000 in general damages and erred by awarding inadequate amounts for lost future wages and future medical expenses.

GENERAL DAMAGES

The plaintiff complains the trial court erred in awarding only $22,000 in general damages. She claims she suffered several severe injuries. One of her primary contentions relates to the condition of fibromyalgia. She contends that this condition, coupled with her other injuries, warrants a higher general damage award than the $22,000 awarded by the trial court. We find the plaintiff's argument to be meritless.

Before a trial court award for damages can be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. A damage award should not be disturbed by a reviewing court absent a showing of a clear abuse of the discretion vested in the trial court. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Harris v. Pineset, 499 So.2d 499 (La.App. 2d Cir.1986), writs denied 502 So.2d 114, 117 (La.1987); Burnham v. Frey-Shoemaker-Colbert-Brodnax, 445 So.2d 477 (La.App. 2d Cir.1984); Hardie v. Pylant, 375 So.2d 189 (La.App. 2d Cir.1979); Gibson v. Winn Dixie Louisiana, Inc., 426 So.2d 731 (La.App. 3rd Cir.1983).

It is only after an articulated analysis of the facts discloses an abuse of discretion that resort to prior awards in similar cases is proper. Reck v. Stevens, supra, Coco v. Winston Industries, Inc., supra.

The appropriate procedure for testing whether the trier of fact has abused its discretion by making an excessive award is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the fact finder. The converse of this rule is also true. In determining whether the trier of fact abused its discretion in making an inadequate award, the evidence must be viewed in the light most favorable to the defendant. Cutchall v. Great American Pump Company, 460 So.2d 1106 (La.App. 2d Cir.1984); Lindsay v. Toys, 499 So.2d 462 (La.App. 2d Cir.1986). Therefore, because the inquiry is whether the trial court's award for general damages was inadequate, we must examine the facts contained in this record in the light most favorable to the defendant to determine whether the trial court abused its discretion.

*540 As stated heretofore, the record reveals the plaintiff sustained several injuries as a result of this accident. Upon impact, broken glass caused a cut on plaintiff's neck which required two stitches to close. As a result, plaintiff was left with a permanent scar one-half inch long and one-quarter inch wide which is visible unless the plaintiff wears clothing with a high neckline. The plaintiff also sustained damage to her front teeth which necessitated root canals in those teeth, and the emplacement of crowns on four of her teeth.

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