Klein v. Himbert

474 So. 2d 513
CourtLouisiana Court of Appeal
DecidedAugust 7, 1985
DocketCA 3148
StatusPublished
Cited by11 cases

This text of 474 So. 2d 513 (Klein v. Himbert) 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
Klein v. Himbert, 474 So. 2d 513 (La. Ct. App. 1985).

Opinion

474 So.2d 513 (1985)

James Paul KLEIN
v.
Martha HIMBERT and Aetna Casualty and Surety Company.

No. CA 3148.

Court of Appeal of Louisiana, Fourth Circuit.

August 7, 1985.

*514 Maria I. O'Byrne Stephenson, E.S. Ned Nelson, Bryan, Nelson, Allen, Schroeder & Stephenson, New Orleans, for appellants.

Birdsall, Rodriguez, Robelot & Nelson, Benjamin J. Birdsall, Jr., Patrick G. Kehoe, Jr., Walter A. Robelot, New Orleans, for appellee.

Before BARRY, CIACCIO and WILLIAMS, JJ.

CIACCIO, Judge.

Plaintiff, Paul Klein, filed this action to recover damages for personal injuries he sustained on April 29, 1983, when as a pedestrian, he was struck by a vehicle owned by defendant, Martha Himbert, and operated by her minor son, Jacques Himbert. Following a bench trial the district court granted judgment in favor of the plaintiff for $414,298.64 against defendant and against her excess liability insurer, U.S. Fire Insurance Company.[1] Defendants appeal the district court judgment seeking a remittur and plaintiff has answered seeking additur. We affirm.

The issue of liability is not a matter of contest in this appeal. The sole issue for consideration is the adequacy of the damage award.

Plaintiff, while in the process of walking across the roadway of Lakeshore Drive in the City of New Orleans, had stopped in the center of the four lane roadway to allow oncoming traffic to pass when he was struck by the Himbert vehicle. As a result of the impact plaintiff was propelled over the front of the car, hit the trunk of the vehicle and rolled onto the pavement. He was taken from the accident scene by ambulance to East Jefferson Hospital. At approximately midnight he was examined by an emergency room physician and also by Dr. John V. Garoutte, an orthopedic surgeon, who was called to treat the plaintiff.

Plaintiff was found to have sustained major damage to the restraining structures of both knees, necessitating almost immediate surgery. During surgery, the lateral meniscus on the lateral aspect of the right knee was removed, and the medial meniscus of this knee was repaired. The medial collateral ligament and anterior cruciate ligament were sutured back to the bone. The minor soft tissue of the right leg was also repaired and the skin was sewn back and a full leg cast, from the hip to foot, was applied. Similar procedures were conducted on the left leg, however, this leg *515 sustained damage primarily to the outer aspect of the leg. A full cast was also applied to this leg.

Plaintiff remained in the hospital, in considerable pain, until May 10, 1983. During this time Demerol was administered on a regular basis in order to relieve pain. Plaintiff remained in the two leg casts for approximately two and one-half months. During this time he needed assistance to turn in his bed and to go to the bathroom. He was able to move around in a wheelchair, which he used for a period of three and one-half months. After the casts were removed plaintiff, at first, could not walk, so he continued to use his wheelchair. He was given braces and crutches to aid him in walking. He used the crutches regularly until October of that year and thereafter, periodically until December. He continued to wear the braces at night and periodically on those days when he was experiencing difficulties with his legs. He continues to take medicine for pain as it is needed. As of the time of trial, the plaintiff continued to experience pain and swelling in his legs which resulted in a severe restriction of his activities.

Dr. Garoutte found that as a result of this accident the plaintiff sustained a 20% permanent functional impairment of the right knee and a 10% permanent functional impairment of the left knee. He also believed that plaintiff's intra articular injury would cause him to develop arthritis. Dr. Garoutte stated that although plaintiff would be able to engage in some activities, he would not recommend any activity in which plaintiff would squat 4 to 5 times a day nor any activity which require him to function at a height of over 6 to 8 feet because the plaintiff does not have normal reflex recovery ability and he has a laxity in his knees. Dr. Garoutte recognizes the plaintiff's need to engage in activities but the type and amount of activities are questionable. Therefore he recommended that the plaintiff not engage in heavy physical athletics but that he experiment with different activities until he realized (by the pain experienced) what activities he could endure.

The trial court awarded damages as follows:

General damaged ...............   $300,000.00
Diminished earning capacity ...   $100,000.00
Medical expenses ..............   $ 11,298.64
Lost wages ....................   $  3,000.00
                                  ___________
Total .........................   $414,298.64

The following findings were made by the trial judge:

REASONS FOR JUDGMENT
Quite aside from the problems generated by comparative fault, Baumgartner Bays v. Lee, plaintiff here was entirely free of contributory negligence and his award will not be reduced.
His injuries are very serious, and defendant's movies confirm rather than dispute his limitation of motion. General damages will be fixed at $300,000.00.
His diminished earning capacity is not difficult to calculate or, more accurately, to anticipate. His academic performance arguably suggests he would have pursued a career based on physical dexterity. But his considerable social skills say otherwise. When all is said, I cannot ignore totally the potential impact of his future limitations on his future earning capacity. This loss will be estimated at $100,000.00.
I am not satisfied with the need for or the proof of payment for the home nursing service and this aspect of the claim will be denied.

General Damages

In seeking a reduction in the amount of general damages, defendants argue that the plaintiff's activities, as evidenced by the testimony and the film presented at the trial, indicate that his injuries are not so severe as to warrant such an award.

The plaintiff argues the award is inadequate and contends this is evidenced by his permanent disability.

*516 In assessing damages in cases of quasi-offense, much discretion is left to the trial court judge. Perniciaro v. Brinch, 384 So.2d 392 (La., 1980). Before the appellate court will disturb such an award, the record must clearly reveal that the trier of fact abused his discretion in making the award, based upon the particular injuries and their effect upon the particular individual who sustained the injuries. Perniciaro v. Brinch, supra; Reck v. Stevens, 373 So.2d 498 (La.,1979).

The record reveals that, at the time of this accident, plaintiff was a college age student who had excelled in various types of athletics. He was a below average student and he had worked most recently as a coal inspector, which job involved such physical dexterity as climbing, jumping and lifting heavy materials.

As a result of this accident the plaintiff sustained a 20% permanent impairment of the right knee and a 10% permanent impairment of the left knee. It is more probable than not that he will develop arthritis as a result of his injuries.

Following the accident it was thought that he might not walk again. Plaintiff was subjected to surgery and he spent 11 days in the hospital.

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Bluebook (online)
474 So. 2d 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-himbert-lactapp-1985.