Lohenis v. Rousse

166 So. 3d 1020, 2014 La.App. 1 Cir. 1078, 2015 La. App. LEXIS 484, 2015 WL 1018959
CourtLouisiana Court of Appeal
DecidedMarch 9, 2015
DocketNo. 2014 CA 1078
StatusPublished
Cited by6 cases

This text of 166 So. 3d 1020 (Lohenis v. Rousse) 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
Lohenis v. Rousse, 166 So. 3d 1020, 2014 La.App. 1 Cir. 1078, 2015 La. App. LEXIS 484, 2015 WL 1018959 (La. Ct. App. 2015).

Opinion

DRAKE, J.

|2In this personal injury case, the defendants challenge the damages awarded by the district court to the plaintiff following a bench trial.

FACTS AND PROCEDURAL HISTORY

The accident at issue occurred on January 26, 2012, when a 1990 Ford F-150 owned by the plaintiff, Joseph Lohenis, was rear-ended by a vehicle owned and operated by the defendant, Tammy Rousse. At the time of the accident, the plaintiffs son, Matthew J. Lohenis, was operating the vehicle. The plaintiffs wife, Dawn Lohenis, was a guest passenger in the front seat, and the plaintiff was a guest passenger sitting in the middle of the back seat, where he wore only a lap seat belt. The Lohenis family was stopped at a stop sign behind several cars on Highway 1249 South in Tangipahoa Parish, Louisiana, when Ms. Rousse rear-ended their vehicle at approximately 45-miles-per-hour. The impact caused Mr. Lohenis’s body to move forward, where he hit the console; then, his body moved backward, where the back of his head and neck hit the truck’s back glass window. (R.53) The defendant’s vehicle was insured by Truck Insurance Exchange, a Division of Farmers.1

Mr. Lohenis filed the instant suit against Ms. Rousse and Truck Insurance Exchange, seeking recovery for damages for the aggravation of pre-existing neck and back injuries allegedly sustained as a result of the automobile accident. A bench trial was conducted on April 15, 2014, on the issue of damages.2 On April 25, 2014, the district court issued its judgment in favor of Mr. Lohenis and against the defendants. The district court awarded Mr. Lohenis $47,857.50 in damages.

|sThe defendants now appeal, contending that the trial court erred in the amount of general damages awarded to the plaintiff. [1024]*1024Specifically, the defendants assert four assignments of error, which we summarize as follows:

1. The trial court erred in admitting into evidence a third-party medical record on rebuttal as a basis for discrediting the testimony of the plaintiffs treating neurosurgeon and as a basis for finding that the plaintiff suffered aggravation of pre-ex-isting injuries for sixteen-and-a-half months following the accident.
2. The trial court erred in finding that the plaintiff proved he suffered aggravation of pre-existing injuries beyond two months following the accident, given the medical records introduced at trial and the expert medical testimony of the plaintiffs treating neurosurgeon.
3. The trial court erred in using a mathematical formula to calculate the general damages awarded to the plaintiff.
4. The trial court erred in finding that the plaintiff would be entitled to damages for loss of consortium, when the plaintiff did not plead a loss of consortium claim in his original petition and introduced no evidence of said claim at trial.

LAW AND DISCUSSION

Assignments of Error 1-3

The defendants’ first three assignments of error are interrelated. In their second assignment of error, the defendants argue that the general damages award is abusively high in light of the fact that Mr. Lohenis, who had chronic neck and back pain dating back well before the accident at issue occurred, failed to carry his burden of proof that he suffered a sixteen- and-a-half-month aggravation of his preexisting neck and back injuries. The defendants contend that Mr. Lohenis failed to prove that he suffered any aggravation of these pre-existing injuries beyond two months after the accident, based on the medical records and expert medical testimony introduced at trial. Furthermore, the defendants argue in their first assignment of error that the district court erred in admitting into evidence, on rebuttal, a two-page medical record of the plaintiffs wife, which attempted to establish the duration of the aggravation of the plaintiffs preexisting injuries. | ¿Finally, in their third assignment of error, the defendants claim that the district court improperly calculated the damages award, in the amount of $47,857.50, using a mathematical formula.

Plaintiffs Burden of Proof/Damages

“General damages” involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La.App. 1st Cir.), writs denied, 605 So.2d 1373, 1374 (La.1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431, 437.

“Special damages” are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty. Some special damages, such as medical and related expenses, etc., are easily measured. Smith v. Escalon, 48,129 (La.App. 2 Cir. 6/26/13), 117 So.3d 576, 583.

A defendant in a personal injury case takes the victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. When the tortfeasor’s conduct aggravates [1025]*1025a pre-existing condition, the tortfeasor must compensate the victim for the full extent of the aggravation. Robinson v. Tolbert, 40,488 (La.App. 2 Cir. 1/20/06), 920 So.2d 846, 348. The “eggshell plaintiff’ is required to establish a causal link between the tortious conduct and the aggravation of his pre-existing condition. Bienemann v. State Farm Mut. Auto. Ins. Co., 08-1045 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. | ¡¿Before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim’s current status must also be established. Proof must be by a preponderance of the evidence. The test for determining the causal relationship is whether the plaintiff proved, through medical testimony, that it is more probable than not that the subsequent injuries were caused by the accident. Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App. 2 Cir. 4/30/08), 983 So.2d 966, 972.

Thus, in determining the amount of general damages to be awarded, the district court, as the trier of fact, had to determine whether Mr. Lohenis met his burden of proof, by a preponderance of the evidence, that he suffered aggravation to his pre-existing injuries as a result of the accident, as well as the duration of the aggravation to his injuries. The trier of fact is accorded much discretion in fixing general damage awards. La. C.C. art. 2324.1; Cheramie v. Horst, 93-1168 (La. App. 1 Cir. 5/20/94), 637 So.2d 720, 723. The discretion vested in the trier of fact is “great,” even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

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Cite This Page — Counsel Stack

Bluebook (online)
166 So. 3d 1020, 2014 La.App. 1 Cir. 1078, 2015 La. App. LEXIS 484, 2015 WL 1018959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lohenis-v-rousse-lactapp-2015.