McCray v. Abraham

550 So. 2d 244, 1989 WL 105724
CourtLouisiana Court of Appeal
DecidedSeptember 14, 1989
Docket88-CA-1660
StatusPublished
Cited by16 cases

This text of 550 So. 2d 244 (McCray v. Abraham) 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
McCray v. Abraham, 550 So. 2d 244, 1989 WL 105724 (La. Ct. App. 1989).

Opinion

550 So.2d 244 (1989)

Adrianne S. McCRAY
v.
Carolyn ABRAHAM and Sentry Insurance Company.

No. 88-CA-1660.

Court of Appeal of Louisiana, Fourth Circuit.

September 14, 1989.

*245 Michael J. Laughlin, Stassi, Rausch & Giordano, Metairie, for plaintiff-appellant.

Lynn L. Lightfoot, New Orleans, for defendants-appellees.

Before CIACCIO, WARD and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Plaintiff, Adrianne McCray, instituted this action against defendant, Carolyn Abraham, and her insurer, Sentry Insurance Company, seeking damages to compensate her for personal injuries and property damage sustained in an automobile accident. Following a trial by jury, judgement was rendered in favor of plaintiff awarding her $379.00 in damages. Plaintiff now appeals, seeking an increase in special and general damages.

The accident occurred on July 4, 1985. Plaintiff proceeded to make a left turn onto South Claiborne Avenue, northbound, at Mistletoe Street. She went into a skid on the rain-slicked roadway, and her vehicle was struck broadside by a vehicle driven by defendant.

The accident investigation report completed by Officer Gary Gremillion indicated that plaintiff received minor injuries in the collision. The day after the accident, July 5th, plaintiff was examined by Dr. Charles Peterson, a general practitioner. Dr. Peterson diagnosed plaintiff to be suffering from a large contusion or hematoma of the left thigh, a contusion of the left upper arm, and a sprain of the left wrist. Dr. Peterson also found some tenderness in the back of plaintiff's neck and her upper back, with some limitation of motion on flexion and extension of the neck. He diagnosed this as muscle strain. He prescribed a muscle relaxant for plaintiff and gave her steroid injections.

Dr. Peterson saw plaintiff one more time, on July 8th. He noted minimal improvements but said she had the same complaints as before. He testified that the history and complaints made by plaintiff were consistent with the findings he made. Based upon his examination and findings, he opined that plaintiff's injuries were caused by the automobile accident. It was his impression that she would require subsequent medical care. No evidence was introduced as to the medical expenses incurred by plaintiff for Dr. Peterson's treatment.

Dr. Darryl Richard, a chiropractor, testified on behalf of the plaintiff. The defense stipulated that he was an expert in the field of chiropractic. Dr. Richard first examined plaintiff on August 5, 1985, one month *246 after the accident. Plaintiff gave him a history of having been involved in an automobile accident. Plaintiff complained of pain in her back upon movement, particularly upon turning to the right. She also complained of pain in her left shoulder, forearm, and left hand. Cervical rotation to the left caused plaintiff to complain of pain in her neck and trapezius muscle, although the range of motion was within normal limits. Dr. Richard also found spasms in the neck and trapezius muscles.

X-rays showed an abnormal curvature of plaintiff's lumbar and cervical spine. Thermogram tests were abnormal for the cervical spine and were "consistent with cervical nerve root irritation in three levels" (of the spine). Dr. Richard's final diagnosis was (1) acute hyperflexion/hyperextension of the cervical spine; (2) cervical radicular neuralgia, or, pain radiating from the cervical nerves of the spine; (3) acute moderate cervical strain and sprain; (4) lumbosacral facet syndrome with nerve root irritation.

Dr. Richard's treatment of plaintiff consisted of the application of wet moist heat, spinal traction, chiropractic manipulation of the spine, and instructions to sleep with an orthopedic pillow supporting her head and neck.

Dr. Richard testified that plaintiff had pre-existing arthritis in her neck and spine. He believed that the arthritis was indicative of a weakness in plaintiff's neck and that the force of the impact affected the area. He also stated that the soft tissue involvement, such as the muscle spasms, sprains, and strains, were causally related to the trauma sustained in the accident.

Dr. Richard saw plaintiff twenty-three times between August 5, 1985 and March 5, 1986. Copies of the bills for his services were introduced in evidence and showed a total of $2,373.00 charged plaintiff.

Plaintiff testified that she had not sustained any neck or back injuries before this accident and had not experienced any pain in these areas until the accident. At the time of trial, April, 1988, she was suffering from intermittent pain in her hand, left leg, and neck. She claimed to have missed three consecutive days from work immediately following the accident due to her injuries, and later, in October, 1985, missed three more days.

Plaintiff was employed by the New Orleans Sewerage and Water Board. Elizabeth West, an employee of the payroll department, testified that company records reflected that plaintiff missed a day from work on July 8, 1985. She claimed that the records showed that plaintiff did not miss another day of work until November 18, 1985, and that was an annual leave day taken in conjunction with several other days. Other than showing whether it was a sick day or an annual leave day, the records did not reflect the reason for a particular absence.

Officer Gremillion testified that the vehicle that struck plaintiff's vehicle was travelling at approximately thirty miles per hour. Plaintiff's vehicle was spinning out of control on the wet street. His report reflected that plaintiff was not wearing her seatbelt at the time of impact. The report also reflected that the damage to plaintiff's vehicle was heavy, and on the left side.

Raul Farris testified on behalf of plaintiff as to the damage to her automobile. The defense stipulated that he was an expert in the field of automobile appraisals. Mr. Farris testified that plaintiff's 1979 Chevrolet Caprice Classic station wagon would have been worth $4,100.00 without the damage, which was confined to the left side. He determined that the cost of repairing the damage was $3,817.84. He considered the car a total loss, and valued the vehicle at $800.00 in it's wrecked condition. He subtracted this value from the $4,100.00 figure, and calculated that plaintiff's actual cash loss was $3,300.00. Farris had "no doubt" that all of the damage to plaintiff's vehicle was from the accident in question.

The jury found that the concurrent negligence of plaintiff and defendant contributed to the accident. Fault was assessed 75% to plaintiff and 25% to defendant. Liability is not at issue on appeal, only damages. Based upon the above evidence, the jury determined that the total amount of damages sustained by plaintiff was $1,516.00. *247 This figure was reduced by 75%, leaving $379.00 to be awarded to plaintiff.

Plaintiff seeks an increase in both special and general damages. The jury did not itemize damages so we are unable to determine what the award represented.

SPECIAL DAMAGES

Medical Expenses:

Plaintiff claims that the evidence was uncontroverted that she sustained bodily injuries as the result of the accident. For the following reasons, we agree.

Plaintiff's vehicle, spinning out of control, was struck by an automobile traveling an estimated thirty miles per hour. A photograph of her vehicle shows severe damage to the left side, where she would have been sitting. She was not wearing her seatbelt and related to Dr. Richard that she was thrown to the right side of the vehicle by the force of the impact.

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Cite This Page — Counsel Stack

Bluebook (online)
550 So. 2d 244, 1989 WL 105724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccray-v-abraham-lactapp-1989.