Montgomery v. Debartolo

661 So. 2d 158, 95 La.App. 5 Cir. 236, 1995 La. App. LEXIS 2599, 1995 WL 565096
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1995
DocketNo. 95-CA-236
StatusPublished

This text of 661 So. 2d 158 (Montgomery v. Debartolo) 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
Montgomery v. Debartolo, 661 So. 2d 158, 95 La.App. 5 Cir. 236, 1995 La. App. LEXIS 2599, 1995 WL 565096 (La. Ct. App. 1995).

Opinion

JiDUFRESNE, Judge.

This is an appeal from a jury verdict in favor of a following motorist in a rear-end collision case. For the following reasons, we affirm that verdict.

The facts of the accident are generally undisputed. On September 10, 1986, Marguerite Montgomery, plaintiff-appellant, was traveling south in the left lane of Causeway Boulevard at the southern foot of the Airline Highway overpass when a pallet fell off an unidentified flat-bed truck one or two cars ahead of her. There was conflicting evidence as to whether one car got around the pallet and the one directly ahead of plaintiff ran over it before stopping, or whether that car stopped just before the obstruction. In any case, plaintiff made a sudden stop.

Charles Debartolo, defendant-appellee, was returning from a fishing trip in a pick-up truck towing his boat and trailer, and was |2following plaintiff some five or six car lengths behind. He testified that he saw the pallet fall off the truck and applied his brakes, but was unable to stop completely and “tapped” plaintiffs rear bumper. He estimated that he was traveling about 40 mph in the 45 mph speed zone.

Charles Henry, Debartolo’s fishing companion, testified that he became aware of what was happening sometime after Debarto-lo had applied the brakes and when the pickup was two to three car lengths behind plaintiff. He said that the truck first hit the guard fence and curb on the left which slowed it further and that it “barely touched that lady’s bumper; there wasn’t a scratch, there wasn’t a dent, there wasn’t anything on that bumper.” Plaintiff also testified that her car was not damaged. Other evidence showed that Debartolo’s pick-up had about a thousand dollars of damage at the left front fender area, thus corroborating Mr. Henry’s testimony about hitting the guard fence and curb.

Plaintiff, who was then 71 years old, made no complaint of injury at the scene, and everyone drove off in their own vehicles. A week later, on September 17, plaintiffs daughter Margaret found her mother sitting quietly in a dark room. When she asked her mother what was wrong, plaintiff said she had pains in her chest and neck and thought she might be having a heart attack. Both went to the emergency room where plaintiff was examined for possible heart problems, but nothing was found. The hospital notes reflect that she told the staff that her symptoms had occurred off and on over the last l3month, although less severely. The impression of the emergency room physician was that she had suffered an anxiety attack. No mention was made in any of the hospital’s records that plaintiff had been in an automobile accident. In fact, in the daughter’s testimony no connection with the accident was apparently made by her at that time. She did testify, however, that her mother’s mental condition began to decline from about the time of the incident. Specifically, she said that plaintiff became increasingly withdrawn, went out of the house less and less, and became irritable and short with both family members and customers at her popcorn stand at a local mall. Plaintiff asserted that because of her mental state she eventually had to sell her business at a loss because she was incapable of managing it further.

Because of these continuing symptoms, her family urged her to see Dr. Aris Cox, a psychiatrist and she had her first visit with him on February 9,1988, almost a year and a half after the accident. This doctor saw her over the course of six months, and was able to relieve her symptoms with the use of medication. He diagnosed her problem as post-traumatic stress disorder, a condition he described as one sometimes resulting from a very serious trauma, such as warfare or some other very unusual event. He said that he reached this diagnosis by the process of elimination as to any traumas that plaintiff might have suffered at about the time her mental condition began to deteriorate. He also said that he was told that plaintiff had not had the symptoms for which he treated her prior to the accident, but stated that if the symptoms had indeed been present before then, then his | conclusion as to causation would be different.

On cross examination of Dr. Cox, the defense had him review plaintiffs medical records since the mid-1960’s. Those records [160]*160disclosed that she was repeatedly diagnosed as having anxiety attacks up through the summer of 1986, and had regularly been prescribed various anti-depressant and tranquilizer drugs by various doctors. Dr. Cox said that although he was not aware of some of this information, it did not appear to him that the prior incidents for which she was treated were disabling, and thus he did not regard them as similar to her post accident symptoms.

The defense also questioned plaintiff about a 1983 automobile accident. She twice denied having been in any accident, but when the defense suggested that it happened on Easter Sunday, she suddenly remembered that it was on Easter Saturday, that she had seen a doctor, and had eventually settled the matter with the insurer. She described that incident as follows:

I stopped [in traffic] and this lady ran me up over onto the curbing and almost hit me into a post.

No psychological trauma disorder resulted from this incident.

On the above evidence the jury returned a verdict in favor of the defense. Plaintiff now appeals, and urges five assignments of error. Three of the alleged errors relate to the jury instructions, one relates to the refusal of the trial judge to permit certain argument on grounds there was no evidence introduced to support it, and the fifth alleges that the defense used peremptory jury challenges to improperly ^exclude certain jurors because of their race.

As to the alleged defects in the jury instructions, La.Code Civ.Pro., Art. 1793(C) specifically provides that:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection....

In the present matter, the objections to the instructions were not made until after the verdict had been rendered by the jury and the judge had made that verdict the judgment of the court. Because the objections were untimely, they are considered as having been waived, and under the clear wording of the statute they can not be urged as error on appeal, Sledge v. Continental Casualty Co., 25,770 (La.App. 2 Cir. 6/24/94), 639 So.2d 805; Keith v. Gallioto, 592 So.2d 510 (La.App. 5 Cir.1991).

The next alleged error concerns plaintiffs closing argument. Counsel properly noted that the .defendant had testified that he was going 40 mph and was traveling about 80 feet behind the plaintiff. He then began to calculate the distance a vehicle traveling at that speed would cover per second. At that point defense counsel objected and a bench conference was called. The basis of the objection was that there had been no expert testimony regarding these matters and therefore they were beyond the scope of the evidence. Plaintiffs counsel urged that he was only arguing arithmetic. He asserts here that he wished to point out to the jury that 40 mph translates into 58.66 feet per second, and at that speed it would take about 1.5|6seconds to close the 80 foot gap between the cars. That, however, is the precise reason that the defense objected.

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Bluebook (online)
661 So. 2d 158, 95 La.App. 5 Cir. 236, 1995 La. App. LEXIS 2599, 1995 WL 565096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-debartolo-lactapp-1995.