Morton v. Ray

611 So. 2d 841, 1992 WL 385617
CourtLouisiana Court of Appeal
DecidedDecember 29, 1992
Docket91-CA-2663
StatusPublished
Cited by7 cases

This text of 611 So. 2d 841 (Morton v. Ray) 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
Morton v. Ray, 611 So. 2d 841, 1992 WL 385617 (La. Ct. App. 1992).

Opinion

611 So.2d 841 (1992)

Paul MORTON
v.
Carl RAY and Eckerd Drugs.

No. 91-CA-2663.

Court of Appeal of Louisiana, Fourth Circuit.

December 29, 1992.
Rehearing Denied February 12, 1993.

*842 Robert J. Caluda, Betsy J. Barnes, Robert J. Caluda and Associates, New Orleans, for plaintiff/appellee.

C. William Bradley, Jr., Gerald J. Talbot, Kelley A. Robichaux, Lemle & Kelleher, New Orleans, for defendants/appellants.

Before BYRNES, CIACCIO and LANDRIEU, JJ.

LANDRIEU, Judge.

In this action for damages, the plaintiff, Paul Morton, his wife, and two minor children claim that defendant, Carl Ray, an employee of defendant Eckerd Drugs, negligently injured plaintiff's back. The defendants deny the allegations and alternatively argue that the awards are excessive. We amend in part, and as amended, affirm, affirm in part, and reverse in part.

FACTS

On March 21, 1988, at approximately 8:45 p.m., plaintiff, Paul Morton, was performing security services for defendant, Eckerd Drugs, within the course of his duties for Metro Security Consultants, his employer. Upon completing his round of counting the number of customers remaining in the store prior to closing, Morton was leaning against the metal railings separating the entrance and exit doors. Without warning, Carl Ray, an employee of Eckerd Drugs, playfully grabbed him on the shoulders from behind and pulled him backwards.

Morton had a pre-existing back condition that arose from injuries he sustained in a July 23, 1983 automobile accident. While employed as a street sweeper with the Louisiana Department of Transportation, he was rear-ended on Interstate-610. As a result of that accident, plaintiff suffered a ruptured disc. On December 7, 1984, his treating physician, Dr. Kenneth Adatto, performed surgery removing the ruptured disc at L4-5.

Although plaintiff continued to have back problems until the date of the incident in question, he resumed working and an active life approximately three years after the 1983 accident.[1] Frequently working 12 hour days, Morton had been working for Metro Security Consultants approximately *843 10 months before he was injured at Eckerd's.

At trial, Morton testified he was leaning against a rail in the front of the store when Carl Ray came up from behind him, grabbed him with both hands, and "snatched" him backwards. According to his testimony, when Ray "snatched" him backwards, his feet slipped and his back was pinned against the railing. As he attempted to pull himself forward, Ray was pulling him another way. Morton further testified that, prior to this incident, he had warned Ray not to pull on his shoulders, because his back was sensitive due to prior surgery.

Tammy Farria, an Eckerd Drug cashier, witnessed the incident. According to her deposition testimony, plaintiff was "sitting on the little security rails" when Ray came from behind plaintiff and said "boo". Simultaneously, Ray's hands grabbed Morton's shoulders in an attempt to scare Morton. Farria further testified that after Ray grabbed Morton, he "kind of went back but he didn't fall."

Carl Ray, manager of Eckerd Drugs, testified by deposition that while preparing to close the store, he saw Morton sitting on the railing that divides the entrance and exit doors. According to his testimony, he walked up to Morton, touched him on the arm, and said, "Hello, Paul." Ray further testified that he touched Morton on both shoulders with both hands. At that moment, plaintiff jumped off the railing and became hostile. He began using foul language, and threatened to beat Ray. At no time did he complain his back was hurting. Ray testified that after the incident the plaintiff approached him and stated that he was going to "sue the hell" out of him and Eckerd Drugs.

Lorraine Morton testified that, after her husband's accident, his personality changed a whole lot. He constantly yelled at their daughter, and on several occasions, he hit her. Mrs. Morton further testified that, prior to the accident, sexual activity was normal. After the accident, however, there was no sexual activity. Unable to tolerate Morton's mood swings and sudden outbursts brought on by the severe pain, Mrs. Morton and the children separated from plaintiff in May, 1990.

Dr. Kenneth Adatto testified by video deposition that when Morton complained in 1987 of spasm, numbness, and discomfort in his back, a CT scan and an MRI were ordered. In November 1987, results of these tests revealed both a recurrence of disc herniation at L4-5, the site of Morton's previous injury, and evidence of nerve compression. At this time, Dr. Adatto discussed with plaintiff the possibility of fusion surgery.

By January, 1988 Morton had learned to live with the problem. Dr. Adatto opined at this time that Morton did not need a fusion or subsequent surgery. Finally, Dr. Adatto testified that had there not been the accident on March 21, 1988, it is more probable than not that plaintiff would not have needed a disc fusion.[2]

Dr. James Butler, orthopedic surgeon, testified that, because of the March 21, 1988 accident, plaintiff's pre-existing condition became symptomatic and required that he perform a fusion and another laminectomy on the plaintiff in July, 1988. Dr. Butler further testified that because of this accident, Morton will have a 25% whole body physical impairment. Dr. Edmund C. Landry, Jr., orthopedic surgeon, opined that the March 21, 1988 incident caused plaintiff to start experiencing right leg pain and necessitated a fusion.

The jury returned a verdict in favor of all plaintiffs and against all defendants. Damages awarded to the plaintiffs are as follows:

*844
PAUL MORTON
Physical pain and suffering and emotional anguish, past, present, and
future.                                                                  $350,000.00
Medical expenses, past, present, and future.                             $140,000.00
Loss of earnings and earning capacity.                                   $177,000.00
LORRAINE MORTON (Wife)
Loss of consortium                                                       $100,000.00
PAULA MORTON (12 year old daughter)
Loss of consortium                                                       $ 75,000.00
JONATHAN MORTON (3 year old son)
Loss of consortium                                                       $ 50,000.00

DISCUSSION

CAUSATION

Defendants contend the jury committed manifest error when it determined Carl Ray's actions caused Paul Morton's injury. Specifically, defendants argue that Paul Morton's back problems were already present when the March 21, 1988 incident occurred.

The plaintiff has the burden of proving both his injuries and a causal connection between the injuries and the tort. McGrew v. Jordan, 516 So.2d 1246 (La. App. 2d Cir.1987). It is well settled in our jurisprudence that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Where defendant's negligent action aggravates a pre-existing injury or condition, he must compensate the victim for the full extent of his aggravation. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991).

After reviewing the record, we cannot say the trial court erred in determining Carl Ray's actions caused plaintiff's injuries. Accordingly, this assignment of error is without merit.

GENERAL DAMAGES

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Cite This Page — Counsel Stack

Bluebook (online)
611 So. 2d 841, 1992 WL 385617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-v-ray-lactapp-1992.