Olivier v. Sears Roebuck & Co.

499 So. 2d 1058, 1986 La. App. LEXIS 7761
CourtLouisiana Court of Appeal
DecidedOctober 8, 1986
Docket85-1037
StatusPublished
Cited by18 cases

This text of 499 So. 2d 1058 (Olivier v. Sears Roebuck & Co.) 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
Olivier v. Sears Roebuck & Co., 499 So. 2d 1058, 1986 La. App. LEXIS 7761 (La. Ct. App. 1986).

Opinion

499 So.2d 1058 (1986)

Lionel OLIVIER, et ux., Plaintiff-Appellants,
v.
SEARS ROEBUCK & COMPANY, et al., Defendant-Appellees.

No. 85-1037.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1986.
Writ Denied December 5, 1986.

*1059 Thomas F. Porter, IV, of Shelton and Legendre, Lafayette, for plaintiff-appellants.

Onebane and Associates, John F. Wolkes, III, Lafayette, for defendant-appellees.

Edwards, Stefanski and Barousse, James M. Cunningham, III, Crowley, for intervenors-appellees.

Before DOUCET, LABORDE and KNOLL, JJ.

DOUCET, Judge.

Plaintiffs filed suit for damages incurred as a result of an automobile accident. The suit was tried by a jury. In response to written interrogatories, the jury found that the defendant, Ronald Miller, was at fault in causing the accident and that there was no negligence on the part of plaintiff, Velma Olivier. The jury found that the defendant caused $150.00 in damages to Velma Olivier and $1,100.00 in damages to Lionel Olivier.

From a judgment rendered pursuant to the verdict, plaintiffs appeal seeking an increase in special damages and also seeking general damages.

Plaintiffs allege the following specifications of error:

1. The trial court abused its discretion by failing to award plaintiff general damages in its verdict;
2. The trial court abused its discretion by failing to adequately compensate petitioners for their damages under the facts shown to exist;
3. The trial court erred in its assessment of damages by ignoring facts which were proven by a preponderance of the evidence;
4. The trial court erred in ignoring uncontradicted testimony presented during the trial of this case in its assessment of damages.

On September 11, 1979, Mrs. Velma Olivier was driving her husband's pickup truck on a parish road in Church Point. A van, driven by defendant, Ronald Miller, backed from a private driveway onto the road and collided with Mrs. Olivier's vehicle.

It was stipulated by all counsel of record that at the time of the accident, Miller was acting within the course and scope of his employment with defendant, Sears Roebuck & Company. A stipulation was also made that Sears Roebuck & Company, as well as Miller, was covered by a liability policy of insurance issued by defendant, Allstate Insurance Company. It was further *1060 stipulated that the testimony of witnesses would reflect that plaintiffs incurred a total of $19,930.12 in medical expenses after September 11, 1979.

In her petition, Velma Olivier sought damages for the total and permanent disability of her body allegedly as a result of injuries sustained in the accident. Those injuries were listed as: (a) aggravation of a pre-existing back injury; (b) injury to her back requiring surgical intervention and resulting in severe bladder problems; (c) injury to her neck requiring possible surgical intervention; and (d) injury to arms, shoulders and legs. Lionel Olivier sought damages for medical expenses incurred as a result of his wife's injuries and for damages to his pickup truck.

A trial court is vested with much discretion in assessing general damages. LSA-C.C. art. 2324.1. The question is whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from it. Bitouin v. Landry, 302 So.2d 278 (La.1974). Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Plaintiff cites as error, the trial court's failure to award her any general damages. We feel that the award of $150.00 was not intended as either general or special damages to compensate plaintiff for any injuries sustained in the accident. This award can be rationally explained only by a finding of fact reached by the trial court that Velma Olivier was not injured in the accident.

Our review of factual conclusions reached by a trial court is limited by Canter v. Koehring, 283 So.2d 716 (La.1973). In that case, our Supreme Court stated the rule that:

"When there is evidence before the trier of fact which, upon its ... reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error."

"Manifestly erroneous", in its simplest terms, means "clearly wrong". Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), on remand 370 So.2d 1262, writ denied, 374 So.2d 660.

The issue in this case then, is whether or not the evidence furnishes a reasonable factual basis for a finding by the trial court that Mrs. Olivier was not injured as a result of the accident in question. If the evidence provides that basis, then unless such a finding would be clearly wrong, the award to Mrs. Olivier must be affirmed.

The trial court was faced with the problem of determining whether Mrs. Olivier's back condition was caused or aggravated by the accident or was the result of an injury sustained three years prior to the accident in question.

A plaintiff has the burden of proving by a preponderance of the evidence the causal connection between the accident and the injuries claimed. Coleman v. Victor, 326 So.2d 344 (La.1976); White v. Cumis Insurance Society, 415 So.2d 574 (La.App. 3rd Cir.1982).

We will examine each of plaintiff's claims of injury separately.

PRIOR BACK INJURY

During the Fall of 1976, plaintiff was employed by Garan, Inc. when she injured her back attempting to lift a 50 pound bundle of clothing. Dr. Lionel Mayer examined plaintiff on November 16, 1976. According to his deposition, the plaintiff complained of pain in her lower back and in her left hip and leg. Two months later, she complained of pain in her right leg. Dr. Mayer operated on plaintiff's back in February 1977. He removed some of the disc material and part of the bony structure of the spine at the L4-5 level. Dr. Mayer stated that he felt he had remedied plaintiff's back problems. The plaintiff however, continued to complain of pain through *1061 December 1977, the last time Dr. Mayer examined her.

Dr. Mayer referred the plaintiff to Dr. Henry LaRocca in New Orleans. Dr. LaRocca first examined plaintiff in January 1978. At that time, he found plaintiff to be suffering from degenerative disc disease up and down her spine, and he also noted the presence of arthritic changes in the plaintiff. He regarded plaintiff as having a permanent total disability regarding physical labor such as bending, lifting, and carrying articles of more than twenty pounds.

In July 1978, Dr. LaRocca operated on plaintiff's back, removing more disc and bone material from the L4-5 level as well as from a lower part of the spine, at the L5-S1 level. The condition at the L5-S1 level, a ruptured disc, was discovered during surgery. Dr. LaRocca then fused the joints of the spine at those levels. He stated that plaintiff's complaints of pain continued through August 28, 1979, her last examination before the accident.

Dr. LaRocca next examined plaintiff on October 30, 1979. This was 49 days after the accident. He stated that he found some irritability and spasm in the lumbar musculature. The plaintiff complained of increased pain and began taking medication again.[1]

Dr.

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499 So. 2d 1058, 1986 La. App. LEXIS 7761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivier-v-sears-roebuck-co-lactapp-1986.