Perkins v. Ricks

514 So. 2d 180
CourtLouisiana Court of Appeal
DecidedOctober 7, 1987
DocketCA-7154
StatusPublished
Cited by7 cases

This text of 514 So. 2d 180 (Perkins v. Ricks) 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
Perkins v. Ricks, 514 So. 2d 180 (La. Ct. App. 1987).

Opinion

514 So.2d 180 (1987)

Anna PERKINS
v.
Gary V. RICKS, et al.

No. CA-7154.

Court of Appeal of Louisiana, Fourth Circuit.

October 7, 1987.
Rehearing Denied November 18, 1987.
Writ Denied January 29, 1988.

*181 Allain F. Hardin, Wiedemann & Fransen, New Orleans, for plaintiff-appellee, Anna Perkins.

James J. Morrison, Jr., New Orleans, for defendants-appellants, Gary V. Ricks, et al.

Before GULOTTA, C.J., and GARRISON and WARD, JJ.

WARD, Judge.

This suit was instituted by Anna Perkins for personal injuries sustained in Rick's Restaurant. Defendants are Gary V. Ricks d/b/a Rick's Restaurant and/or the Ritz, and Security Insurance Company.

A jury rendered a verdict in Perkins's favor for $40,000 in general damages, $20,000 in special damages for future lost income, and $1,060 in medical expenses. Defendants appeal the Trial Court's judgment, rendered in accordance with the jury *182 verdict, contesting both liability and quantum.

Perkins, a licensed cosmetologist, and her friend, Linda Parker, went to lunch at Rick's Restaurant in Algiers on August 30, 1983. During lunch, Perkins's chair collapsed and she fell to the floor injuring her shoulder. Two other customers, Debra Lier and Terry Ehrlich, witnessed the incident. After refusing a restaurant employee's suggestion to go to a doctor in the building, Perkins went to a hospital later that day. The record contains no information on this hospital visit.

At the advice of her attorney, Perkins consulted Dr. Wilmont Ploger, an orthopedic surgeon, who examined her on the day of the accident. Dr. Ploger diagnosed a contusion of the right shoulder and a strained shoulder joint, and prescribed pain medication and heat treatment. Perkins visited Dr. Ploger twice in September but failed to keep an appointment in October. During these visits, she complained of pain, numbness in her hand, and decreased strength in her arm, and Dr. Ploger found tenderness in the shoulder joint and restricted motion of the shoulder. Both symptoms, however, were present only in Perkins's first September visit. Otherwise, Dr. Ploger found no abnormalities and recommended conservative treatment. He felt she could return to work by September 19.

Dr. Ploger did not see Perkins again for over five months. On February 21, 1984, she returned with complaints of increased pain in her shoulder and neck. He found some tenderness but found that her neck motion, as well as the neurological examination and X-rays, were all normal. He prescribed a drug and physical therapy to relieve soreness in joints and muscles. The therapist noted, in the initial session on February 28, 1984, that Perkins's shoulder motion was significantly restricted; this condition, however, improved with the therapy.

Dr. Ploger saw Perkins twice in March and once in April 1984. By April, he observed normal motion in both spine and shoulder, and found only mild tenderness in the shoulder. He terminated her therapy after concluding that she had gained the maximum benefit from it, and he suggested only that she continue heat treatment and exercise at home. This was the last time he saw Perkins as she did not keep her next scheduled appointment a month later.

Perkins was in an automobile accident in June 1984 and testified that the impact was so great that she was "paralyzed instantly" and able to walk only after surgery. She stated that the accident "irritated" her shoulder, and that she had two "cardiac arrests" after this accident.

At trial, Perkins also testified that she continues to experience pain, that her lifestyle has changed because, for example, she cannot hold her grandchildren, and that she was forced, because of the injury, to close her beauty salon which she claims to have opened a few weeks before she was injured in the restaurant. She explained that her failure to seek medical treatment for five months was caused by her depression following her husband's death—which occurred three years before the incident in the restaurant.

Dr. Ploger testified that, in his opinion, Perkins probably sustained an injury to her shoulder joint from her fall which did not resolve itself in the normal period of three to six months. He gave no estimate of percentage of disability. His affirmative response to a question as to whether Perkins may risk a future affliction of bursitis or arthritis did not indicate whether the risk was any greater for Perkins than for other people.

LIABILITY

Defendants assign error in the jury verdict on liability. The jury determined that defendants were strictly liable to Perkins under La.C.C. art. 2317, and further, that defendants could not claim victim fault as a defense. We find no error in the jury's assessment of liability, and affirm the judgment of the Trial Court in this regard.

*183 La.C.C. art. 2317 imposes strict liability upon custodians of things that cause injury. To establish liability under the article Perkins had to prove that the chair was in defendants' custody, that the chair had a vice or defect, and that her injury was caused by this vice or defect. Campbell on behalf of Campbell v. State, through Department of Highways, 439 So.2d 1175 (La.App. 4th Cir.), writ denied, 443 So.2d 588 (La.1983). The jury found that Perkins proved these elements.

Defendants claim that testimony of two independent witnesses, Lier and Ehrlich, shows that Perkins caused her own injury by wiggling the chair and not getting out of the chair before it collapsed. Apparently, the jury chose instead to believe the testimony of Perkins and her lunch companion, Parker, which tended to show that Perkins did nothing to cause her own injury. The jury's finding that Perkins did not contribute to her own injury, we believe, is reasonable and supported by the record. Thus, the Trial Court's judgment on liability is affirmed.

DAMAGES

In reviewing damage awards, an appellate court may disturb an award made by the Trial Court when the record reflects that the trier of fact abused its discretion in making the award. Emerson v. Empire Fire and Marine Insurance Co., 393 So.2d 691 (La.1981). If the factual basis for the award is not reasonably supported by credible evidence in the record, that award is manifestly erroneous and can be reversed on appeal.

The record shows that Perkins injured her shoulder joint as a result of her fall in the restaurant. The record also shows that Perkins's non-debilitating injury required neither hospitalization nor surgery. She sustained no lacerations or fractures and was treated conservatively with heat, medication and therapy. This treatment, the record indicates, substantially improved her condition. Although she was never formally discharged as fully recovered, Perkins's discontinuation of medical treatment three weeks following the injury, together with all of the evidence in the record, indicates that her injury could not reasonably have been found to merit the sum awarded in general damages.

Dr. Ploger never found atrophy or spasm. He found swelling only on Perkins's initial visit and normal range of motion by her third visit. He obtained normal X-rays and neurological examinations. While her injury may not have been resolved in the normal amount of time, Perkins's termination of medical treatment eight months following her fall indicates, we believe, that the injury was eventually resolved. Without having seen Perkins for over two years prior to trial, Dr. Ploger's reference to any potential for her symptoms to have "lingered" is mere speculation.

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Bluebook (online)
514 So. 2d 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-ricks-lactapp-1987.