Pimental v. Butterfield

387 A.2d 1386, 120 R.I. 410, 1978 R.I. LEXIS 678
CourtSupreme Court of Rhode Island
DecidedJuly 7, 1978
StatusPublished
Cited by1 cases

This text of 387 A.2d 1386 (Pimental v. Butterfield) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pimental v. Butterfield, 387 A.2d 1386, 120 R.I. 410, 1978 R.I. LEXIS 678 (R.I. 1978).

Opinion

Joslin, J.

This civil action was brought in the Superior Court to recover damages for injuries allegedly sustained in a rear-end collision. The case was tried to a jury which returned a verdict for the plaintiff of $23,300, representing $3,300 in special damages for lost wages and medical expenses and $20,000 for pain and suffering. After judgments had entered and on the defendants’ motions, the trial justice ordered a new trial solely on the issue of damages unless the plaintiff remitted all of the verdict in excess of $7,700. Both the plaintiff and the defendants appealed.

Early on the morning of November 8, 1972, plaintiff was driving south on Narragansett Boulevard in the city of [412]*412Cranston when he was stopped by a police officer to permit election-night celebrants departing a nearby hotel to cross the street. Just after he came to a complete stop, plaintiffs vehicle was hit in the rear by one owned and operated by defendant Butterfield. Then, as plaintiff was alighting, his automobile was struck a second time when the vehicle operated by defendant William Dooley and owned by defendant Norwood Leasing Co. hit the rear of the Butterfield vehicle and pushed it into plaintiffs. The plaintiff was then partly in and partly out of his vehicle, and when his automobile rolled forward as a result of the impact, his leg was dragged along the pavement 3 or 4 feet. The rear of plaintiffs vehicle and the front of Dooley’s were both damaged, but Butterfield’s was not.

The plaintiff testified that immediately after the incident he felt “pretty well,” and that although he told the police officer on the scene that he was not injured, later that day he felt a pain in his neck which spread down into his lower back and left leg. When the pain increased during the next few days, he sought medical attention, first from his family physician on November 11,15 and 20 and then on the following day from an orthopedist who had previously treated him for sciatica in the lower back and legs. Dissatisfied with the results of those visits, he went to another physician on November 27th and was eventually referred to Dr. Henry Laurelli, a neurosurgeon, whom he saw for the first time on December 4, 1972.

Doctor Laurelli prescribed a week’s bed rest, to be followed by a gradual resumption of regular activities, and his report after plaintiff s next visit on December 21 notes that “[t]his patient is recovering from probably lumbrosacral disc disease.” The plaintiff did not return to Dr. Laurelli until March of 1973 when he complained of low back pain, radiating down his right leg. No objective findings were made at that examination, but x-rays were scheduled and an elective myelogram was discussed. That myelogram was not performed, however, and no treatment was instituted.

[413]*413Little more than a year later plaintiff, who in the meantime had received no medical attention, returned to Dr. Laurelli complaining of a worsening of the low back and right leg pain. This time, the doctor noticed a diminished reflex response and some muscular weakness. Acting on Dr. Laurelli’s recommendation, plaintiff was hospitalized and a myelogram and other diagnostic tests were performed. The myelogram results were negative, but an electromyogram showed mild nerve root irritation at the fifth lumbar and first sacral nerves.

At trial, Dr. Laurelli testified that his diagnosis of plaintiff s condition was “lumbar disc disease,” that it was a “reasonable medical certainty” that “the second impact [was] the most likely [cause] of the symptoms that he saw me for,” that the condition would probably continue througout plaintiffs life, that there was no specific treatment that would cure the disease, and that the medication he prescribed was to alleviate morning stiffness rather than to effect a cure. He further testified that he believed plaintiffs complaints of constant pain, but that those complaints were not “serious enough that he should be overly concerned by them.”

Notwithstanding his complaints, plaintiffs injuries did not interfere with his regular employment with the Middletown School Department except for 17 days in December 1972, when Dr. Laurelli advised bed rest and a gradual resumption of regular activities. The plaintiff did not, however, resume his customary summer employment. That employment involved more physical exertion than did his regular job, and he testified that because his condition made it impossible for him to engage in that work during the summers of 1973 and 1974, he lost income of $600 in each of those years. He also testified that he did not take the medication prescribed by Dr. Laurelli for morning stiffness, but instead tried “to live with his pain.”

Although all defendants have appealed, defendants Dooley and Norwood Leasing have merely responded to the [414]*414contentions advanced by plaintiff and have not argued in behalf of their own appeals. The defendant Butterfield, however, contends that the trial justice erred in refusing to grant him a new trial on all issues.

For purposes of his appeal, Butterfield concedes that his vehicle struck plaintiffs twice, and he does not deny that his negligence caused the first impact. He argues, however, that the second impact — the impact that was the sole cause of plaintiffs injuries — was an intervening cause, that it could not reasonably have been foreseen as a natural and probable consequence of his original negligent act, that it displaced and rendered inoperative that original negligence and that it therefore relieved him from liability.

We do not fault Butterfield’s summary of the controlling law with respect to when an intervening act will insulate a defendant from liability for his own prior negligence. See Roberts v. Kettelle, 116 R.I. 283, 294-95, 356 A.2d 207, 214-15 (1976); Aldcroft v. Fidelity & Casualty Co., 106 R.I. 311, 314, 259 A.2d 408, 411 (1969); Denisewich v. Pappas, 97 R.I. 432, 436-37, 198 A.2d 144, 147-48 (1964). But, contrary to what might be anticipated of a litigant who sets forth that law at some length, Butterfield does not contend that the trial justice failed to instruct the jury in accordance therewith. Neither does he argue that the trial justice, in passing on his motion for a new trial, failed to satisfy his obligations under the rule in Barboto v. Epstein, 97 R.I. 191, 193-94, 196 A.2d 836, 837 (1964), or that, in the performance of those obligations, the trial justice either overlooked or misconceived material evidence or was otherwise clearly wrong.

Instead, Butterfield argues only that the jury’s implicit, and the trial justice’s explicit, finding that he should have foreseen and anticipated the second impact as being likely to occur strains credulity and constitutes an absurdity. Arguments of that kind, however, while appropriate on a motion [415]*415for a direction, in final argument to a jury or on a motion for a new trial, are inappropriate at this level. See Marstan Corp. v. Centreville Realty Co., 106 R.I. 36, 38, 256 A.2d 26, 27 (1969).

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Bluebook (online)
387 A.2d 1386, 120 R.I. 410, 1978 R.I. LEXIS 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pimental-v-butterfield-ri-1978.