Robinson v. Pearah

525 So. 2d 1071, 1988 La. App. LEXIS 635, 1988 WL 16003
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1988
DocketNo. 86 CA 1443
StatusPublished
Cited by2 cases

This text of 525 So. 2d 1071 (Robinson v. Pearah) 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
Robinson v. Pearah, 525 So. 2d 1071, 1988 La. App. LEXIS 635, 1988 WL 16003 (La. Ct. App. 1988).

Opinions

CRAIN, Judge.

Plaintiff, Roger W. Robinson, alleges that he was injured while attending auto races at State Capitol Dragway in West Baton Rouge Parish. This action was instituted against defendants, Norman Pearah, Norman Pearah d/b/a State Capitol Drag-way, C & P Racetrack, Inc., National Hot Rod Association and K & K Insurance Company. After trial on the merits the jury returned a verdict in favor of defendants and the trial judge subsequently made the verdict the judgment of the court. The jury specifically found that there was no negligence and that negligence was not the proximate cause of the injury. Additionally, the jury found that defendants were not strictly liable to the plaintiff and strict liability was not the proximate cause of the injury. From this judgment plaintiffs appeal alleging that (1) the jury erred in not finding defendants negligent; (2) the jury erred in not finding defendants strictly liable; (3) the trial judge erroneously misled the jury by improperly explaining the nature and elements of strict liability; (4) the trial judge erred in denying plaintiffs motion for a judgment notwithstanding the verdict; and (5) the jury erred by failing to award damages to plaintiffs. We find it unnecessary to specifically consider assignments 1-3, because assuming error on the part of the jury in failing to find negligence or to apply strict liability, the jury was not manifestly erroneous in determining that neither negligence of defendants, nor the imposition of strict liability with reference to them, proximately caused plaintiffs’ damage.

CAUSATION

Appellants contend that they have proved by a preponderance of the evidence that defendants are liable under theories of negligence (La. C.C. art. 2315) and strict liability (La. C.C. art. 2317).

Under theories of negligence or strict liability the plaintiff bears the burden of proving defendant’s ownership or custody of the thing which caused the damage; a defect which created an unreasonable risk of harm to others; and causation. Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La.1983). Plaintiff must prove by a preponderance of the evidence that the injuries alleged were caused by defendant. Bourgeois v. Lake Development Corp., 498 So.2d 77 (La.App. 5th Cir.1986). Defendant’s conduct is a cause-in-fact of the harm to another if but for the conduct of defendant the damage would not have occurred, or if the conduct is a substantial factor in bringing about the damage.. Nix v. Brasly, 489 So.2d 1038 (La.App. 1st Cir.1986). “In the absence of a finding of causation, further consideration as to the conduct of the defendant is both immaterial and unnecessary.” Guillot v. Sandoz, 497 So.2d 753, 755 (La.App. 3d Cir.1986), writ denied, 501 So.2d 217 (La.1987). A factual determination by a trier of fact with reference to causation will not be disturbed on appeal unless manifestly erroneous. See Dofflemyer v. Gilley, 384 So.2d 435 (La.1980); Edwards v. Bankers and Shippers Insurance Co. of New York, 432 So.2d 1138 (La.App. 3d Cir.1983).

Robinson has been diagnosed as having first degree spondylolisthesis. Spondylolis-thesis is the “forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth.” DOR-LAND’S ILLUSTRATED MEDICAL DICTIONARY 1239 (26th ed. 1981). Although the condition may be caused by trauma, its origin is more commonly congenital or developmental. First degree spondylolisthe-sis is often not symptomatic. It may periodically become symptomatic due to trauma, however, it is often symptomatic even when not traumatically induced.

Robinson testified at trial that he attended automobile races at State Capitol Drag-way on May 27,1984. He stood and turned around to stretch his legs when the bleachers on which he was standing suddenly “dropped in the middle and shifted forward” causing him to twist his left leg and [1073]*1073fall backwards, resulting in injuries to his low back and left knee. He and his party moved to new seats in the same bleachers approximately three or four feet from their former seats. The bleachers were cleared twenty minutes later after a second “collapse” of the bleachers. Mary Alice Wright, Robinson’s sister, attended the racing event. She testified at trial that the bleachers collapsed into a “V.” However, when deposed before trial, she described the bleachers’ appearance as “kind of waved like.” Andrew McPhate, mechanical engineer, testified for plaintiffs regarding the construction of the bleachers. On cross-examination he stated that at most the footings sank lightly into the ground. There was no evidence to indicate a catastrophic sinking.

Robinson testified that he had been involved in five accidents before May 27, 1984, and had suffered only neck and shoulder strains in those accidents. Mrs. Robinson testified that Robinson had never missed a day of work prior to the alleged May 27, 1984, incident nor had he ever complained of back problems before May 27, 1984. However, the record reveals that:

(1) On February 7, 1980, Robinson was involved in an automobile collision for which he sought damages for cervical and thoracic sprain.

(2) On September 8, 1981, Robinson was injured in a work-related accident in which he struck his shoulder. He received worker’s compensation benefits during the five weeks he was unable to return to work.

(3) On November 27, 1981, Robinson was involved in an automobile collision. He sought damages for cervical and thoracic strain.

(4) On February 26, 1982, Robinson was involved in an automobile collision. He sought damages for pain in the shoulders, neck, back and lower back, and numbness in the hand. On March 1, 1982, Robinson was hospitalized for low back pain and neck pain. The diagnosis was first degree spondylolisthesis.

(5) On December 6, 1982, Robinson was involved in an automobile collision and sought damages for lumbo-sacral strain and sprain and cervical and spinal stress.

(6)On June 20, 1984, subsequent to the present accident, Robinson was involved in an automobile collision. He complained of low back pain.

Robinson testified that he experienced left knee and back pain on the day following the May 27, 1984, accident and on May 29, 1984, he consulted Dr. Gregory Floyd Nelson, chiropractor, and was treated by Dr. Nelson for those complaints. Dr. Nelson testified at trial that on May 29, 1984, Robinson complained of left knee and back pain. However, Dr. Nelson sent a written report to plaintiffs’ attorney listing the symptoms of which Robinson had complained on his May 29 visit as chest pain, mid-back stiffness in the joints, headaches, numbness in the leg and arms, pain in the neck, weakness to arms, unable to sleep because of pains in the back with hands continually falling asleep. Additionally, when deposed before trial, defense counsel queried Dr. Nelson regarding Robinson’s complaints on the May 29, 1984, visit. Dr. Nelson responded:

Mr. Robinson had pains in his chest, severe pains in the mid-back, a feeling of stiffness in the muscles and joints, severe headaches, numbness and tingling down the leg, numbness in both hands, pain throughout the entire neck, pain in the lower back, severe weakness in the arms and hand, hard to work because of pains in his back and hands falling asleep.

Complaints of left knee pain were not included in either the letter to plaintiffs’ attorney or the deposition.

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525 So. 2d 1071, 1988 La. App. LEXIS 635, 1988 WL 16003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-pearah-lactapp-1988.