Russell v. Evans

763 So. 2d 755, 99 La.App. 4 Cir. 0514, 2000 La. App. LEXIS 1457, 2000 WL 722260
CourtLouisiana Court of Appeal
DecidedMay 17, 2000
DocketNo. 99-CA-0514
StatusPublished
Cited by1 cases

This text of 763 So. 2d 755 (Russell v. Evans) 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
Russell v. Evans, 763 So. 2d 755, 99 La.App. 4 Cir. 0514, 2000 La. App. LEXIS 1457, 2000 WL 722260 (La. Ct. App. 2000).

Opinions

|! MURRAY, Judge.

Defendants, Lafarge Corporation, La-farge Concrete, Lafarge Construction Materials, Clinton Evans, and Travelers Insurance Company (hereinafter referred to as Lafarge) appeal a judgment in favor of plaintiff, Kenneth Russell. Lafarge claims that the trial court erred in finding it liable, for giving any weight to Mr. Russell’s testimony, and in awarding him damages after finding him to be less than credible. For the following reasons, we affirm.

FACTS:

Mr. Russell was working as a plumber mechanic for Aardvark Plumbing at a job site in Eastern New Orleans on January 19, 1995. He and a helper were attempting to install a pipe in a six by ten foot hole. The ground in the area was soft and muddy, and the hole kept filling up with water, causing the pipe to fall over. Mr. Russell requested of the job foreman that a cement truck pour concrete into a form he had built in the hole to support the pipe. According to Mr. Russell, when the cement truck arrived on the job site, he spoke with the driver about where to pour the cement, then got in the hole to wait for the cement to be poured. He ^testified that he did not give any signals at all to the driver. As the truck backed up toward the hole, Mr. Russell saw the chute extension begin to swing toward him, and he leaned away from the chute, placing his left hand on the pipe to balance himself. As the chute swung towards him, he reached out with his right hand in an attempt to prevent the chute from hitting him, but could not stop it from smashing his left hand against the pipe. Mr. Russell hollered for the truck driver to pull back, and several minutes later his hand was released from between the chute and the pipe.

Mr. Russell’s helper, Teddy Vido, testified that he did not give any hand signals to the truck driver, nor did he see Mr. Russell give any. He did not see anything leading up to the accident, but realized that Mr. Russell was hurt when he heard him screaming at the truck driver to pull back.

Richard Ellis, an employee of an engineering consulting firm working at the job site, testified that he was coming out of a construction trailer when he saw Mr. Russell standing behind a concrete truck guiding it as it backed up. Mr. Russell had one hand on the chute attached to the truck, and was motioning to the truck driver with the other hand. When the truck got into a position where Mr. Russell could no longer see the driver, the man apparently helping Mr. Russell on the job began to signal the truck driver. When Mr. Elks saw that Mr. Russell’s hand was being crushed between the chute and the pipe, he and two other men with whom he was walking, signaled the truck driver to pull away.

|aThe job superintendent transported Mr. Russell to a nearby emergency room where his hand was cleaned and bandaged, and he was given pain medication. X-rays taken at that time were negative for any broken bones. Mr. Russell was released from the emergency room with instructions to see an orthopedic doctor in a week to remove the bandages.

Over the next two years, at least ten physicians, occupational therapists and physical therapists treated Mr. Russell. Drs. Robert Schiavi, Harold Stokes, and Mark Kappelman all diagnosed Mr. Russell with reflex sympathetic dystrophy (RSD), a condition that indicates an abnormal response of the autonomic nervous system.1 Mr. Russell underwent surgery [757]*757to relieve his symptoms, and although initially he reported some improvement, he continued to complain of severe, debilitating pain in his hand.

All of the doctors who treated him after the surgery, except for Dr. Robert Davis, a psychiatrist, and Dr. Rand Metoyer, an anesthesiologist with a subspecialty in pain management, testified that they believed Mr. Russell was magnifying his symptoms. None of the doctors, except the two noted, could find any clinical reason for the continued pain and inability to use his hand. The trial court stated in reasons for judgment that “[n]o fewer than seven physicians and/or occupational therapists have opined that the plaintiff was malingering, demonstrated ‘symptom magnification’ or had symptoms that were inconsistent Rwith any known neurological pattern.” However, the trial court also found, as a matter of fact, that Mr. Russell proved that he had a crushing-type injury to his hand for which he underwent a surgical procedure. The trial court further found Lafarge hable for Mr. Russell’s injury because the Lafarge truck driver violated his own company’s policy by taking hand signals from two different people. The court also found, however, that Mr. Russell was partially responsible for his injury in misguiding the chute and placing his hand in a position where it could be crushed. The court awarded Mr. Russell $60,000 in general damages, $30,000 in medical expenses, and $6,094.82 in lost wages, reduced by thirty percent for his comparative fault.

DISCUSSION:

Lafarge argues that it was error for the trial court to find it negligent because its driver violated Lafarge safety rules by allowing two different people to direct him in backing up the cement truck. Lafarge contends that the purpose of the safety rule is to prevent the truck driver from receiving conflicting directions, and that the testimony does not support the fact that conflicting directions were given. We disagree.

Mr. Russell denied having given any hand signals to the driver; Mr. Russell’s helper, Teddy Vido testified that he did not give any signals to the driver, nor did he see Mr. Russell give any. Clinton Evans, Lafarge’s driver, testified that he was taking signals from both Mr. Russell and his helper. Richard Ellis, an independent eyewitness, testified that he saw Mr. Russell giving hand signals until Isthe driver could no longer see him ánd then the man apparently helping Mr. Russell began signaling.

It is inconceivable that the truck driver, who had sixteen years experience, was backing his cement truck toward a hole in which men were standing, without taking directions from someone. The trial court believed the driver, who testified that he was taking directions from both Mr. Russell and Mr. Vido, in violation of Lafarge’s safety policies. Although no one specifically stated that the hand signals from these two men conflicted, Mr. Russell’s hand became trapped between the cement chute and the pipe. It, therefore, was not unreasonable for the court to infer that either Mr. Russell or Mr. Vido gave incorrect or conflicting signals. In addition, as the trial court noted, because the chutes were allowed to swing freely, it was necessary for someone to stabilize and guide them for the pour. Based on this evidence, and considering the conflicting testimony as to how the cement truck was directed to back up, the trial court determined that both Lafarge and Mr. Russell were responsible for his injury. We find no error in that determination.

The remainder of Lafarge’s assignments of error relate to Mr. Russell’s lack of credibility. Because the trial court made the specific finding that Mr. Russell was malingering and magnifying his [758]*758claims, Lafarge contends that it was error to award damages to him.

The trial court found that, despite having been proven to have exaggerated his symptoms and voluntarily restricted the use of his hand, Mr. Russell had proven that he had a crushing injury to his left hand, was diagnosed with RSD, and | Bunderwent surgery to correct the condition. The record supports this finding.

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763 So. 2d 755, 99 La.App. 4 Cir. 0514, 2000 La. App. LEXIS 1457, 2000 WL 722260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-evans-lactapp-2000.