Schwartzberg v. Guillory

213 So. 3d 1266, 2016 La.App. 1 Cir. 0753, 2017 La. App. LEXIS 240
CourtLouisiana Court of Appeal
DecidedFebruary 17, 2017
Docket2016 CA 0753
StatusPublished
Cited by6 cases

This text of 213 So. 3d 1266 (Schwartzberg v. Guillory) 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
Schwartzberg v. Guillory, 213 So. 3d 1266, 2016 La.App. 1 Cir. 0753, 2017 La. App. LEXIS 240 (La. Ct. App. 2017).

Opinion

CALLOWAY, J.

|2In this personal injury case, the defendants challenge the damages awarded by the trial court to the plaintiff following a bench trial.

FACTS AND PROCEDURAL HISTORY

This case involves a traffic accident, and the facts regarding the collision are undisputed. The accident occurred on April 25, 2013, when the Jeep Wrangler owned and operated by the plaintiff, Jay Schwartzberg, struck an armored van operated by the defendant, Miller Guillory, and owned by his employer, Garda CL Southeast, Inc.2 Mr. Guillory was driving the armored vehicle westbound on Government Street in Baton Rouge, while in the course and scope of his employment with Garda CL Southeast, Inc. Mr. Guillory was attempting to make a left turn into the parking lot of a commercial shopping center when Mr. Schwartzberg’s vehicle, trav-elling eastbound, struck the back comer of the armored vehicle. At the time of the accident, Mr. Schwartzberg had the right of way, and Mr. Guillory had a legal duty to yield that right of way to Mr. Schwartz-berg’s vehicle.3

Mr. Schwartzberg filed the instant suit against Mr. Guillory and Garda CL Southeast, Inc., seeking damages for the aggravation of a pre-existing neck injury allegedly sustained as a result of the automobile accident. A bench trial was conducted on November 20, 2015, on the issue of damages.4 Mr. Schwartzberg [1270]*1270stipulated that his damages, exclusive of interest and court costs, did not exceed $50,000.00. Following trial, the trial court issued reasons for judgment and signed a final judgment on January 28, 2016, in favor of Mr. Schwartzberg and against the defendants in solido, awarding |3Mr. Schwartzberg $49,999.99 in general and special damages, plus legal interest from the date of judicial demand until paid, as well as all costs of the proceedings.

The defendants now appeal, contending that the trial court erred in the amount of general and special damages awarded to the plaintiff. Specifically, the defendants assert two assignments of error. First, the defendants argue the trial court erred in finding that the accident caused an aggravation of Mr. Schwartzberg’s pre-existing neck injury for eleven months. Second, the defendants contend the trial court erred in the amount of general and special damages awarded to Mr. Schwartzberg by relying on the testimony of Mr. Schwartzberg’s treating physician, which the defendants argue is inconsistent with medical records and other evidence, including Mr. Schwartzberg’s own admissions.

LAW AND DISCUSSION

The defendants argue that the damage award is abusively high because Mr. Schwartzberg, who suffered neck pain pri- or to the accident at issue, failed to carry his burden of proof that he suffered an eleven-month aggravation of his pre-exist-ing neck injury. The defendants contend Mr. Schwartzberg failed to prove that he suffered any aggravation of this pre-exist-ing injury beyond four months after the accident, based on the medical records and expert medical testimony introduced at trial. The defendants contend the trial court erred in relying on the expert testimony of the plaintiffs treating physician, through which Mr. Schwartzberg attempted to establish the duration of the aggravation of his pre-existing neck injury, but which was inconsistent and interdicted by his own medical records and other evidence introduced by Mr. Schwartzberg at trial.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La. 1991). Before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim’s current status must also be established. Proof must be by a preponderance of the evidence. The test for determining the causal relationship is whether the plaintiff proved, through medical and lay testimony, that it is more probable than not that the subsequent injuries were caused by the accident. Bennett v. Louisiana Farm, Bureau Cas. Ins. Co., 43,216 (La.App. 2 Cir. 4/30/08), 983 So.2d 966, 972.

A defendant in a personal injury case takes the victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. When the tortfeasor’s conduct aggravates a pre-existing condition, the tortfeasor must compensate the victim for the full extent of the aggravation. Robinson v. Tolbert, 40,488 (La.App. 2 Cir. 1/20/06), 920 So.2d 346, 348. The “eggshell plaintiff’ is required to establish a causal link between the tortious conduct and the aggravation of his pre-existing condition. Bienemann v. State Farm Mut. Auto. Ins. Co., 2008-1045 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623.

Although expert medical testimony is indispensable in some cases to prove or disprove causation, a finding on the issue of causation is not necessarily contingent upon the substance of expert medical-testimony. Greening v. Bell, 28,689 (La.App. 2 [1271]*1271Cir. 9/25/96), 681 So.2d 36, 38. Expert medical testimony is only required when the conclusion regarding medical causation is one that is not within common knowledge. Newsome v. New Orleans Saints, 2008-311 (La.App. 5 Cir. 10/14/08), 996 So.2d 637, 640. Credibility determinations, including evaluating the testimony of expert witnesses, are factual findings governed by the manifest error standard of review. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201 (La. 10/19/99), 748 So.2d 417, 421. Simply stated, an appellate court is required to give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations' of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Dixon v. Travelers Ins. Co., 2002-1364 (La.App. 4 Cir. 4/2/03), 842 So.2d 478, 485, writ denied, 2003-1482 (La. 9/26/03), 854 So.2d 366.

“General damages” involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near .a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431,437.

Thus, in determining the amount of general damages to be awarded, the trial court, as the trier of fact, had to determine whether Mr. Schwartzberg met his burden of proof, by a preponderance of the evidence, that he suffered aggravation to his pre-existing injuries as a result of the accident, as well as the duration of the aggravation of his injuries. Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172, writ denied, 97-0493 (La. 4/4/97), 692 So.2d 421. The discretion vested in the trier of fact is “great,” even vast, so that an appellate court should rarely disturb an award of general damages. Youn v.

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Cite This Page — Counsel Stack

Bluebook (online)
213 So. 3d 1266, 2016 La.App. 1 Cir. 0753, 2017 La. App. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartzberg-v-guillory-lactapp-2017.