Shaw v. Russell

652 So. 2d 133, 1995 WL 80456
CourtLouisiana Court of Appeal
DecidedMarch 1, 1995
Docket26618-CA
StatusPublished
Cited by8 cases

This text of 652 So. 2d 133 (Shaw v. Russell) 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
Shaw v. Russell, 652 So. 2d 133, 1995 WL 80456 (La. Ct. App. 1995).

Opinion

652 So.2d 133 (1995)

Gerald SHAW, Plaintiff-Appellee,
v.
Benjamin F. RUSSELL & State Farm Mutual Automobile Insurance Company, Defendants-Appellants.

No. 26618-CA.

Court of Appeal of Louisiana, Second Circuit.

March 1, 1995.

*134 Crawford & Anzelmo by Brian E. Crawford and Susan N. Belsom, Monroe, for appellants.

William E. Armstrong, Monroe, for appellee.

Before MARVIN, HIGHTOWER and WILLIAMS, JJ.

MARVIN, Chief Judge.

In this action for damages arising when defendant Russell's van backed into the side of a slowly moving city bus, the defendants appeal a judgment awarding almost $23,000 to Gerald Shaw, the bus driver. Primarily contending the trial court was clearly wrong in finding the accident caused any injury, defendants contend in the alternative that the general damage award of $15,000 is excessive and an abuse of the court's discretion. Shaw answered the appeal seeking to have the general damage award increased.

Adopting and appending the trial court's reasons for judgment, we affirm.

FACTS

The accident occurred October 3, 1992, when Russell backed his Chevrolet van into the bus that was proceeding westerly on Louisville Avenue in Monroe. The bus did not swerve or change lanes but stopped a short distance past the point of impact when Shaw, reacting to the impact, jammed on his brakes. Damage to the van included small dents underneath the right taillight, a dented spare tire cover, broken stepladder and a bowed back door. Photographs show dark scratches from the middle of the bus to the back door. That part of the bus was repainted and a small plastic cover was replaced.

At the scene shortly after the accident on October 3, 1992, Shaw told his supervisor and a police officer that he was not injured. Apparently none of the bus passengers were injured. Later that day, Shaw went to a Monroe hospital complaining of pain in his left knee. An x-ray showed calcification resulting from an old injury, but no misalignment of the knee. The emergency room doctor prescribed a mild analgesic and released Shaw.

On October 6, 1992, Shaw complained to Dr. Patterson, his family physician, of pain in his left knee, neck and low back. Diagnosing Shaw with strains of the knee, neck and back, Dr. Patterson prescribed anti-inflammatory and pain medicine and placed Shaw on moist heat and shortwave diathermy therapy. Shaw underwent 30 therapy treatments, after which Dr. Patterson thought the neck and back strains had healed. Because Shaw continued to complain of knee pain, Dr. Patterson referred him to an orthopedic surgeon, Dr. Hand.

Dr. Hand found that Shaw suffered from chondromalacia, a roughening of the cartilage behind the kneecap, and synovitis, inflammation of the tissue lining the knee joint. On November 5, 1992, Dr. Hand performed arthroscopic surgery on Shaw's knee to repair these problems. Shaw missed one week of work recuperating. Dr. Hand opined that Shaw had a 10 percent permanent physical impairment and loss of physical function to his left leg and that more probably than not his injuries and residual effects were caused by the October 3, 1992, accident.

In addition to cross-examination of the two doctors, defendants emphasized that Shaw was wearing a seat belt and could not have struck his knee on any part of the bus as Shaw had stated, and that Dr. Hand acknowledged that if Shaw's knee hit the dashboard of the bus he would have immediately *135 suffered acute pain and discomfort. Defendants also rely on the fact that Shaw had been in five accidents between June 16, 1986, and December 13, 1991, after each of which he complained of neck and low back pain, and procured monetary settlements from liability insurers in four of the five incidents.

TRIAL COURT FINDINGS

On the above arguments, made here and in the trial court, defendants claim that Shaw simply did not meet his burden of proof that his knee, back and neck injuries were caused by the October 3, 1992, "very minor accident," as the trial court labeled it. From the reasons for judgment given below, which we append to this opinion, we note these statements by Judge Kostelka:

[D]efendants ... vehemently contested causation [of injuries] and any damages
. . .
The issue ... is whether or not plaintiff, by a preponderance of the evidence proved he sustained injuries to his knee and/or neck and back in the relatively minor ... accident ... Defendants make strong persuasive arguments attacking the credibility of the plaintiff ... the credibility of Dr. Patterson ... and finally elicited from Dr. Hand that ... plaintiff ... should have had immediate complaints of pain [from] such a [knee injury, which] ... would normally require a serious impact.
This court has reviewed all of the medical evidence ... particularly the trial depositions of Drs. Patterson and Hand.... [T]his court was given no real evidence to traverse either the findings of Dr. Patterson or [his] regimen of treatment ... Likewise, under rigorous cross-examination, Dr. Hand repeatedly stated that, more probably than not, the condition for which he treated plaintiff's knee was, more likely than not, caused by the ... collision.... [D]efendants' evidence is simply not strong enough to completely discount plaintiff's testimony and the testimony of the treating doctors, all of which amounts to proof of plaintiff's claim by the mere preponderance of the evidence which is all the law requires.

The trial court awarded $412.80 in lost wages, $7,570.92 in medical expenses and $15,000 in general damages. Defendants' motion for new trial was denied by the trial court.

CAUSE OF INJURIES

The trial court's findings on the factual issue of causation cannot be disturbed unless they are clearly wrong. Simpson v. Caddo Parish School Bd., 540 So.2d 997 (La. App.2d Cir.1989). The fact that the collision was "relatively minor" does not preclude a finding that the plaintiff's injuries were caused by the accident if that finding is reasonably supported by the lay and medical evidence. Simpson, supra.

Our task as a reviewing court is not to assess whether the trial court's factual findings are right or wrong in an absolute sense, nor to determine whether this court or another trier of fact might reasonably reach a different conclusion from the same evidence, but solely to ask whether this factfinder's resolution of the conflicting evidence was reasonable, in light of the record as a whole. Freeman v. Poulan/Weed Eater, 93-1530 (La. 1/14/94), 630 So.2d 733.

After considering defendants' "strong persuasive arguments" on the causation issue, and particularly their thorough cross-examination of Shaw and his doctors, the trial court found the lay and medical evidence sufficient to prove that Shaw's injuries, more probably than not, were caused by the accident. The finding of causation is reasonable on this record and must be affirmed, notwithstanding that we, or another trier of fact, may have reached a different factual conclusion from the same evidence. Freeman; Simpson, cited supra.

GENERAL DAMAGE AWARD

In reviewing an award of general damages, an appellate court may not simply decide what it considers to be an appropriate award. The initial inquiry is whether the award for the particular injuries and their residual effect on the particular plaintiff is a clear abuse of the trial court's "much discretion." At this juncture in the analysis, we *136

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Henry v. Williams
892 So. 2d 765 (Louisiana Court of Appeal, 2005)
Bertrand v. Henry
815 So. 2d 868 (Louisiana Court of Appeal, 2001)
Currie v. Myers
750 So. 2d 388 (Louisiana Court of Appeal, 2000)
Clark v. Natt
748 So. 2d 584 (Louisiana Court of Appeal, 1999)
DeLoach v. State, Department of Transportation & Development
743 So. 2d 904 (Louisiana Court of Appeal, 1999)
Simon v. United States
51 F. Supp. 2d 739 (W.D. Louisiana, 1999)
Fowler v. Wal-Mart Stores, Inc.
716 So. 2d 511 (Louisiana Court of Appeal, 1998)
Whitthorne v. Food Lion, Inc.
706 So. 2d 193 (Louisiana Court of Appeal, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
652 So. 2d 133, 1995 WL 80456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-russell-lactapp-1995.