Tartar v. Hymes

656 So. 2d 756, 1995 WL 320364
CourtLouisiana Court of Appeal
DecidedMay 30, 1995
Docket94-CA-758
StatusPublished
Cited by8 cases

This text of 656 So. 2d 756 (Tartar v. Hymes) 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
Tartar v. Hymes, 656 So. 2d 756, 1995 WL 320364 (La. Ct. App. 1995).

Opinion

656 So.2d 756 (1995)

Denman TARTAR
v.
Samuel HYMES, Sr., Louisiana Power & Light Company and ABC Insurance Company.

No. 94-CA-758.

Court of Appeal of Louisiana, Fifth Circuit.

May 30, 1995.

*757 Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for plaintiff/appellee, Denman Tartar.

Caleb H. Didriksen, Roberta Fret, Didriksen & Carbo, New Orleans, for defendants/appellants, Samuel Hymes, Sr. and Louisiana Power & Light Co.

Before BOWES, GAUDIN and GRISBAUM, JJ.

BOWES, Judge.

The defendants, Samuel Hynes and Louisiana Power and Light Company, appeal from the judgment of the trial court finding them liable to plaintiff for damages sustained as a result of a traffic accident. We affirm.

On June 23, 1990 plaintiff, Denman Tartar, was involved in an automobile accident with Samuel Hynes, Sr., a Louisiana Power and Light Company ("LP & L") employee. At the time, Hynes was acting in the course and scope of his employment with LP & L. Hynes testified that he was travelling on West Cazqzu Street in Buras, Louisiana. He stopped at the stop sign located at the intersection of Plaquemines Highway 11. He did not see anything so he proceeded into the intersection where he struck plaintiff's truck. Deputy Davis, who investigated the accident, determined that it was caused by Hynes' failure to yield at the stop sign.

Mr. Tartar initially sought treatment for back pain three days after the accident. He was treated by a series of doctors for over one year and ultimately underwent surgery consisting of a spinal fusion.

After a trial on the merits, the court found that plaintiff had proved, by a preponderance of the evidence, that defendant was at fault in the cause of the accident and that the accident caused plaintiff's back injury. The trial court awarded general damages of Two Hundred Fifty Thousand and No/100 ($250,000.00) Dollars and special damages of Thirty-Seven Thousand Seven Hundred Forty and 19/100 ($37,740.19) Dollars.

On appeal, defendants argue that the trial court erred in finding that the plaintiff proved that his back injury was caused by the accident and not by a pre-existing defect. The defendants also allege that the trial court erred in admitting evidence of plaintiff's medical bills into evidence. Defendants further argue that the award of damages is excessive.

ANALYSIS

Appellants do not dispute the finding that Mr. Hynes was at fault in the cause of the accident. The appellants contend in their first two assignments of error that the trial court erred in finding that the accident was the cause of Mr. Tartar's back problems, instead of finding that plaintiff had a pre-existing spinal defect which caused his back injury. Whether an accident caused a person's injuries is a question of fact which should not be reversed on appeal in the absence of manifest error on the part of the trial court. Mart v. Hill, 505 So.2d 1120 (La.1987). One of the most recent expressions of the Louisiana Supreme Court regarding the applicable standard of review of cases of this type was set forth by the Louisiana Supreme Court in Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216, 220:

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this Court held that the court of appeal should not upset the factual findings of a trial court absent manifest error or unless clearly wrong. A proper review, therefore, cannot be "completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong." Id. at 1333. More recently, regarding this constitutional appellate review of fact in civil cases, La. Const. art. 5, Sec. 10, we have had occasion to say in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), a case which involved the review of damages, that "the discretion vested in the trier of fact is `great,' and even vast," and in Stobart v. State, 617 So.2d 880, 882-83 (La.1993), which involved the standard of review of findings of fact, a "court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of *758 `manifest error' or unless it is `clearly wrong,'" and "where two permissible views of the evidence exists, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id. In each of these cases there was but a perpetuation of the principle set down in Arceneaux.
Notwithstanding the Court's earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La. 1993), it was not our purpose in that case to mandate that the trial court's factual determinations cannot ever, or hardly ever, be upset. Although deference to the factfinder should be accorded, the court of appeal, and the Louisiana Supreme Court, nonetheless have a constitutional duty to review facts. [Louisiana Constitution of 1974, article 5, Sec. 5(C) and 10(D) ] Of course, the reviewing court may not merely decide if it would have found the facts of the case differently. Rather, notwithstanding the belief that they might have decided it differently, the court of appeal should affirm the trial court where the latter's judgment is not clearly wrong or manifestly erroneous. Because the court of appeal has a constitutional function to perform, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support.
[Emphasis supplied].

In this case, Mr. Tartar alleged that the automobile accident of June 23, 1990 caused his back injury or aggravated a pre-existing asymptomatic back condition. In a tort action, plaintiff bears the burden of proving by a preponderance of the evidence both the injury and a causal connection between the injury and the tort. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). A plaintiff is aided in his burden of proof by the presumption set forth in Dabog v. Deris, 625 So.2d 492 (La.1993); Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977); and Housley v. Cerise, 579 So.2d 973 (La.1991) on rehearing:

A claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Furthermore, the Louisiana Supreme Court stated in Lasha v. Olin Corp., supra at 1005:

The defendant's liability for damages is not mitigated by the fact that the plaintiff's pre-existing physical infirmity was responsible in part for the consequences of the plaintiff's injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

The testimony in this matter established that at the time of trial plaintiff was 43 years old and that he owned several franchises/stores. Plaintiff admitted that he had a birth defect involving his lower spine (spondylolisthesis) in that he was missing one vertebrae.

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Cite This Page — Counsel Stack

Bluebook (online)
656 So. 2d 756, 1995 WL 320364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tartar-v-hymes-lactapp-1995.