Tate v. Kenny

186 So. 3d 119, 2015 La.App. 1 Cir. 0265, 2015 La. App. LEXIS 2645, 2015 WL 9435736
CourtLouisiana Court of Appeal
DecidedDecember 23, 2015
DocketNo. 2014 CA 0265
StatusPublished
Cited by9 cases

This text of 186 So. 3d 119 (Tate v. Kenny) 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
Tate v. Kenny, 186 So. 3d 119, 2015 La.App. 1 Cir. 0265, 2015 La. App. LEXIS 2645, 2015 WL 9435736 (La. Ct. App. 2015).

Opinion

PETTIGREW, J.

LThis lawsuit arises out of a motor-vehicle accident. The parties stipulated that the defendant driver was solely at fault in causing the accident. ■ Thus, the only issues at the trial on the merits were [123]*123the extent of plaintiffs’ injuries caused -by the accident and damages. After a jury trial, the jury awarded plaintiffs $51,704.39 in general and special damages. Plaintiffs have appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 18, 2007, plaintiff, Sheila Tate, was traveling northbound in the left lane on Scenic Highway. In the vehicle with Ms. Tate were Jordan Tate, Ms. Tate’s minor child, Joyce Lee, and Imiricle Lee, Ms. Lee’s minor child. As Ms. Tate approached the intersection of Scenic Highway and 68th Avenue, a vehicle owned by the City of Baton Rouge and driven by Baton Rouge Police Officer Eric Kenny was traveling on 68th Avenue and also approaching the intersection. Officer Kenny failed to yield to Ms. Tate’s vehicle, causing a collision between the two vehicles. On December 5, 2007, Ms. Tate, individually and on behalf of Jordan Tate, and Ms. Lee, individually and on behalf of Imiricle' Lee (sometimes collectively referred to as plaintiffs), filed suit for damages resulting from the accident, naming as defendants Officer Kenny and the City of Baton Rouge.

Prior to the trial on the merits, the City of! Baton Rouge stipulated ' that. Officer Kenny was in the course and scope of his employment with the Baton Rouge Police Department at the time of the accident and that his fault caused the accident. A jury trial was conducted on April 22-26, 2013, at which time the issues of causation of plaintiffs’ injuries, and the nature and extent thereof, were strongly contested. The jury heard from numerous lay and expert witnesses.

After hearing and considering'all of the testimony and documentary evidence, the jury found that 'the September’ 18, 2007 accident had caused injuries and damages to ^plaintiffs and awarded the following damages:

Sheila Tate
Past Medical Expenses $33,116.19
Future Medical Expenses $0
Mental and Physical Pain and Suffering Past, Present and Future $7,500.00
Loss of Enjoyment of Life $0
Past Lost Wages $8,400.00
Future Lost Wages $0 '
TOTAL: $49,016.19
Sheila Tate on behalf of Jordan Tate
Past Medical Expenses ; $59.60
Mental and Physical Pain and Suffering Past, Present and Future in
TOTAL: $59.60
Joyce Lee
Past Medical Expenses $2,069.60
Mental and Physical Pain and Suffering Past, Present and Future $500.00
Loss of Enjoyment of Life $0
TOTAL: $2,569.60
Joyce Lee on behalf of Imiricle Lee
Past Medical Expenses $59.60
Mental and Physical Pain and Suffering Past, Present and Future $0
TOTAL: ■ . . $59.60

[124]*124A written judgment in accordance with the jury’s verdict was signed on May 13, 2013.1 Thereafter, plaintiffs filed a motion for judgment notwithstanding the verdict arguing that the damage award was too low. The matter was set for hearing and, after considering the arguments of plaintiffs’ counsel, the trial court denied the motion for judgment notwithstanding the verdict, stating:

The court finds that the verdict by the jury is one that reasonable minds could concur [in], and it is not unreasonable, in light of the law as well as the evidence that was presented to the trier of fact; therefore, the court will not disturb the findings of the jury, and the court’s going to deny the J.N.O.V.

|4A judgment was signed accordingly on September 29, 2013. Plaintiffs then filed the instant appeal, assigning the following as error:

1. Jury was manifestly erroneous in inadequately awarding Sheila Tate the full amount of past medical expenses.
2. Jury was manifestly erroneous in not awarding Sheila Tate future medical expenses.
3. Jury was manifestly erroneous in inadequately awarding Sheila Tate the full amount of lost wages.
4. Jury was manifestly erroneous in not awarding Sheila Tate future loss of earning capacity.
5. Jury abused its discretion when awarding Sheila Tate a woefully inadequate amount of general damages.
6. Jury was legally erroneous in awarding Jordan Tate and [Imiricle] Lee special damages but no general damages.
7.Jury abused its discretion in awarding Joyce Lee a woefully inadequate amount of general damages.

DISCUSSION

Sheila Tate

Ms, Tate testified that as a result of this accident, she sustained injuries to her lower back and shoulder and was initially off of work for about two-and-a-half months. When she returned to her job as a truck driver, the duties she performed before the accident were more difficult at first because of the pain she was experiencing. And she was unable to take the prescribed medication because of its sedative effects. She indicated that most of her pain was in her lower back and buttocks area, with pain radiating down her right leg and into her right knee. She described the pain as being “like a toothache,” and added that not every day was a painful day. Ms. Tate stated that before the accident, she was more of an “outdoor person” and that she and her daughter used to jump on the trampoline together and that they enjoyed riding horses together. She acknowledged that although she does have some good days where her pain is only at a level of a two or three, she knows what those types of activities will do to her pain level so she avoids them.

| ¿Immediately following the accident in question, Ms. Tate denied any back pain when examined by EMS workers on the scene. The only complaint noted on the EMS record was neck pain. It was only later that day when Ms. Tate drove herself and Jordan to the Baton Rouge General ER that she complained of back, neck, and right shoulder pain. However, no signs of [125]*125trauma were noted and no x-rays or other diagnostic exams were performed by hospital personnel.

Ms. Tate began treating with Dr. Keith Mack two days after the accident with complaints of headaches, jaw pain, neck pain, back pain, and shoulder pain. Dr. Mack diagnbsed Ms. Tate with a “[mjuscu-loligamentous strain” of the cervical spine, thoracic spine, and lumbar spine, and recommended “[pjhysical medicine treatments” three times a week. Dr. Mack treated Ms. Tate for approximately six months, during which time she underwent conservative treatment including prescription medications, massage, electronic stimulation, ultrasound, and moist heat/cold packs.

Dr. Mack referred Ms. Tate to Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
186 So. 3d 119, 2015 La.App. 1 Cir. 0265, 2015 La. App. LEXIS 2645, 2015 WL 9435736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tate-v-kenny-lactapp-2015.