Thames v. Zerangue

401 So. 2d 648, 1981 La. App. LEXIS 4255
CourtLouisiana Court of Appeal
DecidedJune 30, 1981
DocketNo. 8301
StatusPublished
Cited by4 cases

This text of 401 So. 2d 648 (Thames v. Zerangue) 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
Thames v. Zerangue, 401 So. 2d 648, 1981 La. App. LEXIS 4255 (La. Ct. App. 1981).

Opinion

CUTRER, Judge.

This suit arose out of an automobile accident which occurred on May 27, 1979. The plaintiff’s vehicle was struck from the rear [649]*649by defendant’s pickup track. A settlement was entered into regarding the property damages. The plaintiff, Kathleen Thames, then brought suit against the defendants, Clebert Zerangue, Jr., and his insurer, Safe-co Insurance Company (Safeco), for personal injuries allegedly caused by the accident. The jury rendered a general verdict in favor of the defendants and against the plaintiff. A judgment was rendered accordingly. The plaintiff appeals. We affirm.

The issue is whether the jury was clearly wrong in this determination.

The facts are as follow:

Both the plaintiff and the defendant were proceeding in a southerly direction on the Evangeline Thruway, or Highway 167, in Lafayette, Louisiana. Both drivers were in the left-hand lane. The defendant testified that he was momentarily distracted by a car stalled in the right lane. When he directed his attention back to his own lane, he saw the plaintiff’s vehicle directly in front of him and could not avoid hitting it from the rear and knocking it into the car ahead. The defendant’s truck suffered about $450.00 in damages and the plaintiff’s 1978 Toyota was a total loss. The defendant pleaded guilty to a charge of following too close.

It is clear from the relatively brief testimony concerning the occurrence of the accident that the defendant’s conduct constituted negligence. He admitted being inattentive to the lane ahead of him although only momentarily.

When a rear end collision occurs, the driver of the following vehicle is generally presumed to be negligent and will only be exonerated where he can reasonably explain the cause of his running into the vehicle ahead. Coates v. Marcello, 235 So.2d 162 (La.App. 4th Cir. 1970); Hester v. Stewart, 177 So.2d 430 (La.App. 1st Cir. 1965). The defendant here made no such reasonable explanation.

The principal issue at trial and the question upon which this decision must turn is whether the plaintiff established that she suffered injuries as a result of the accident. This is a factual determination. The appeal court should not disturb the findings of the trier of fact in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Manifest error means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). With this principle in mind we will examine the record to determine if the jury was clearly wrong in failing to award damages.

The plaintiff testified at length to the effects of the accident. She also described in great detail the various diagnostic tests which she underwent. She stated that after the accident she started suffering severe headaches, occasional blurred vision, intermittent swelling of the right arm and stomach ulcers.

On cross examination plaintiff admitted that she had trouble with her arm swelling before the accident. She stated that she complained of it to her family physician in January 1979, six months before the accident. Also, she admitted that she had visual problems before the accident. Plaintiff felt that the stomach ulcer, which was diagnosed by a family physician over a year after the accident, was the result of stress due to her financial problems which arose as a result of medical expenses and expenses resulting from her having to purchase a new car.

The record reflects, however, that practically all her medical expenses were timely paid by a group insurance company (Metropolitan) and by Safeco, as they became due. Also, she admitted that the purchase of the new car increased her monthly car note by only $25.00. Plaintiff also stated that she continued her work after the accident except for those days she was seeing doctors for examinations and tests.

Plaintiff called two co-workers (plaintiff was a newspaper reporter), her father and sister, as “before and after” witnesses. These witnesses testified generally that the plaintiff had not incurred any swelling of her arm nor any visual problems before the accident. They had noticed these problems after the accident.

[650]*650Dr. Richard Hill, a family practitioner, had been the plaintiff’s family physician for sixteen years before the accident. He testified that plaintiff had “a long list of psychological problems.” He stated that plaintiff was a type of person who would come to his office with a “laundry list of complaints.” She would actually write out a list of her complaints. Dr. Hill testified that plaintiff complained of headaches and visual problems (blurred vision) in January 1979, five months before the accident. He also stated that even though plaintiff had many complaints over the years both before and after the accident, he had not been able to find any physical condition, except the ulcer of 1980, that would explain plaintiff’s complaints.

Dr. Hill saw plaintiff July 27, 1979, about two months after the accident. Plaintiff was complaining again of swelling and numbness of the right arm. His examination revealed no basis for the complaint. He sent plaintiff to a Dr. Clifford, a neurosurgeon, for examination. This physician reported to Dr. Hill that the tests he performed were negative.

Plaintiff saw Dr. Hill twice in October 1979 for reasons wholly unrelated to, trauma.

Dr. Hill saw plaintiff again in April 1980. She was having pain in her stomach as well as lower abdominal pain. Her stomach pain proved to be the result of a gastric ulcer. The diagnosis of the ulcer was made on May 27, 1980. The ulcer had healed by October 1980 when the plaintiff returned to Dr. Hill’s office. Plaintiff had also been to Dr. Hill’s office on July 21,1980, with acute torticollis, spasm in the muscles of the neck. The muscle spasm could be felt. This was the first time Dr. Hill could illicit spasm in her neck and this was about fourteen months after the accident. He was of the opinion that this neck spasm could not be related to the accident of May 1979.

Plaintiff was referred to Dr. Albon Young, a neurosurgeon of Lafayette, Louisiana. Plaintiff was complaining of arm and visual problems.

The history given to Dr. Young was detailed. We shall quote parts of same as follow:

“Q. When was the first time you saw her?
“A. I saw Ms. Thames on December 28, 1979 at the request of Dr. John Charles Dugal.
“Q. What purpose was she referred to you?
“A. Ms. Thames was referred to me for evaluation of multiple complaints including complaints referable to her right arm as well as transien visual disturbances.
“Q. And you made a Neurological examination?
“A. I did.
“Q. What did that consist of?
“A. Historically Ms. Thames responded to me that she had first begun to complain of visual disturbances in the early part of 1979 as well as an episode of swelling with respect to the right arm early that year. The right arm symptoms apparently resolved spontaneously whereas the visual disturbances persisted. She was seen by a Neurosurgeon as well as a local physician in Baton Rouge who performed an evaluation, an extensive evaluation, including hospitalization and multiple invasive tests. These were felt to be non-remarkable. Ms.

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Related

Baach v. Clark
442 So. 2d 514 (Louisiana Court of Appeal, 1983)
Moody v. Arabie
433 So. 2d 833 (Louisiana Court of Appeal, 1983)
Thames v. Zerangue
411 So. 2d 17 (Supreme Court of Louisiana, 1982)

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Bluebook (online)
401 So. 2d 648, 1981 La. App. LEXIS 4255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thames-v-zerangue-lactapp-1981.