Turner v. Cleveland Trust Co.

686 So. 2d 871, 1996 La. App. LEXIS 2257, 1996 WL 571041
CourtLouisiana Court of Appeal
DecidedMay 22, 1996
DocketNo. 95-CA-2488
StatusPublished
Cited by6 cases

This text of 686 So. 2d 871 (Turner v. Cleveland Trust Co.) 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
Turner v. Cleveland Trust Co., 686 So. 2d 871, 1996 La. App. LEXIS 2257, 1996 WL 571041 (La. Ct. App. 1996).

Opinion

| iLOBRANO, Judge.

Anna Turner appeals the trial court judgment which awarded her $10,047.00 in damages against Carrollton Parc Apartments and its insurer, State Farm Fire and Casualty. Her complaint to this court is the insufficiency of the award. For various reasons, discussed infra, she asserts the trial court erred in this regard.1

FACTS AND PROCEDURAL HISTORY:

Anna Turner lived in a two level, two bedroom apartment at the Carrollton Parc Apartments. An interior staircase connected the upper bedroom area with the lower living area and kitchen.

On September 23, 1991, at approximately 6:00 a.m., Turner alleges that as she descended the stairway, she slipped on wet carpet caused by a leaking air conditioner. The accident occurred on the third or fourth step from the bottom of the staircase. Turner landed on the floor on her buttocks with her head striking the stairs. Turner’s sixteen year old daughter, Nikole, heard her mother scream. She immediately came to her aid.

^Turner complained to her daughter of head and neck pain. She was immediately taken to the emergency room at Southern Baptist Hospital where she was seen at 8:15 a.m., treated and released. Thereafter, Turner received various medical treatment, including surgery, from October, 1991 to January, 1995. On July 31, 1992 Turner filed the instant lawsuit.

The trial court awarded Turner $7,500.00 in general damages and $2,547.00 in medical expenses. Turner asserts the following errors in support of her claim that the award is inadequate.

1)The court erred by failing to articulate and consider the effect of the presumption of causation, and as a result there should be a de novo review of damages;
2) The court committed manifest error by failing to find that all of Turner’s injuries were caused by the accident;
3) The court committed manifest error when it failed to award the total amount of medical expenses;
4) The court committed manifest error in not awarding any sum for loss of income (past or future) or for impairment of earning capacity and in failing to admit an income tax return into evidence.
5) The court committed manifest error in its general damage award.

The assignments of error present for our determination the question of whether the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), on remand, 597 So.2d 71 (La.App. 4th Cir.1992), writ denied, 600 So.2d 646 (La.1992), is applicable to the instant case and thus requiring de novo review of the damage award. If the presumption is inapplicable, we are still required to determine if the award is an abuse of the trial court’s discretion. To resolve these issues, a thorough review of the trial testimony is necessary.

| ¿TESTIMONY ADDUCED AT TRIAL.2

ANNA TURNER:

On direct examination, Anna Turner testified that on the morning of the accident, as she descended the stairs, she slipped on water soaked carpet and fell. Her daughter, Nikole, came to her aid. Nikole helped her to a nearby sofa before calling a taxi to take her to Baptist Hospital. At Baptist Hospital she complained of neck and back pain. X-rays were taken. She was given medication and told to see her doctor.

The first doctor she saw was Dr. William Batherson, a chiropractor. Dr. Batherson was recommended by her attorney. She complained of neck and back pain and tingling in her hands. Dr. Batherson administered heat treatments. She continued her treatment for several months until she got [873]*873pregnant. Because of her back pain she stayed in bed during the pregnancy. After the birth of her child, she returned to Dr. Batherson for treatment. Dr. Batherson eventually recommended she see Dr. Kenneth Vogel who scheduled a lumbar and cervical MRI.

As a result of the MRI, Dr. Vogel performed a cervical neurotomy in May of 1993. In June of 1994, Dr. Vogel performed a lumbar neurotomy. A partial lumbar discec-tomy was also performed.3

Turner testified she also was examined by a Dr. Williams pursuant to an application for social security disability. She stated she was declared disabled.

| .¡Turner admitted that she was involved in an automobile accident subsequent to the fall on the stairs. However, she stated she was not hurt and did not tell her examining physicians.

She testified that prior to the slip and fall, she engaged in many physical activities with her family consisting of baseball, swimming and jogging. Since the fall, she has not been active because of the lower back pain.

She stated she had undergone physical therapy three times per week as directed by Dr. Vogel. She takes a number of medications which cause drowsiness.

Turner testified that for six years prior to the slip and fall accident she worked various jobs for a temporary service. These jobs included receptionist, data processing, PBX operation, typing and word processing. She stated that she earned between $4.50 and $7.00 per hour depending on the job. She testified that she worked for AT & T and Loyola University as well as Boeing. After the fall she was unable to work because she could not sit for long periods of time without severe pain.

Turner also testified that her correct date of birth is September 21, 1952. She admitted lying about her age because she wanted to appear younger.

On cross examination, Turner admitted that she was convicted of forgery on March 29, 1990. Her date of birth shown on documents related to that conviction was November 12,1958.

Turner stated her social security number is 437-90-1312. However, she admitted giving her daughter’s social security number on her apartment application but said it was a mistake which she corrected. She listed her date of birth on the application as November 2, 1958. Also on this application, she listed |sher mother’s address as her current ad-' dress and stated she earned $2,400.00 per month as a data/operator supervisor. She also gave an incorrect social security number and date of birth for her boyfriend, Paul Berry.

Turner also admitted that on November 7, 1985, she fell down the steps at 1814½ S. • Gayoso Street. This was the home of a friend, Ruby McDonald. She stated she slipped on food on the steps. She subsequently filed a lawsuit claiming she sustained injuries. In that lawsuit she gave her date of birth as September 21,1956.

Turner admitted receiving treatment from the Baptist Hospital Emergency Room on January 30, 1989 for a stiff neck and back, and a sore throat. Those records show Turner listed her brother, Michael Turner as her husband. His U.S. army insurer, Commercial Insurance, was used to apply for treatment benefits for Anna Turner. Another brother’s address was given as her address as well as an incorrect date of birth and social security number. These same discrepancies appear on Baptist emergency records of October 29,1989 when she was treated for facial and hand burns as well as the emergency room records of March 12, 1990 and subsequent records both at Baptist Hospital and Touro Infirmary.

Turner admitted that at her deposition she testified that she saw a Dr. Bacchus and a Dr. Bouligny after the slip and fall.

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Bluebook (online)
686 So. 2d 871, 1996 La. App. LEXIS 2257, 1996 WL 571041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-cleveland-trust-co-lactapp-1996.