Warner v. GREAT ATLANTIC & PACIFIC TEA

583 So. 2d 61, 1991 WL 108424
CourtLouisiana Court of Appeal
DecidedJune 19, 1991
Docket22496-CA
StatusPublished
Cited by9 cases

This text of 583 So. 2d 61 (Warner v. GREAT ATLANTIC & PACIFIC TEA) 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
Warner v. GREAT ATLANTIC & PACIFIC TEA, 583 So. 2d 61, 1991 WL 108424 (La. Ct. App. 1991).

Opinion

583 So.2d 61 (1991)

James K. WARNER, Jr. and Cora F. Warner, Plaintiffs-Appellants,
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY, INCORPORATED, Defendant-Appellee.

No. 22496-CA.

Court of Appeal of Louisiana, Second Circuit.

June 19, 1991.
Rehearing Denied July 24, 1991.

*62 Guerriero and Guerriero by Joe D. Guerriero, Monroe, for plaintiffs-appellants.

Hoffman, Sutterfield, Ensenat & Bankston by Michael W. McKay, Baton Rouge, for defendant-appellee.

Before SEXTON, LINDSAY and STEWART, JJ.

STEWART, Judge.

Appeal by both plaintiff and defendant from an award of damages in a slip and fall case. We affirm in part, amend in part, and reverse in part.

FACTS

On September 22, 1986, plaintiff, James K. Warner, Jr., slipped and fell in water on the floor of defendant, The Great Atlantic & Pacific Tea Company, Inc. (A & P), a food store located at the Glenwood Shopping Mall in West Monroe, Louisiana. Mr. Warner entered the store to purchase groceries and as he selected a box of ice cream bars, he slipped and fell.

On August 26, 1987, Warner filed suit for damages against A & P requesting medical expenses, loss of income, personal injuries, and loss of consortium. The case was tried before a jury who found in favor of Warner on the issue of negligence and awarded $69,000 including $25,000 for medical expenses, $40,000 for the loss of earning capacity, and $4,000 in general damages for pain and suffering. No recovery was granted for mental anguish nor loss of consortium. On May 22, 1990, plaintiff filed a motion for a judgment notwithstanding the verdict and motion for new trial which were denied. He now appeals the judgment alleging error in quantum. Defendant, A & P, appeals as well claiming an excessive award and, in the alternative, that the award sufficiently compensated Warner.

Warner's appeal asserts that the jury erred in awarding $25,000 for medical expenses when the evidence clearly reveals by more than a preponderance of the evidence *63 that the total amount of medical and drug bills he was entitled to was $87,573.80.

Warner next avers that the jury erred in awarding only $40,000 for loss of earning capacity. He argues that the only economic expert who testified at trial computed loss of earning capacity at approximately $515,000. Warner states that it was unreasonable for the jury to have awarded only $40,000 based upon the uncontradicted evidence given by the expert in this case.

Warner next asserts that the jury was in error in awarding only $4,000 in damages for pain and suffering in light of the inconsistent jury awards of medical damages in the amount of $25,000 and loss of earning capacity in the amount of $40,000.

Warner also claims that the jury was in error in awarding zero damages for mental anguish based upon expert testimony that Warner was suffering from a major depressive disorder as a result of the accident in question as well as the testimony of his son and other lay witnesses who testified as to Warner's change in attitude after the fall.

Finally, Warner argues error in the jury award of zero for loss of consortium based upon Mrs. Warner's testimony that his personality drastically changed since the time of the accident so as to render their living together insupportable.

Appellee, A & P, asserts that the jury abused its discretion in awarding any damages for more than a minor back strain when the evidence only supported that finding due to plaintiff's extensive preexisting injuries prior to the slip and fall, and the lack of objective symptoms requiring back surgery until 14 months after the fall.

Appellee next argues that if this court determines that A & P is responsible for any of plaintiff's injuries, then the jury's finding as to quantum must be upheld.

DISCUSSION

Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making an award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court's award can be reasonably supported by the record. Winterrowd v. Traveler's Indemnity Company, 452 So.2d 269 (La. App. 2d Cir.1984), writ granted, 457 So.2d 1185, writ denied, 457 So.2d 1195, affirmed, 462 So.2d 639 (1985); Coco v. Winston Industries Incorporated, 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971). Moreover, the appellate function in reviewing quantum is limited to raising an inadequate award to the lowest award that the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court awarded. Winterrowd, supra; Reck v. Stevens, 373 So.2d 498 (La.1979); Coco, supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982).

A brief review of Warner's medical history reveals that he had back surgery as early as 1982. In 1986, Warner again experienced back pain which resulted in surgery in April 1986 for the removal of a ruptured disc. Warner was released from medical treatment in July 1986 after which he performed small amounts of welding jobs. The incident in question occurred on September 23, 1986 resulting in indications of muscle spasms on the night in question. Warner continued to complain of pain and visited physicians in October, November, and December 1986 and through the late months of 1987. In November 1987, he complained of having "popped his back" while stooping to dry his feet and experienced pain while getting into his son's car in December 1987. It was not until this time that objective signs of low back injury were noted indicating the possibility of a disc problem. Surgery was performed in January 1988 to alleviate this disc problem.

MEDICAL EXPENSES

The jury awarded $25,000 for itemized medical expenses. Warner presented documentation indicating a total amount of *64 $87,573 for medical bills from 1986 through 1990. He contends that the jury erred in failing to award the larger amount.

At trial, Warner requested medical costs incurred after the September 23, 1986 accident, including those resulting from complaints throughout the end of 1986, the entire year of 1987, the back surgery performed in January 1988 to remove the herniated disc, and costs incurred through 1990.

Dr. Don Irby, a neurological surgeon for Warner, testified that there were no objective findings between September 1986 and November 1987 which would have supported disc surgery. He testified that, in fact, Warner's back problems had resolved during that time. He could not state with any degree of certainty that the surgery of 1988 was related to the incident in the A & P store and it was not until January 1988, after separate incidences of back popping and Warner getting into the car, that the neurological findings supporting surgery were discovered.

Dr. Madura Rangaraj, an internal medical physician who saw Warner on October 31, 1986, concluded that Warner suffered from muscular pain as a result of the A & P slip and fall. Dr. Rangaraj continued to work with Warner until October 29, 1987 and noted that Warner had marked pain and significant restriction of his low back movement which he characterized as predominantly osteoarthritis and post-traumatic and post-operative scar tissue which caused the persistent pain.

Dr.

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Bluebook (online)
583 So. 2d 61, 1991 WL 108424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-great-atlantic-pacific-tea-lactapp-1991.