White v. Longanecker

637 So. 2d 1213, 1994 WL 234565
CourtLouisiana Court of Appeal
DecidedMay 23, 1994
Docket93 CA 1122
StatusPublished
Cited by29 cases

This text of 637 So. 2d 1213 (White v. Longanecker) 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
White v. Longanecker, 637 So. 2d 1213, 1994 WL 234565 (La. Ct. App. 1994).

Opinion

637 So.2d 1213 (1994)

Cynthia WHITE
v.
Wilson R. LONGANECKER, Sr.

No. 93 CA 1122.

Court of Appeal of Louisiana, First Circuit.

May 23, 1994.

*1214 Laurence Cohen, Morris Bart & Associates, New Orleans, for plaintiff-appellant Cynthia White.

William F. Kelly, Law Offices of Paul A. Eckert, Metairie, for defendant-appellee Wilson Longanecker.

Before WATKINS, SHORTESS, CARTER, GONZALES and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment in favor of plaintiff.

FACTS

On July 16, 1990, plaintiff Cynthia White was acting within the course and scope of her employment as a rural route mail carrier when the vehicle she was driving was struck from the rear by a vehicle being driven by seventeen-year-old Wilson R. Longanecker, Jr. As a result of this accident, White sustained injuries to her back, neck, and right shoulder.

On January 16, 1991, White filed the instant suit for damages, naming as defendants Wilson R. Longanecker, Sr. and his wife, Colonita P. Longanecker, in their capacity as the parents of their minor son, Wilson R. Longanecker, Jr. Prudential Insurance Company, the alleged automobile liability insurer of the vehicle being driven by Longanecker, was also named as a defendant in the action. The petition alleged that the defendants were solidarily liable for the injuries White sustained as a result of the accident.

On July 6, 1992, the matter went to trial before a jury.[1] The jury rendered a verdict in favor of White, awarding the following damages:

(a) Personal injuries, including past,
    present and future pain, suffering,
    and loss of physical functions of her
    body                                           $15,000.00
(b) Medical and hospital expenses to
    date                                            12,895.00[2]
(c) Loss of past earnings                            6,500.00
(d) Loss or impairment of earning capacity
                                                     5,000.00
    Total                                          $39,395.00

*1215 White appealed, assigning the following specifications of error:

1. The trial court abused its discretion in failing to award sufficient general damages to compensate Ms. White for the severe pain and suffering and permanent impairment she sustained from the defendant's negligence.
2. The trial court erred in failing to award medical expenses for treatment that was undertaken as a direct result of the defendant's negligence.

GENERAL DAMAGES

Plaintiff contends that the trial court abused its discretion in the award of general damages. Plaintiff asserts that the general damages award of $15,000.00 was insufficient to compensate her for the "severe pain and suffering and permanent impairment she sustained from the defendant's negligence." The defendants, however, contend that there was no abuse of discretion because the evidence gave the jury "ample reason" to conclude that White's testimony was self-serving and highly suspect, that White was inflating her injuries, and that something other than the accident may have caused White's shoulder condition.

"General damages" involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La.App. 1st Cir.), writs denied, 605 So.2d 1373, 1374 (La.1992). The primary objective of general damages is to restore the injured party in as near a fashion as possible to the state she was in at the time immediately preceding injury. McCray v. Abraham, 550 So.2d 244, 248 (La.App. 4th Cir. 1989). It is well settled in our jurisprudence that a tortfeasor takes his victim as he finds her. American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991); McCray v. Abraham, 550 So.2d at 247. When a defendant's negligent conduct aggravates a preexisting condition, the victim must be compensated for the full extent of the aggravation. Miley v. Landry, 582 So.2d 833, 837 (La.1991); Epps v. City of Baton Rouge, 604 So.2d 1336, 1345 (La.App. 1st Cir.1992). The factors to be considered in assessing quantum for pain and suffering are severity and duration. Glasper v. Henry, 589 So.2d 1173, 1180 (La.App. 4th Cir. 1991), writ denied, 594 So.2d 1315 (La.1992); Anthony v. Hospital Service District No. 1, 477 So.2d 1180, 1186 (La.App. 1st Cir.1985), writ denied, 480 So.2d 743 (La.1986).

Before a court of appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its much discretion in making the award. LSA-C.C. art. 2324.1; American Motorist Insurance Company v. American Rent-All, Inc., 579 So.2d at 433; Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976); Callender v. Delchamps, Inc., 542 So.2d 140, 144 (La.App. 1st Cir.1989). The initial inquiry must always be directed at whether the trial court's award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact's much discretion. Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Recently in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the Louisiana Supreme Court noted that:

[T]he discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that *1216 the appellate court should increase or reduce the award.

In the instant case, the testimony and medical records reveal the following:

Cynthia White testified that it was drizzling at the time of the accident and that suddenly she observed Longanecker's vehicle sliding toward her vehicle. White testified that, although she was wearing her seatbelt, she bounced and hit the back of the seat. White indicated that, after the accident, she began to experience neck and back pain and "everything was hurting." When the ambulance arrived, White was removed from the vehicle and taken to the emergency room at Riverside Medical Center, where various x-rays were taken, and she was subsequently released. Dr. Timothy H. Ewing, White's family physician, testified that he first examined White on July 17, 1990, at which time she had complaints of right shoulder pain, neck pain, headaches, and lower back pain. Dr. Ewing determined that she had strained the muscles of the neck, the right trapezius region, and lower back. According to Dr. Ewing, White's injuries resulted from the July 16, 1990, accident.

Dr. Robert Buckley VanBreemen, chiropractor, testified regarding his treatment of White, which began August 2, 1990. Dr. VanBreemen diagnosed White with a cervical whiplash injury with a cervical strain/sprain, cervical radiculitis (pain radiating from the nerve roots of the cervical spine), cervical dorsal syndrome (mild muscle spasms in the lower neck and upper back), and lumbalgia (lower back pain). Dr.

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637 So. 2d 1213, 1994 WL 234565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-longanecker-lactapp-1994.