Opinion
No. 08-230.
December 3, 2008. NOT FOR PUBLICATION
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 34,152 HONORABLE J.P. MAUFFRAY, JR., PRESIDING.
V. Russell Purvis, Jonesville, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
June Plunkett, Mark A. Watson, Todd A. Vance, Stafford, Stewart Potter, Alexandria, LA, COUNSEL FOR DEFENDANTS/APPELLANTS: Chad W. Geis, Horizon Applicator, Inc. and America First Ins. Co.
Court composed of Sylvia R. Cooks, J. David Painter and Christopher J. Roy, pro tem, Judges.
On September 8, 2003, Chad Geis was driving a Kenworth T600 tractor-trailer, which was transporting two pieces of forestry equipment on a forty-two foot lowboy trailer. Mr. Geis turned on to Louisiana Highway 8 in LaSalle Parish, and after traveling eastbound less than a quarter-mile at very slow speed, he prepared to turn left to enter into the International Paper facility. Plaintiff, June Plunkett, was operating a Chevrolet Silverado pick-up truck. After lowering her speed as she approached Mr. Geis' tractor/trailer, she decided to enter the left lane intent on passing the slow traveling tractor/trailer in the right lane. There was another vehicle between Mrs. Plunkett's truck and Mr. Geis' tractor/trailer. The posted speed limit was fifty-five (55) miles per hour. On this area of the highway, there was no prohibition for east-bound vehicles to pass other vehicles.
Immediately prior to Mr. Geis beginning his turn into the International Paper facility, Mrs. Plunkett began executing the passing maneuver. Just as Mrs. Plunkett's pick-up truck was on the side of the cab of the tractor/trailer, Mr. Geis began to turn left into the driveway of the International Paper facility. Mrs. Plunkett's vehicle was struck on the right front panel. Mrs. Plunkett was forced off the road into a fence along the north side of the highway.
Mr. Geis testified, immediately prior to the accident, he was proceeding very slowly (under 15 miles per hour); and, prior to beginning his turning maneuver, he activated his left-turn indicator. Mr. Geis also testified he was certain his lights worked, because he had checked his blinkers and lights earlier that day while making some minor, unrelated repairs to his tractor/trailer. He could not see Mrs. Plunkett's vehicle begin the passing maneuver due to his oversized load. He acknowledged he did not notice the vehicle until the actual collision occurred. The trial court noted in its reasons for judgment that the "mirrors of the tractor (cab) were in such an orientation that the truck driver couldn't even see behind the tires of the skidder loaded on the trailer."
Mrs. Plunkett testified the vehicles in front of her were "just crawling along." Realizing she was in a passing zone, and not wanting to continue at "a snail's pace" all the way home, she attempted to pass both vehicles in one passing maneuver. Mrs. Plunkett did not see any turn signal from the tractor/trailer.
Debbie McIlwain was driving the vehicle that was directly behind Mr. Geis' tractor/trailer. Immediately prior to the accident, she estimated Mr. Geis' vehicle was traveling at approximately ten to fifteen miles per hour. Ms. McIlwain stated she "assumed" that the tractor/trailer was going to turn in to the International Paper facility due to his slow rate of speed. She testified she did not notice if any turn signal was activated on the tractor/trailer. She also stated that had there been a turn signal, Mrs. Plunkett would have been unable to see it, because Ms. McIlwain's vehicle would have been blocking the signal.
Mrs. Plunkett stated she injured her right arm, shoulder, back and neck in the accident. Immediately following the accident, Mrs. Plunkett was treated at the emergency room. X-rays were taken which revealed Mrs. Plunkett suffered from degenerative disc disease. She was treated by Dr. Sanit Sirikul, who testified he did not believe the accident caused the degenerative disc disease, but probably aggravated the symptoms. She also underwent frequent chiropractic treatments from Dr. Walter Creel up until the time of trial.
Mrs. Plunkett filed suit seeking damages for her injuries. Named as defendants were Chad Geis, his company, Horizon Applicators, Inc., and his liability insurer, America First Insurance Company. After a trial on the merits, the trial court rendered judgment against defendants, finding Mr. Geis solely at fault in causing the accident.
The trial court relied on the fact that Mr. Geis was unable to see behind him due to the size of his load. Although defendants pled several grounds of victim fault, the trial court found "implicitly that defendants had failed to prove any of them."
After making its ruling on fault, the trial court requested post trial memorandums on damages from the parties. Prior to trial, Mrs. Plunkett stipulated that her damages were no greater than $50,000.00. The trial court found Mrs. Plunkett sustained an aggravation to her pre-existing degenerative disc disease, causing her increased pain and suffering. The trial court awarded the total amount of $56.335.00 together with legal interest from the date of judgment until paid. As a result of the stipulation, the award was reduced to $50,000.00.
Defendants appealed the judgment, asserting the trial court erred in not assessing some portion of comparative fault to Mrs. Plunkett and in awarding her excessive damages. Mrs. Plunkett answered the appeal, and argues the trial court erred in not awarding judicial interest from the date of judicial demand.
ANALYSIS
I. Allocation of Fault.
Defendants first argue the trial court erred in not apportioning some percentage of fault to Mrs. Plunkett. In Layssard v. State, Dep't of Public Safety and Corrections, 07-78, p. 3 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1057-58, writ denied, 07-1821 (La. 11/9/07), 967 So.2d 511, this court set forth the standard of review for a trier of fact's apportionment of fault:
The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded "the trier of fact is owed some deference in allocating fault" since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.
Therefore, a trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. A trial judge's findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep't of Trasp. Dev., 617 So.2d 880 (La. 1993). "Absent 'manifest error' or unless it is 'clearly wrong,' the jury or trial court's findings of fact may not be disturbed on appeal." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La. 1990). "If the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 1112.In Roberts v. Robicheaux, 04-1405 (La.App. 3 Cir. 3/2/05), 896 So.2d 1232, writ denied, 05-792 (La. 5/13/05), 902 So.2d 1021, similar to the present case, a left-turning vehicle collided with a vehicle attempting a passing maneuver. This court discussed the duties of the motorists:
It is necessary that we review both the duties of motorists when making left turns and the duties of passing motorists.
In Natchitoches Motors v. Travelers Ins. Co., 372 So.2d 811, 813-14 (La.App. 3 Cir. 1979), this court stated:
It is well settled that a left-turn movement is generally characterized as a dangerous operation, not to be undertaken until the motorist ascertains that it can be made in safety. LSA-R.S. 32:104. . . .
There is no presumption, however, that the driver of a left turning vehicle is guilty of negligence. Both a left turning and a passing motorist are charged with an exceptional duty of care. Whether there has been a breach of duty on the part of either must be proved. . . .
In judging whether a left turn can be made in safety, the motorist has the right to assume that a following motorist will observe all the duties imposed upon him by law and common sense. Thus, he may assume that the following motorist will proceed within the speed limit and will not cross over a yellow line in his traffic lane marking a "no-passing" zone and, moreover, will keep a proper lookout. Breland v. American Insurance Company, 163 So.2d 583 (La.App. 2nd Cir. 1964), writs refused 246 La. 379, 164 So.2d 362 (1964).
The trial court in Roberts found both the left-turning motorist and the passing motorist were equally at fault. This court amended the allocation of fault to find the passing motorist 75 percent at fault. However, a major difference between Roberts and the present case is that the passing motorist attempted to pass the left-turning motorist in a no-passing zone. This was the sole basis for which both the trial court and this court found the passing motorist was at fault. In the present case, there was no prohibition against Mrs. Plunkett performing a passing maneuver on the area of highway where the accident occurred.
Defendants cite the case of Gryder v. Jackson, 32,307 (La.App. 2 Cir. 6/16/99), 739 So.2d 246, writ denied, 99-2576 (La. 11/24/99), 750 So.2d 986, in support of its argument that Mrs. Plunkett should be assessed with fault. Gryder involved a collision in a passing zone between a left-turning motorist and a passing motorist. The trial court apportioned 90 percent fault to the passing motorist and 10 percent fault to the left-turning motorist. The appellate court amended the trial court's allocation of fault to 50 percent for each party, finding the trial court improperly found the passing vehicle was speeding. The appellate court found the record clearly indicated acts of negligence on the part of the passing motorist. It was determined that "at least by the time the [passing vehicle] was fully in the passing lane, the left turn blinker began operating." Id. at 250. Further, the passing motorist admitted he noticed the left-turning motorist was slowing down as he undertook the passing maneuver. The appellate court stressed that the "the slowing of Gryder's vehicle as the passing maneuver was occurring gave further notice of a possible left-hand turn by Gryder into the approaching convenience store." Id. at 250. In this case, the record is equivocal as to whether Mr. Geis activated his blinkers. Further, Mr. Geis was traveling so slow (approximately 10 to 15 miles per hour in a 55 mile per hour zone), he was practically blocking the roadway and there was no appreciable slowing of speed before commencement of the left-turn.
In Thonn v. Cook, 03-0763 (La.App. 4 Cir. 12/10/03), 863 So.2d 628, the appellate court affirmed the trial court's allocation of equal fault on the part of both the passing motorist and left-turning motorist. However, we find Thonn is distinguishable from the present case as well. In Thonn, the jury reached several conclusions which supported a finding of fifty percent fault on the part of the passing motorist. First, the jury accepted the testimony of the left-turning motorist that he had activated his blinker. Second, the jury determined that the passing motorist was traveling at an excessive rate of speed, thus causing the left-turning motorist "to miscalculate the amount of time in which he had to safely execute his left turn." Finally, the appellate court found a reasonable fact finder could also infer that a contributing cause of the collision was the passing motorist's lack of control over his vehicle in making the passing maneuver. These three factors were not demonstrated in the present case.
In finding Mr. Geis solely at fault for causing the accident, the trial court set forth the following reasons:
THE COURT: Wrong. And this is the reason why. Because, you got a wide vehicle traveling ten miles an hour down a 55 miles an hour highway and he's supposed to have his outriggers far enough where he can see behind him. He's testified directly, he couldn't see behind him, because, of the width of his load. That's fault number one with him. And as [Plaintiff's counsel] said, he, Mr. Geis, is assuming that everybody else is gonna say, watch out for me, I'm dangerous. Well, watch out for me I'm dangerous is not the standard of care for an overtaking — for an overtaking motorist
. . . .
But, in any case, all I'm trying to say is that I'm trying to find fault on her part and I can't. And the reason why is because we can't assume that she knew what Ms. McIlwain knew. She had no way of knowing that vehicle was gonna turn. No way. And he had no way of protecting against a vehicle passing. In other words, given the lengths that he testified of how long the vehicle was, if he could have seen beyond the tires, then he wouldn't have turned or he would have stopped before he hit her. But, his problem was his truck wasn't rigged right, because, he couldn't see behind the obstruction that he knew was behind him. No victim fault.
Under the manifest error standard, even if we felt our own evaluation of the evidence was more reasonable, we cannot reverse the trial court's allocation of fault if they are, in fact, reasonable. Lewis v. State through Dep't of Transp. and Dev., 04-2370 (La. 04/21/95), 654 So.2d 311. After a thorough review of the record, we cannot say the trial court's findings of fault are manifestly erroneous. The testimony of the witnesses is not so contradicted by objective or documentary evidence and is not so internally inconsistent that a reasonable fact finder is compelled to disbelieve a particular witness or the reasonable inferences to be drawn from a particular witness' testimony. Therefore, the record as a whole permitted the trial court jury to reach any number of reasonable conclusions concerning fault; and therefore, we cannot say that the allocation of fault as determined by the trial court was beyond its broad discretion. Accordingly, we find no merit in the assignment of error regarding the allocation of fault.
II. Damages.
This court, in Guillot v. Doe, 03-1754, pp. 5-6 (La.App. 3 Cir. 6/30/04), 879 So.2d 374, at 379-80 (footnotes omitted; alteration in original), discussed the correct procedure for reviewing damage awards:
An appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion.
Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, "[i]t 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 the appellate court should increase or reduce the award."
We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. "The primary considerations in assessing damages are the severity and duration of the injured party's pain and suffering."
It is well settled that a defendant's liability for damages is not mitigated by the fact that a plaintiff's pre-existing physical infirmity was responsible in part for the consequences of the injury. A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70. When the defendant's tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation. Lasha v. Olin Corp., 625 So.2d 1002 (La. 1993).
Defendants contend the trial court erred in rendering an award of general damages in the amount of $50,000.00. They argue Mrs. Plunkett suffered only an aggravation of her pre-existing conditions which resolved in approximately three months.
The medical testimony established that Mrs. Plunkett was an obese female with significant degenerative disc disease due to arthritis that predated the accident. Dr. Sirikul's post-accident diagnosis was trauma to the cervical spine, right arm and shoulder, which resulted in an aggravation of arthritis of the neck, dorsal spine, lumbar spine and right shoulder. Dr. Sirikul believed, although the accident did not cause the degenerative disc disease, it aggravated Mrs. Plunkett's pain and suffering. He also stated that Mrs. Plunkett, for the first time, began complaining of headaches after the accident. Dr. Sirikul concluded that the aggravation caused by the accident lasted "maybe three months or longer."
Dr. Walter Creel, a chiropractor who treated Mrs. Plunkett, concurred with Dr. Sirikul's opinion that Mrs. Plunkett had pre-existing medical conditions that were aggravated by the subject accident. Although Dr. Creel treated Mrs. Plunkett before the subject accident, he noted that the frequency of her treatments increased in number following the accident. At the time of trial, Mrs. Plunkett was still undergoing treatments with Dr. Creel and taking daily medication to alleviate her spasms and pain.
The trial court, in rendering its general damage award, acknowledged that Mrs. Plunkett had significant medical issues before the accident. However, it believed these problems were significantly exacerbated due to the accident, and was satisfied from the testimony that she would continue to suffer pain for the remainder of her life. The court gave the following reasons for rendering its award:
Mrs. Plunkett is Seventy (70) years old this month. The average life expectancy for a person of this age is 8.48 years. (LSA-R.S. 47:2405), This is equivalent to another one hundred two (102) months. Forty-eight months had passed since the accident. It is expected that her pain will be one hundred fifty (150) months total duration. The Court thinks that $333.33 per month for 150 months is a reasonable pain and suffering award. This is only approximately $11.00 per day, for each day that she will experience pain for the rest of her life as a result of the aggravation of her pre-existing injuries, this will total $50,000.00.
In the instant case, we have closely reviewed the record to determine whether the court's award of damages was so excessive that it constituted an abuse of discretion. 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 the appellate court should increase or reduce the award." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1118, 114 S.Ct. 1059 (1994). After considering the particular injuries to this particular plaintiff, we find that $50,000.00, although at the high end of the appropriate range, is not an abuse of the trier of fact's "vast" discretion in the award of damages. Therefore, we will not disturb the award of general damages.
We also find no merit in Defendants' argument that the trial court erred in awarding medical expenses for treatment by Dr. Sirikul for certain visits after December 3, 2003, because Ms. Plunkett made no complaint to him during those visits of accident related symptoms. The trial court specifically found Dr. Sirikul, in his deposition, stated that during the earlier visits Mrs. Plunkett made complaints related to injuries sustained in the subject accident.
III. Interest.
Mrs. Plunkett answered the appeal and argues the trial court erred in awarding judicial interest from the date of judgment rather than from the date of judicial demand. We agree. Legal interest on judgments for damages in tort cases is by operation of law. La.R.S. 13:4203 provides that "[l]egal interest shall attach from date of judicial demand, on all judgments, sounding in damages, "ex delicto", which may be rendered by any of the courts. The Louisiana Supreme Court in Edwards v. Daugherty, 03-2103 (La. 10/1/04), 883 So.2d 932, 947, noted "that legal interest runs from the plaintiff's first judicial claim against any party responsible for a single tortious act. All liability carriers owe interest on judgments in tort cases, up to their policy limits, from the date of judicial demand." Thus, we amend the trial court's judgment to provide that legal interest runs from the date of judicial demand.
DECREE
For the foregoing reasons, we amend the award of legal interest to reflect interest from the date of judicial demand. The judgment is affirmed in all other respects. Costs of this appeal are assessed to defendants/appellants.
AFFIRMED, AS AMENDED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.