94-0903 La.App. 4 Cir. 12/15/94, Juneau v. Strawmyer

• Decision Date: 15 December 1994
• Citation: 647 So.2d 1294
• Parties: 94-0903 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1294

647 So.2d 1294

94-0903 La.App. 4 Cir. 12/15/94

Jean JUNEAU v. Craig STRAWMYER, et al.

No. 94-CA-0903.

Court of Appeal of Louisiana,

Fourth Circuit.

Dec. 15, 1994.

Michael D. Riley, Birdsall, Rodriguez & Kehoe, New Orleans, for plaintiff-appellant, Jean Juneau.

Timothy G. Schafer, Schafer & Schafer, New Orleans, for defendants-appellees, Craig Strawmyer, Quarles Drilling Co., and U.S. Fidelity & Guar. Ins. Co.

Claude D. Vasser, C. David Vasser, Jr., Vasser & Vasser, Metairie, for defendants-appellees, Craig Strawmyer and Farmers Ins. Co., Inc.

Before CIACCIO, LOBRANO and PLOTKIN, JJ.

[94-0903 La.App. 4 Cir. 1] PLOTKIN, Judge.

This case involves three issues: (1) whether the presumption of causation in fact established in Housley v. Cerise, 579 So.2d 973 (La.1993) applies to the facts; (2) whether the trial court properly admitted evidence of the plaintiff's blood alcohol level at the time of a subsequent accident; and (3) whether the quantum award is sufficient. We hold that Housley is not applicable, that the trial court properly admitted evidence of the plaintiff's blood alcohol level, and that the quantum award is not manifestly erroneous. Thus, we affirm.

In this case, plaintiff, Jean Juneau, appeals a jury award of $10,569.80 in his favor. Defendants, Craig Strawmyer, Quarles Drilling Co., United States Fidelity & Guaranty Insurance Co., and Farmers Insurance Company, Inc., have not appealed the jury verdict or the judgment entered.

FACTS

On March 8, 1989, plaintiff, while stopped at a red light near the Superdome, was rear-ended by defendant, Craig Strawmyer, who was driving a rented car. According to Mr. Strawmyer's testimony, he was stopped at the red light when the light turned green. He lifted his foot from the brake, may have tapped the accelerator to get the car moving, and [94-0903 La.App. 4 Cir. 2] went forward about five or ten feet, when he made contact with the rear of plaintiff's car. As a result of this accident, plaintiff eventually brought this suit for personal injuries. ¹

According to plaintiff, the principal injury he sustained as a result of this accident was to his back. He contends that a July, 1991, discectomy and bone fusion at L4-5 was the proximate result of defendants' negligence. In response, defendants argue that plaintiff had pre-existing back injuries and that those injuries eventually necessitated the discectomy and bone fusion. At trial, defendants established that plaintiff had suffered a work-related injury at L4-5 in 1984. As a result of this injury, in 1985 plaintiff underwent chemonucleosis via a chemopapayne injection in an effort to shrink the herniated disc so that it no longer impinged on his nerve roots. Although the results of the chemopapayne injection were disputed at trial, evidence showed that plaintiff subsequently underwent a laminectomy at L5-S1 in 1986. During the laminectomy, which was performed by Dr. Michael Carey, a neurosurgeon, Dr. Carey palpated plaintiff's L4-5 disc and, because he found it to be nonbulging at that time, no surgery was conducted at that level. However, Dr. Carey did admit on cross-examination that it was impossible for him to examine the lateral aspects of the disc and thus he could not attest to any potential abnormalities that might exist there.

Further complicating plaintiff's claim for damages is the fact that on April 13, 1989, a little more than a month after the accident giving rise to this suit, plaintiff was involved in a one-car accident in Bay St. Louis, Mississippi. According to plaintiff's testimony during his case-in-chief, he swerved to avoid an oncoming car and ran his truck off the road and into a ditch. On cross-examination, he denied losing consciousness or being intoxicated, although he did admit that he had drank "two beers." During their case-in-chief, defendants called Dr. Bertin Chevis, who treated plaintiff in the hospital for injuries sustained in the April 13th accident. Dr. Chevis testified, through deposition, that plaintiff stated he had been drinking, fell asleep at the wheel of his car, and ran it into a ditch. According to Dr. Chevis, plaintiff indicated that his car had overturned a number of times and that he had been "out" for [94-0903 La.App. 4 Cir. 3] about 45 minutes. A blood test conducted at the emergency room revealed that plaintiff's blood-alcohol level was .169. Plaintiff objected to Dr. Chevis' testimony concerning his blood alcohol level, saying that it was unduly prejudicial. The trial court denied plaintiff's pre-trial Motion in Limine, overruled his renewed objections at trial, and permitted Dr. Chevis' deposition testimony to be heard by the jury with slight modifications.

The jury ultimately returned a verdict in favor of plaintiff. It awarded him $10,569.80 in damages in globo, which apparently represents $569.80 for property damage to plaintiff's car ² and $10,000 in general damages. Plaintiff has appealed that verdict.

ISSUES

Plaintiff assigns three errors on this appeal:

1. The trial court erred in refusing to give a jury charge under Housley v. Cerise, 579 So.2d 973 (La.1991), in which the Louisiana Supreme Court held that in a delictual action, an injury to the plaintiff is presumed to have resulted from an accident if before the accident the plaintiff was in good health and after the accident symptoms of the injury appeared.

2. The trial court erred in denying plaintiff's Motion in Limine regarding evidence of plaintiff's blood alcohol level following the April 13, 1989 accident.

3. The jury erred in awarding plaintiff only $10,569.80 in damages.

Each of these assignments of error will be discussed in turn.

Presumption of Causation in Fact

The problem of proving causal responsibility can be complex and difficult. Louisiana has adopted the cause-in-fact inquiry as part of the duty-risk analysis. See Roberts v. Benoit, 586 So.2d 131, 140 (La.1991) . The cause-in-fact issue relates to the causal connection between the defendant's wrongful conduct and the plaintiff's injury. The generally-accepted [94-0903 La.App. 4 Cir. 4] test for making that inquiry is the but-for test, which asks whether the injury in the litigation would have occurred if the defendant had not engaged in the wrongful conduct in question.

However, the cause-in-fact inquiry does not operate to solve all causation issues. The Louisiana Supreme Court has noted this enigma. Brown v. Tesack, 566 So.2d 955, 957 (La.1990).

Generally, the plaintiff is normally required to prove by a preponderance of the evidence, more probably than not, that the injuries in the suit would not have occurred but for the defendant's wrongful conduct. However, Louisiana, like other jurisdictions, has modified and altered the causation rule, in limited situations. One device used by the Louisiana Supreme Court is the presumption of causation in fact.

The Housley Charge

In Housley v. Cerise, 579 So.2d 973 (La.1991), the Louisiana Supreme Court considered the case of a woman who was six-months pregnant and who fell down the steps in her townhouse. She and her husband brought suit against their landlords, claiming that the landlords were at fault in allowing an air conditioner to leak onto the floor and create a wet spot on which she slipped. Plaintiffs contended that the fall caused the wife's water bag to break, requiring her to undergo an emergency caesarean section four days later. As a result, their child was born three months premature and allegedly would suffer serious complications with her health for the remainder of her life.

The trial court ruled in plaintiffs' favor, but the court of appeal reversed. It held that the plaintiffs had failed to prove causation between the accident and the subsequent premature delivery of plaintiffs' child. On appeal, the supreme court reversed the court of appeal and reinstated the judgment of the trial court. After reviewing the medical evidence submitted at trial, the court stated that

"[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition."

[94-0903 La.App. 4 Cir. 5] Id. at 980 (quoting Lucas v. Insurance Co. of N. Am., 342 So.2d 591, 596 (La.1977)). In light of this standard, the court held that plaintiffs had carried their burden of proof vis-a-vis causation.

The presumption of causation relied on by the supreme court in Housley was not an original jurisprudential development. In fact, this presumption had first been fashioned by the supreme court some twenty-three years prior in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816, 827 (1968) (on rehearing). Additionally, the same presumption was relied on in Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973) and in Lucas. However, each of these cases arose in the context of a worker's compensation claim. Housley, then, represents an extension of this presumption into the realm of general delictual actions.

Even prior to Housley, some circuits had already applied this presumption of causation to cases outside of the worker's compensation context. Arceneaux v. Howard, 633 So.2d 207, 210 n. 1 (La.App. 1st Cir.1993), writ denied, 634 So.2d 833 (La.1994) (citing Simpson v. Caddo Parish School Board, 540 So.2d 997 (La.App.2d Cir.1989); Wisner v. Illinois Central Gulf Railroad, 537 So.2d 740 (La.App. 1st Cir.1988), writ denied, 540 So.2d 342 (La.1989); Heath v. Northgate Mall, Inc., 398 So.2d 132 (La.App. 3d Cir.1981)); see also Petersen v. State Farm Automobile Insurance Co., 543 So.2d 109 (La.App. 3d Cir.), writ denied 546 So.2d 1223 (La.1989); Davis v. Galilee Baptist Church, 486 So.2d 1021 (La.App.2d Cir.1986); Miller v....