94-758 La.App. 5 Cir. 5/30/95, Tartar v. Hymes

• Decision Date: 30 May 1995
• Citation: 656 So.2d 756
• Parties: 94-758 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 756

656 So.2d 756

94-758 La.App. 5 Cir. 5/30/95

Denman TARTAR v. Samuel HYMES, Sr., Louisiana Power & Light Company and ABC Insurance Company.

No. 94-CA-758.

Court of Appeal of Louisiana Fifth Circuit.

May 30, 1995.

Writ Denied Oct. 6, 1995.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for plaintiff/appellee, Denman Tartar.

Caleb H. Didriksen, Roberta Fret, Didriksen & Carbo, New Orleans, for defendants/appellants, Samuel Hymes, Sr. and Louisiana Power & Light Co.

Before BOWES, GAUDIN and GRISBAUM, JJ.

[94-758 La.App. 5 Cir. 1] BOWES, Judge.

The defendants, Samuel Hynes and Louisiana Power and Light Company, appeal from the judgment of the trial court finding them liable to plaintiff for damages sustained as a result of a traffic accident. We affirm.

On June 23, 1990 plaintiff, Denman Tartar, was involved in an automobile accident with Samuel Hynes, Sr., a Louisiana Power and Light Company ("LP & L") employee. At the time, Hynes was acting in the course and scope of his employment with LP & L. Hynes testified that he was travelling on West Cazqzu Street in Buras, Louisiana. He stopped at the stop sign located at the intersection of Plaquemines Highway 11. He did not see anything so he proceeded into the intersection where he struck [94-758 La.App. 5 Cir. 2] plaintiff's truck. Deputy Davis, who investigated the accident, determined that it was caused by Hynes' failure to yield at the stop sign.

Mr. Tartar initially sought treatment for back pain three days after the accident. He was treated by a series of doctors for over one year and ultimately underwent surgery consisting of a spinal fusion.

After a trial on the merits, the court found that plaintiff had proved, by a preponderance of the evidence, that defendant was at fault in the cause of the accident and that the accident caused plaintiff's back injury. The trial court awarded general damages of Two Hundred Fifty Thousand and No/100 ($250,000.00) Dollars and special damages of Thirty-Seven Thousand Seven Hundred Forty and 19/100 ($37,740.19) Dollars.

On appeal, defendants argue that the trial court erred in finding that the plaintiff proved that his back injury was caused by the accident and not by a pre-existing defect. The defendants also allege that the trial court erred in admitting evidence of plaintiff's medical bills into evidence. Defendants further argue that the award of damages is excessive.

ANALYSIS

Appellants do not dispute the finding that Mr. Hynes was at fault in the cause of the accident. The appellants contend in their first two assignments of error that the trial court erred in finding that the accident was the cause of Mr. Tartar's back problems, instead of finding that plaintiff had a pre-existing spinal defect which caused his back injury. [94-758 La.App. 5 Cir. 3] Whether an accident caused a person's injuries is a question of fact which should not be reversed on appeal in the absence of manifest error on the part of the trial court. Mart v. Hill, 505 So.2d 1120 (La.1987). One of the most recent expressions of the Louisiana Supreme Court regarding the applicable standard of review of cases of this type was set forth by the Louisiana Supreme Court in Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216, 220:

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this Court held that the court of appeal should not upset the factual findings of a trial court absent manifest error or unless clearly wrong. A proper review, therefore, cannot be "completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record established that the finding is not clearly wrong." Id. at 1333. More recently, regarding this constitutional appellate review of fact in civil cases, La. Const. art. 5, Sec. 10, we have had occasion to say in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), a case which involved the review of damages, that "the discretion vested in the trier of fact is 'great,' and even vast," and in Stobart v. State, 617 So.2d 880, 882-83 (La.1993), which involved the standard of review of findings of fact, a "court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong,' " and "where two permissible views of the evidence exists, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id. In each of these cases there was but a perpetuation of the principle set down in Arceneaux.

[94-758 La.App. 5 Cir. 4] Notwithstanding the Court's earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La.1993), it was not our purpose in that case to mandate that the trial court's factual determinations cannot ever, or hardly ever, be upset. Although deference to the factfinder should be accorded, the court of appeal, and the Louisiana Supreme Court, nonetheless have a constitutional duty to review facts. [Louisiana Constitution of 1974, article 5, Sec. 5(C) and 10(D) ] Of course, the reviewing court may not merely decide if it would have found the facts of the case differently. Rather, notwithstanding the belief that they might have decided it differently, the court of appeal should affirm the trial court where the latter's judgment is not clearly wrong or manifestly erroneous. Because the court of appeal has a constitutional function to perform, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support.

[Emphasis supplied].

In this case, Mr. Tartar alleged that the automobile accident of June 23, 1990 caused his back injury or aggravated a pre-existing asymptomatic back condition. In a tort action, plaintiff bears the burden of proving by a preponderance of the evidence both the injury and a causal connection between the injury and the tort. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). A plaintiff is aided in his burden of proof by the presumption set forth in Dabog v. Deris, 625 So.2d 492 (La.1993); Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977); and Housley v. Cerise, 579 So.2d 973 (La.1991) on rehearing:

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 [94-758 La.App. 5 Cir. 5] 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.

Furthermore, the Louisiana Supreme Court stated in Lasha v. Olin Corp., supra at 1005:

The defendant's liability for damages is not mitigated by the fact that the plaintiff's pre-existing physical infirmity was responsible in part for the consequences of the plaintiff's injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

The testimony in this matter established that at the time of trial plaintiff was 43 years old and that he owned several franchises/stores. Plaintiff admitted that he had a birth defect involving his lower spine (spondylolisthesis) in that he was missing one vertebrae. Prior to the accident, plaintiff's condition was asymptomatic: he had had no serious pain or difficulty with his back and he had never missed a day of work as a result of back pain. Prior to the accident, plaintiff worked sixty to seventy (60-70) hours and six to seven (6-7) days a week. Previous jobs had included carrying heavy equipment and climbing stairs.

After the accident, plaintiff suffered severe pain in his back and pain in his legs. He also had some problems with his bowels and with urination. He had to hire someone to manage his businesses. Furthermore, he could [94-758 La.App. 5 Cir. 6] no longer engage in physical activities such as hunting, fishing, waterskiing or playing ball with his teenage son.

Mr. Tartar further testified that he was treated by a succession of doctors for one year, during which time he was advised that surgery was necessary. Hoping to avoid surgery, Mr. Tartar ultimately sought treatment from Dr. Whitecloud, after seeing a television show in which Dr. Whitecloud stated that surgery was to be performed only as a last resort. However, Dr. Whitecloud also advised surgery and plaintiff eventually agreed.

Dr. Whitecloud, an orthopaedic surgeon, testified that he examined plaintiff and diagnosed spondylolisthesis, and slippage forward of the vertebrae. He performed a spinal fusion in April 1992. At the trial, Dr. Whitecloud testified that the results of the surgery were satisfactory and he also testified that he could not determine whether or not the trauma of the accident caused the injury.

Hospital records of examinations conducted on Mr. Tartar at Ochsner Hospital in 1981 and 1985 were introduced into evidence. Dr. Thomas Duncan, an orthopaedic surgeon, testified that he examined Mr. Tartar in 1981. At that time, Dr. Duncan observed that plaintiff's spinal column had a spondylolisthesis (bone defect) but it had no spondylolisthesis (an abnormal slippage of the bone).

[94-758 La.App. 5 Cir. 7] Dr. Marshall Cortez, an internist, testified that he examined plaintiff in 1985. At that time, plaintiff complained of back pain; however, since plaintiff was able to water ski and play football, he determined that the pain was not severe enough to warrant further study.

Dr. James Williams, an orthopaedic surgeon, examined plaintiff at the request of the defense. He reviewed the medical records and opined that the spondylolisthesis (the abnormal slippage) occurred between the ages of 10 and 20 and was present prior to the...