Black v. Ebasco Services, Inc.

• Decision Date: 02 March 1982
• Docket Number: No. 14594,14594
• Citation: 411 So.2d 1159
• Parties: Thomas BLACK v. EBASCO SERVICES, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1159

411 So.2d 1159

Thomas BLACK v. EBASCO SERVICES, INC., et al.

No. 14594.

Court of Appeal of Louisiana, First Circuit.

March 2, 1982.

Rehearing Denied April 13, 1982.

Writ Denied May 28, 1982.

Kenneth L. Riche, Baton Rouge, for plaintiff-appellant Thomas Black.

Paul B. Deal, George E. Cain, Jr., New Orleans, for defendant-appellee Scaffolding & Erection Service, Inc., Ebasco Services, Inc., and Employers Cas. Co.

Esmond Phelps, II, Dodge Hobson, New Orleans, for defendant-intervenor Employers Nat. Ins. Co.

Before COVINGTON, COLE and WATKINS, JJ.

COLE, Judge.

On August 10, 1979, plaintiff-appellant, Thomas Black, filed suit seeking recovery for damages he sustained as a result of a fall from a scaffold during the course of his employment with Southern States Masonry & Equipment, Inc. (Southern States). Named as defendants therein were: 1) Ebasco Services, Incorporated (Ebasco), the general contractor of appellant's employer on the construction project on which appellant was injured; 2) Scaffolding Rental and Erection Service (Scaffolding Rental), a subcontractor of Ebasco, responsible for the erection and maintenance of all scaffolding used on the construction site; and 3) Employers Casualty Co., alleged by appellant to be the public liability insurer of Scaffolding Rental. ¹ Employers National Insurance Company (Employers National) intervened in this suit, as the workmen's compensation insurer of appellant's employer, Southern States, seeking a preference on any judgment rendered in favor of appellant to the extent of the benefits it had paid to him. Thereafter, appellant amended his petition to add Employers National, as the public liability insurer of Scaffolding Rental, as an additional defendant. ² Since it was the general contractor of appellant's employer, and thus a statutory employer of appellant under LSA-R.S. 23:1061, the suit against Ebasco was dismissed on an exception of no cause of action.

Trial of this matter was held on January 20 and 21, 1981. Judgment was rendered, for written reasons assigned, on February 18, 1981, in favor of appellant and against defendants, Scaffolding Rental and Employers National, in solido, in the amount of $170,922.53. (According to the written reasons for judgment, this amount represents $3,922.53 for stipulated medical expenses and $167,000.00 for pain and suffering, future medical expenses, and loss of past and future wages.) There was also judgment in favor of intervenor, Employers National, in accordance with the stipulation of the parties, in the amount of $19,432.53, to be paid out of the proceeds of appellant's judgment. Judgment was signed accordingly on March 10, 1981.

Appellant now appeals to this court complaining that the amount awarded to him was inadequate. The only issue, therefore, is that of quantum.

On December 11, 1978, appellant's ankle was injured when he fell from a work scaffold. He was immediately taken to the emergency room of St. Charles Hospital, and was then transferred to Our Lady of the Lake Hospital in Baton Rouge, where his ankle was operated on that same day. Two metal screws and two pins, which are still in place in his ankle, were inserted during this operation. Appellant was released from the hospital on December 16, 1978.

Appellant's injuries consisted of a comminuted fracture with medial dislocation of the right talus (ankle joint), a comminuted fracture of the medial malleolus of the right ankle, and a chip fracture of the medial aspect of the lateral malleolus of the right ankle. By far, the most serious of these injuries was the dislocated talus. The medical evidence in the record indicates this type of injury is very severe and extremely slow to heal. This is evident from the fact that, at the time of the trial, over two years after the accident, his doctor felt it was too early to determine appellant's ultimate prognosis. Appellant was still under medical treatment at the time of the trial.

It was necessary for appellant to wear a cast for six months and to use crutches from the time of the accident until September 1980, at which time his doctor advised him he could dispense with the crutches except when walking long distances. Appellant testified his ankle often swelled, causing him to experience bad pain. This pain was particularly severe for the six months his foot was in the cast. He testified he continues to suffer some pain and swelling, particularly when he does much walking. Appellant was prescribed pain medication from time to time when the pain was most severe and took aspirins the rest of the time. Additionally, appellant testified his injury prevented him from pursuing the recreational activities, such as hunting and fishing, which he previously enjoyed.

Although no percentage of disability was assigned, the medical evidence indicates, even with the maximum recovery possible under the circumstances, appellant's ankle will never be normal. He will always suffer from some limitation of motion in his foot. He will also be unable to walk on uneven surfaces or do any climbing. Additionally, the medical evidence indicates he has a significantly increased chance of developing arthritis due to his injury. The evidence also shows future surgery will be needed to remove the metal screws placed in appellant's ankle. Although appellant's progress has been good for this type of injury, there is always the danger his ankle will not heal properly and the talus will collapse, having disastrous results and requiring further surgery.

Appellant, who was fifty years old at the time, has been unemployed since the accident. He has been drawing social security benefits of approximately $600.00 per month during this period. He also received workmen's compensation benefits totaling $15,510.00 during this period.

Prior to his injury, appellant was employed as a brick mason foreman. He has experience in no field other than brick masonry. His wages for the three years prior to his accident (1976, 1977, and 1978) were, respectively, $18,196.00, $16,882.00 and $18,087.00. He would have earned approximately $1,380.00 more in 1978 had he not been injured on December 11th. Actual earnings for 1978, the last full year prior to the injury, would, therefore, have been $19,467.00.

Dr. Jan Warren Duggar, an economist appearing on appellant's behalf, was the only witness who testified as to appellant's economic loss. He estimated appellant's loss of past wages and fringe benefits to be in the amount of $61,500.00. His loss of future wages and fringe benefits, minus a minimum wage differential, was estimated to be in the amount of $316,017.00. Duggar included group insurance and pension payments, which appellant's employer would have paid directly into a union fund, in his estimates of appellant's loss of wages. Duggar's calculations were based upon a 12.6 year work life expectancy, a 5% discount rate, and a 5.8% productivity and wage increase.

On cross-examination of Duggar, it was pointed out by appellee that, although Duggar's figures were based upon a 40 hour week, 52 weeks per year, appellant, in fact, did not work this full amount of time. In his brief, appellant acknowledges this fact by submitting that all of Duggar's figures be reduced by 13%, since appellant's work record reflects an 87% employment activity. Appellee also pointed out that, although appellant's hourly wage had increased significantly from 1976 to 1978, his annual salary had not. Duggar acknowledged this fact probably indicated appellant had worked less during the latter two years, further showing the irregularity of his work activity.

The medical evidence supports the trial judge's conclusion that appellant will most likely never be able to return to work in the field of brick masonry. The trial judge was of the opinion he should be able to return to work in some less physical job.

Appellant has set forth five specifications of error, all relating to quantum. Appellant argues the trial judge failed to award sufficient damages for 1) past and future economic loss, 2) past and future physical pain, suffering, anguish and anxiety and 3) permanent disability; and that he failed to award any damages for 4) loss of plaintiff's ability to engage in his occupation and 5) plaintiff's fear that his condition might worsen.

The trier of fact is afforded broad discretion in making an award of general damages. La.C.C. art. 1934(3). Only when the record reveals a clear abuse of this discretion is an appellate court justified in disturbing a trial court award. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); and Autin v. Allstate Insurance Company, 402 So.2d 219 (La.App. 1st Cir. 1981). In Bitoun, supra, the Louisiana Supreme Court said, at page 279:

"... The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down." (Emphasis added.)

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Louisiana Supreme Court set out the standard to be followed by appellate courts in reviewing trial court damage awards. The court said, at page 501:

"Thus, the initial inquiry must always be directed at whether the trier 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 ³ discretion,' La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review,...