Coleman v. Lehman, Civ. A. No. EC 85-226-GD-D.

• Decision Date: 10 November 1986
• Docket Number: Civ. A. No. EC 85-226-GD-D.
• Citation: 649 F. Supp. 363
• Parties: Luella COLEMAN, Plaintiff, v. Byron LEHMAN, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

649 F. Supp. 363

Luella COLEMAN, Plaintiff, v. Byron LEHMAN, Defendant.

Civ. A. No. EC 85-226-GD-D.

United States District Court, N.D. Mississippi, E.D.

November 10, 1986.

Kenneth Mayfield, Tupelo, Miss., for plaintiff.

Richard C. Coker, Oxford, Miss., for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

The plaintiff in the instant action, Luella Coleman, was struck by the defendant's car as she was leaving work on June 24, 1981. She has brought the instant action alleging that the negligence of the defendant, Byron Lehman, was the proximate cause of the injuries she sustained as a result of the collision. Subsequent to a bench trial, the court proceeds to make its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Facts

At the time of the accident the plaintiff was a resident of Tupelo, Mississippi and was employed at Aircap Manufacturing Company, located in Verona, Mississippi. The plaintiff, a 43 year old female, was employed as a drill press operator and made $4.90 an hour. The defendant, a Kansas City, Kansas resident, was in Mississippi visiting relatives. The defendant's brother and father are employed at Aircap.

On June 24, 1981, at about 3:30 p.m., the defendant had been visiting his brother and father at Aircap and was in the process of exiting the employee parking lot in a metallic colored Mercury owned by his father. At the same time the plaintiff, who had just completed her shift at Aircap, was in the process of exiting the building to go home. After leaving the building, but while still inside of the Aircap premises fence, the plaintiff had a brief conversation with Ralph Graham, another Aircap employee. Graham was sitting in a chair on the east side of the guard shack. The plaintiff passed by Graham on her way to the parking lot. An exchange of words took place between Graham and the plaintiff, and Graham motioned as if he were getting up to chase the plaintiff. This motion caused the plaintiff to run until she got to the southwest corner of the guard station. At this point the plaintiff had to make approximately a 90 degree turn and go through a gate that was approximately four feet wide. Johnny McCarthy, another Aircap employee, saw the exchange between the plaintiff and Graham and saw the plaintiff run to the corner of the guard shack. He stated that he could not see whether the plaintiff continued to run after she went around the corner of the guard shack. Mary Lyles, another Aircap employee waiting for her ride, stated that she was on the southwest corner of the guard shack looking toward the highway for her husband. She stated that the plaintiff called out to her causing her to look up at the plaintiff. She said that at that time the plaintiff was not running. From this testimony and from the plaintiff's testimony the court finds that although the plaintiff was running when she got to the corner of the guard shack she probably had stopped running when she went through the gate and proceeded into the employee's parking lot.

The plaintiff testified that as she approached the parking lot she noticed the defendant's car as it was backing out of the parking place. Prior to crossing the lot, she held up her hand motioning to the defendant that she was going to cross the lot. The plaintiff stated that when she held up her hand the defendant's car was facing her but was not moving. She then proceeded to cross the lot without looking back up at the defendant's car. The plaintiff stated that she did not know whether the defendant was aware of her presence, but she thought that he would see her as she motioned for him to stop and as she proceeded to cross the lot. The plaintiff stated that the next time she looked the defendant's car was right up on her and that it was too late for her to dodge the car.

The defendant testified that he was proceeding very slowly after backing out of his parking space so that he could clear the car beside him. Lehman was parked in the third parking space east of the guard shack. He travelled only the width of two parking spaces prior to impacting the plaintiff. He stated that he did not see the plaintiff motion that she was crossing the lot and did not see her until just prior to impact. At the time that the defendant first saw the plaintiff she was approximately at the middle of his car. The defendant stated that he braked immediately but that it was too late to avoid striking the plaintiff. The car slid a very short distance after the defendant applied his brakes. The plaintiff was struck by the right front portion of the defendant's car and fell to the ground.

The defendant took the plaintiff to the hospital where the plaintiff was treated and released. The plaintiff testified that she went to work the next day but that the pain made it too difficult for her to work. The following day, she went back to see Dr. A.S. Kellum, the doctor that had treated her in the emergency room. She was put in the hospital for several days and was given pain medication, but the pain in her neck and back were not eliminated. The plaintiff was then referred to Dr. Tom McDonald, a neurosurgeon. Dr. McDonald put the plaintiff back in the hospital and found that the plaintiff had a broken vertebrae in her neck. Later, the plaintiff was readmitted to the hospital and a fusion of the bone in her neck was performed. A bone was taken from her hip to make the fusion.

The plaintiff later went back to work for a period of eight months. During this time, however, the plaintiff had to miss work occasionally to go to physical therapy and to other doctor appointments. In March 1982 the plaintiff had to return to the hospital because the bone that had been fused in her neck had slipped. The bone had to be refused by Dr. McDonald. The plaintiff had several other stays in the hospital including one for a CT scan in 1984 by Dr. McFadden.

The plaintiff was also treated by Dr. James T. Robinson, a neurosurgeon in Memphis, Tennessee. Dr. Robinson, due to the plaintiff's consistent complaints, hospitalized her on two occasions. On September 21, 1983, he scheduled surgery and intended to perform laminectomies at the L-4, L-5 and L-5, S-1 vertebrae spaces. Robinson's deposition reveals that upon examining the vertebrae during surgery he was of the opinion that the disks were not ruptured, but he found a narrowing of the foramina at the L-5, S-1 nerve root pathway. He stated that the narrowed foramina were congenital defects that were aggravated by the accident in June of 1981. He enlarged the nerve root pathway by performing foraminotomies, or a procedure to widen the foramina, and in his opinion this should have eliminated most of the plaintiff's back pain. Dr. Robinson testified that the plaintiff had a 10 percent disability to the body as a whole due to her back problems. He was of the opinion that she could return to work and could perform any task except continual lifting of objects weighing more than 30 to 50 pounds.

The plaintiff was also admitted to Magnolia Hospital in Corinth, Mississippi by Dr. Brown for injections in her back. In all, the plaintiff has been hospitalized some seven times. She testified that she has not been able to work since 1983. The plaintiff testified that she has been in constant pain since the time of the accident and that she now takes pain medication twice a day. She also stated that she has not attempted to work anywhere else because she cannot bear the neck and back pain.

The plaintiff testified that to date she has incurred a loss of income of $45,900 as a result of not being able to work because of the accident. She receives social security disability benefits of $276 per month and $56 for the two minor children she still has at home.

The plaintiff and her husband both testified that the plaintiff's constant pain has caused her to become very irritable, and she has difficulty moving around and getting out of bed. The plaintiff's husband testified further that the plaintiff's pain has caused her to be unable to participate in activities with her six children and four grandchildren. The plaintiff has four scars on her body from the surgeries that she has undergone and has a knot on the back of her neck caused by the fusion of the bone.

The plaintiff's medical bills have had an adverse impact on the Coleman's credit worthiness. Some of the medical bills were not paid promptly due to the plaintiff's lack of financial resources. This resulted in the bills being sent to credit collectors and lawyers. The plaintiff has incurred medical expenses to date of approximately $26,426.65.

Conclusions of Law

A motorist in Mississippi has the duty to use the amount of care that a reasonably prudent and capable driver would use under the same or similar circumstances. Williams v. Moses, 234 Miss. 453, 106 So.2d 45, 48 (1958). This duty includes the responsibilities of keeping alert, keeping a proper lookout ahead of the vehicle, and anticipating the presence of other persons in the area. Id. See also Coker v. 5-2 Taxi Service, 211 Miss. 820, 52 So.2d 356, 357, suggestion of error overruled, 211 Miss. 820, 52 So.2d 835 (1951).

Where a motorist fails to see what a reasonably prudent motorist could have seen by exercising due care, and because of this failure he is unable to avoid an accident, the motorist may be found to be negligent. Parkins v. Brown, 241 F.2d 367, 369 (5th Cir.1957). See also Barkley v. Miller Transporters, Inc., 450 So.2d 416, 419 (Miss.1984) (motorist has duty to see that which is in plain view). In the instant case, the defendant had a duty to maintain a reasonable lookout while he was driving the car for persons such as the plaintiff who might appear in the line to be traversed. Thompson v. Riverside Chemical Co., 416 F.Supp. 35, 38 (N.D.Miss.1976) (citing various Mississippi cases). The defendant testified that he could not recall any vehicle or other obstructions that would have...