Guillory v. Avondale Shipyards, Inc.

• Decision Date: 27 February 1984
• Docket Number: No. 83-C-1570,83-C-1570
• Citation: 448 So.2d 1281
• Parties: Sallie Ann GUILLORY v. AVONDALE SHIPYARDS, INC. and the Travelers Insurance Company.
• Court: Louisiana Supreme Court

Page 1281

448 So.2d 1281

Sallie Ann GUILLORY v.AVONDALE SHIPYARDS, INC. and the Travelers Insurance Company.

No. 83-C-1570.

Supreme Court of Louisiana.

Feb. 27, 1984.

Michael J. Lamanie, Samanie & Barnes, Houma, Felix A. DeJean, III, Opelousas, for applicants.

Joseph Reilly, Henderson, Hanemann & Morris, Houma, for respondents.

WATSON, Justice.

The issue is whether the Court of Appeal correctly decided that plaintiff was entitled to an award of $203,359.89 after a jury's prior determination that the quantum of damages was $398,859.89.

FACTS

Plaintiff, Sallie Ann Guillory, was a passenger on a motorcycle traveling in an eastbound direction on Louisiana Highway 20, which was struck by a truck owned by Avondale Shipyards, Inc., and driven by an Avondale employee.At trial, plaintiff was granted a directed verdict on the issue of liability and a jury awarded her damages of $398,859.89.After the Court of Appeal reversed the directed verdict in favor of plaintiff, ¹ a writ was granted.The judgment was reversed and the case remanded to the Court of Appeal to decide on the record.²Subsequently, the remand was "clarified" by an order stating that the directed verdict on liability was a correct result.³

After remand, the Court of Appeal determined that Avondale's employee, Clifford Collins, was negligent and that his negligence caused plaintiff's injuries resulting in liability for Collins' employer, Avondale Shipyards, Inc., and its insurer, The Travelers Insurance Company.⁴Thus, the issue of liability is settled.The trial court, this court and the Court of Appeals have all determined the issue of liability in favor of plaintiff.

In answers to special interrogatories, the jury decided that plaintiff was entitled to damages as follows:

Past physical pain and
                  suffering                $  50,000.00
                Future pain and suffering     50,000.00
                Past mental anguish           25,000.00
                Future menal anguish          25,000.00
                Disability                    50,000.00
                Disfigurement                 50,000.00
                Past medical expenses         11,359.89
                Future medical expenses       75,000.00
                Past loss of earnings          2,500.00
                Future loss of earnings       60,000.00
                                           ------------
                  TOTAL                    $ 398,859.89
                

The Court of Appeal fixed damages as follows:

General damages          $ 175,000.00
                Past medical expenses       11,359.89
                Future medical expenses     15,000.00
                Loss of past wages           2,000.00
                                         ------------
                  TOTAL                  $ 203,359.89
                

Judge Watkins dissented on the ground that Sallie Guillory should have been given an award for future loss of earnings.

The question is whether the Court of Appeal erred in reducing the jury's award by $195,500.In reviewing the jury's verdict, the Court of Appeal should have determined whether the jury's factual findings on plaintiff's damages represented an abuse of its "much discretion".LSA-C.C. art. 1934(3);Coco v. Winston Industries, Inc., 341 So.2d 332(La., 1977).

The evidence on damages can be summarized as follows:

Sallie Ann Guillory was twenty-two years of age at the time of the accident, unmarried and unemployed.Her primary injury was to her right leg, although she also had multiple abrasions.Her left ear was split open and had to be stitched and she had deep cuts on her hand and wrist.She was unconscious after the accident and woke up on the side of the road with her leg hurting very badly.She was in the hospital for seven weeks.During her hospitalization, the doctors had difficulty in controlling her pain.

Dr. Ian John Reynolds, an expert in orthopaedic surgery, testified that Ms. Guillory sustained multiple fractures in her right knee and tibia with some bone being crushed.Since a burned area on the right knee precluded immediate surgery, she was placed in traction for about three weeks while the burned area was treated.After a hole was drilled in the ankle, a metal rod was placed through the distal part of the tibia to keep the knee stabilized.Ms. Guillory was unable to move while in kick traction from September 14 until October 9.She had a scar from the ankle pin which she displayed to the jury.

The third degree burn required many debridements of dead skin.According to her testimony, the debridement of the burn was very painful.The accident occurred September 14, 1979, and surgery was performed on the right leg on October 9, 1979.When the knee surgery was performed, Ms. Guillory was advised that the burn had not completely healed and there was a possibility of infection spreading into the bone but it was necessary to have the surgery before the knee started mending.A piece of bone was removed from the hip to graft into the knee.A sixteen millimeter screw was placed in the knee area to hold together the fragments.The screw will probably remain as a permanent implant.She remained in a rigid full leg cast for six weeks.On November 28, hinges were put in the cast to allow some motion in the knee.The cast was removed on January 7, four months after the fracture.

On October 25, Ms. Guillory's burn was grafted with tissue from her left thigh.On February 4, she was allowed to walk.On March 5, 1980, she complained of pain in her swollen right ankle; x-rays showed osteoporosis or some atrophy of the bone in the right ankle.The diagnosis was a sprained right knee and a soft tissue irritation of the right ankle.On April 9, she was again complaining of pain in the right ankle, and had some instability in the knee joint.On June 9, she had minimal symptoms in the right knee, but still complained of right ankle pain.

Ms. Guillory has lost thirty to forty degrees of flexion in the right knee and has a twenty-one percent permanent impairment of her entire right leg.She will have a tendency to develop arthritis and may need further surgery in order to either alleviate the pain or change some of the surface of the tibia.In Dr. Reynolds' expert opinion, people who have sustained fractures as bad as this one usually develop degenerative arthritis and Ms. Guillory will probably develop an arthritic condition with associated problems of pain, swelling, and limitation of motion.She also may develop instability in the joint.Sallie Guillory limps and she cannot anticipate further improvement in the leg.Dr. Reynolds recommended against heavy labor or lifting over twenty-five pounds and testified that Ms. Guillory would have trouble maneuvering because she has some limitation of motion and stiffness.

Dr. Kenneth M. Dieffenbach, a board certified plastic surgeon, saw Sallie Guillory on May 8, 1980, when she complained about the appearance and function of her right knee.She had been wearing pants to cover the appearance of the knee and hoped that further surgery would enable her to wear skirts.The original skin graft only covered about half the burned area and the remainder was scar tissue.The original skin graft was of a type called a mesh graft in which the donor skin heals with a scale like appearance.In addition to the scaly skin graft area, there was another area where the graft did not take.Over the kneecap there was a thin layer of scar tissue without any insulating fat on top of the bone.In addition to the scar from the injury, there was a poorly healed orthopaedic scar which Dr. Dieffenbach described as having a poor stigma of stitches.It was impossible to excise the orthopaedic scar without robbing the knee of more tissue and putting further tension on the graft.

Although Dr. Dieffenbach could not obliterate the scarring, he felt that he could improve the leg's appearance.He and Ms. Guillory elected to use the thigh/buttocks area for the donor tissue, which left another scar.The surgery was scheduled July 10.A rather thick piece of skin was taken from Sallie Guillory's left upper thigh and buttocks.She spent about three hours in the operating room under full anesthesia for this surgery and stayed in the hospital approximately five days.The donor site was described as a very painful area, particularly uncomfortable because it was on the buttocks.According to Dr. Dieffenbach "donor sites hurt notoriously"(Tr. 329).It took approximately three weeks for this area to heal satisfactorily with Ms. Guillory being unable to bathe, shower or sit for that period.The discomfort was described as essentially lasting ten to twelve days, with some sensitivity after that time.The graft was uncovered ten days after surgery, but the knee remained in a splint for another three weeks.Over a year after the accident, Sallie Guillory was still wearing an ace bandage on the knee to keep pressure on the graft.Fifteen percent of the graft did not take; there was some pitting on the rest.

Dr. Dieffenbach was disappointed with the result of his surgery.As a result of the graft, Ms. Guillory has fifty percent better padding on the knee and a twenty percent better appearance.From a cosmetic viewpoint, he described the knee as eighty percent different from the other knee.Since the defect could not be covered with ordinary attire such as nylon stockings, he regarded the knee, esthetically, as one hundred percent different from the other knee.Functionally, the graft, coupled with the orthopaedic injury, will prevent Ms. Guillory from playing basketball, racketball, any contact sport, anything played on a hard floor, or anything requiring shorts.The knee is restricted in function and cannot be exposed to the sun or bruised.The grafted area will be darker in the summertime and lighter in the wintertime than the surrounding tissue.Sallie Guillory cannot do anything that might require a kneeling position.A protective pad would aggravate the graft.While the leg will never look good enough for a bathing suit, it may be possible with a double pair of stockings or support stockings for Sallie Guillory to wear dresses.Because the injury remains highly visible and Sallie...