LeBlanc v. Montgomery Ward & Co., Inc.

• Decision Date: 13 October 1982
• Docket Number: No. 82-200,82-200
• Citation: LeBlanc v. Montgomery Ward & Co., Inc., 420 So.2d 1320 (La. App. 1982)
• Parties: Rolland LeBLANC, et ux., Plaintiffs-Appellees, v. MONTGOMERY WARD & COMPANY, INC., Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 1320

420 So.2d 1320

Rolland LeBLANC, et ux., Plaintiffs-Appellees, v.MONTGOMERY WARD & COMPANY, INC., Defendant-Appellant.

No. 82-200.

Court of Appeal of Louisiana Third Circuit.

Oct. 13, 1982.

Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio, Lake Charles, for defendant-appellant.

Robert W. Thomas, Lake Charles, for plaintiffs-appellees.

Before DOMENGEAUX, DOUCET and YELVERTON, JJ.

DOUCET, Judge.

This is a slip and fall--premises liability case wherein the only issue presented on appeal is damages.Were they established?If so, was the trial court's award clearly excessive?

On Saturday, June 14, 1980, Mrs. Gertrude LeBlanc was shopping in the Prien Lake Mall in Lake Charles, La., whereat she decided to look at some linens on display during defendant's "June White Sale".As she walked down one of the aisles, she slipped on an open mesh wire rack laying on the floor and fell to the ground.

Immediately after the accident a representative of defendant-appellant, Montgomery Ward & Co., Inc., arrived at the scene and offered to take Mrs. LeBlanc to the hospital for examination and treatment if necessary.Although Mrs. LeBlanc complained of pain, she declined medical assistance, prefering to go home.

On the following Monday, June 16, 1980, a representative of Montgomery Ward called to inquire of the customer's condition whereupon she again complained of pain and, accordingly, was referred to Dr. Ed Nagem, a local surgeon and company physician for Montgomery Ward.On the following day plaintiff reported to Dr. Nagem who saw her then and again one week later.

Subsequently, on August 26, 1980, Mrs. LeBlanc visited another physician, Dr. Gerald Litel, a neurosurgeon, due to the fact that her pain persisted.

Thereafter, plaintiff consulted Dr. George P. Schneider, an orthopedic surgeon of Lake Charles who treated her from December 1980, until the time of trial.On November 16, 1981, he had her hospitalized for further testing and she remained in the hospital until November 20, 1981.Dr. Schneider's conclusion was that plaintiff was suffering from a spraining injury to her lower back which was superimposed upon a rather advanced degenerative process with secondary nerve root irritation into the lower left extremity.In his opinion, the fall was responsible for rendering the degenerative arthritic condition symptomatic.

At the request of the attorney for Montgomery Ward, Mrs. LeBlanc was seen again by Dr. Litel on December 14, 1981.His opinion was that there was no neurologic injury or disease.

At trial on the merits, the trial court heard the testimony of Drs. Litel, Nagem, and Schneider as well as that of numerous lay witnesses.At the conclusion of trial, on December 22, 1981, the trial judge ruled that Montgomery Ward was negligent, that Mrs. LeBlanc was free of negligence, and he awarded the sum of $5,000 to Mr. LeBlanc, representing past and future medical expenses, and he awarded plaintiff the sum of $45,000.00, representing damages for pain and suffering.

Thereafter defendant filed an application for new trial limited to reargument only as to quantum.This reargument was made, however, the court adhered to its original position.From that judgment defendant has appealed, maintaining that said awards are excessive.

Our review of the record reveals that plaintiff indeed suffers serious back problems.Although part of her problems may be attributable in part to an arthritic condition present prior to the accident, it is well established that aggravation of a pre-existing condition is compensable.Appellant's contention that plaintiff did not establish the existence of damages is without merit.While her doctors differ as to the source of her problems and extent thereof, the trial judge apparently assigned greater weight to the testimony of the treating physician, Dr. Schneider, an orthopedic surgeon, whose testimony was most favorable to plaintiff.Assessment of the credibility of the witnesses is clearly the province of the trier of fact and his judgment will not be disturbed absent manifest error.Canter v. Koehring, 283 So.2d 716(La.1973).We find no manifest error.

Dr. Schneider, who agreed with the other doctors that plaintiff sustained a back sprain superimposed upon a previously existing degenerative arthritic condition, testified that, in his opinion, Mrs. LeBlanc will continue to have back problems if she does not have surgery.Surgery would involve approximately 10 days hospitalization, require plaintiff's placement in a body cast for eight to ten weeks, then rehospitalization would be required.Thereafter, a chair brace would be required for a period of six months to a year.The cost for the surgeon's fee alone was estimated by Dr. Schneider to be $2,500.00.In all probability, additional medical expenses and costs of medication would be incurred.

The standard of appellate review vis-a-vis damage awards was set forth in Reck...