Starnes v. Caddo Parish School Bd.

• Decision Date: 08 April 1992
• Docket Number: No. 23396-CA,23396-CA
• Citation: Starnes v. Caddo Parish School Bd., 598 So.2d 472 (La. App. 1992)
• Parties: 75 Ed. Law Rep. 649 Donald W. STARNES, et ux., Plaintiffs-Appellees, v. CADDO PARISH SCHOOL BOARD, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 472

598 So.2d 472

75 Ed. Law Rep. 649

Donald W. STARNES, et ux., Plaintiffs-Appellees, v. CADDO PARISH SCHOOL BOARD, et al., Defendants-Appellants.

No. 23396-CA.

Court of Appeal of Louisiana Second Circuit.

April 8, 1992.

Rountree, Cox, Guin & Blackman, Shreveport, for defendants-appellants.

Jack M. Bailey, Jr., Georgia P. Kosmitis, Shreveport, for plaintiffs-appellees.

Before SEXTON, LINDSAY and STEWART, JJ.

LINDSAY, Judge.

The Caddo Parish School Board appeals from a trial court judgment in favor of the plaintiff, Donald W. Starnes, who was initially injured in a collision between his car and a school bus. The trial court awarded damages to the plaintiff for injuries sustained in the initial accident. The court also made an award of damages for a subsequent injury which occurred during a volleyball game. However, the plaintiff's damages for the second injury were reduced by fifty percent due to his comparative fault. For the reasons assigned below, we amend the judgment of the trial court, and, as amended, affirm.

FACTS

On May 26, 1986, the plaintiff's car was stopped behind a school bus from which students were disembarking in a Shreveport suburb. The 26-year-old plaintiff was rolling up newspapers for delivery on his newspaper route when the bus backed up and hit his car. Although the plaintiff described his car as being knocked backwards a "couple" of car lengths, the bus driver and an independent witness described the collision as minor. Likewise, the investigating police officer categorized the damage to the Starnes vehicle as moderate. The plaintiff testified that, while he did not specifically recall striking his right knee on anything, a part of his stereo system was mounted on the dashboard close to his knee. He claimed that his knee felt "wobbly" at the scene. However, he did not report any injury to the police officer, and he completed his newspaper route. Later that night, the plaintiff began to experience headaches and stiffness in his neck.

The next morning, the plaintiff went to see Dr. B.L. Bickham, his family doctor and an orthopedic surgeon. Dr. Bickham diagnosed a musculoligamentous strain of the neck, prescribed a muscle relaxant, and recommended that Mr. Starnes, a power lifter, refrain from weight lifting for a week. That evening, the plaintiff went to see Dr. Jon Chicoine, a chiropractor. His complaints at that time included headaches with sharp pains, pain in the right knee, and tightness in his neck and lower and mid-back. He told the chiropractor that he did not recall striking his knee, but he reported that the knee was sore. For several weeks, Mr. Starnes was treated at Dr. Chicoine's office at frequent intervals for his neck and back pains. However, Dr. Chicoine denied "treating" the plaintiff's knee because of the treatment restrictions placed on chiropractors by Louisiana law.

In June, 1986, the plaintiff was referred to Dr. William W. Fox, an orthopedic surgeon, for treatment of his right knee. Dr. Fox diagnosed a sprained knee. He found no evidence of an anterior cruciate injury or instability of the right knee. Dr. Fox saw the plaintiff only on this one occasion.

On September 11, 1986, Mr. Starnes sought treatment from Dr. David Waddell, an orthopedic surgeon, who diagnosed minimal instability in the right knee. The doctor felt that the condition of the knee at that time did not warrant surgical intervention. However, Dr. Waddell prescribed a knee brace to be worn for all sports activities. (Although Dr. Waddell's written report only mentioned the plaintiff's weight lifting activities, he testified that whenever he prescribes such a knee brace, he always tells the patient to use it for any sports activities.)

On September 21, 1986, the plaintiff severely injured his knee while participating in a volleyball game. He was not wearing his knee brace. Dr. Waddell performed surgery the next day.

Dr. Waddell diagnosed an old injury of the anterior cruciate ligament and a new injury to the lateral capsule. He found that the lateral capsule was completely torn in the volleyball game. Dr. Waddell testified that there probably was a causal relationship between the car/bus accident and the second injury.

Following surgery, the plaintiff was hospitalized for three days. After his discharge, the plaintiff recuperated at his mother-in-law's North Carolina home for about four and a half months. On February 2, 1987, the plaintiff returned to his job as a forklift operator at the Libbey Glass distribution center in Shreveport.

The plaintiff and his wife, Alisa Starnes, brought suit against the school board. Following trial, the district court found the school bus driver solely liable for the car/bus accident. It awarded the following damages:

       Medical expenses
                                Dr. Bickham  $   125.00
                                Dr. Chicoine   2,351.45
                                      Dr. Fox    126.00
                    Dr. Waddell (91186 visit)    131.00
                                             ----------
                     TOTAL MEDICAL EXPENSES  $ 2,733.45
                         Pain and suffering  $12,500.00
                                             ----------
                                      TOTAL  $15,233.45
                

The trial court found that there was a causal connection between the car/bus accident and the subsequent knee injury. However, as to the second accident, the court held Mr. Starnes to be 50 percent at fault because of his failure to mitigate his damages by following his doctor's instructions to wear the knee brace for all sports activities. The court awarded the following additional damages:

            All other medical expenses  $ 6,843.73
                 Pain, suffering, and future disability  65,000.00
                                        Past lost wages   6,916.00
                        Loss of future earning capacity   5,000.00
                                                        ----------
                                                 TOTAL  $83,759.73
                                   50 PERCENT OF TOTAL  $41,879.87
                

The school board appealed from the trial court judgment. It assigned as error the following: (1) the trial court erred in finding that the plaintiff sufficiently proved causation between the car/bus accident and his injuries; (2) the trial court erred in assessing the plaintiff with only 50 percent of comparative fault in the volleyball accident; and (3) the trial court erred in awarding excessive damages.

In brief, the plaintiff asserted that the trial court erred in awarding only $5,000 in damages for his loss of earning capacity and in assessing 50 percent comparative fault against him. However, a review of the record reveals that the plaintiff neither appealed nor answered the appeal. Thus, these issues are not properly before us. LSA-C.C.P. Art. 2133.

CAUSATION

The school board contends that the trial court erred in finding that the plaintiff sustained any significant injury as a result of the car/bus accident. It observes that the doctors who initially examined the plaintiff found no knee injury and argues that the impact of the collision was so slight that the plaintiff could not have been injured.

A defendant's conduct is actionable under the duty/risk analysis where it is both a cause in fact of the injury and a legal cause of the harm incurred. The cause in fact test requires that, but for the defendant's conduct, the injuries would not have been sustained. The legal cause test requires that there be a substantial relationship between the conduct complained of and the harm incurred. Morrison v. Johnston, 571 So.2d 788 (La.App.2d Cir.1990, writ denied, 575 So.2d 367 (La.1991).

In a personal injury suit, the test for determining the causal relationship between the accident and subsequent injuries is whether the plaintiff proved, through medical testimony, that it was more probable than not that subsequent injuries were caused by trauma suffered in the accident. The plaintiff is aided in establishing this burden by the legal presumption that a medical condition producing disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, but shortly after the accident, the disabling condition manifested itself. Streeter v. Sears, Roebuck and Company, Inc., 533 So.2d 54 (La.App.3d Cir.1988), writ denied, 536 So.2d 1255 (La.1989). Here, the evidence shows that before the initial accident, the plaintiff was in generally good health and had no problems with his right knee.

If a plaintiff receives an injury through the negligent act of another which is subsequently aggravated by other acts, then the tortfeasor is only liable for the original injury unless the plaintiff proves that the subsequent injuries were not the result of a separate, independent, and intervening act for which the defendant was in no way responsible. Waggoner v. Marquette Casualty Company, 181 So.2d 475 (La.App.2d Cir.1965); Swan v. Vernon Milling Company, 517 So.2d 1161 (La.App.3d Cir.1987), writ denied, 521 So.2d 1171 (La.1988).

If the negligent actor is liable for an injury which impairs the physical condition of another's body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other's condition not been impaired, and which is a normal consequence of such impairment. Restatement (Second) of Torts Sec. 460 (1965).

An appellate court may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262, (La.App.), writ denied, 374 So.2d 660 (La.1979).

In the instant case, the school board argues that the collision was so slight it could not have caused any harm to the plaintiff. However, this court has avoided...