Streeter v. Sears, Roebuck and Co., Inc.

• Decision Date: 05 October 1988
• Docket Number: No. 87-675,87-675
• Citation: 533 So.2d 54
• Parties: Tommy L. STREETER and Patricia T. Streeter, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND COMPANY, INC., Allstate Insurance Company, Gordon D. Simmons and State Farm Mutual Automobile Insurance Company, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 54

533 So.2d 54

Tommy L. STREETER and Patricia T. Streeter, Plaintiffs-Appellees, v. SEARS, ROEBUCK AND COMPANY, INC., Allstate Insurance Company, Gordon D. Simmons and State Farm Mutual Automobile Insurance Company Defendants-Appellants.

No. 87-675.

Court of Appeal of Louisiana Third Circuit.

Oct. 5, 1988.

Rehearing Denied Nov. 21, 1988.

Writ Denied Jan. 27, 1989.

Henry E. Yoes, III (Appellate Atty.), Barnett, Pitre, Davis & Yoes, Lake Charles, for Sears, Roebuck & Co., Inc. and Allstate Ins. Co., defendants-appellants.

Steven Broussard, Lake Charles, for plaintiffs-appellees.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Jr., Lake Charles, for defendant-appellee.

Before DOMENGEAUX, KNOLL and KING, JJ.

KING, Judge.

This appeal presents numerous procedural issues which must be examined to determine whether the trial court committed reversible error and the substantive issues of whether the jury erred in its percentage allocation of fault between defendants and whether plaintiff proved by a preponderance of the evidence that her ulnar nerve injury was causally related to the accident.

This is a tort action instituted by Patricia T. Streeter (hereinafter plaintiff) seeking damages for personal injuries allegedly received in an automobile accident which occurred on December 5, 1984, in Lake Charles, Louisiana. Her husband, Tommy L. Streeter, was not involved in the accident, but joined in the suit claiming damages for loss of consortium and medical expenses. Plaintiff named as defendants: Gordon D. Simmons (hereinafter Simmons), the driver of the truck which collided into the rear end of the plaintiff's vehicle; his insurer, State Farm Mutual Automobile Insurance Company (hereinafter State Farm); and Sears, Roebuck and Company, Inc. (hereinafter Sears), which had performed a brake job on Simmons' truck. Allstate Insurance Company (hereinafter Allstate) was also named as a defendant in its capacity as plaintiff's own uninsured/underinsured motorist carrier and as Sears' liability insurer.

In their answer, State Farm and Simmons denied liability and asserted a cross-claim against Allstate and Sears, seeking indemnification and/or contribution. Sears and Allstate likewise asserted a cross-claim, naming State Farm and Simmons as defendants. After trial on the merits, the jury returned a verdict in favor of the plaintiffs in the amount of $263,150.59. The jury found both Sears and Simmons negligent and apportioned their fault at 99% and 1% respectively. Sears and Allstate suspensively appeal. We affirm.

FACTS

On December 5, 1984, at approximately 1:00 P.M., plaintiff was on her way home from work, and was traveling south in the west lane of the two southbound lanes of traffic on Lake Street, a four-lane, two-way thoroughfare in the city of Lake Charles, Louisiana. There was a light drizzling rain falling and, after she stopped at the red light at the intersection of Lake Street and McNeese Street, her 1965 Ford Mustang was rear-ended by a 1973 Ford Pickup Truck driven by Simmons. According to plaintiff's testimony, she was stopped in traffic 45 seconds to a minute, waiting for the light to change, before her automobile was struck by Simmons. Simmons, who was also traveling south at the time of the accident, estimated he had been driving at a speed of approximately 20-25 miles per hour and was following plaintiff's vehicle at a distance of about 100 feet. As he approached the intersection, he saw the red light and observed the traffic beginning to stop. Thereafter, he removed his foot from the gas pedal and coasted for a few feet before applying his brakes. Simmons testified that, when he applied pressure to his brake pedal, the brakes failed. He then attempted to steer the truck into an unoccupied turning lane, but could not avoid the collision. As a result of the collision, plaintiff's car was pushed into a van, which was also stopped for the traffic light, eight to ten feet ahead of her.

Subsequent to the accident plaintiff initially experienced sore muscles for approximately one and one-half weeks. Plaintiff then became aware of a gradual numbing in the fourth and fifth fingers on her right hand. This condition progressed over a period of several weeks until she developed a claw hand. After extensive treatment and two operations, plaintiff was left with a 50% permanent partial loss of use of her right arm.

Simmons testified that eleven months prior to the accident, he noticed that his master brake cylinder had started leaking. On February 11, 1984, he drove his truck to Sears where Paul Bilbo, a Sears brake mechanic, made the necessary repairs.

After completing the job, Bilbo informed Simmons that Sears was having a brake special and that their brake jobs carried a lifetime warranty. Simmons stated he had not been experiencing any problems stopping his truck, however, since his brakes were ten years old, he decided to have them inspected.

Bilbo examined the brakes and found that the rear brakes were worn down to the rivets and that the front brakes were also worn. A complete brake job was performed and, after the truck was test driven, Bilbo assured plaintiff that "everything was working fine."

After leaving Sears, Simmons immediately noticed that he had to apply a lot more pressure on the brake pedal to stop his truck than he had been applying prior to the brake job.

Shortly afterward, Simmons returned to Sears and explained the difficulty he had been experiencing with his brakes. Simmons testified a different mechanic changed the front brake pads but did not check the rear brakes. He also stated that when he asked the mechanic whether there could possibly be something wrong with the rear brakes the mechanic laughed and said drum brakes were practically foolproof. The truck was test driven by Sears again and Simmons was informed that everything was all right.

Simmons testified he continued to drive the truck for the next eight months and then decided to bring his truck back to Sears in November, 1984 because he was still having to apply too much force on the brake pedal to stop the truck.

On this visit, Simmons expressed his concern about the brakes to the shop manager, Joe Hebert, who agreed to personally conduct an inspection of the brakes. Hebert's inspection consisted of a five to ten minute test drive with Bilbo. As before, Sears found nothing wrong with the brakes.

Despite all of the assurances given to him by Sears, Simmons still was not convinced that his brakes were working properly. After the accident he performed a skid test and found that only the front tires left skid marks. On that same day, he jacked up the rear end of the truck and discovered that the rear wheels would spin freely, even after the brake pedal was pushed all the way down. Simmons stated he knew then that something was wrong with his rear brakes.

Simmons then decided to have his brakes inspected by Quality Brakes in Lake Charles, Louisiana. The shop foreman, Jerry Sweet, removed the rear wheels and brake drums and discovered the rear brakes were not working due to a faulty proportion valve. It was explained at trial that the proportion valve meters fluid from the master cylinder to each of the four wheel brake cylinders, which in turn pushes out the brake shoes onto the brake drums and cause the vehicle to stop.

After the brake problem was identified by Quality Brakes, Simmons returned to Sears and had the proportion valve replaced.

Plaintiff filed suit on July 24, 1985, alleging that the accident and her resulting injuries were caused solely by negligence on the part of Sears and its employees in failing to properly perform a brake job on the truck operated by Simmons, and particularly, in failing to locate and correct the problem with the brakes after numerous complaints from Simmons prior to the accident.

In the alternative, plaintiff alleged that the proximate cause of the accident was the joint and concurrent negligence of Sears and Simmons.

After a three day trial, the jury returned a verdict finding: (1) there was negligence on the part of Sears and Simmons and this negligence was a legal cause of the injuries sustained by plaintiff and her husband; (2) the apportionment of percentage of fault was 99% to Sears and 1% to Simmons; (3) the plaintiff, Patricia T. Streeter, suffered damages in the amount of $72,666.67 for past, present and future lost wages, $32,000.00 for cost of future household services $72,666.66 for past, present and future mental and physical pain and suffering and $72,666.67 for permanent disability; and (4) plaintiff's husband, Tommy L. Streeter, suffered damages in the amount of $5,000.00 for loss of consortium and $8,150.59 for past medical expenses incurred for treatment of plaintiff.

Defendants, Allstate and Sears, timely filed a Motion For Judgment Notwithstanding The Verdict and, in the alternative, asked for a remittitur or a new trial.

Plaintiffs also timely filed a Motion For Judgment Notwithstanding The Verdict seeking to have the jury award for lost wages increased because the only evidence regarding the employment potential of plaintiff and her economic wage loss was unrebutted. Additionally, plaintiffs contended that the award for future household services was excessively low in light of the unrebutted evidence presented, and that the amount awarded should also be increased in accordance with the evidence.

In written reasons for judgment, the trial court denied defendants' Motion for Judgment Notwithstanding The Verdict and for remittitur and for new trial. Addressing the issue of plaintiff's lost wages, the trial court found that the "evidence was totally uncontradicted" and increased the award from $72,666.27 to $110,786.32 for past, present and future lost wages. The trial court also found the evidence with regard to the cost of future household services was uncontradicted; however, the trial judge determined "the...