Williams v. Harvey

• Decision Date: 16 March 1976
• Docket Number: No. 7320,7320
• Citation: 328 So.2d 901
• Parties: Larry WILLIAMS, Sr., as Administrator of the Estate of his minor daughter, Cathy v. Jack V. HARVEY, as Administrator of the Estate of his minor daughter, Kerri Harvey.
• Court: Court of Appeal of Louisiana — District of US

Page 901

328 So.2d 901

Larry WILLIAMS, Sr., as Administrator of the Estate of his minor daughter, Cathy v. Jack V. HARVEY, as Administrator of the Estate of his minor daughter, Kerri Harvey.

No. 7320.

Court of Appeal of Louisiana, Fourth Circuit.

March 16, 1976.

Rehearing Denied April 13, 1976.

Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.

Frederick S. Haygood, G. Michael Bourgeois, Metairie, for defendant-appellant.

Before SAMUEL, MORIAL and BEER, JJ.

BEER, Judge.

Plaintiff-appellee, Larry Williams, Sr., instituted suit in behalf of his minor daughter, Cathy Williams, seeking to recover damages for injuries she sustained as a result of the alleged negligence of Kerri Harvey, daughter of Jack V. Harvey, defendant-appellant. From a judgment awarding damages in the amount of $31,080.50 defendant-appellant appeals.

On July 19, 1974 teenagers Cathy Williams, Kerri Harvey and Leslie Cox were en route to a dance in Lutcher, Louisiana. Kerri was driving her father's 1973 Mazda automobile. As they approached the intersection of Louisiana 53 (on which they were proceeding) and Airline Highway, Kerri drove across the railroad tracks that parallel Airline Highway 'faster than normal.' Although she saw a vehicle directly ahead of them proceeding in the same direction, Kerri took her eyes off the road at that moment in order to adjust her ring. When she looked up it was too late to prevent the rear end collision that immediately followed.

LIABILITY

On appeal, defendant-appellant does not seriously challenge the jury's finding of Kerri's negligence, nor is there any evidence in the record sufficient to rebut the presumption of negligence which clearly results from these undisputed facts. Rodriguez v. Trebitz, 304 So.2d 396 (La.App.1st Cir. 1974). Appellant does, however, strenuously urge that Cathy Williams was contributorily negligent and assumed the risk of driving with an incompetent driver. In support of the first contention, appellant relies on Cathy's admission that she failed to use the seat belt and, in support of the second, a claim that Cathy knew or should have known that Kerri was in the habit of driving when under the influence of marijuana or other intoxicants.

An injured guest passenger does not forfeit his right to recover because of his failure to use a seat belt. Lawrence v. Westchester Fire Ins. Co., 213 So.2d 784 (La.App.2nd Cir. 1968) application denied 252 La. 969, 215 So.2d 131. The record does not support a conclusion that Kerri's physical functions were obviously and materially impaired by intoxicants at the time of the accident. Dahlquist v. Canal Insurance Co., 212 So.2d 246, (La.App.3rd Cir. 1968) writs refused 252 La. 951, 215 So.2d 125; Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971). Furthermore, Cathy denies knowledge of any use by Kerri of alcohol or marijuana on the night in question and there is no credible evidence to refute her testimony on this issue. Finally, Cathy testified that when she learned Kerri intended to frighten Leslie Cox by speeding over the railroad tracks, she warned against such a course of action. Thus, she satisfied the duty as a guest passenger 'to protest or try to stop the obviously negligent acts of the driver.' Badeaux v. Patterson Truck Lines, Inc., 247 So.2d 875 (La.App.3d Cir. 1971) writs denied 259 La. 77, 249 So.2d 209; White v. State Farm Mutual Auto. Ins. Co., 222 La. 994, 64 So.2d 245 (1953). We cannot conclude that the jury's findings with respect to these factual issues are unsupported by the evidence or that they are manifestly in error and thus appellant's contentions with respect to liability must fail.

QUANTUM AND RELATED MATTERS

Cathy's physical injuries resulting from the accident included flying glass cuts upon her forehead, cheeks, nose, eyelids and knees and a sufficiently hard blow to her head to cause some swelling which eventually subsided without apparent complications. Immediately after the accident she was seen by Dr. Joseph LaNasa. He felt that the lesions on her face were superficial and without need for any sutures. She saw Dr. Robert Albrecht three days after the accident. He found a number of facial abrasions, especially above her right eye, on the bridge of her nose, and on the left side of her upper lip. He noted that healing was 'very satisfactory' and found no evidence of infection.

She was then seen by Dr. Herbert B. Christianson who referred her to Dr. J. Michael Kelly, a plastic surgeon.

Cathy first saw Dr. Kelly on August 21, 1974. He observed that there was a scar on her nose approximately one-half to three-fourths inch in length and three-eighths inch wide with a one to two millimeter elevation. He also observed that it did not conform to the normal concavity of the nasal bridge. He observed that a scar on her upper lip obscured the 'vermillion border.' It was prominent and extended up into her lip about one-half inch. He noted several minor scar areas on her right cheek which he described as having a cobblestone effect. In the area of the right eyelid he noted a scar about three and one-half centimeters that extended up to her right temple. This apparently created two 'folds' in her right eyelid and caused some elevation of the eyelid.

Under a general anesthesia Dr. Kelly performed surgical excision and removal of the scars on Cathy's lip and nose and, by dermabrasion, the removal of the right cheek scarring. The eyelid scars were also surgically removed. The redness of the plaintiff's complexion which temporarily existed after the operation was an anticipated postoperative effect of two to three months duration.

Dr. Kelly indicated that dermabrasion can be a fairly painful process. Cathy did experience some pain for which Tylenol III was prescribed during her hospital stay from September 2 through 7, 1974 . Dr. Kelly further indicated that the dermabrasion associated pain would, essentially, subside when the scab fell off within three to seven days after the procedure. The pain associated with the surgical excision would subside on removal of the stiches which took place soon after the operation. He also testified that the pain associated with the original trauma occasioned by the collision would have probably lasted from three days to two weeks. He also observed that Cathy overreacted to postoperative discomfort and pain and testified that she was not as cooperative as she might have been . He felt that additional corrective surgery might be required to narrow the width of the nose and lip scars and further indicated that some evidence of the scarring was permanent in nature; it could be improved, but not completely erased, although makeup would reduce same to negligible proportions.

On her attorney's recommendation, Cathy began seeing Dr. Charles R . Smith, a psychiatrist, on October 3, 1974. He found that she was obsessed with her face and physical appearance and that this was causing nervous manifestations such as stomach upset, loss of weight and sleep disturbances. He concluded that Cathy had apparently exhibited essentially normal adolescent behavior prior to the accident, and thus believed that her post-accident depression, which was out of the range of normal behavior, was a direct result of the accident. Basically he felt that the accident had accentuated earlier patterns of nervousness and questioning of self worth which were not originally symptomatic. In other words, the post-accident scarring confirmed and deepened latent fears of worthlessness and not being lovable or attractive to others.

Cathy's mother had related to the doctor that her daughter's disposition changed after the accident. She was irritable and prone to just sitting at home and looking at her face in the mirror. She brooded and cried and did not want to attend school. After the accident, she observed her daughter had difficulty in sleeping through the night.

Cathy began seeing Dr. Elizabeth McDermy in December, 1974. Dr. McDermy noted that Cathy had a mild to moderate case of acne which had apparently preexisted the accident but observed that acne could be aggravated by stress. On her last visit in February 1975, her face had cleared.

LSA-C.C. Article 1934(3) establishes, in pertinent part, that:

'In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury . . ..'

See Molton v. Avrard, 293 So.2d 557 (La.App.4th Cir. 1974).

The full force and effect of this article's import was set forth by the Supreme Court in Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971) when that court affirmed the jury's award of $60,000 for the lacerations to the face of a seventeen year old female, reversing this court's reduction to $25,000. In that case, plaintiff had experienced a curved scar extending from the corner of her mouth to her ear, an eight centimeter scar on the forehead, a three centimeter scar below the right eye, and a two centimeter scar on the right side of the upper lip. Pastic surgery was performed with at least one more surgical intervention indicated. The court declared:

'The pain associated with the injuries, the facial scars, and the psychological effect of these scars are all factors to be considered in the award of damages.'

The court therein also restated the rule that prior jurisprudence exerts no absolute control over an award of damages made by the trier of the case and is simply a guide in evaluating whether the trier's discretion is abused. See Taylor v. Rome, 303 So.2d 844 (La .App.1st Cir. 1974).

In Knotts v. Employers Casualty Co., 177 So.2d 630 (La.App.3rd Cir . 1965) plaintiff was a single, twenty-three year old beauty queen and former college student who was thrown violently forward into a windshield when the car in which she was a passenger had a head-on collision with another vehicle. After the accident, she was in the hospital for six days. While in the...