Vera R. Paine v. Avoyelles Council on Aging

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1204

VERA R. PAINE

VERSUS

AVOYELLES COUNCIL ON AGING, THE AVOYELLES PARISH
POLICE JURY, KATHERINE DESSELLE AND WAUSAU GENERAL
INSURANCE COMPANY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2001-2803-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

**********
ARTHUR J. PLANCHARD

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Judge
and Arthur J. Planchard*, Judges.

AFFIRMED.

James A. Bolen Jr.
P. O. Box 11590
Alexandria, LA 71315-1590
Counsel for: Defendants-Appellants
Katherine Desselle, Avoyelles Council on Aging and Wausau General
Ins. Co.

Michael Wayne Adley
P. O. Dr. 51769
Lafayette, LA 70505-1769
Counsel for Defendant-Appellee
Assisted Living Concepts, Inc.

John Taylor Bennett
P. O. Box 275
Marksville, LA 71351
Counsel for Plaintiff-Appellee
Vera R. Paine
*Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore

PLANCHARD, Judge1.

The Defendants, the Avoyelles Council on Aging (ACOA), Katherine Desselle

and Wausau General Insurance Company (Wausau), appeal both the original judgment

and the judgment rendered pursuant to a new trial.

The Plaintiff, Vera Paine, then 87 years old, was living at Bailey House in

Bunkie, Louisiana. On September 7, 2001, Ms. Paine was being transported to a

doctor’s appointment in a van driven by Katherine Desselle, an employee of the

Avoyelles Council on Aging, and owned by the Avoyelles Parish Police Jury (Police

Jury). The van was involved in an accident with a motor vehicle driven by Audrey

Richard. Ms. Paine was injured.

She brought this suit against Desselle, ACOA, the Police Jury and its insurer,

Wausau. After a bench trial, the trial court rendered judgment in favor of Paine and

against the Defendants, in solido, and awarded general damages of $260,000.00 and

special damages of $33,368.38. Judgment was rendered December 30, 2002. At some

point after the rendition of judgment, the original trial judge was replaced by another

judge. Ms. Paine moved for a new trial on January 2, 2003, asserting that the general

damage award was “grossly insufficient” and that there was no award for future

medical expenses including the cost of assisted living care and nursing home care

which, she alleges, is inevitable based on the injuries sustained in the accident. The

Defendants moved to dismiss or strike the Plaintiff’s motion. Ms. Paine, on January

15, 2003, amended her motion for new trial, asking that the record be transcribed

“together with all medical records and medical depositions and records from Bailey

House.” About a month later, on February 27, 2003, the Plaintiff filed another

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Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

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amended motion for new trial stating that she believed that the trial court had failed

to consider certain records from Bailey House, attaching copies of the records and

asking that the copies of the records be filed as well. After a hearing on March 3,

2003, the court rendered a judgment on the motions:

(1) denying defendant’s Motion to Continue the March 3, 2003
hearing on all pending motions;

(2) denying defendants’ Motion to Dismiss/Strike the plaintiff’s
original Motion for New Trial;

(3) denying defendants’ Motion to Dismiss/Strike the
plaintiff’s Amended Motion for New Trial, allowing it to be
heard on March 3, 2003;

(4) granting plaintiff’s request to allow evidence at the March 3, 2003
hearing;

(5) granting defendants’ Motion to Strike the attachments to
plaintiff’s Amended Motion for Trial; and

(6) granting plaintiff’s Motion for New Trial to grant re-argument
only, as plaintiff was denied access post-trial to the Bailey House
records identified at trial as “P-10" and all other records, the re-
argument is set for March 17, 2003 at 9:00 a.m.

The Defendants filed an application for writs to this court, which was denied.

After the hearing on the new trial for re-argument only, the trial court rendered

judgment in favor of the Plaintiff and against the Defendants, awarding the Plaintiff

the additional amount of $181,400.00 for future medical expenses and an additional

$35.000.00 in general damages. The Defendants appeal.

THIRD PARTY FAULT

The Defendants assert that the trial court erred in failing to assign fault to

Audrey Richard for failing to stop in time and to Bailey House for its failure to assure

that Ms. Paine was securely belted into her wheelchair.

Causation and apportionment of fault are questions of fact, and
the fact finder's determinations should not be overturned absent a

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showing of manifest error. Williams v. Allstate, 599 So.2d 478 (La.App.
3 Cir.1992). We are further mandated to view the evidence in the light
most favorably supporting the trial court judgment. Rosell v. ESCO, 549
So.2d 840 (La.1989). If the trial court's determination is reasonable in
light of the record reviewed in its entirety, the court of appeal may not
reverse even though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently. Id.

Conrad v. City of New Iberia, 03-121, pp. 3-4 (La.App. 3 Cir. 6/13/03), 847 So.2d

784, 787.

Accordingly, we will examine the record to determine whether the trial court

was reasonable in finding that the Council on Aging was 100% at fault for the

accident.

Gene Moody, a consulting engineer, was qualified by the court to testify as an

expert in the field of accident reconstruction. He testified that both Desselle and

Richard had 299 feet of vision, Desselle from the stop sign at Cricket and Monroe

Streets and Richard from her position on Monroe Street. He acknowledged that

Richard had the right of way. However, he felt that Richard could have avoided the

accident had she been alert. The driver of the van, Council on Aging employee

Katherine Desselle, testified that on her return trip to Bailey House, she stopped at the

stop sign at the corner of Cricket and Monroe Streets and proceeded into the

intersection, where the collision occurred. She admitted that she did not see Richard’s

vehicle. Richard testified that the van pulled out in front of her as she approached the

intersection and that she was unable to stop in time to avoid the accident.

Given these facts, we find that the trial court was reasonable in determining that

Richard’s conduct did not contribute to the occurrence of the accident. Therefore, we

find no error in the trial court’s refusal to assign fault to Richard.

The Defendants further assert that the trial court erred in failing to assign fault

to Bailey House for its failure to belt Ms. Paine into her wheelchair. Our research

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convinces us, however, that for Bailey House to be assessed with fault in this matter

its negligence must have been a cause in fact of the accident. Hammer v. City of

Lafayette, 502 So.2d 301(La.App. 3 Cir. 1987) concerned an accident involving a

driver who had her five year old son as a passenger and a city policeman who ran a

stop sign. The plaintiffs settled with the defendants, and with the City reserving its

rights in a third party demand against the mother/driver for her negligence in failing

to restrain her child in a seat belt or child restraint system. This court explained that:

In order for the City to recover from third party defendants, any
negligence on the part of Mary Hammer in failing to restrain her five
year old child must have been a cause in fact of the accident. If the
accident would have occurred irrespective of a claimant's negligence,
then it was not a cause in fact of the injury.

Id. at 303 (citations omitted).

The court further found that “[a]lthough Mary Hammer might have been

negligent per se in not restraining the minor child, her negligence did not cause or

contribute to the emergency situation.” Id.

Here, as in Hammer, while the employees of Bailey House may have been

negligent in failing to restrain Ms. Paine, their negligence did not cause the accident.

Therefore, the trial court correctly refused to assess them with fault.

NEW TRIAL

The Defendants also argue that the trial court erred in granting a new trial for

argument only.

La.Code Civ.P. art. 1971 provides that:

A new trial may be granted, upon contradictory motion of any
party or by the court on its own motion, to all or any of the parties and
on all or part of the issues, or for reargument only. If a new trial is

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granted as to less than all parties or issues, the judgment may be held in
abeyance as to all parties and issues.

La.Code Civ.P. art. 1973 provides the discretionary grounds for granting a

motion for new trial: “A new trial may be granted in any case if there is good ground

therefor, except as otherwise provided by law.” As noted by the Defendants, La.Code

Civ.P. art. 1975 provides that a motion for new trial must set out the grounds on which

it is based. The Defendants argue that the trial court should have denied Plaintiff’s

motion because it fails to adequately set forth the grounds on which it is based.

This issue has already been addressed by this court in a writ application from

the grant of the motion for new trial. This court at that time found no abuse of

discretion in the grant of the motion. The Defendants are essentially reasserting many

of the arguments made on their writ application.

The trial judge granted the motion for new trial for re-argument because of

Plaintiff’s counsel, while preparing his post-trial brief, was unable to obtain access to

the records of Bailey House which were introduced at trial and which, it was alleged,

were locked up and inaccessible thereafter.

The Defendants assert the record clearly supports the trial court’s failure to

award the expenses evidenced by the Bailey House records because the Plaintiff was

already living in an assisted living facility at the time of the accident. The Defendants

again on appeal cite portions of the record which allegedly support their contention

that Plaintiff’s health was deteriorating prior to the accident at issue, therefore, she

would have been confined to an assisted living care facility regardless of this accident.

However, the Plaintiff asserts that she was only supposed to stay at the Bailey House

for a short period of time because of dehydration, and that she was in good health for

an 87 year old prior to this accident. Therefore, at the time the motion for new trial

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was granted, there was an issue as to whether the Plaintiff’s confinement at the Bailey

House would have continued except for this accident. We find no error in this court’s

finding on the writ application that the trial court did not abuse its discretion in

granting the motion for new trial for re-argument because of the lack of access to the

evidence introduced at trial.

ADDITIONAL DAMAGES ON NEW TRIAL

Finally, we address the Defendants’ argument that the trial court erred in giving

additional damages on new trial.

The trial judge, who was not the judge who originally tried the case, found that:

In his memorandum in support for additional damages, [counsel]
for Vera Paine argues that the trial judge was unable to and did not
consider the Bailey House records when rendering his decision. This
court agrees. After reviewing the parties arguments at the hearing
regarding the loss of Exhibit P-10, it is obvious that the trial judge was
unable to consider the evidence, unable to render a proper ruling with
that evidence, and that evidence should properly be admitted and
considered and reviewed now at this time.

Our review of the applicable law convinces up that it is unimportant, for

purposes of review, whether the trial court considered these records in rendering the

original judgment. La.Code Civ.P. art. 1978 states, in pertinent part, that:

It shall not be necessary in a non-jury trial to resummon the
witnesses or to hear them anew at a new trial if their testimony has once
been reduced to writing, but all such testimony and evidence received on
the former trial shall be considered as already in evidence. . . . When a
new trial is granted for reargument only, no evidence shall be adduced.

After a new trial is granted, this court need only consider the judgment on the

new trial. See Wilson v. Compass Dockside, Inc., 93-1860 (La.App. 4 Cir. 3/15/94),

635 So.2d 1171, writ denied, 94-1527 (La. 9/23/94), 642 So.2d 1299.

The trial court gave his summary of the expenses shown by the Bailey House

records, as follows:

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The plaintiff has properly estimated the expenses of care as shown in
pages 2 -8 of Exhibit P-10, at approximately $2,400.00 per month. This
court is of the opinion that an award of $2,400.00 a month for four years
would be appropriate for a total increase in the award representing future
medical care at $115,200.00. Additionally, past medical expenses are
awarded in the amount of $31,200.00, representing 13+ months care at
Bailey House from September 2002 to the NOVEMBER, 2003 trial date,
as this care, more probably than not, was a result of the September 2002
accident at issue.

The Defendants in this case do not dispute the amount which has been and may

in the future be paid for care at Bailey House. Rather they dispute the causal

connection between the accident and the need for care. Defendants argue that given

her age and health, Ms. Paine would have needed similar care even had the accident

not occurred. The trial judge’s factual finding was that the deterioration in Ms.

Paine’s condition and her need for continued assisted living or nursing home care was

caused by the accident.

In a trial where causation and credibility are major issues, a jury's
findings of fact are entitled to great deference. Ambrose v. New Orleans
Police Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94); 639
So.2d 216; reh'g denied, 9/15/94. Those findings may not be overturned
unless they are manifestly erroneous. Stobart v. State, 92-1328
(La.4/12/93); 617 So.2d 880. Moreover, when more than one
competing view is permissible, as in this case, a fact finder's choice
cannot be manifestly erroneous or clearly wrong. Rosell v. Esco, 549
So.2d 840 (La.1989), writ denied, 561 So.2d 105 (La.1990).

Guillory v. Ins. Co. of North America, 96-1084, p. 5 (La. 4/8/97), 692 So.2d 1029,

1032.

Finding no manifest error, we will not overturn the trial court in this regard.

The Defendants further dispute whether the Bailey House expenses should be

included in an award of medical expenses. La.Civ.Code art. 1995 states that

“Damages are measured by the loss sustained by the obligee and the profit of which

he has been deprived.” Regardless of whether the cost of care at Bailey House can be

considered a “medical” expense, the record supports the conclusion that Ms. Paine

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would not have needed the services of an assisted living facility or a nursing home but

for the accident. Accordingly, we find no error in the inclusion of these expenses in

the award of damages.

QUANTUM OF DAMAGES

The Louisiana Supreme Court has set out the rules for review of general
damage awards as follows:

The standard for appellate review of general damage awards
is difficult to express and is necessarily non-specific, and the
requirement of an articulated basis for disturbing such awards
gives little guidance as to what articulation suffices to justify
modification of a generous or stingy award. Nevertheless, the
theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158
So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341
So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498
(La.1979) ] to the present case is that the discretion vested in the
trier of fact is "great," and even vast, so that an appellate court
should rarely disturb an award of general damages. Reasonable
persons frequently disagree about the measure of general damages
in a particular case. It is only when the award is, in either
direction, beyond that which a reasonable trier of fact could assess
for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should
increase or reduce the award.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261
(La.1993); cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d
379 (1994). Thus, we are called upon to decide if the award in this case
"is, in either direction, beyond that which a reasonable trier of fact could
assess for the effects of th[is] particular injury to th[is] particular plaintiff
under the[se] particular circumstances." Id.

McPherson v. Lake Area Med. Ctr., 99-1876 (La.App. 3 Cir. 5/24/00), 767 So.2d 102,

109, writ denied, 00-1928 (La. 9/29/00), 770 So.2d 353 (alteration in original).

The Defendants argue that the award of damages was excessive. In its written

reasons for judgment, the trial court detailed its reasons for the award of damages in

the original reasons for judgment, which were incorporated by reference into the

reasons for judgment on the new trial:

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The testimony of Melvie McCullen reflects that prior to the
accident Paine was in relatively good health for an 87-year-old woman.
She was able to walk with the help of a walker. According to Dr.
Gamburg's evaluation of Dr. Taylor's records on Ms. Paine, in August,
2001, she was able to ambulate 250 feet with "stand-by assistance" and
required assistance with upper extremity dressing, while requiring
minimal assistance for lower extremity dressing. In August of 200l,
Paine experienced some medical problems that required her to be
hospitalized. After returning from the hospital it was decided that it
would be best for Paine to spend some time in Bailey House to assist in
her recovery.

Ms. Woodall, an employee of Bailey House, testified that prior to
the accident Paine was fairly functional. Paine was able to speak
coherently and she could get around with the help of her walker.
However, Woodall stated that since the accident Paine has sharply
deteriorated both mentally and physically. Paine is no longer able to get
around unless she is transported by a wheel chair and she can no longer
maintain a rational conversation due to the onset of dementia.

Dr. Michael Menache is an internist who treated Paine both before
and after the accident. Prior to trial, a motion in limine was filed seeking
to exclude the testimony of Dr. Menache, regarding the mental capacity
of Vera Paine. However, Dr. Menache' s testimony concerning Paine's
mental state was based upon his personal observations of Paine both
before and after her accident. Further, Dr. Menache testified that he had
prescribed Paxil for depression for Paine. Obviously, Menache was
providing medical treatment to Paine for her mental condition. On page
54, line 19-20 he stated that he believed that there was a change in Paine
both mentally as well as physically after the accident. Certainly, his
opinion concerning his observations and treatments provided to Paine are
admissible. His testimony in this regard is clearly probative. . . .

Further, as stated above, Dr. Menache's deposition testimony
reflects on pages 38-39 that Paine has deteriorated both mentally and
physically since the accident. When asked if he believed that the accident
accelerated the decline of her mental faculties, Menache answered "yes".
Concerning Paine's physical decline, Menache testified that before the
accident that Paine could walk with the assistance of a walker. Now, she
is wheelchair-bound. Menache testified that Paine had pre-existing
medical problems that could have caused her current mental and physical
decline. However, Menache stated that the trauma of the accident is the
most plausible reason for her sharp deterioration both mentally and
physically.

At page 42 of his deposition, defense counsel asked Dr. Menache
if there is anything that he can directly point to that would suggest that
the car accident caused Paine's decline rather than pre-existing medical
problems. Dr. Menache stated that prior to the accident Paine could

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manage her checkbook and now she is unable to do any calculations.
When defense counsel asked if the pre-existing conditions could have
caused these failures, Dr. Menache responded that it could, but not as
quickly as has occurred in this case. This response indicates to the court
that the trauma of the accident is the primary cause for the decline in
plaintiffs condition. On page 43 of Dr. Menache's deposition, Dr.
Menache conceded that there was no medical or scientific test to
determine if the deterioration was due to the car accident or the pre-
existing medical conditions. However, Dr. Menache stated that in his
personal experience, the trauma of the accident caused the sharp
deterioration.

Addressing the same issue is the report of Dr. Gamburg, who
performed an independent medical evaluation of Paine for the defendant
stated,

"Based on the history that I obtained and my examination of the
patient and her x-rays, it is my opinion that the accident in which
she incurred a fracture of her right hip along with right rib
fractures and a probable fracture of the left acetabulum did
accelerate her decline over and above what would be expected
with the normal aging process. She has not been able to return to
her pre-injury status, and it is my opinion that she is unlikely to do
so. It is my belief that she has reached maximum medical
recovery."

Dr. Gamburg also testified that after reviewing the medical records of
Dr. Drury and Dr. Menache, he was of the opinion that based on her
history, the hip fractures and rib fractures resulted from the accident.

After the accident Paine had surgery on her right hip. Dr. Drury
removed the ball and the top portion of the femur bone. A ball and metal
rod were used to replace the removed ball and portion of the femur bone
and had to be cemented to the remaining portion of the femur bone. After
completing this surgery Paine experienced discomfort with the left hip
as well. An x-ray taken revealed that her left hip, her ribs, her left
shoulder, her clavicle, her left pubic bone, her sacrum, and her Sl joint
were all fractured. Dr. Drury testified in his deposition beginning on
page 27 that considering Paine's current age of 88 and taking into
consideration the fact of her hip replacement surgery, she would have a
significant decline in her overall function as compared to her pre-
operation status. Dr. Drury further stated that most people in Paine's age
group would never return to their original status after hip replacement.

Defense counsel has suggested that the injuries to Paine's right hip
and her ribs were not caused by the accident. However, Louisiana law
dictates that if before September 7, 2001, Vera Paine was in good
physical condition and good mental health, but shortly after the accident
a disabling condition manifested itself, then, there is a legal presumption

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that the medical condition producing the disability resulted from the
accident. The burden of proof therefore shifts to the defendant who
contests the cause-in-fact relationship to show some other particular
incident could have caused the injury in question. Heath v. Northgate
Mall, Inc., 398 So. 2d 132 (La. App. 3rd Cir. 1981). Therefore, the
burden has shifted to the defendant to prove by a preponderance of the
evidence that the injuries to Paine were caused by events other than the
accident on September 7, 2001. The defendant has offered evidence of
previous occasions where Paine has fallen while at Bailey House.
However, Dr. Gamburg testified on this issue and stated that there was
no conclusive manner in which to determine if the injuries were caused
by the car accident or the falls. Moreover, Dr. Drury testified on page 18
of his deposition that Paine's left hip problems appeared for the first time
immediately after surgery on her right hip. Therefore, the court is of the
opinion that the defendant has failed in its burden to rebut the cause-in-
fact relationship between the car accident and plaintiffs injuries.

....

In the pending case Paine was 87 years old at the time of the
accident. She will never completely recover from her injuries. She is now
over fifteen months post-accident. Her injuries are considered by the trial
court to be permanent in nature.

On new trial, the court added an additional $35,000.00 to the original general

damage award, stating that given the reasons cited by the trial judge, “coupled with

this judge’s opinion that an award for future medicals is appropriate, and after a

review of the jurisprudence submitted by all parties, the court believes that an increase

of general damages in the amount of $35,000.00 is appropriate.”

After reviewing the record, we find that the trial court’s reasons accurately

reflect the evidence adduced at trial. We find no error in the trial court’s findings. In

light of the record, and of the trial court’s written reasons, we cannot say that the court

abused its discretion in its award of general damages.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed in all respects.

Costs of this appeal are to be paid by the Defendants.

AFFIRMED.

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