This litigation arose out of an accident which occurred on October 19, 1981, at approximately 7:30 p.m. just inside the Jefferson Parish line (from New Orleans) in the westbound (inside) paved shoulder of Interstate Highway 10, on the descending portion of the Oaklawn overpass. The plaintiff, Raymond J. Mart, allegedly sustained serious and disabling back injuries after his 1980 Toyota pick-up truck was rear-ended by a loaded tractor-trailer owned and operated by defendant James E. Hill.
Mart filed a petition for damages in the Civil District Court for the Parish of Orleans, naming as defendants Hill, Intracoastal Truck Lines, Inc. (the lessee of the tractor-trailer and the employer of Hill),
Plaintiff Mart and the compensation intervenor, National Union Fire Insurance Company, appealed. The Fourth Circuit Court of Appeal affirmed the trial court judgment. 496 So.2d 1149 (La.App.1986). We granted a Writ of Certiorari.
Because we find that the lower courts were clearly wrong in their percentage allocation of fault, in their assessment that Mart sustained no disability beyond that incident to a three month lumbosacral strain as a result of the accident, and in their assessment that Mart failed to prove by a preponderance of the credible evidence that the surgeries performed and the medical treatment rendered after January, 1982, were related to the accident of October 19, 1981, we reverse the lower court judgments and remand the case to the court of appeal for a determination concerning the appropriate amount of monetary judgment to be awarded plaintiff, all in accordance with this opinion.
On October 19, 1981, Raymond J. Mart was employed by Bosun Diesel. He had spent the day working at Bluestreak Industries in Chalmette, Louisiana. After finishing the day's work, Mart left for his home in Kenner. He headed west on I-610 until the highway merged with I-10 near the Orleans-Jefferson line. At that point Mart
Defendant's version of the events leading up to the accident was somewhat different from that offered by Mart. As Hill and his tractor-trailer crested the Oaklawn overpass, he viewed the same scene on the overpass' descent as had confronted Mart. At the time Hill was travelling approximately 50 to 55 miles per hour in his fully loaded tractor-trailer. According to Hill, he knew something had to be done if he was to avoid hitting the cars in front of him. Hill then maneuvered his truck onto the left (internal) paved shoulder of the highway. As he was moving the tractortrailer left to the shoulder, he saw Mart's Toyota pull out of the left lane of travel, onto the shoulder, and into his path, where it then stopped. According to Hill, Mart's Toyota was not the last car in the line of traffic, but was rather the third or fourth car from the end of the stalled line of traffic.
Hill's tractor-trailer then rear-ended the Toyota. After the collision, the witness, Irwin J. LaVergne (see supra note 5) saw the Toyota veer off left onto a grassy median area of the Interstate before it came to a stop.
Allocation of Fault
We have characterized "duty-risk" analysis as the process to be employed in determining whether liability exists under the facts of a given case. In making the requisite analysis four questions are to be considered:
Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).
The negligence of the following driver, Hill, in this rear-end collision, hardly needs extensive discussion or analysis. The liability of a rear-ending driver has been defined and clarified in a plethora of Louisiana decisions. The duty owed by Hill has been statutorily set out in La.Rev.
Louisiana courts have uniformily held that a following motorist in a rear-end collision is presumed to have breached the standard of conduct prescribed in La.Rev.Stat.Ann. 32:81 and hence is presumed negligent. See, e.g., Eubanks v. Brasseal, 310 So.2d 550, 553 (La.1975); Prest v. State Dept. of Transp., 490 So.2d 659 (La.App. 2d Cir.); writ denied, 494 So.2d 328 (La.1986); Lewis v. Variste, 422 So.2d 222 (La.App. 4th Cir.1982). We also note that the risk of a rear-end collision (whether the collision occurs in an emergency lane, or in a travelled portion of a roadway) is clearly within the scope of the statutory prohibition against following too close.
Hill's conduct was indeed a cause in fact of the resulting harm: he breached a duty he owed to the plaintiff Mart and others, and both the risk and the harm caused were within the scope of protection afforded by the duty breached.
Turning to an analysis of Mart's conduct, we find the Commissioner was correct in finding that Mart's conduct contributed to the accident. Mart admittedly did not look in his mirrors before moving to the emergency lane, or shoulder. Mart's inadvertence or neglect in this regard was a causein-fact of the accident. If Mart had looked he would have seen the tractor-trailer moving to the shoulder, and he would surely have stayed in his left lane of travel and this accident would thereby have been averted.
Having found both parties negligent, we turn to the matter of apportionment of fault. In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La. 1985), we looked to the Uniform Comparative Fault Act, § 2(b) and Comments (as revised in 1979) for guidelines in apportioning comparative fault. Section 2(b) provides:
Watson, 469 So.2d at 974.
We also noted in Watson that a variety of other factors may influence the respective degrees of fault:
In Turner v. New Orleans Public Service, Inc., 476 So.2d 800, 805 (La.1985) (Justice
Our analysis of the foregoing factors indicates that Hill's conduct was, by far, the more egregious. Hill admitted that he was travelling 50-55 miles per hour as he approached the overpass. He further testified that his tractor-trailer was fully loaded, weighed approximately 77,000 pounds, and required approximately 350 feet of stopping distance. When Hill reached the crest of the overpass, there was approximately 60 feet between his truck and the immediately preceding vehicle.
The weighing of risks in this case also dictates that a much greater degree of fault be allocated to Hill. Hill's conduct placed not only Mart, but the motoring public, at risk of serious injury. Had Hill stayed in his lane of travel, he admittedly would have rear-ended the vehicle immediately preceding him. As it turned out, it was fortunate that Hill only injured the plaintiff, for he might have caused a chainreaction collision and even more damage and injury, had he stayed in the same lane of travel. In Turner, we noted that "the greater the risk of harm to others, the greater is the fault." Id.
Mart's fault, on the other hand, while it did contribute to the accident, was much less significant than Hill's. Mart simply moved to the emergency lane without checking his mirror, and placed himself in Hill's path.
In short, we find that the percentage allocation of fault in this case was clearly wrong. After weighing all factors involved in this accident, we assign 10% of the fault (rather than 50%) to Mart. Defendant Hill is accordingly assessed with 90% of the requisite fault.
Subsequent Medical Treatment and its Relationship to the Accident
According to the Commissioner, plaintiff proved that he had suffered a lumbosacral strain of approximately three months' duration. He then recommended that Mart be awarded $10,000.00 in general damages and $8,760.00 in lost wages, the foregoing subject to a 50% reduction. The Commissioner awarded no damages of any sort for consequences of the accident beyond January, 1982, since he felt the plaintiff did not prove that his surgeries (which included exploratory surgery, a discectomy, and a spinal fusion) and disability were causally related to the accident of October, 1981. That conclusion, we find, was clearly wrong.
Mart's initial treating physician was Dr. Wilmot Ploger, an orthopedic surgeon. Dr. Ploger felt that Mart had sustained an injury to the cervical and lumbar spine as a result of the accident of October, 1981. Mart related no history of prior back difficulties to Dr. Ploger, who treated Mart for his back problems from October 20, 1981 (the day after the accident), until his discharge on January 26, 1982. Although Mart was still complaining of occasional stiffness in his lower back on that date, Dr. Ploger felt Mart could return to work.
Mart returned to work in January, 1982. According to him, the work at Bosun Diesel was lighter in the winter months. When the work picked up, Mart found that his back discomfort was increasing. Dr. Ploger noted that persons with back problems such as Mart's often have increased symptoms concurrent with increased activity. In fact, Dr. Ploger noted that additional surgery, including a spinal fusion, frequently occurs in cases similar to Mart's. Dr. Ploger testified unequivocally that the
The plaintiff's family physician, Dr. Edmond Mickal, had cared for the then 36 year old plaintiff from the time that he was four years old. During this entire period, Dr. Mickal testified, Mart had never had any back complaints or disability.
After plaintiff returned to work on January 18, 1982, Dr. Mickal twice had occasion to take Mart's blood pressure (on April 16, 1982 and June 15, 1982). On both occasions, Mart complained of backaches in the lumbar area when the weather was cold or damp. These complaints were consistent with the prior complaints Mart had made to Dr. Ploger.
As his work activities increased in the spring of 1982, Mart experienced increasing difficulty with his back. On July 16, 1982, he was examined by Dr. William Pusateri, an orthopedic surgeon. Dr. Pusateri initially detected tenderness in Mart's left paravertebral musculature and a positive straight leg raising test.
When Mart continued to complain of pain, he was admitted to Mercy Hospital for diagnostic tests. Lumbar myelogram and electromyogram (EMG) tests
Dr. Pusateri referred the plaintiff to Dr. Bert Bratton, a neurosurgeon. Dr. Bratton had another EMG performed on October 21, 1982. He also scheduled a CT scan of Mart's back. The EMG indicated the presence of nerve lesions in Mart's back.
Dr. Bratton then proceeded to perform a partial laminotomy and foraminotomy.
When Mart's post-operative pain continued, he was referred to Dr. Donald Richardson's pain clinic at the Hotel Dieu Hospital in New Orleans.
Dr. Richardson's initial impression of Mart was that he had a "failed back syndrome with hysterical symptoms." The prior medical history of plaintiff was consistent with potential pathology in the lumbar spine area. Dr. Richardson testified that "malingerers," or persons who are faking a syndrome of pain, are not admitted to the clinic if such is recognized.
While at the clinic, Mart was examined by psychiatrists who worked at the clinic. The psychiatrists found that Mart was suffering from traumatic neurosis, according to Dr. Richardson, who also testified Mart had a passive, dependent personality. Although Dr. Richardson was somewhat critical of Mart's complaints of pain,
Upon his release from the pain clinic, Mart was advised to seek psychiatric help. He was thereupon examined by Dr. C.B. Scrignar, a psychiatrist. Dr. Scrignar testified that there are two concurrent elements of pain involved in injuries such as that sustained by Mart: the actual physical injury and the psychological injury characterized as posttraumatic stress disorder. In such cases, the physical and psychological pain run parallel to each other in the aftermath of an accident.
On August 22, 1983, Mart was examined by Dr. Walter Brent, an orthopedic surgeon who examined the plaintiff on behalf of National Union Fire Insurance Company, the intervenor compensation insurer. Dr. Brent noted a variety of physical difficulties which were consistent with pathology in the lumbar spine and with nerve root irritation. He reviewed the CT scan taken on March 3, 1983, by Dr. Calonje. Dr. Brent agreed that the CT scan verified nerve root pathology.
When the plaintiff failed to improve following his treatment at Hotel Dieu's Pain
On January 12, 1984, Dr. Pisarello, together with Dr. Truman Kerr, performed a spinal fusion and discectomy. Dr. Pisarello examined Mart's discs and determined that L4-5 and L5-S1 were prolapsed and degenerated. These two prolapsed discs, together with the presence of scar tissue from the prior surgery, necessitated the discectomy and spinal fusion.
Standard of Review
Appellate courts may not disturb the fact findings of the trier of fact in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). In Arceneaux, we posited a two part test for the appellate review of facts:
Arceneaux, 365 So.2d at 1333; B and L Associates, Inc. v. Crump, 369 So.2d 1094, 1095 (La.App. 1st Cir.1979).
Accordingly, if an appellate court concludes that the trial court's factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Davis v. Owen, 368 So.2d 1052, 1056 (La.1979). Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions. See, e.g., Parker v. Rhodes, 260 So.2d 706, 717 (La.App. 2d Cir.1972). An appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact's refusal to accept as credible uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979).
Our review of the record indicates that the Commissioner was clearly wrong in finding that plaintiff's back difficulties beyond a simple lumbosacral strain of three month's duration were not caused by the October 19, 1981 accident, and that plaintiff suffered no disability, other than a three month lumbosacral strain, as a result of the accident. In a personal injury lawsuit,
At the outset, we note that this case is not fully governed by the principles set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). In Coco, the issue before us was the court of appeal's substantial reduction of a jury award. There was no issue, as there is in this case, as to whether subsequent medical intervention and the resultant disability suffered by the plaintiff were related to the tortious conduct of the defendant. We first noted in Coco that the trier of fact has "much discretion" in awarding damages. We ultimately held that when an appellate court finds that the lower court abused this discretion, the appellate court may only raise or lower the award to the highest (or lowest) point which is reasonably within the discretion of that court. The Coco principle of appellate review applies when an appellant questions the adequacy of a monetary award in a case which is otherwise uncomplicated by factual errors relating to the cause or duration of the plaintiff's disability.
In this case, the Commissioner found the plaintiff had suffered simply a three month lumbosacral strain. Consequently, no damages for lost wages, pain and suffering, and medical expenses (including the aforementioned surgical procedures) were awarded for the period after the plaintiff's return to work in January, 1982. As we have discussed, this finding was clearly wrong and resulted in a monetary award which incorrectly did not take into account the nature of plaintiff's injuries and the extent of his disability. The principles espoused in Coco do not apply in this case, since there was no award made for consequences of the accident past January, 1982, for the appellate court to review. Simply stated, Coco applies when an appellate court is asked to correct a fact finder's abuse of discretion in assessing the appropriate monetary award for a given injury. The principles are not applicable when a res nova review of quantum must be made to compensate a plaintiff for damages which the trial court did not believe were causally related to the accident. See, Jackson v. United States Fidelity and Guaranty Company, 382 So.2d 223, 230 (La. App. 3d Cir.), writ denied, 385 So.2d 275 (La.1980); Cf., Rodriguez v. Traylor, 481 So.2d 1017 (La.1986) In Rodriguez, we held that when a jury has been erroneously
Accordingly, the judgments of the district court and the court of appeal are reversed. The case is remanded to the court of appeal for a redetermination of the amount of the damage award, taking into account that plaintiff has satisfactorily proved that his back surgeries and attendant disability were caused by the accident, and consistent with the percentage allocation of fault recited hereinabove.
REVERSED AND REMANDED.
COLE, J., concurs and assigns reasons.
DIXON, C.J., dissents with reasons.
COLE, Justice, concurring.
Defendant Hill admits he had to take evasive action to avoid hitting the cars in front of him. This situation was created by his negligent conduct in driving too fast and following too closely. His causative fault is premised upon a failure to take into consideration the difficulty in maintaining control of a heavily loaded tractor-trailer in congested traffic, while traveling at a speed of 50 to 55 miles per hour. The plaintiff was stopped in a place intended for such usage. If defendant Hill had not moved over onto the shoulder and struck plaintiff's vehicle, he would have rear-ended the vehicle in his lane of traffic. Either way, it was Hill's pre-existing conduct which made an accident inevitable. As regards fault on the plaintiff's part, I cannot disagree with the minimal ten percent attributed to him. The apportionment of fault at ninety percent—ten percent is realistic and comports with the duty of every driver to be alert and aware of all circumstances attendant to safe driving.
DIXON, Chief Justice (dissenting).
I respectfully dissent.
I can find no fault on the part of Mart, and overwhelming fault on the part of defendant Hill. Mart's actions were prudent and lawful. He was stopped in a place where he was entitled to be (on the emergency lane of a divided-pavement interstate highway) when he was struck from the rear by a truck loaded with over thirtyeight tons of pipe, traveling so fast that it couldn't be stopped before colliding with whatever was in front of it. This was the proximate cause, the legal cause, the factual cause and only cause of the accident.