Opinion
CIVIL ACTION NO. 02-2000, SECTION M
December 9, 2003
ORDER AND REASONS
This matter came for trial without a jury on October 14, 2003. After consideration of the evidence, post trial memoranda, and applicable law, the Court makes the following findings of fact and conclusions of law.
FACTS
During the early evening on May 17, 2002, Plaintiff Tracey Ratcliff was a passenger in a 1989 Chevrolet Cavalier driven by Christie Osborn and proceeding east on Gause Boulevard in Slidell, Louisiana. At the same time, Defendant Russell J. Hardy, in the course and scope of his employment with Otis Elevator Company, was also proceeding east on Gause Boulevard in a 2001 Ford F450 truck. Plaintiffs vehicle was stopped in the left lane of the boulevard just past the intersection of Yaupon Drive waiting to make a left turn into the parking lot of the Waffle House. Defendant was following one car behind Plaintiff and rear-ended Plaintiffs vehicle. Hardy testified that the car he was following quickly darted into the other lane as it passed through the intersection, but he was unable to stop before colliding with Plaintiffs car. As a result of the accident Ratcliff sustained a mild head injury, an injured right ankle, neck and shoulder injuries, and exacerbation of an existing low back injury. In June, 2003, Plaintiff had arthroscopic surgery on her right shoulder. In August, 2003, she returned to work at Northshore Living Center. A few days after returning to work, Ratcliff injured her right shoulder while attempting to place a pillow behind a patient's back.
LAW AND ANALYSIS
Comparative Liability
The Louisiana guest passenger "presumption of negligence" provides that when an innocent passenger is injured through concurrent acts of two parties, the burden is upon these parties to exculpate themselves from negligence. O'Donnell v. Adriatic Insurance Company 792 So.2d 858 (La.App. 2d Cir. 7/11/01); See also Eason v. Hartford Accident Indemnity Co., 327 So.2d 187 (La.App. 2d Cir. 1976).
At trial, driver Osborn testified that she knew of two other ways to enter the restaurant's parking lot: She could have made a left turn at the intersection of Gause Boulevard and Yaupon Drive which is controlled by a traffic signal and left turn lane, or she could have proceeded west down the boulevard and turned around entering the parking lot from the west-bound lane. Osborn's stopping and attempting to turn into the parking lot from the left traffic lane violated the standard of care relative to making a left turn. LAS-R.S. 32:104, see also Anderson v. May 812 So.2d 81 (La, App. 5th Cir. 2002),
Her negligence, however, does not exonerate Defendant driver Hardy. A following motorist in a rear-end collision is presumed to have breached his duty. LSA-R.S. 32:81(A).
Considering all of the facts, I conclude that driver Hardy was 2/3rds at fault, and driver Osborn was 1/3rd at fault.
August, 2003, Shoulder Injury
Ratcliff had arthroscopic surgery performed on her right shoulder in June, 2003. Plaintiff alleges that the August incident at the nursing home was just an aggravation of pain related to her recovery from surgery. Defendants contend she re-injured her right shoulder in a setting that would, perhaps, be a basis for workman's compensation, but has no validity as an extension of her alleged auto accident injury.
It is undisputed that the incident occurred during the course and scope of Plaintiffs employment and that her employer had knowledge of her injuries. Ratcliff is perhaps entitled to a worker's compensation claim for this incident. See LSA-R. 3.23:1371-1378.
Medical Expenses, Lost Wages, General Damages
Plaintiff is entitled to be compensated for her medical expenses which were stipulated at trial (Exhibit 13) to be $56,725.98.
At the time of the accident, Plaintiff worked at the Northshore Living Center an average of 35 hours per week. As a result of the accident, she was unable to work for 64.5 weeks. Her hourly wage is $6.15 per hour. She is entitled to be compensated $13,883.63 for lost wages.
Medical testimony at trial indicated that Plaintiffs initial injuries were a minor head injury, right ankle injury, some neck and shoulder pain and the exacerbation of a pre-existing lower back injury. Dr. F. Alien Johnston, the orthopedic surgeon who performed the arthroscopic procedure on Plaintiffs right shoulder, testified that plaintiffs back problems and neck pain were resolved by June, 2003. He testified that Plaintiffs shoulder condition improved following surgery and that she had a good recovery from the surgery, but may have some future impairment. Considering all of the testimony, I find that $25,000 in general damages will fairly compensate Plaintiff. See Hoffman v. Halcot Shipping Corp. 2003 WL 446817 (E.D.La.)
Accordingly, IT IS ORDERED that there be judgment in favor of Plaintiff Tracey Ratcliff and against Defendant Russell J. Hardy for the total amount of $95,609.61 (2/3rds liability allocated to Defendant) with interest from the date of demand, each party to bear its own costs. Counsel for Plaintiff is requested to submit a judgment consistent with this Order.