The opinion
FINAL
* NO. 2019-CA-0250
LOUIS RIDGEL
*
VERSUS COURT OF APPEAL
*
MITCHELL CHEVALIER, ST. FOURTH CIRCUIT
BERNARD PARISH FIRE *
DEPARTMENT THROUGH STATE OF LOUISIANA
THE ST. BERNARD PARISH *******
GOVERNMENT, AND
LEXINGTON INSURANCE
COMPANY
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 119-826, DIVISION “C”
Honorable Kim C. Jones, Judge Presiding
******
Judge Dale N. Atkins
******
(Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-
Woods, Judge Dale N. Atkins)
John J. Finckbeiner, Jr.
LAW OFFICE OF JOHN FINCKBEINER, JR.
2203 Pakenham Drive
Chalmette, LA 70043
COUNSEL FOR PLAINTIFF/APPELLEE
Perry M. Nicosia
District Attorney
David C. Jarrell
OFFICE OF THE DISTRICT ATTORNEY FOR THE PARISH OF ST.
BERNARD
1101 W. St. Bernard Highway
Chalmette, LA 70043
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
JANUARY 8, 2019
FINAL
This is a personal injury case. Appellant, Mitchell Chevalier (“Mr.
Chevalier”), appeals the trial court’s October 30, 2018 judgment finding Mr.
Chevalier and the St. Bernard Fire Department (“SBFD”), through the St. Bernard
Parish Government, (hereinafter collectively referred to as “Appellants”), liable, in
solido, for an automobile accident that occurred between them and Appellee, Louis
Ridgel (“Mr. Ridgel”), and awarding Mr. Ridgel a total of $143,074.00 in
damages, which included $20,523.00 in medical special damages; $2,551.00 in
property damages; and $120,000.00 in general damages. Appellants appeal this
judgment.
For reasons that follow, we affirm.
BACKGROUND
On October 29, 2011, Mr. Ridgel and Mr. Chevalier were involved in an
automobile accident. Mr. Chevalier was operating a fire truck in the course and
scope of his employment with SBFD. The parties do not dispute that the accident
occurred at the intersection of West Judge Perez Drive and Alexander Avenue in
St. Bernard Parish. West Judge Perez Drive is a roadway with two travel lanes that
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are unidirectional, and Alexander Avenue is a side street off West Judge Perez
Drive with one lane.
Mr. Chevalier, along with Norman Ellis (“Captain Ellis”), a captain with
SBFD, were responding to an emergency call when the accident occurred. Captain
Ellis was in the passenger seat of the fire truck driven by Mr. Chevalier on the day
of the accident.
On October 11, 2012, Mr. Ridgel filed a personal injury claim against
Appellants and Lexington Insurance Company, Appellants’ liability insurer, for the
injuries he sustained from the accident. On October 3, 2018, Mr. Ridgel moved to
dismiss Lexington Insurance Company, with prejudice, as a named defendant in
the action. On the same day, the trial court dismissed Lexington Insurance
Company with prejudice.
A bench trial commenced on October 4, 2018, with the remaining parties—
Mr. Ridgel and Appellants. On the same day, the parties jointly stipulated to the
following:
(1) On October 29, 2011, Louis Ridgel was the owner
and operator of a 2007 Saturn Vue/Outlook traveling
westbound on West Judge Perez Drive, prior to the
Intersection at Alexander Avenue, in the Parish of St.
Bernard, State of Louisiana; and
(2) On October 29, 2011, the St. Bernard Parish
government was the owner of the 2007 KME Fire Truck,
operated by defendant, Mitchell Chevalier who at all
times herein was in the course and scope of his
employment with the St. Bernard Parish Fire Department
and who was traveling westbound on West Judge Perez
Drive, prior to the intersection at Alexander Avenue, in
the Parish of St. Bernard, State of Louisiana.
Additionally, the parties jointly stipulated to the following exhibits:
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(1) Exhibit A - State of Louisiana Uniform Motor
Vehicle Traffic Crash Report;
(2) Exhibit B - St. Bernard Parish Government’s
Insurance Policy with Lexington Insurance
Company;
(3) Exhibit C in globo - Louis Ridgel’s Medical
Records;
(4) Exhibit D - Louis Ridgel’s Damages Itemization
Report;
(5) Exhibit E in globo - Pictures of the Accident Site;
and
(6) Exhibit F in globo - Fradella’s Collision Center
Estimate for Louis Ridgel.
At trial, the following witnesses testified regarding the accident: Deputy
Brian Canepa (“Deputy Canepa”), Mr. Chevalier, Captain Ellis, and Mr. Ridgel.
Deputy Canepa’s Testimony
Deputy Canepa, the responding officer on the scene of the accident, testified
to what was stipulated in the police report. While he recalled that the fire truck was
traveling eastbound on “Judge Perez Drive,” the police report indicates and the
parties agree that they were traveling westbound on West Judge Perez Drive.1
Deputy Canepa testified that he reported the fire truck was driving toward the
center of both lanes and that his diagram documented that the fire truck was
attempting to make a “wide right turn” off West Judge Perez Drive onto Alexander
Avenue. He explained that Alexander Avenue is a narrow road and opined that it
would require an emergency vehicle make a “wide right turn” in order to safely
turn onto the street. Also, Deputy Canepa recalled Mr. Chevalier stating he was
driving in the middle of both lanes.
1
Initially, Deputy Canepa testified from his independent recollection and noted that his police
report contained a discrepancy regarding the parties’ direction of travel. He testified that, while
his police report indicates that the parties were travelling westbound on West Judge Perez Drive,
they were actually travelling eastbound.
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Deputy Canepa testified that his report indicated that Mr. Ridgel initially
stated the fire truck’s emergency lights and sirens were on when he noticed the fire
truck approaching, but later Mr. Ridgel stated that he did not see any emergency
lights or hear sirens. Deputy Canepa testified that he could not personally recall
Mr. Ridgel’s statements regarding the emergency sirens and lights, but that the
inconsistent statements were documented in his report. He testified that he
documented the accident as best he could despite Mr. Ridgel’s inconsistent
statements regarding the emergency lights and sirens. Also, Deputy Canepa could
not personally testify as to whether the fire truck’s emergency lights and sirens
were on when he arrived at the scene. He stated no citations were issued.
However, Deputy Canepa testified that, based on the damages on both of the
vehicles and the statements of Mr. Chevalier and Mr. Ridgel, the accident was
“pretty clear cut,” but acknowledged that he did not possess the training to
determine fault of the parties.
Mr. Chevalier’s Testimony
Mr. Chevalier testified that he was hired as a firefighter for St. Bernard
Parish in August 2010 and became a certified engineer two months prior to the
accident in August 2011. He explained that a certified engineer can drive a fire
truck.
Mr. Chevalier testified that, on the day of the accident, he was sitting in the
fire truck when he received an emergency call. He indicated that Captain Ellis
accompanied him on the ride. Mr. Chevalier recounted that, upon gathering all the
required information from the emergency call, he turned on the emergency lights,
and Captain Ellis turned on the sirens. He testified they pulled out of the station,
stopped at the stop sign, and proceeded to drive once he noticed many of the cars
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yield for them. Mr. Chevalier recounted he made a right on West Judge Perez
Drive and immediately entered into the left lane. He testified he traveled to the
next block, crossed over the railroad tracks, looked into his rearview mirror, and
put on his “blinker” to signal he was turning right on Alexander Avenue. Mr.
Chevalier stated that, when he looked in his rearview mirror, he saw a car
approaching the railroad tracks behind him in the right lane that appeared to be
slowing down, but saw no other cars. He then proceeded to turn on Alexander
Avenue. Mr. Chevalier testified he expected the car behind him to slow down
because the fire truck had its emergency sirens and lights on. Additionally, Mr.
Chevalier noted that the fire truck has a cautionary sign on the back of it that reads,
“[s]tay back 500 feet.” Mr. Chevalier testified that he, personally, slows down
upon seeing an emergency vehicle with a cautionary sign advising motorists to stay
a certain distance away.
Further, Mr. Chevalier testified that he was traveling the speed limit, and
that he could not have been traveling over the speed limit because the fire truck
cannot accelerate fast given its weight and the weight of the gallons of water on the
truck. Mr. Chevalier testified that, when he was preparing to turn, he heard a noise.
He explained that it was at that time Captain Ellis informed him that he had
collided with a passenger vehicle. Mr. Chevalier testified that he could not
determine whether the car he saw behind him was the same car involved in the
collision. He further testified he and the other driver of the vehicle exited and
apologized to each other.
Mr. Chevalier indicated the damage to the fire truck was located by the
passenger side rear tire well. He also testified he disagreed with the police report
indicating that he was driving in the middle of both lanes, as he recalled he was
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driving in the left lane. However, Mr. Chevalier testified that, to make a turn onto
Alexander Avenue from the left lane on West Judge Perez Drive, he had to cross
the middle of the lanes, crossing over the right lane.
Captain Ellis’ Testimony
Captain Ellis also testified about the accident, and confirmed that he was the
passenger in the fire truck with Mr. Chevalier on the day of the accident. He
testified the fire truck made a right turn on West Judge Perez Drive and entered
into the left lane with the emergency lights and sirens on. He, however, testified
that the fire truck could have traveled into the right lane for a short time prior to
turning onto Alexander Avenue. Captain Ellis further testified that Mr. Chevalier
was not speeding and estimated that Mr. Chevalier was traveling about twenty (20)
miles per hour, even though he acknowledged that this estimation was mere
speculation as he could not see the odometer from the passenger seat. Captain Ellis
stated that he could not confirm whether Mr. Chevalier had his “blinkers” on as he
turned onto Alexander Avenue because he could not see. Captain Ellis testified that
Mr. Chevalier informed him, however, that his “blinkers” were on at this time.
Captain Ellis testified the first time he was aware that Mr. Chevalier had hit
Mr. Ridgel was when he heard the noise as they were turning right onto Alexander
Avenue. He stated that he did not see the vehicle prior to making the turn. Captain
Ellis testified that he saw Mr. Ridgel once he got out of the fire truck. He stated
that Mr. Ridgel’s car collided with the fire truck “towards the back wheel well.”
Mr. Ridgel’s Testimony
Mr. Ridgel testified about the accident and the property damage to his
vehicle, as well as the injuries he sustained as a result of the accident. Mr. Ridgel
testified that he was driving westbound in the left lane on West Judge Perez Drive,
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approaching the railroad tracks, when the fire truck driven by Mr. Chevalier passed
him. He testified the fire truck then pulled into the left lane and almost
immediately made a right turn. Mr. Ridgel stated that he pulled into the right lane
because the fire truck got so close to his vehicle that he was afraid that he might
rear-end it, so he slowed down. He testified that he was originally driving about
twenty-five (25) miles per hour and slowed down to twenty (20) miles per hour.
Further, Mr. Ridgel testified that he pulled to the side of the road as far as he could,
but the fire truck still hit his vehicle. He stated that he could not get over enough to
avoid the collision because he would have driven his car into a ditch. Mr. Ridgel
testified he had no opportunity to yield because Mr. Chevalier pulled in front of
him and immediately slowed down, preparing to turn. Mr. Ridgel further testified
Mr. Chevalier’s actions caused him to pull over to the right in an effort to avoid
hitting the rear of the fire truck.
Mr. Ridgel also testified that he did not see the fire truck turn on any
“blinkers,” and he did not see any emergency lights nor did he hear sirens. After
the collision occurred, he testified that Captain Ellis got out of the fire truck to see
if he was okay and apologized, saying that Mr. Chevalier was a “young driver and
was inexperienced.” He testified that the right rear wheel well of the fire truck hit
his left bumper and front quarter panel. Mr. Ridgel testified that he paid a total of
$2,551.00 to repair the damages to his car.
Mr. Ridgel testified regarding the injuries he sustained from the accident. He
explained that he did not feel pain immediately, but within a couple of days, the
pain started. He had pain in his left shoulder, his neck, and “down his shoulder
blade through his arm.” He testified that he first sought medical treatment about “a
week to two weeks” after the accident. He explained that he was trying to provide
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homecare for the pain, but because the pain worsened, he sought medical
treatment. Mr. Ridgel testified he first sought treatment from Dr. Sylvi Beaumont
(“Dr. Beaumont”), a chiropractor, who administered physical therapy. Dr.
Beaumont referred him to a masseuse for massage therapy. He testified that, at the
time he started treatment with Dr. Beaumont, he was unable to work due to his
injuries from the accident. He explained he buys homes to renovate and would do
most of the work on his own. He testified that his activities were restricted to
attending the therapy sessions with Dr. Beaumont.
Mr. Ridgel testified that he stopped seeing Dr. Beaumont in June 2013, and
started seeing Dr. John Olson (“Dr. Olson”), a neurologist, who recommended that
he receive a Magnetic Resonance Imaging (“MRI”) scan of his neck, back, and
shoulder. He testified that he could not recall if he went back to Dr. Olson for the
results. However, Mr. Ridgel indicated that from June 2013 through September
2015, he did not see any doctors for injuries he sustained from the accident. He
explained that he had severe health issues unrelated to the accident that required
attention, such as four (4) surgeries for periodontal disease, an enlarged prostate
that was recommended for removal, and a partial nephrectomy, in which part of his
kidney was removed.
Mr. Ridgel testified that he resumed treatment for his injuries from the
accident with Dr. Domingo De Los Reyes (“Dr. De Los Reyes”), a chiropractor, in
September 2015. He explained that Dr. De Los Reyes provided “muscle
manipulation” treatment and other physical therapy. Mr. Ridgel testified that, at the
time of trial, he was receiving treatment from Dr. De Los Reyes. He also testified
that he still experienced pain from his injuries.
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On October 30, 2018, the trial court rendered its judgment and written
reasons:
(1) Finding Appellants liable, in solido, for the automobile
accident that occurred on October 29, 2011; and
(2) Awarding Mr. Ridgel a total of $143,074.00 in damages,
including:
a. $20,523.00 in medical special damages;
b. $2,551.00 in property damages; and
c. $120,000.00 in general damages.
Appellants now appeal.
STANDARD OF REVIEW
“Appellate courts review findings of fact made by the trial court judge using
the manifestly erroneous or clearly wrong standard of review.” Keller v. Monteleon
Hotel, 2009-1327, p. 2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1043 (citing
Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)). “[W]here there is conflict in the
testimony, reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court may feel that
its own evaluations and inferences are as reasonable.” Id. (Internal citation
omitted). “Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be manifestly erroneous or clearly wrong.” Id.
In order for an appellate court to reverse a trial court’s finding of fact, an
appellate court is required “to find that the findings are not supported by a
reasonable factual basis and that the record demonstrates that the findings are
clearly wrong.” Id. (citing Stobart v. State through Dep’t of Transp. and Dev., 617
So.2d 880, 882 (La.1993)). Ultimately, the appellate court must determine whether
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the “factfinder’s conclusion was a reasonable one.” Id., 2009-1327, p. 2, 43 So.3d
at 1042-43.
DISCUSSION
Appellants raise the following four assignments of error: (1) the trial court
erred in concluding that Mr. Chevalier’s actions, in relation to the accident,
constituted gross negligence; (2) the trial court erred in refusing to apply the
doctrine of comparative fault and failing to assess any fault to Mr. Ridgel; (3) the
trial court erred in finding that all of Mr. Ridgel’s injuries were related to the
October 29, 2011 accident and (4) the trial court abused its discretion in awarding
Mr. Ridgel $120,000.00 in general damages.
For ease of discussion, we divide our analysis of the issues presented by the
assignments of error into the following three categories: (1) liability and allocation
of fault; (2) damages; and (3) medical causation.
Issue Number 1- Liability and Allocation of Fault
The fundamental principle of tort liability is that “[e]very act whatever of
man that causes damage to another obliges him by whose fault it happened to
repair it.” La. C.C.P. art. 2315. This appeal specifically involves the liability of
emergency vehicles involved in motor vehicle accidents. Drivers of authorized
emergency vehicles are granted privileges when responding to emergencies, if
certain provisions are met. La. R.S. 32:24 provides, in pertinent part:
A. The driver or rider of an authorized emergency
vehicle, when responding to an emergency call, or
when in the pursuit of an actual or suspected violator
of the law, or when responding to, but not upon
returning from, a fire alarm, may exercise the
privileges set forth in this Section, but subject to the
conditions herein stated.
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B. The driver or rider of an authorized emergency
vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of
this Chapter.
(2) Proceed past a red or stop signal or stop sign,
but only after slowing down or stopping as may
be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he
does not endanger life or property.
(4) Disregard regulations governing the direction
of movement or turning in specified directions.
C. The exceptions herein granted to an authorized
emergency vehicle shall apply only when such vehicle or
bicycle is making use of audible or visual signals,
including the use of a peace officer cycle rider’s whistle,
sufficient to warn motorists of their approach, except that
a police vehicle need not be equipped with or display a
red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the
driver or rider of an authorized vehicle from the duty
to drive or ride with due regard for the safety of all
persons, nor shall such provisions protect the driver
or rider from the consequences of his reckless
disregard for the safety of others.
(Emphasis added).
In Lenard v. Dilley, the Louisiana Supreme Court addressed the standard of
care set forth in subsection (D) of Louisiana’s emergency vehicle statute stating
that:
La.Rev.Stat. 32:24(D) sets out two standards of care for
an emergency vehicle driver depending on the
circumstances of the case. If, and only if, an emergency
vehicle driver’s actions fit into subsections A, B and C of
La.Rev.Stat. 32:24, will an emergency vehicle driver be
held liable only for actions which constitute reckless
disregard for the safety of others. On the other hand, if
the emergency vehicle driver’s conduct does not fit
subsections A, B and C of La.Rev.Stat. 32:24, such
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driver's actions will be gauged by a standard of “due
care.”
2001-1522, p. 6 (La. 1/15/02), 805 So.2d 175, 180. (Emphasis added).
The Louisiana Supreme Court has defined “due care” as synonymous with
ordinary negligence. Id., 2001-1522, pp.6-7, 805 So.2d at 180. However, the court
noted “reckless disregard” is more than severe negligent behavior. Id. “Reckless
disregard” is, in effect, “gross negligence.” Id. Gross negligence has been defined
by the Louisiana Supreme Court as “the want of even slight care and diligence. It
is the want of that diligence which even careless men are accustomed to exercise.”
Id. “Reckless disregard” or “gross negligence” is the standard to be applied if the
emergency vehicle driver’s actions fit La. R.S. 32:24(A) through La. R.S.
32:24(C). Id. Otherwise, the standard is ordinary negligence. Id.
In Louisiana, motorists must follow a certain procedure when approaching
an authorized emergency vehicle. La. R.S. 32:125 provides, in pertinent part:
A. Upon the immediate approach of an authorized
emergency vehicle making use of audible or visual
signals, or of a police vehicle properly and lawfully
making use of an audible signal only, the driver of every
other vehicle shall yield the right-of-way and shall
immediately drive to a position parallel to, and as close
as possible to, the right-hand edge or curb of the highway
clear of any intersection, and shall stop and remain in
such position until the authorized emergency vehicle has
passed, except when otherwise directed by a police
officer.
***
C. This Section shall not operate to relieve the driver of
an authorized emergency vehicle from the duty to drive
with due regard for the safety of all persons using the
highway.
Appellants argue that the trial court erred in concluding the mere negligence
of Mr. Chevalier was gross negligence under the emergency responder statute, La.
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R.S. 32:24. Further, they argue the trial court should have made a factual
determination as to whether the fire truck’s emergency lights and sirens were on
prior to and at the time of the accident. Appellants also argue the trial court erred in
failing to apply the doctrine of comparative fault. We find Appellants’ arguments
lack merit.
Because Mr. Chevalier failed to keep a proper lookout and made a right turn
from the left lane, the trial court determined gross negligence. The trial court relied
upon testimonial and documentary evidence offered at trial in making its
determination.
Testimony at trial presented contradictory accounts of the accident. Mr.
Chevalier testified he was traveling in the left lane prior to making a right turn onto
Alexander Street. At trial, he testified that the emergency sirens and lights were on
prior to and at the time of the accident. He explained that he turned on his
“blinkers” and looked out his rearview mirror to see if any motorists were nearby.
He stated that he did not see Mr. Ridgel until after the collision.
Conversely, Mr. Ridgel testified the fire truck was driving more to center of
the two lanes. He also testified that he did not see or hear any emergency sirens or
lights. The police report, which the parties stipulated was accurate, similarly
provided that the fire truck was traveling in the center of the two lanes. This report
was corroborated by Deputy Canepa’s testimony at trial.
Based on this testimonial evidence, the trial court determined that Mr.
Chevalier did not see Mr. Ridgel prior to the collision, and found that this fact
confirmed Mr. Chevalier failed to keep a proper lookout. The trial court also noted
the photographs of the accident scene revealed a “raised roadway or hill encasing
railroad tracks.” It determined that this “raised roadway or hill” would have made
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it difficult for Mr. Ridgel to see vehicles behind him once he passed the railroad
tracks. The trial court found, however, that Mr. Chevalier should have kept a
proper lookout for other motorists on the road, specifically because he was making
a right turn from the left lane. Further, the trial court determined that the evidence
showed that Mr. Chevalier intended to make a quick right turn from the left lane
onto West Judge Perez Drive, but did not ensure it was safe to make that right turn.
As such, the trial court determined that Mr. Chevalier’s actions constituted gross
negligence despite the immunity established by La. R.S. 32:24. We agree.
The immunity established in La. R.S. 32:24 does not apply because the trial
court found gross negligence based upon Mr. Chevalier’s failure to keep a proper
lookout. The Louisiana Supreme Court defined “gross negligence” as “the want of
even slight care and diligence.” Lenard, 2001-1522, p. 7, 805 So.2d at 180. Mr.
Chevalier admitted he did not see Mr. Ridgel prior to the collision. Mr. Ridgel’s
testimony and the police report likewise revealed that Mr. Chevalier was traveling
more to the center of the both lanes. Testimonial evidence established that Mr.
Chevalier attempted to make a right turn from the left lane. Mr. Chevalier testified
that he turned on his “blinkers” and looked out of his rearview mirror to view
motorists behind him. Captain Ellis testified that he could not confirm whether Mr.
Chevalier turned on his “blinkers” when Mr. Chevalier was turning on Alexander
Avenue because he could not see. from Based on the evidence, the trial court found
that Mr. Chevalier disregarded traffic regulations because he failed to ensure that
he could make a right turn with reasonable safety. See La. R.S. 32:104.
We find that the trial court’s findings of fact are supported by a reasonable
factual basis. The trial court properly found that Mr. Chevalier failed to keep a
proper lookout and disregarded traffic regulations with “reckless disregard for the
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other vehicles around him.” Based on our review of the record, we determine that
the trial court’s findings are not clearly wrong and its conclusion is a reasonable
one.
We likewise find that a determination regarding the emergency lights and
sirens is not warranted. The standard of care, as set forth in La. R.S. 32:24(D),
establishes that the operator of an emergency vehicle must operate that vehicle
with “due care.” This subsection, specifically, establishes that a driver’s actions
which are the consequence of “reckless disregard for the safety of others” shall not
be protected by La. R.S. 32:24. The testimony reveals that Mr. Chevalier did not
properly look out for other motorists or monitor traffic as he prepared to turn right
onto Alexander Avenue from West Judge Perez Drive; therefore, Mr. Chevalier is
not afforded the protection of La. R.S. 32:24. Thus, a determination of whether the
emergency lights and sirens were on prior to and at the time of the accident is of no
moment. The trial court’s determination as to liability is proper.
Next, we address whether the trial court erred in its assessment of fault. “The
manifest error standard also governs this court’s review of the trial court’s findings
regarding the allocation of fault.” Urquhart v. Spencer, 2017-0069, p. 9 (La. App.
4 Cir. 7/27/17), 224 So.3d 1022, 1029 (citing Beggs v. Harrah's New Orleans
Casino, 2014-0725, pp. 13-14 (La. App. 4 Cir. 1/21/15), 158 So.3d 917, 925).
“The jurisprudence is well-settled that appellate courts are required to give great
deference to the trial court’s allocation of fault and that ‘[o]nly after making a
determination that the trier of fact’s apportionment of fault is clearly wrong can an
appellate court disturb the award.’” Id., 2017-0069, p. 9, 224 So.3d at 1029-30
(citing Fontenot v. Patterson Ins., 2009-0669, p. 22 (La. 10/20/09), 23 So.3d 259,
274). “The Supreme Court has analogized an appellate court’s allocation of fault
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after a finding of manifest error to an appellate review of quantum assessments.”
Id. (citing Clement v. Frey, 1995-1119, 1995-1163, p. 7 (La. 1/16/96), 666 So.2d
607, 610-11).
In Urquhart, this Court explained that the Louisiana Supreme Court
“summarized the standard of review applicable to allocation of fault
determinations.” Id. (citing Duncan v. Kansas City Southern Railway Co., 2000-
0066, pp. 10-11 (La. 10/30/00), 773 So.2d 670, 680-81). This Court articulated that
the Louisiana Supreme Court summarized this standard of review as follows:
This Court has previously addressed the allocation of
fault and the standard of review to be applied by
appellate courts reviewing such determinations. Finding
the same considerations applicable to the fault allocation
process as are applied in quantum assessments, we
concluded “the trier of fact is owed some deference in
allocating fault” since the finding of percentages of fault
is also a factual determination. As with other factual
determinations, the trier of fact is vested with much
discretion in its allocation of fault. Therefore, an
appellate court should only disturb the trier of fact’s
allocation of fault when it is clearly wrong or manifestly
erroneous. Only after making a determination that the
trier of fact’s apportionment of fault is clearly wrong can
an appellate court disturb the award, and then only to the
extent of lowering it or raising it to the highest or lowest
point respectively which is reasonably within the trial
court’s discretion.
Id., 2017-0069, pp. 9-10, 224 So.3d at 1030 (citing Watson v. Hicks, 2015-0046,
pp. 7-8 (La. App. 4 Cir. 5/27/15), 172 So.3d 655, 663-64) (internal citations
omitted).
Appellants argue that the trial court erred in refusing to apply the doctrine
of comparative fault, and the trial court did not take into consideration Mr.
Ridgel’s obligations as set forth in La. R.S. 32:125 in finding liability.
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Contrary to Appellants’ argument, the trial court did assess fault of both
parties, but ultimately found Mr. Chevalier was grossly negligent. The trial court
evaluated Mr. Ridgel’s obligations pursuant to La. R.S. 32:125, which establishes
the procedure to which a motorist must adhere upon approaching an authorized
emergency vehicle. The trial court noted that the photographs of the accident scene
show a “raised roadway or hill” encasing the railroad tracks that “would have made
it difficult for Mr. Ridgel to see any vehicles behind him once he passed the
railroad track.” Mr. Ridgel’s testimony confirmed this determination. He testified
that he did not see the fire truck until it passed his car as he approached the railroad
tracks. He recounted that the fire truck then entered the left lane in front of him on
West Judge Perez Drive, causing him to pull into the right lane to avoid rear-
ending the fire truck.
Mr. Ridgel expressed concern that the fire truck, when it entered the left
lane, got so close to his vehicle that he pulled into the right lane out of precaution.
As Mr. Chevalier prepared to turn, Mr. Ridgel testified that he pulled off to the
shoulder of the road to avoid the accident. However, he could not get over too far
because he would have driven into a ditch. Based on his testimony and
photographs of the accident scene, the trial court determined that Mr. Ridgel did all
that he could to avoid the collision with the fire truck.
Additionally, the police report noted that Mr. Chevalier was traveling more
to the center of both lanes. Deputy Canepa testified that Mr. Chevalier admitted
this fact when he provided his statement at the scene of the accident. Mr. Ridgel’s
testimony also corroborated this fact. The trial court thus found that the evidence
showed that the fire truck was driving more to the center of the road and planned to
make a quick right turn, narrowing the available space Mr. Ridgel had to pull over
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to the shoulder or yield to the fire truck. The trial court determined that Mr. Ridgel
could not adhere to the procedure set forth in La. R.S. 32:125 because he did not
have the opportunity to safely pull over to the shoulder or yield to the fire truck.
The trial court concluded that Mr. Chevalier “disregarded traffic regulations with
reckless disregard for the other vehicles around him.”
Based on the evidence, the trial court concluded that Appellants were 100%
liable, in solido, for the accident, finding Mr. Chevalier grossly negligent and
finding Mr. Ridgel free of fault. We conclude the trial court was not manifestly
erroneous in allocating 100% fault to Appellants.
Issue Number 2- General Damages
Next, we determine whether the trial court’s award of general damages was
excessive. Appellants argue that the trial court’s general damages award constitutes
an abuse of discretion because Mr. Ridgel has an extensive history of back issues
prior to this accident, that he had an inexplicable twenty-seven (27) month gap in
treatment for his injuries sustained from the accident, and there was a lack of any
relation of Mr. Ridgel’s treatment with Dr. De Los Reyes to the injuries sustained
in this accident.
Louisiana jurisprudence is well-settled that the trier of fact is given great
discretion in its assessment of damages. “The standard of review applicable to a
general damages award is the abuse of discretion standard.” Bouquet v. Wal-Mart
Stores, Inc., 2008-0309, p. 4 (La. 4/4/08), 979 So.2d 456, 459 (citing Anderson v.
Welding Testing Lab, Inc., 304 So.2d 351, 353, (La. 1974)). In Bouquet, the
Louisiana Supreme Court articulated that:
The trier of fact is afforded much discretion in assessing
the facts and rendering an award because it is in the best
position to evaluate witness credibility and see the
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evidence firsthand. An appellate court may disturb a
damages award only after an articulated analysis of the
facts reveals an abuse of discretion. The role of an
appellate court in reviewing a general damages award is
not to decide what it considers to be an appropriate award
but rather to review the exercise of discretion by the trier
of fact. To determine whether the fact finder has abused
its discretion, the reviewing court looks first to the facts
and circumstances of the particular case.
Id., 2008-0309, pp. 4-5, 979 So.2d at 459. (Internal citations omitted).
“General damages are those which are inherently speculative in nature and
cannot be fixed with mathematical certainty.” Id., 2008-0309, p. 4, 979 So.2d at
458 (citing Duncan v. Kansas City So. Ry. Co., 2000-0066, p. 13 (La. 10/30/00),
773 So.2d 670, 682; Boswell v. Roy O. Martin Lumbar Co., 363 So.2d 506, 507
(La. 1978)). “[T]hey ‘involve mental or physical pain and suffering,
inconvenience, the loss of intellectual gratification or physical enjoyment, or other
losses of life or life-style which cannot be definitely measured in monetary
terms.’” Duncan, 2000-0066, p. 13, 773 So.2d at 683 (quoting Keeth v. Dept. Pub.
Safety & Transp., 618 So.2d 1154, 1160 (La. App. 2nd Cir. 1993)). “Because
reasonable persons frequently disagree about the measure of general damages, such
an award may be disturbed on appeal 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...’”
Urquhart, 2017-0069, p. 14, 224 So.3d at 1032 (citing Youn v. Maritime Overseas
Corp., 623 So.2d 1257, 1260 (La. 1993)). “Each case is different; the particular
effects of the particular injury on the particular plaintiff must be considered.” Id.
“Consideration of prior awards to determine whether a judgment is abusively low
or excessively high is only appropriate after the appellate court has determined that
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an abuse of discretion has occurred.” Id. (citing Cone v. National Emergency
Services, Inc., 1999-0934 (La. 10/29/99), 747 So.2d 1085, 1089).
In the case sub judice, the trial court awarded Mr. Ridgel $120,000.00 in
general damages for pain and suffering for a seven (7) year period. Appellants
argue this amount is excessive because Mr. Ridgel was not under active treatment
for that extended amount of time and had pre-existing injuries for a number of
years. Thus, they argue that this award exceeds amounts awarded for similar
injuries. Before considering prior awards to determine if the trial court’s judgment
is excessively high, this court must determine if an abuse of discretion has
occurred. The initial inquiry, however, “is not guided by awards for similar
injuries; rather, our initial inquiry is whether the instant award is 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.” Duncan, 2000-0066,
p. 14, 773 So.2d at 683.
Prior to this accident, Mr. Ridgel renovated rental properties and performed
most of the renovations on his own. As a result of the accident, however, he was
unable to work renovating properties. His inability to work has diminished his
quality of life. The trial court noted that, even though Mr. Ridgel was not seeking
lost wages, his testimony reveals that he cannot work at all renovating properties.
He also testified that the accident has limited his ability to perform other activities,
such as working out or dancing, and he can only perform limited work.
As it relates to Mr. Ridgel’s medical treatment, he testified that he initially
did not feel any pain immediately after the accident, but experienced pain a couple
of days after the accident. He noted the pain was in his left shoulder, his neck, and
“down his shoulder blade through his arm.” He tended to this pain at home, hoping
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the pain would subside. The trial court noted that Mr. Ridgel applied “cold
compresses” to relieve his pain. However, the pain worsened and he sought
medical treatment from Dr. Beaumont. Dr. Beaumont’s medical notes showed that
Mr. Ridgel came to her office complaining of headaches and neck and back pain as
a result of the accident. Her notes also revealed that he complained of “insomnia,
irritability, tension, and ultimately, depression.”
Mr. Ridgel also sought medical treatment from Dr. Olson and Dr. De Los
Reyes. The trial court found that Dr. Olson’s medical notes showed that Mr. Ridgel
had long-term back injuries, but related the aggravation of those injuries to this
accident. Thus, Dr. Olson recommended a MRI of Mr. Ridgel’s lumbar and
cervical spine. The MRI revealed herniated discs and disc bulges in both the
lumbar and cervical spine. In particular, in its reasons for judgment, the trial court
noted that the MRI revealed the following:
The cervical MRI had the following impressions:
1. C6-C7: Right lateral herniated nucleus pulposus
(3mm) impressing upon the exiting right C7 nerve root,
deforming the cervical spine cord and contributing to
right neutral forminal stenosis;
2. Bilateral neural forminal stenosis due to diffuse
bulge of the annulus fibrosis with associated marginal
osteophyte formation: C3-C4, C4-C5, C5-C6 and C6-C7.
The lumbar MRI had the following expression:
1. L5-S1: Central and right paracentral herniated
nucleus pulposis with osteophyte formation (4mm)
contacting and displacing the right S-1 nerve root
posteriorly.
2. Bilateral neural forminal stenisus due to diffuse
bulge of the annulus fibrosis: L3-L4.
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In addition to the MRI conducted by Dr. Olson, Dr. De Los Reyes
performed diagnostic tests on Mr. Ridgel. In his medical report, Dr. De Los Reyes
reported that the diagnostic tests revealed disc bulges at C3-C4, C4-C5 and C5-C6,
and a disc herniation at C6-C7 of his cervical spine. As to his lumbar spine, the
tests revealed a disc bulge at L3-L4 and a disc herniation at L5-S1. Dr. De Los
Reyes also reported that Dr. Olson related Mr. Ridgel’s headaches and neck
injuries to the accident. Further, Dr. De Los Reyes opined that herniated discs to
the lumbar and cervical spine were “directly related to the motor vehicle on
October 29, 2011.”
Mr. Ridgel testified that he now experiences numbness in his left arm and in
his hand, and has constant pain in his neck and shoulders. He also complained of
numbness in the back of his leg down to his foot. Mr. Ridgel stated that the pain is
not severe all the time, but his pain is constant. On the days when the pain from his
injuries is severe, he testified that he is not able to do anything. Further, Mr. Ridgel
testified that he did not suffer from neck pain, shoulder pain, or pain in his left arm
prior to this accident. However, Mr. Ridgel stated that the herniated discs, which
he sustained from the accident, are the reason for his neck, shoulder, and arm pain.
At the time of trial, Mr. Ridgel testified that he was still receiving treatment from
Dr. De Los Reyes for the injuries he sustained from the accident.
Appellants argue that Mr. Ridgel had pre-existing back injuries for an
extensive amount of time and was receiving active treatment for those injuries
before the accident. In Louisiana, however, it is well-settled that an accident victim
who suffers from a pre-existing condition is not barred “from being compensated
for an aggravation or worsening of that condition as a result of the new accident.”
Frost v. Carter, 2013-0375, p. 8 (La. App. 4 Cir. 10/29/14), 140 So.3d 54, 65. A
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defendant “takes his victim as he finds him” and “the defendant ‘is responsible for
all natural and probable consequences of his tortious conduct.’” Id., 2013-0375, pp.
8-9, 140 So.3d at 65. “[I]f the defendant’s conduct is responsible for aggravating a
pre-existing condition, he must compensate the victim for the full extent of the
aggravation, ‘even if some or all of the injuries might not have occurred but for the
plaintiff’s preexisting physical condition, disease, or susceptibility to injury.”’ Id.,
2013-0375, p. 9, 140 So.3d at 65 (citing Chavers v. Travis, 2004-0992, p. 7 (La.
App. 4 Cir. 4/20/05), 902 So.2d 389, 394). However, that plaintiff must still prove
causation. Id.
The record demonstrates that the trial court found that Mr. Ridgel proved
causation. The trial court noted Mr. Ridgel acknowledged that he had a long
history of back pain, but stated the accident aggravated those injuries. It found that
the medical opinions introduced at trial from Mr. Ridgel’s treating physicians, Dr.
Beaumont, Dr. Olson, and Dr. De Los Reyes document that he sustained injuries
from the accident. In particular, Dr. Olson’s notes showed Mr. Ridgel’s pre-
existing back injuries were aggravated as a result of the accident. Dr. De Los
Reyes reported that Mr. Ridgel had a pre-existing degenerative disc condition in
his lumbar spine, but he opined that the weakened disc bulge was likely ruptured in
the accident. The trial court noted that Dr. De Los Reyes’ opinion regarding these
injuries was based on his belief that disc herniations are traumatic in nature, not
degenerative, and “the fact of how the accident occurred and the weight of the fire
truck were risk factors for this type of injury.” Dr. De Los Reyes concluded that it
is “more probable than not” the lumbar and cervical disc bulges were aggravated
by the accident.
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Thus, based on the testimony and medical evidence, the trial court found
that Mr. Ridgel sustained new injuries to his lumbar and cervical spine, and that his
pre-existing injuries to those areas were aggravated as a result of accident.
Further, Appellants argue that Mr. Ridgel had a gap in treatment for which
he did not explain. Louisiana jurisprudence dictates that the trial court has the
discretion to determine whether a gap in treatment should be a factor in
determining an award for damages. Williams v. Mathieu, 2013-1373, p. 9 (La. App.
4 Cir. 10/29/14), 155 So.3d 54, 60-61; See also Bernard v. Hartford Ins. Co.,
2009-71, p. 5 (La. App. 3 Cir. 6/3/09), 12 So.3d 1098, 1102.
Mr. Ridgel explained that the gap in treatment was attributed to medical
issues unrelated to the injuries he sustained from the accident. He explained that he
had periodontal disease, which caused him to undergo four (4) separate surgeries;
that he had an enlarged prostate; and he had a partial nephrectomy, in which part of
his kidney was removed. The trial court found that Mr. Ridgel was treated
consistently for one (1) year and seven (7) months. The trial court acknowledged
that Mr. Ridgel had a gap in treatment, but noted that he resumed treatment, and is
presently receiving treatment for his injuries. In making its determination as to
damages, the record reflects that the trial court considered the gap in treatment and
reduced Mr. Ridgel’s award by fifty percent (50%) for the treatment he received
from Simply Precise Family Chiropractic. Nevertheless, the trial court found that
the following amounts were attributed to Mr. Ridgel’s injuries he sustained from
the accident on October 29, 2011:
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Sylvi Beaumont, D.C. $6,301.00
Simply Precise Family Chiropractic $12,947.00 (1/2 of
original amount)
Dr. John Olson, M.D. $ 425.00
Metairie Imaging, Elmwood MRI $ 850.00
__________________
$20,523.00
A trial court’s findings based on “reasonable credibility determinations and
factual evaluations” will not be disturbed “unless manifestly erroneous.” Williams,
2013-1373, p. 9, 155 So.3d at 61 (citing Keller v. Monteleon Hotel, 2009-1327, p.
2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1042). We decline to disturb the trial
court’s findings as we do not find manifest error.
Our review of the record shows the trial court did not abuse its discretion
and made credible determinations based upon the medical evidence and live
testimony at trial and awarded general damages appropriately.
Thus, we do not find that the trial court abused its discretion in awarding Mr.
Ridgel $120,000.00 in general damages.
Issue Number 3- Medical Causation
We last address whether the trial court erred in its finding of medical
causation. Appellants argue that the trial court erred in finding that all of Mr.
Ridgel’s injuries were related to the October 29, 2011 accident.
“In a personal injury action, the plaintiff bears the burden of proving—by
preponderance of the evidence—that the injuries sustained were caused by the
accident at issue.” Frost, 2013-0375, p. 7, 140 So.3d at 64 (citing Maranto v.
Goodyear Tire & Rubber Co., 1994-2603, p. 3 (La. 2/22/95), 650 So.2d 757, 759).
In Frost, this Court articulated that, ‘“[t]he test for determining the causal
relationship between an accident and a subsequent injury is whether the plaintiff
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proved through medical or lay testimony that it is more probable than not that the
subsequent injuries were caused by the accident.’” Id., 2013-0375, pp.7-8, 140
So.3d at 64 (quoting Chavers, 2004-0992, p. 7, 902 So.2d at 394). “Proof to a
reasonable medical certainty is not required.” Id. (citing Lasha v. Olin Corp., 625
So.2d 1002, 1005 (La.1993)).
To meet his burden of proof, Mr. Ridgel testified about his injuries and
introduced his medical records, to which all parties stipulated as admissible. “A
stipulation has the effect of a judicial admission or confession which binds all
parties and the court.” Rabathaly v. Breaux, 1999-244, p. 4 (La. App. 5 Cir.
7/27/99), 738 So.2d 1182, 1184 (citing Cain v. Aquarius Builders, Inc., 1996-66
(La. App. 5 Cir.7/30/96), 680 So.2d 69). Further, “[i]t is well-settled that when a
party fails to contemporaneously object to the introduction of objectionable
evidence, that party waives the right to complain of the issue on appeal.” Frost,
2013-0375, p. 15 (La. App. 4 Cir. 4/2/14), 140 So.3d 59, 68 (citing Trans-Global
Alloy Ltd. v. First Nat. Bank of Jefferson Parish, 583 So.2d 443, 448-49
(La.1991)).
In this instant matter, the record reflects that the parties jointly stipulated to
the admissibility of Mr. Ridgel’s medical records, including the following medical
records:
(1) Metairie Imaging/Elmwood MRI LTD.;
(2) Dr. Sylvi Beaumont D.C.;
(3) Dr. John Olson, M.D.;
(4) Simply Precise Family Chiropractic;
(5) Blue Cross Blue Shield of Louisiana; and
(6) Three (3) Dermatome charts of the human spinal
cord.
Based on the evidence presented, the trial court found that Mr. Ridgel
proved causation as to the following:
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Lumbar spine:
- L3-L4 aggravation of a pre-existing
bulge
- L5-S1 pre-existing disc bulge caused to
herniate
- New right and left sided lumbar radicular
pain
Cervical spine:
- C3-C4, C4-C5, C5-C6 aggravation pre-
existing bulge
- C6-C7 herniation
Appellants did not present evidence to challenge causation proved by the admitted
medical records. Thus, Appellants not only stipulated to the authenticity of Mr.
Ridgel’s medical records, but to the contents of those records as well. Therefore,
they have waived their right to assert as error the finding of causation made by the
trial court based upon the medical records and plaintiff’s treating physicians’
opinions as to causation. Thus, this assignment of error lacks merit.
DECREE
For the foregoing reasons, we affirm the trial court’s judgment, rendered on
October 30, 2018, finding Appellants liable, in solido, for the accident and
awarding Mr. Ridgel a total of $143,074.00 in damages.
AFFIRMED
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