Murchison v. Lyndon Property Ins. Co.12/30/2004
stance which might require the actor to proceed in haste, without proper thought.
Id. at 974. Using the Watson factors, we agree that Officer Richards was proximately at fault in causing the accident. He was in the best position to deter this accident; in his capacity as a police officer he had a superior role during the event; his conduct created the risk; and, he was clearly under a duty to be aware of the dangers. In addition, he admitted he was negligent in his supervision of the intersection. With regard to Ms. Istre, the first driver to broadside Mr. Murchison, and Ms. Suire, the second driver, we agree that they have some responsibility in the fault of this accident. We find the record supports that Ms. Suire was in a better position to prevent the second hit and, therefore, more culpable then Ms. Istre. We find that the trial judge was not manifestly erroneous in his determination of fault.
Allocation of Damages
Mr. Murchison suffered injuries from the accident on September 10, 1998. He visited a chiropractor to treat pain in his neck, back, and shoulder. He completed treatment with his chiropractor on December 15, 1998. Mr. Murchison also sought treatment from an orthopedist, Dr. R. Dale Bernauer. Although Dr. Bernauer found no problems in either Mr. Murchison's x-rays or his physical examination, he treated him for spraining and straining injuries until February 17, 1999, when he released the patient from his care. On March 3, 1999, Mr. Murchison returned to the chiropractor after injuring his back while lifting a heavy box. At that time, he filled out a questionnaire stating that he could perform everyday activities normally, such as working, lifting, driving, and caring for himself.
On August 18, 1999, Mr. Murchison again returned to his chiropractor for treatment after suffering an injury while repairing the floor in his mother's home. Mr. Murchison sought treatment from Dr. Bernauer, who ordered MRI's of the plaintiff's neck and back. These MRI's, taken October 13, 1999, revealed no ruptured or damaged disks, but showed signs only of normal aging. On January 26, 2000, Dr. Bernauer saw Mr. Murchison once more for a check-up, and found his physical exam to be normal.
Mr. Murchison then began work at Car Care Automotive in March of 2000. He did not return to Dr. Bernauer until February 27, 2002, when he sought treatment for serious neck pain. On March 11, 2002, Dr. Bernauer ordered new MRI's, which revealed mild degenerative changes and, in addition, a herniated disk at C3-4. Dr. Bernauer operated on Mr. Murchison on August 6, 2002, and again on April 8, 2003 to treat the herniated disk and its related complications.
Although Mr. Murchison provided extensive descriptions of his painful conditions, including high blood pressure and depression, and also his loss of earnings, the central issue is whether or not his injury on September 10, 1998 caused the herniated disk at C3-4. Dr. Bernauer testified that the herniated disk itself required surgery, and then caused certain complications requiring further surgery; however, he admitted in his testimony that he could not medically conclude that the original accident caused the herniation at C3-4. In fact, Dr. Bernauer described the herniated disk at C3-4 to the patient, Mr. Murchison, as a "new finding."
Dr. James Perry examined Mr. Murchison only once, on behalf of the defendants. Dr. Perry noted that the initial MRI taken in October of 1999, a month after the accident, showed no damage. He concluded that the change causing the herniated disk occurred after the October 1999 MRI, and that therefore the accident on September 10, 1998, could not have caused the herniation. Th
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