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Simms v. Progressive Insurance Co.9/29/2004
e the trier of fact is given great and even vast discretion in setting general damage awards, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed. 2d 379 (1994). The initial inquiry in appellate review of general damages is "whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the 'much discretion' of the trier of fact." Youn, 623 So. 2d at 1260. Thus, to determine whether the trier of fact abused its discretion in awarding damages, we must look first to the individual circumstances of the case.
Only when the award is in either direction beyond that which a reasonable trier of fact could have assessed for the effects of the particular injury on the particular plaintiff under the particular circumstances should the appellate court reduce or increase the award. Youn, 623 So. 2d at 1261. The award may then be raised or lowered only to the highest or lowest point reasonably within the discretion of the trier of fact. Orea v. Scallan, supra. An appellate court should view the evidence in the light most favorable to the plaintiff in deciding whether an award is excessive. O'Brien v. Remington Arms Co., 601 So. 2d 330 (La. App. 2d Cir. 1992), writ denied, 604 So. 2d 1003 (La. 1992). If an articulated factual analysis shows an abuse of discretion by the trier of fact, then the appellate court may look to prior awards to determine the highest or lowest point within the trier of fact's discretion. Youn, 623 So. 2d at 1260.
The record establishes that the impact of Williamson's vehicle threw Simms into the air and onto the hot pavement where she remained for some time until the ambulance arrived to transport her to LSUMC for treatment. She sustained burn injuries to her left forearm from the hot asphalt. She also sustained facial lacerations and abrasions, two broken bones in her left forearm, and severe brakes of both the tibia and fibula from her knee to ankle along the lower right leg. She remained hospitalized for ten days and underwent surgery to repair her broken bones.
Fletcher S. Sutton, Jr., an orthopaedic surgeon who treated Simms, testified at trial. Dr. Sutton explained that Simms underwent a closed reduction of her left leg to align the bones and place an external fixation device attached by multiple pins along her leg. Simms also had an open reduction procedure to place a metal plate in her forearm and a closed reduction procedure on a bone near her wrist where pins were placed for stabilization. Following these procedures, Simms was bedridden and could do nothing for herself. She required the constant assistance of her family and friends.
After her discharge from the hospital, Simms underwent an additional painful procedure to adjust the device on her leg. Dr. Sutton testified that the external fixator device was finally removed from Simms' leg after eight weeks, at which time a cast was placed from her groin to her toe. Once the cast was in place, she was encouraged to begin putting weight on her leg to stimulate healing. However, the leg required additional procedures due to angulation of the bone and slow healing of one of the breaks. The break was opened so that scar tissue could be scraped from between the broken bone. A bone graft was done with bone taken from her pelvis to pack around the break, and a metal rod was inserted down the middle of the bone from knee to ankle.
Dr. Sutton testified that Simms could walk short distances on level surfaces with the assistance of a walker after six months. Additionally, her arm w
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