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Moreau v. North American Fire and Casualty Insurance Co.12/26/2001
iate hazard. LSA-R.S. 32:124. Miller was plainly at fault for having attempted to exit the parking lot when Moreau's vehicle was within a block of the lot and coming towards the lot at at least 35 miles per hour.
We see no manifest error in the trial judge's determination of fault in this matter.
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, Defendants North American and Metry Cab argue that the trial judge was in error in relating Moreau's injuries to the accident. Defendants argue that Moreau's complaints of headaches and a back injury predated the accident, as proved by various medical records showing that she had been hospitalized more than once with these specific complaints.
Causation is a fact specific inquiry. The issue is whether a defendant's conduct was, in fact, a cause of plaintiff's harm. Great deference is accorded the trier of fact on the question of factual causation. Rick v. State, Dept. of Transp. and Development, 630 So.2d 1271, 1275 (La. 1994); Crane v. Diamond Offshore Drilling, Inc., 99-166, at 19 (La. App. 5 Cir. 9/15/99), 743 So.2d 780, 792-3.
The treating physician, the only testifying physician, related Moreau's injuries to the accident in question. Moreover, both Moreau and Dr. Haydel testified that the symptoms Moreau had suffered in the past were related to her several chronic illnesses, and that though the symptoms may have been similar, they were not identical. When she was questioned by Defendant's attorney, Moreau was able to relate her hospital visits to these conditions. We see no manifest error in the trial judge's positive finding of causation.
Finally, in this assignment of error, Defendants also argue that the gaps in Moreau's treatment amounted to a failure to mitigate her damages.
The doctrine of avoidable consequences bars recovery of those damages which occurred after the initial injury and which might have been averted by reasonable conduct on the part of the plaintiff. Philippe v. Browning Arms Company, 395 So.2d 310, 319 n.12. The burden of proof is on the defendant to show to what extent plaintiff's damages should have been mitigated and the rule of mitigation of damages is to be applied with extreme caution. Domonter v. C.F. Bean Corporation, 99- 1204, at 21 (La. App. 5 Cir. 4/25/00), 761 So.2d 629, 641-2, writ denied, 00-1872 (La. 2000), 770 So.2d 354.
We cannot say that the brief gaps in treatment were of such a nature as to have been any sort of interference with Moreau's treatment or to have rendered the treatment less effective. There was no testimony from Dr. Haydel to say as much; Defendants presented no other evidence that showed as much. Further, Dr. Haydel testified that Moreau's headaches (if not her neck pain) had, over the course of treatment, subsided during some periods of time. We are instructed that the rule of mitigation must be applied with extreme caution; we can't say that the instant matter is one in which it should be applied.
Therefore, for the above reasons, we affirm the judgment of the trial court, with Defendants to bear all costs of this appeal.
AFFIRMED
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