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Waring v. Johnson6/12/2000
Appeal From Beaufort County Howard P. King, Circuit Court Judge
Heard May 10, 2000
AFFIRMED
In this tort action, Darrell Johnson, III, appeals from the trial court's grant of a new trial nisi additur to Lea Waring. We affirm.
FACTS/PROCEDURAL BACKGROUND
On August 19, 1992, at about 1:30 p.m., Waring and Johnson were involved in an automobile accident on Highway 17, at that time a two lane highway, near an area called Pocataligo. Waring, who was sixty-four years old at the time, was a passenger in a motor home which Johnson struck from behind in his truck.
Waring testified she and her then-husband (the couple is now divorced) were in the second day of a one month trip when they were forced to slow down because a car ahead of them was driving with a flat tire. They were waiting for oncoming traffic to clear so they could pass when they were suddenly, and without warning, struck from behind. The front left side of the truck crashed into the right rear portion of the motor home with such an impact that a stove or refrigerator which was installed inside the motor home flew over the top of the truck. The highway patrolman who responded to the scene stated that when he arrived, debris from the motor home was scattered two hundred feet up and down the highway.
The highway on which Waring and Johnson were traveling was straight and had no visual obstructions. According to Johnson, it was raining hard at the time of the accident and, although he had slowed to 45 miles per hour, the rain on the road made it impossible for him to avoid striking the motor home. Waring, however, did not recall it raining very hard. Waring declared she had no difficulty seeing the slowed vehicles ahead and her husband had no difficulty in slowing down while waiting for an opportunity to pass.
The next morning, Waring felt stiff and took Ibuprofen. She and her husband canceled their plans to drive to Maine. Instead, they returned to their home in Florida on Saturday, four days after the accident. By that date, Waring was in agony, in pain throughout her body. She could not bear to ride in the vehicle without Ibuprofen. Waring found and took some Darvocet she had in a first aid kit.
On Monday morning, Waring called to make an appointment with her doctor, Dr. Robert Diaz, an orthopedic surgeon. She could not get an appointment until August 28, 1992. In the interim period, Waring suffered from neck and back pain so severe she could not bend over and could only "lay around and groan." Dr. Diaz recalled Waring suffered from muscle spasms in her neck and lumbar spine. He opined the spasms were caused by the accident. Dr. Diaz prescribed muscle relaxers and anti-inflammatory medicine and sent Waring to physical therapy.
When Dr. Diaz saw Waring less than two weeks later, on September 9, he noticed mild muscle spasm in her upper shoulder. Her lumbar spine spasm had become moderate to marked with a loss in her range of motion. At her next visit on September 18, Waring had improved with physical therapy but was still suffering pain in her shoulder. She experienced even more improvement by her next visit on September 30, although she still had spasms in her lumbar spine and upper shoulders. By early November, Waring had improved to the point that she was able to swim and fish. Yet, she still experienced tightness in her neck while sitting and reading. At a visit approximately three weeks later, she reported she was no longer improving with physical therapy and medicine. Additionally, she complained of neck pain and occasional arm pain while reaching. An examination revealed her range of motion in her neck and lumbar spine
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