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Rabon v. Smithkors

Court of Appeals of Louisiana, Third Circuit

January 18, 2018



          Jeffery F. Speer George A. Wright Doucet-Speer, APLC COUNSEL FOR PLAINTIFF/APPELLANT: Oliver Rabon

          Brendan P. Doherty, Bradley J. Schwab, Geiger, Laborde & Laperouse, LLC COUNSEL FOR DEFENDANTS/APPELLEES: James Smithkors and ABC Supply Company

          Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.


         This appeal arose out of a motor vehicle accident that occurred in Lafayette, Louisiana on August 26, 2015. On that date, at around 10:30 a.m., Plaintiff, Oliver Rabon, was driving his Chevrolet Tahoe eastbound on Southpark Drive in Lafayette Parish. Defendant, James Smithkors was driving westbound on Southpark Drive in a thirty-five foot International truck with a forklift attached to its rear. The truck was owned by Defendant, ABC Supply Company, who Smithkors was driving for.

         The record established Smithkors, who testified he was lost and looking for a place to turn his truck around, attempted to make a left turn across the oncoming lane of traffic to turn into a parking lot. During the execution of the turn, Rabon's vehicle struck the very rear of the forklift attached to the back of the ABC Supply truck. The details surrounding the attempted left turn, the actual location of the collision, i.e., whether it was on the roadway or off, and whether any injuries allegedly suffered by Rabon were caused by the accident were disputed.

         Rabon filed suit against Smithkors and ABC Supply for the injuries he allegedly incurred as a result of the accident. On December 12, 2016, a bench trial was held on the matter. Rabon and Smithkors presented different versions of the facts surrounding the accident.

         Rabon testified he was driving at a legal speed when suddenly the truck driven by Smithkors turned in front of him. Rabon stated he immediately applied his brakes and quickly steered his vehicle to the left side of his lane in an attempt to avoid any collision. Rabon stated that, had he driven to the right, he would have then broadsided the truck, which would have led to significantly greater damage. He also noted had he gone any further left he would have been in the other lane and subject to colliding with oncoming traffic. He maintained his decision to steer to the far left of his lane lowered the overall damage sustained in the accident.

         Rabon stated immediately following the collision, he pulled his vehicle off the side of the road and was preparing to exchange information with the driver of the truck. However, upon stopping his vehicle and preparing to exit, he saw the truck had completed its turn and was reentering Southpark Drive to head away from the scene. Rabon then followed the truck and upon stopping it, called the police.

         Shortly after the accident, Rabon testified he felt increasing pain and stiffness in his neck and back. He went later that day to Lafayette General Medical Center to seek medical attention. After being examined, Rabon was told to take a few days off of work and then report to his primary care physician if things did not improve. Rabon took the remainder of the week off and returned to work the following Monday. After he continued to experience significant pain in his neck and back, Rabon went to see Dr. Robert Franklin for further treatment. Rabon was treated conservatively by Dr. Franklin with medication and physical therapy.

         Rabon testified he continued to work as best he could while attending three therapy sessions per week. By the beginning of October 2016, Rabon testified he was unable to continue performing his work duties as a welder due to severe pain. Dr. Franklin determined Rabon should be placed on light duty; however, Rabon's employer did not have any light duty positions available and Rabon was forced to stop working.

         On October 20, 2015, Dr. Franklin concluded physical therapy was not providing any meaningful relief to Rabon, and referred him to Dr. Mark McDonnell, a spine surgeon. Dr. McDonnell performed a lumbar steroid injection in an attempt to alleviate Rabon's pain, with limited success. A MRI was performed, which revealed degenerative changes. Dr. McDonnell also wanted Rabon to undergo a discogram of the lumbar spine to fully determine the extent of his injuries. At trial, Rabon testified his degenerative changes were made symptomatic by the trauma he suffered in the accident, causing him significant pain and requiring him to stop working.

         Smithkors testimony differed from that of Rabon. Smithkors testified he made a wrong turn that morning. After realizing that, he continued driving down Southpark Drive until he saw an area where he believed he could turn his truck around. He stated he saw a parking lot big enough to turn around in, but needed to make a left turn across the eastbound lane to enter a private driveway leading to the parking lot.

         He stated he activated his left turn signal and checked the eastbound lane for oncoming traffic. He testified he saw Rabon's vehicle about 300 to 500 feet away but believed he could safely complete a left turn of his truck prior to Rabon's vehicle traveling that distance. Smithkors also testified it was his opinion Rabon had ample ...

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