APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 760-347, DIVISION
"M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, RICO LEE Pius A. Obioha
LaMarre T. Elder
COUNSEL FOR DEFENDANT/APPELLEE, PULL-A-PART OF NEW ORLEANS
WEST, LLC AND THE PHOENIX INSURANCE COMPANY Michael R.
Plaintiff, Rico Lee, appeals the trial court judgment in
favor of defendant, Pull-A-Part of New Orleans, LLC. For the
following reasons, we affirm.
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and Marion F. Edwards, Judge Pro Tempore
FREDERICKA HOMBERG WICKER JUDGE
AND PROCEDURAL HISTORY
April 27, 2016, plaintiff, Rico Lee, filed suit in the
Twenty-Fourth Judicial District Court for the Parish of
Jefferson against defendants, Pull-A-Part of New Orleans
West, LLC and The Phoenix Insurance Company,  for damages
arising out of an alleged August 13, 2015 accident. In his
petition, plaintiff alleged that, while a customer at
Pull-A-Part's vehicle yard in Harvey, he sustained
personal injuries when the rear end of a Dodge pickup
truck-propped up on rims to hold it in place-suddenly and
without warning fell onto his foot.
matter proceeded to trial before a twelve-person jury. At
trial, plaintiff testified that, on August 13, 2015, he went
to Pull-A-Part's vehicle yard, where he had been several
times before, to obtain a part off of a pick-up truck. The
yard had several vehicles lined up and propped up on rims,
approximately three feet off of the ground. Plaintiff
testified that he slid under a Dodge Ram pickup truck to
obtain a part, but realized that he needed a certain tool
before he could take the part off of the truck. He stated
that, as he slid out from under the truck, he was waist-deep
under the truck when he heard an "unh" sound.
Plaintiff stated that the rear end of the truck suddenly and
without warning fell onto his foot. Plaintiff testified that
he never touched the truck and that his friend, Mervin
Wright, accompanied him to the yard and witnessed the
accident. He further stated that several Pull-APart employees
observed him after the accident, and that one employee gave
Mr. Wright a wind-up jack to manually raise the car off of
plaintiff's foot. Plaintiff testified that EMS arrived to
the scene and treated him with an ice pack.
Plaintiff testified that he did not seek any further medical
treatment on the date of the accident, but that his primary
care physician, Dr. Ogbuokiri, examined him the following
day. At some point, plaintiff went to the emergency room at
University Medical Center for X-rays and testing. Plaintiff
testified that he fractured his foot and wore a boot for
several months. Plaintiff acknowledged that he had
experienced foot pain prior to this accident, but that he had
never received any medical treatment prior to this accident.
Godwin Ogbuokiri, the medical director for Downman Urgent
HealthCare Clinic, testified as an expert in general medicine
at trial. Dr. Ogbuokiri testified that he examined
plaintiff on August 14, 2015. Plaintiff reported to Dr.
Ogbuokiri that the rear end of a vehicle landed on his foot
the day prior and that he was "stuck" under the
vehicle and struggled for six to ten minutes thrashing about
until others extricated him from under the vehicle. Dr.
Ogbuokiri testified that plaintiff's foot appeared
swollen, so he took an x-ray of his foot and told plaintiff
that he had a nondisplaced fracture in his foot. Concerning
his diagnosis of a nondisplaced fracture, Dr. Ogbuokiri
testified, "I took caution. I was convinced that he was
having a problem with his foot, and I wasn't really sure
whether he have [sic] a fracture … ." Dr.
Ogbuokiri put plaintiff's foot in a cast and sent him to
the hospital for a more definitive study. Dr. Ogbuokiri
acknowledged that subsequent hospital records reflect that
plaintiff did not in fact sustain any fracture to his foot.
Dr. Ogbuokiri testified that plaintiff treated with him
between a fourteen-month and two-year time period and that
his medical bills totaled approximately $6,
Fritz Fidele, a chiropractic physician with Plaza Medical
Center, treated plaintiff beginning January 4,
2017, at which time plaintiff complained of left foot pain
and lower back pain and stiffness, through April 26, 2017.
Dr. Fidele testified that plaintiff's foot had no visible
signs of injury, such as swelling, at the time of his visit.
However, plaintiff reported foot and back pain to Dr. Fidele
and relayed that he had suffered a stroke as a result of
stress related to the accident. Dr. Fidele testified that a
technician with his office conducted a nerve conduction study
and that Dr. Friedmann, a board-certified neurologist,
reviewed the nerve conduction study results and found that
plaintiff sustained nerve damage. Dr. Fidele testified that
plaintiff was subsequently examined on one occasion by Dr.
Voorhies, a neurologist, who opined that plaintiff was not a
surgical candidate but referred plaintiff back to an
orthopedist for his complaints of foot pain.
presented the testimony of Dr. Michael Happel, a board
certified neurologist with a specialty in electrodiagnostic
testing. Dr. Happel testified that he reviewed the
EMS report from the date of the accident, which he stated
documented "very little, " as well as all of
plaintiff's medical records from various providers,
including the X-ray images taken of plaintiff's foot. Dr.
Happel testified that the medical records reflect that
plaintiff potentially sustained a slight contusion to his
foot. He found that, given plaintiff's explanation of how
the accident occurred, he would expect plaintiff to have
sustained a crushed bone or foot fracture from the described
Joseph Bistes, Vice-President of Business Development for
Pull-A-Part, testified at trial that he works in the
company's corporate Atlanta office but previously worked
in the Harvey yard for approximately three years. Mr. Bistes
testified that Pull-A-Part is not classified as a junkyard
but is a "very organized" used auto part retailer.
He testified that the Harvey yard holds approximately 1200
vehicles, which are organized in rows according to
manufacturer: General Motors; Ford; Dodge Chrysler Jeep; and
imported vehicles. Mr. Bistes testified that the vehicles
are placed on "rims placed on stands, and they weld it
everywhere it's touched … ." He further
testified that, every morning, two or three employees, titled
the "setting crew, " walk the display yard and
touch each individual car and, "literally try to knock
it [each vehicle] off the stands."
conclusion of trial, the jury returned a verdict in favor of
defendant, finding that Pull-A-Part was not negligent in
causing or contributing ...