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Lee v. Pull-A-Part of New Orleans West, LLC

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

RICO LEE
v.
PULL-A-PART OF NEW ORLEANS WEST, LLC AND XYZ INSURANCE COMPANY

          ON 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 PRESIDING

          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. Zsembik

          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.

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore

          FREDERICKA HOMBERG WICKER JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         On 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, [1] 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.

         The 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.[2]

          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.

         Dr. Godwin Ogbuokiri, the medical director for Downman Urgent HealthCare Clinic, testified as an expert in general medicine at trial.[3] 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.[4] 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, 000.00.[5]

         Dr. Fritz Fidele, a chiropractic physician with Plaza Medical Center[6], 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.[7] 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.

         Defendants presented the testimony of Dr. Michael Happel, a board certified neurologist with a specialty in electrodiagnostic testing.[8] 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 force.[9]

          Mr. 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.[10] 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."

         At the conclusion of trial, the jury returned a verdict in favor of defendant, finding that Pull-A-Part was not negligent in causing or contributing ...


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