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McNeil v. Trosclair

Court of Appeals of Louisiana, Fourth Circuit

January 30, 2019

SHAWN MCNEIL
v.
JASON TROSCLAIR, UNITED RENTALS, INC., ACE AMERICAN INSURANCE COMPANY, REGIONAL TRANSIT AUTHORITY OF NEW ORLEANS, JAMES BUTLER, VEOLIA TRANSPORTATION MAINTENANCE AND INFRASTRUCTURE, INC., AND OLD REPUBLIC GENERAL INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-01664, DIVISION "L-6" Honorable Kern A. Reese, Judge

          John D. Sileo Casey W. Moll LAW OFFICE OF JOHN D. SILEO, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Amy G. Lowe TAYLOR, PORTER, BROOKS & PHILLIPS, L.L.P. COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown

          DANIEL L. DYSART JUDGE

         Following a bench trial on July 26, 2017, a judgment was rendered on October 10, 2017, dismissing the petition for damages filed by Shawn McNeil, with prejudice, as to all defendants.[1] For the reasons that follow, we affirm the judgment.

         BACKGROUND:

         Shawn McNeil was a passenger on a Regional Transit Authority bus on February 18, 2013, when the bus was struck from behind by a truck owned by United Rentals (North America), Inc. ("United Rentals"), and driven by its employee, Jason Trosclair (hereinafter referred to collectively as "defendants").

         Ms. McNeil claimed that she suffered injuries to her neck, lower back, shoulder and hip as a result of the accident. After being treated by several physicians and receiving injections and physical therapy, she underwent a discectomy in March of 2017.

         Jason Trosclair, the driver of the truck that hit the bus, testified that he was stopped behind an RTA bus that was slightly in his lane of travel. When he realized that the bus would be stopped for an extended period of time, he attempted to go around it. He misjudged the distance needed to clear the bus, and bumped the right rear of the bus with his right side view mirror. He stated that the only damage to his truck was that the truck's mirror was folded in.

         The bus driver testified that he heard a boom and felt the impact, which caused him to move in his seat. He said a couple of passengers told him they were injured, but he had no specific recollection of any of the passengers falling on the bus. The driver got off of the bus and spoke with Mr. Trosclair. He stated that he did not see any damage to the United Rentals truck, but when the RTA inspector arrived, she noted a dent and some scratches to the rear corner of the bus.[2]According to protocol, the bus driver made a list of the passengers on the bus at the time. He testified that one passenger was taken away by ambulance. The driver stated that he made a claim for his own injuries and settled his claim.

         Ms. McNeil testified that she had no prior health issues. She admitted that she injured her back in 1989 when a chair in which she was seated collapsed. Ms. McNeil testified that prior to this incident she worked as a housekeeper at a local motel where she cleaned eleven to nineteen rooms per day.

         When asked at trial to describe what happened the day of the accident, she stated that she thought she was about to sit down when the bus was struck from the rear, but after viewing a video of the accident, she realized that she was already seated at the time of impact. She testified that she heard a "boom" and looked over her left shoulder to see what had happened. Ms. McNeil stated that she jerked her head in the direction of the noise, and when her "adrenaline went down" her body "went to shaking and stuff." The bus driver recorded the names of the passengers and told them they would have to ride on another bus to their destination. Ms. McNeil stated that she saw one of the other female passengers taken off in an ambulance.

         Ms. McNeil testified that she hurt her back, right shoulder, neck and hip in the accident. The pain prevented her from riding her bike, walking her dog and cleaning her home. She said the pain was so miserable that she could not eat or sleep.

         Initially she saw Dr. Altman in March, who was recommended by an attorney who contacted her after the accident. Dr. Altman gave her an injection on March 11, 2013, which relieved the pain in her hip, and prescribed physical therapy. Dr. Altman referred her to Dr. Allen Johnston, who she saw for the first time on April 7, 2014.

         Dr. Johnson prescribed pain medication and referred her to Dr. Kenneth Vogel in January 2015. Ms. McNeil did not see Dr. Vogel until July 30, 2015. In addition to prescribing pain medication, Dr. Vogel eventually recommended a discectomy, which she had on March 22, 2016. Following surgery, she was prescribed physical ...


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