Browning-Ferris, Inc. v. Hobson

FOWLER, Justice,

concurring.

I concur in the court’s opinion and write separately to emphasize the evidence in the trial court supporting cause in fact. The majority opinion cited some of the testimony supporting cause in fact but there is more testimony I think should be highlighted. In addition to giving his opinion that lifting a garbage bag over one’s head would more likely cause impingement, Hobson’s doctor also testified that Hobson’s injuries were the direct result of a specific event — having to throw the garbage bags over his head.

Q. And Larry Hobson’s injury, Doctor, assuming the facts ... the jury ... will hear ... [are] that he injured his right shoulder while employed as a maintenance worker. He was swinging a bag into a dumpster at the moment that he felt a sharp pain, and that he felt like his shoulder popped out of place and following that, it settled down to his side and month later he presented himself to you with this history and his symptoms, would you have an opinion, Dr. Koshman, as to whether or not his impingement was a result of a hooked acromion or the result of the single traumatic event as related to you?

A. Yes.

Q. What would be your opinion?

A. It would be directly related to that.

Q. Are people who present themselves with an impingement often — do they — is it common or uncommon for them to have a history of a traumatic event, or at least an isolated event causing the onset of the pain?

A. As I indicated previously, that at times there is and at times people have insidious onset or gradual onset of we term impingement syndrome. I can’t give you any statistical statistics regarding that.

Q. In Larry’s case which was it?

A. That it was an acute episode. Acute onset, rather.

Q. In reasonable medical probability, do you think that Mr. Larry Hobson’s impingement is the result of a normal aging process or a result of this acute event which he related to you in his history to you?

A. My opinion is that it’s an acute event that occurs.

The jury also had testimony before it that this was the first time Hobson had had to lift a garbage bag over his head to load it into a BFI container. Thus, this testimony, along with the testimony cited in the majority opinion, and the testimony just recited, gave the jury some evidence to conclude that Hobson was injured because he had to lift a garbage bag over his head and that the injury was not caused by normal wear and tear but by the single traumatic event of having to throw the garbage over his head.

Unlike the testimony in Leitch that the majority opinion refers to, this testimony directly linked the injury (impingement syndrome) to the alleged negligent conduct (failing to repair a non-functioning side-loading door BFI knew was broken). As counsel for Hornsby argued before this court, the jury was faced with an injury that manifested itself suddenly after a particular event. In light of this fact along with the medical testimony, the jury was entitled to conclude as it did.

For these additional reasons, I concur in the opinion of the court holding that sufficient evidence existed to support the jury’s findings on proximate cause.