The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW.
This is an action for personal injuries allegedly sustained by the above-named plaintiff, Jeanne D. Jackson ("Jackson") against the above-named defendant, Sidney S. Coggan ("Coggan"). Jurisdiction is based on diversity. Trial was before the court.
Plaintiff, born January 4, 1931 and who resided in New York, although not a citizen of the United States, was visiting relatives in France, and defendant asked her to go for a ride in a rented car which he drove. In the course of this ride an accident occurred, as a result of which plaintiff claims injuries. Both parties agree that French law applies and have submitted proof by affidavits and opinions of what that law is.
After hearing the testimony of the parties and examining the pleadings, the exhibits, affidavits in respect to French law and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, I make the following Findings of Fact and Conclusions of Law:
1. Plaintiff is a citizen of France; defendant is a citizen of the United States and a resident of the State of New Jersey. On July 24, 1966, plaintiff was a guest in an automobile rented to and operated by defendant. Plaintiff and defendant were touring, "to see the scenery" (14),
traveling along a toll road running between the towns of Cagnes and Frejus, called L'Auto Route de Esterel, in France (171).
2. On July 24, 1966, between 11:00 A.M. and 12:00 noon, defendant commenced driving a Simca automobile, in which plaintiff was a social guest passenger, at St. Jean Cap Ferrat, in France (11, 14, 15, 226, 267). He drove from there to St. Paul de Vence, during which time plaintiff was a front seat passenger in the automobile (16, 171, 267, 268). This portion of the trip took an hour or an hour and a half (171). During that part of the journey, plaintiff was awake and observed how the defendant was driving (227).
3. At St. Paul de Vence defendant parked his automobile and the parties walked around for an hour or so (15, 16, 226, 268). The parties then got back into the automobile, plaintiff resuming her front seat (16). They drove to a town called Vence, where another stop was made for sight-seeing and shopping (15, 16, 171, 226, 227, 234, 268). At one of these stops they ate lunch (16, 227, 233, 237, 268).
4. During the trip from Cap Ferrat to St. Paul de Vence (226), plaintiff observed how defendant was driving (227), that he was driving in an abnormal manner, that he was zigzagging outside the lane (228). The road was mountainous with turns (229). Plaintiff said: "He [referring to defendant] has never driven very well." Plaintiff was also aware that after lunch defendant looked to be "tired." (228)
5. In spite of the foregoing knowledge of plaintiff, at none of the stops made did plaintiff ask to be taken back to Cap Ferrat or say anything specifically to defendant about his driving (234) Although she had a driver's license, she did not take over the driving wheel (230). I find that at no time during the course of that trip did plaintiff protest or complain to defendant about the manner in which he was driving, nor did she act to take over the driving (271).
6. Although plaintiff was aware of the manner in which defendant was operating the vehicle before he commenced the last leg of the journey, and was further aware of his apparent physical infirmities, including being "tired," she, nevertheless, returned to the automobile for the trip to Frejus (16, 236). At the outset of this portion of the trip plaintiff was in the front of the automobile, but at some time later she went into the rear of the automobile and went to sleep (16, 17, 236, 251).
7. The accident occurred on July 24, 1966 on a highway called Esterel Cote D'Azur near Frejus, France (3) between 5:00 and 5:30 P.M. (172). The roads were dry (269). Defendant was driving west at a speed of about 60 miles (90 kilometers) per hour around a slight curve to the right with a slight downgrade when his vehicle skidded on pebbles on the roadway (Ex. 18; 261, 264, 268). It skidded off into the shoulder and the two right wheels went into a concrete culvert (261, 268). The car did not collide with any object nor did it turn over (252, 268, 269). There was nothing wrong with the automobile after the accident (255). Defendant stated at the time of the accident, "Oh, my God, I fell asleep, we are getting into an accident." (18)
8. When the accident occurred plaintiff struck her right elbow and struck her forehead against the back of the front seat and fell to the floor of the rear of the car. She had a bump on her head (26, 27, 28) but did not bleed (252) or have any marks or bruises or lumps on any part of her body other than the bump (253-254). After she was assisted out of the automobile, she walked into another automobile and thereafter walked into an ambulance to take her to the Frejus Hospital (21, 22, 25, 172, 173).
9. At the Frejus Hospital plaintiff was examined by a doctor and X-rays were taken. She had a black-and-blue mark on the right occipital region and on her right elbow. She also had vomiting sensations and nausea (25-26, 254). She was in the Frejus Hospital between one and two hours (254, 255). While at this hospital they X-rayed her head but no other part of her body (253) and did not put any bandages on her nor did they give her any medicine (254). No report from the Frejus Hospital was submitted.
10. Following her sojourn at the hospital plaintiff went to her uncle's house. Shortly thereafter she went to her brother's house. Both were not far from the hospital (28, 29, 255). She remained at her brother's house for three days (256). Thereafter, defendant drove her about 100 miles from her brother's house to Cap Ferrat (256, 271). Plaintiff spent two or three days in Cap Ferrat at the home of a Mr. and Mrs. Deerake (256, 272). During this period defendant rented a new car and went around driving to some other cities with plaintiff (272). While touring during this two or three day period, plaintiff did not have any impediment in the use of any part of her body (272). After this stay, they drove from Cap Ferrat to Nice, where they took a plane to Paris and then, in turn, a plane from Paris to the United States (272). They returned to the United States at the end of July, 1966 (35, 36, 256, 257, 272).
11. Plaintiff returned to work as a waitress at the Gaslight Club in New York City on Monday, August 1, 1966, working her regular hours from 11:00 A.M. to 5:00 P.M. (257). Plaintiff worked at the Gaslight Club from August 1, 1966 to September 13, 1966 (258). Her duties as a waitress included carrying heavy platters and trays up and down stairs. While at work, plaintiff asked for time off to go to see a doctor (40-41). On one occasion, plaintiff became ill during work and she was taken to an orthopedist, Dr. Russell O. Gee, 345 East 73 Street, New York City (43, 45).
12. A week or two after plaintiff returned to her work in New York City (in 1966) she visited Dr. Russell O. Gee, an orthopedist, at 345 East 73 Street. He examined her head, neck, back, spine and her entire body (45, 46, 47). He treated her for a few days by way of traction, massage and a heat lamp, gave her an injection and a cervical collar (48, 49). Plaintiff did not call Dr. Gee as a witness. What he found was not adduced.
13. Later plaintiff was treated by Dr. Joseph F. Giattini, an orthopedic surgeon (125). Dr. Giattini examined plaintiff first on September 20, 1966 and treated her afterwards (126). He examined plaintiff's neck, arms, upper trunk and spine and decided that she had an acute spasm of the cervical spine. He found tenderness but no evidence of nerve root compression (129). He gave her analgesics and prescribed rest. He treated her at the hospital, where she received traction, muscle relaxants and analgesics (130, 131). His diagnosis was acute cervical spasm (132, 159, 160).
14. Plaintiff was admitted to St. Vincent's Hospital, New York City, on October 15, 1966 and remained there until November 2, 1966. While at the hospital, she was under the orthopedic care of Dr. Giattini (130). While at St. Vincent's Hospital, plaintiff was treated with traction, muscle relaxants, analgesics and Darvon Compound. She was in traction from October 15, 1966 until November 1, 1966. The hospital diagnosis was "acute cervical sprain" and "anxiety reaction." No operation was performed (Ex. 11; 131-132).
15. After plaintiff's discharge from the hospital, Dr. Giattini treated her at intervals on approximately fifteen occasions (133, 134). She received physiotherapy at his office (134). Dr. Giattini said that he was of the impression that in 1966 plaintiff had "some form of nerve root compression" but on November 17, 1969 he concluded that she had no nerve root compression, although he found continued cervical sprain (138, 139). He could not state if plaintiff experienced pain (140). Dr. Giattini gave an opinion that if pain continued to date (i.e., date of trial) the pain and the injury will be permanent (143-145). The X-rays he took were negative for bony pathology and he found no evidence of any compression fracture (149, 155). Dr. Giattini sent plaintiff to a Dr. Henry Messer, a neurologist (156) and Dr. Messer advised him that the neurological examination on February 6, 1969 was entirely normal and, hence, there was no evidence of nerve root compression (157). (Dr. Kaplan conceded that Dr. Messer was a competent neurologist and neurosurgeon (92).) On April 20, 1967, plaintiff reported to Dr. Giattini that she was getting better and was starting to go back to work. Dr. Giattini has not seen plaintiff since November 17, 1969 (158).
16. On August 30, 1968, plaintiff came into the Roosevelt Hospital, New York City, as an outpatient in the orthopedic and other clinics. It appears by the hospital record that she continued in such clinical observation at intervals to June 2, 1969, or later (Ex. 10). The first entry shows this notation: "Felt well most of summer now feels worse." "Tenderness up and down spine no loss of reflexes. No loss sensation. Imp. post traumatic back pain on September 5, 1968." The notations include: "No muscle atrophy, no muscle spasm." On September 19, 1968, the entry contains the following: "Significant emotional overlay in 37 y.o. divorcee that has lost her boy friend. Multiple symptoms but completely negative examinations. Suggest continued heat, home traction, emotional support and reassurance. Discharge On May 14, 1969 and May 21, 1969." Notations indicate "appoint. not kept." The Roosevelt Hospital record (Ex. 10) shows full range of motion of neck, back and extremities on January 4, 1970 and "Full ROM of shoulder, head and shoulder compress test is negative bilaterally." (291) There were no abnormal reflexes on February 1, 1971. There was full ROM of lumbo-sacral spine and hips (292), gait was normal even on turning (293). On June 2, 1969, the entry notes: "Neck pain is much improved. Suboccipital p. tenderness R side is less marked. Headache less frequent. Recom. cont home program. * * * [a prescription] Check 3 months." (Ex. 10)
The court notes that all treatment of plaintiff as an outpatient at the Roosevelt Hospital was subsequent to her being assaulted on July 3, 1968 (see Finding 25(d)).
17. Dr. Lawrence I. Kaplan, a specialist in neurology and psychiatry, examined plaintiff on January 29, 1970 and on April 16, 1971 (56, 57).
On the first examination Dr. Kaplan did a neuropsychiatric examination by a series of tests (63). He explained that he found plaintiff tense, apprehensive and depressed but with no disturbance in her state of awareness or any gross mental aberration and oriented (66). Dr. Kaplan's opinion was that plaintiff was suffering from muscular and nerve root symptoms as a result of her neck condition (69) and from "an anxiety reaction with conversion phenomena." (65).
The examination on April 16, 1971 was similar to the first examination except that plaintiff complained of more "dizziness" (72). In Dr. Kaplan's opinion plaintiff had nerve root irritation (73). The anxiety or neurosis reactions caused the dizziness, in his opinion, but he admitted that "dizziness is nothing one can see," and is solely subjective and due solely to anxiety (74-76).
At the time of the 1971 examination, Dr. Kaplan thought the anxiety and depression were worse and were contributing to plaintiff's other symptoms (78).
Dr. Kaplan concluded that the prognosis must be "a guarded one" -- in substance not necessarily permanent (78, 79). He could not state that there would be no improvement (79). Plaintiff's "anxiety" is emotional and not organic (80), although he ascribed it to the accident (81).
Dr. Kaplan's diagnosis of cervical sprain was based solely on plaintiff's subjective complaints of tenderness, limitation of motion and pain (96). When Dr. Kaplan on cross-examination was confronted with various psychiatric and other problems experienced by plaintiff, he conceded that these might well be causes of plaintiff's "anxiety" (101-112; see also Finding 20). Although plaintiff complained of lack of memory in connection with her early testimony (29), Dr. Kaplan said he observed no defects in her memory (119).
18. Dr. Noel H. Kleppel, a general and traumatic surgeon, testified for defendant (283 et seq).
He examined plaintiff on February 17, 1970, particularly relative to her general state, cervical area, lumbo-sacral area, extremities, including also a neurological examination (285). Plaintiff wore no cervical collar or lumbo-sacrum support and walked with a normal gait.
Dr. Kleppel said: "Inspection of her cervical, dorsal and lumbosacral area of the spine revealed no abnormalities, no scoliosis, lordosis, which would be twisting or turning in the spinal column. I examined the lungs and the muscles of the neck and the [patient's] complaint of pain on palpation in that area. * * I examined the lumbar and paravertebral musculature and there was no complaint in that area, no muscle spasm was noted in either of the two areas. The patient complained of pain on palpation of the right shoulder muscles in the area of the deltoid or shoulder cap muscle. The trapezius and subdeltoid bursa of this area, of both areas, were normal." (286)
Dr. Kleppel testified that he "went through the range of motion for the upper extremities and this was found to be within normal limits for all planes, at the shoulders, the elbows, wrists and hands and fingers. Muscle power and upper extremities were then checked and found to be normal, biceps reflexes were found to be bilaterally normal and equal. Subsequent to that the patient was tested for trunk, lower portion of the back and spine. She performed flexion of the trunk, to the extent of being able to touch her hands to her toes without a complaint of pain. She did truncal extension to both sides of the trunk and extension of the trunk was within normal range and without complaint." (287)
Dr. Kleppel continued: "The patient had a complaint of pain on palpation of the right greater trochanter but not on the left. That is the lateral aspect of the hip. The range of motion of the muscle power and substance of the lower extremities were then tested and they were found to be normal throughout. The patella reflexes were present and were equal bilaterally. They were normal. The public compression test was done and this was negative. The extremities were measured and no measurable atrophies were noted by comparison of the parts bilaterally at similar areas. Then the cranial nerve examination was performed and the 12 cranial nerves were examined and found to be normal for Nos. 1 through 12. There was no abnormality of motor or sensory power. The patient had normal finger to nose and knee and heel coordination tests. Station and gait were normal, the Romberg test was [normal]. * * * The patient was normal throughout the course of the ...