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Skillman v. Riverside Baptist Church of Jefferson Parish

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015

SUSAN SKILLMAN, WIFE OF AND PAUL SKILLMAN, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, KAITLYN SKILLMAN
v.
RIVERSIDE BAPTIST CHURCH OF JEFFERSON PARISH, CLAIRE SIMPSON, ASHLEY PELLEGRIN, HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, GUIDEONE MUTUAL INSURANCE COMPANY, AND ABC INSURANCE COMPANY

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ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 695-347, DIVISION " A" . HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING.

DAVID I. COURCELLE, SCOTT C. STANSBURY, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE-2ND APPELLANT.

WAYNE R. MALDONADO, JAMES M. BENSON, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg. WICKER, J., CONCURS IN PART WITH REASONS.

OPINION

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[14-727 La.App. 5 Cir. 2] ROBERT M. MURPHY, J.

Defendants, Riverside Baptist Church of Jefferson Parish (" Riverside" ) and Guide One Specialty Mutual Insurance Company (collectively, " Defendants" ), appeal from the trial court's September 23, 2013 judgment rendered after a jury trial, as well as the trial court's April 21, 2014 judgment granting the motion for judgment notwithstanding the verdict filed by Plaintiffs, Susan and Paul Skillman, individually and on behalf of their minor child, Kaitlyn Skillman (collectively, " Plaintiffs" ). Plaintiffs also appeal the trial court's September 23, 2013 and April 21, 2014 judgments. For the reasons that follow, we affirm the September 23, [14-727 La.App. 5 Cir. 3] 2013 judgment. We affirm in part and vacate in part the April 21, 2014 judgment, and we render judgment as set forth herein.

FACTS AND PROCEDURAL HISTORY

This is a personal injury action arising out of an incident that occurred on September 27, 2010, when 19-month old Kaitlyn Skillman injured her arm in a fall from playground equipment at a daycare facility owned and operated by Riverside. On November 24, 2010, Kaitlyn's parents, Paul and Susan Skillman, filed suit individually, and on behalf of Kaitlyn, against Riverside, Riverside's liability insurer, Guide One, and two of Riverside's employees, Ashley Pellegrin Cabal and Claire Simpson Kippes.[1]

The matter proceeded to a jury trial on September 9, 10 and 11, 2013. The testimony showed that Kaitlyn's injury occurred while she was attending Riverside's aftercare portion of its daycare program, which ran from 3:00 p.m. to 6:00 p.m. The age groups at the daycare ranged from eight weeks old to four years old. Claire Simpson Kippes (" Simpson" ), the director of the daycare at the time of Kaitlyn's incident, testified that the children played in two different playground areas based upon their ages. Children ages 18-months and younger played in one area that was surrounded by a fence, while children ages 18-months to three-years old played in

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another area with a playset that contained two slides, a hanging bridge, stairs and monkey bars, surrounded by mulch. During the aftercare program, however, children of all ages were combined and played together in the area that contained the playset.

On the day of Kaitlyn's incident, there were about fifteen children in aftercare, ranging in age from 19-months old to three or four-years old. Three aftercare teachers were supervising the children that day, but at the time of [14-727 La.App. 5 Cir. 4] Kaitlyn's fall, two of the three teachers were outside with the children, Ashley Pellegrin Cabal (" Pellegrin" ) and Kristen Smith (" Smith" ). Simpson testified that the state standards regarding the ratio of teachers to children requires one teacher to eight children for children aged 12 to 24-months old, and one teacher for twelve children for children aged 24 to 36-months old. With fifteen children in aftercare on the day of Kaitlyn's fall, Simpson testified that Riverside was in compliance with those standards, even with only two of the three teachers being present at the time of her fall.

Neither Pellegrin, nor Smith witnessed Kaitlyn fall. Smith testified that she was bending over talking to another child when she heard a little girl behind her cry. She turned around and saw Kaitlyn on the ground right in front of the stairs of the playset. Smith then picked Kaitlyn up and brought her to Pellegrin because Pellegrin was Kaitlyn's aftercare teacher.

Pellegrin testified that she was watching another group of children at the time of Kaitlyn's fall. She heard Kaitlyn cry and turned towards her. She assumed that Kaitlyn fell from the steps of the playset because Kaitlyn was on the ground right next to the steps. Pellegrin saw Smith pick Kaitlyn up and bring her to Pellegrin, at which time, she checked Kaitlyn out, brushed the mulch off of her, and gave her T.L.C. (" tender loving care" ).

Pellegrin testified that Kaitlyn's mother Susan Skillman came three to five minutes later to pick her up, at which point, Pellegrin told Susan that Kaitlyn fell. Susan, who was employed by Riverside as its church secretary at the time, took Kaitlyn home, and she and her husband Paul Skillman noticed that evening that Kaitlyn's arm began to swell. Susan called Simpson and notified her that Kaitlyn's arm was swelling.

[14-727 La.App. 5 Cir. 5] At trial, Simpson testified that at some point in time after Kaitlyn fell, she learned that the playset that Kaitlyn fell off of is recommended for children ages five years old and up. Although she was unaware of the age limitation prior to the accident, Simpson testified that as the director of Riverside's daycare, it was her duty to provide safe and age appropriate playground equipment for the children. Both Simpson and Smith noted that prior to Kaitlyn's fall, they witnessed Susan allow Kaitlyn to play on the playset at issue. However, Susan testified that she only allowed Kaitlyn to play around the playset, and denied that she ever let Kaitlyn play on the playset.

On the day after Kaitlyn's fall, her parents too her to the emergency room where her arm was put in a cast and sling. On October 15, 2010, Dr. Stephen Heinrich, a pediatric orthopedic surgeon, examined Kaitlyn and determined that she had sustained a right lateral condyle fracture of the right distal humerus. Dr. Heinrich performed surgery on Kaitlyn that same day, followed by two more surgeries over the next four months.

During the first surgery on October 15, 2010, Dr. Heinrich performed an open reduction and internal fixation wherein he placed a screw, pin, wire and washer in Kaitlyn's arm. Her arm was put in a cast

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after the surgery. At the time of the second surgery on November 11, 2010, Dr. Heinrich removed the pin from her arm and then re-casted her arm. The third surgery was performed on February 8, 2011 to remove the screw and washer. Kaitlyn was placed under general anesthesia for all three surgeries. She also received physical therapy after her second surgery, which lasted from December of 2010 until February of 2011.

Dr. Heinrich testified that after Kaitlyn's third surgery, she developed two deformities -- (1) a bone prominence on the outside of her elbow, and (2) an angular deformity, or a bending of the arm, caused by the bone growing too fast on [14-727 La.App. 5 Cir. 6] the outside and too slow on the inside. Kaitlyn also has scarring from the three surgeries. Kaitlyn's parents testified about their concern for her future as a result of her injury and subsequent deformities. Specifically, they worry about her being able to run, play the piano, type, swim and interact with other children without being questioned about the appearance of her arm. Susan testified that she feared Kaitlyn would walk down the aisle on her wedding day with her arm looking " like a teacup."

Dr. Heinrich testified that Kaitlyn would have to undergo three to four future surgeries in order to return her arm to its pre-accident state. Specifically, in order to fix the angular deformity, Dr. Heinrich will have to re-break and re-set the bone in Kaitlyn's arm, remove a wedge of bone, and then stabilize the bone using an external fixator, which would later have to be surgically removed. In order to fix the bone prominence, Dr. Heinrich will shave off the prominence using a saw. As for the scarring, Dr. Heinrich will surgically remove the scar and bring the two edges of normal tissue back together. When asked about the cost of these future surgeries, Dr. Heinrich stated that the surgery to repair Kaitlyn's angular deformity would probably cost more than her October 15, 2010 ...


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