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Robinette v. Lafon Nursing Facility of the Holy Family

Court of Appeals of Louisiana, Fourth Circuit

June 22, 2017


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-09536, DIVISION "A" Honorable Tiffany G. Chase, Judge

          Roderick "Rico" Alvendia Amy C. Fontenot LAW OFFICE OF ALVENDIA KELLY & DEMAREST, L.L.C., AND Anthony D. Irpino IRPINO LAW FIRM 2216 Magazine Street New Orleans, LA 70130 AND James J. Carter, Jr. JAMES CARTER & ASSOCIATES, LLC., COUNSEL FOR PLAINTIFFS/APPELLEES

          David Perry Salley John W. Hite Jacob A. Culotta Peyton C. Lambert James G. Albertine SALLEY HITE MERCER & RESOR, LLC, COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, [*] Judge Marion F. Edwards, Pro Tempore


         This is an appeal of a June 9, 2015 judgment by the trial court rendered after a $1, 375, 000.00 jury verdict in favor of plaintiffs/appellees, Joachim Robinette, Louis Robinette and Michael Robinette (collectively, the "Robinettes"); and against defendant/appellant, Lafon Nursing Facility of the Holy Family ("Lafon"), in a wrongful death and survival action arising from the death of appellees' mother, Frances Robinette, who was a resident of Lafon's nursing facility in New Orleans when Hurricane Katrina struck in August 2005.

         For the reasons that follow, we affirm.


         The Robinettes are the adult children of 82-year-old Frances Robinette, who died at Lafon on September 1, 2005, four days after Hurricane Katrina struck New Orleans.

         Lafon is owned and operated by the Sisters of the Holy Family, who founded Lafon in 1842, and began operating at its current location on Chef Menteur Highway in 1973.

         In 2003, Ms. Robinette was admitted as a resident of Lafon. Prior to Hurricane Katrina, Ms. Robinette was diagnosed as suffering from malignant hypertension, renal insufficiency, congestive heart failure, hyperlipidemia, dementia, neurosis, anxiety, cardiomegaly, left ventricular hypertrophy, and failure to thrive/anorexia. In April 2005, Ms. Robinette was given a PEG feeding tube.

         On Friday, August 26, 2005, Hurricane Katrina entered the Gulf of Mexico. On Saturday, August 27, 2005, as the hurricane approached, New Orleans officials issued a "recommended evacuation" order. On Saturday, August 27, 2005, Sister Sylvia Thibodeaux, President of Lafon and head of Lafon's "Administrative Hurricane Committee, " who was watching the news/weather reports, concluded that "it was obvious . . . that this [Katrina] was the big one, " and that "this [Katrina] was going to be the one that we would not survive." On Sunday, August 28, 2005, Sister Thibodeaux evacuated from New Orleans, via ambulance, herself and 75 nuns and six Lafon residents who were sisters of her Order. Dr. Joseph Labat, Lafon's medical director and another member of the Administrative Hurricane Committee, had already evacuated from the City with his father-in-law, who was a Lafon resident, on Saturday.

         By Saturday, August 27, 2005, Sister Augustine McDaniel, Lafon's chief administrator, had made the decision to shelter in place rather than evacuate the residents. Sister McDaniel testified that her decision to shelter in place was based on: (1) the frailty of the residents; (2) the physical and mental toll the evacuation would have on them; (3) the likely deaths of several residents; (4) the fact that Lafon rested on high ground in an area that had never flooded before; (5) Lafon's two-week reserve of emergency and medical supplies, and sufficient staffing to care for the residents; and (6) Lafon's emergency generator capable of providing electricity for an extended period of time.

         At 10:00 a.m. on Sunday, August 28, 2005, the National Weather Service and news agencies issued the following warning: "DEVASTATING DAMAGE EXPECTED . . . HURRICANE KATRINA . . . A MOST POWERFUL HURRICANE WITH UNPRECEDENTED STRENGTH . . . MOST OF THE AREA WILL BE UNINHABITABLE FOR WEEKS . . . POWER OUTAGES WILL LAST FOR WEEKS . . . AS MOST POWER POLES WILL BE DOWN AND TRANSFORMERS DESTROYED." Also at 10:00 a.m. on Sunday, the mayor of New Orleans ordered a mandatory evacuation.

         On the morning of Monday, August 29, 2005, Hurricane Katrina made landfall approximately 40 miles to the east of New Orleans. Lafon lost all electrical power. Shortly after the hurricane passed, "about a foot" of water entered the facility. Sister McDaniel testified that as soon as she saw the water, she ordered the 108 residents moved to the second floor, which was the convent area. None of the Lafon residents were injured by the flood water. Sister McDaniel testified that the flood water was in the building only "an extremely short while." As a result of the flood water, the emergency generator stopped working. Sister McDaniel testified that, regardless of whether the generator failed, there would not have been any air conditioning in the building because the generator was not hooked up to the air conditioning system.

         There was testimony at trial that the temperatures on the second floor of Lafon reached more than an estimated 100 degrees, with high humidity. Sister Mary Benjamin Auzenne, who was a nursing assistant at Lafon, testified that it was "very, very hot, " and that she and staff members tried to keep the residents cool using damp washcloths and cardboard fans. There was no running water or working toilets.

         On Thursday, September 1, 2005, Ms. Robinette died. The Robinettes' medical expert, Dr. William Bates, testified that her cause of death was heat stroke and dehydration resulting from the extreme conditions at Lafon following Hurricane Katrina. On Thursday, after Ms. Robinette died, Lafon evacuated 34 of its residents by bus to Houma, Louisiana. On Friday, September 2, 2005, FEMA evacuated the remaining residents by airlifting them to the airport. In the four days after Katrina, 17 Lafon residents died.

         On August 28, 2006, the Robinettes filed a wrongful death and survival action against Lafon, Sister Sylvia Thibodeaux, Sister Eva Regina Martin, Sister Maria Gonzalez, Sister Augustine McDaniel[1], Lafon's unnamed insurer, and several bus and ambulance companies. The Petition alleged that, even though Lafon had filed a mandatory evacuation plan with the State of Louisiana, it failed to follow its own plan, turned away a bus company that had been contracted to evacuate residents, and chose to evacuate only certain residents of the facility, leaving Ms. Robinette and more than 100 other residents behind.

         On January 31, 2007, Lafon filed an Answer to the Petition in which it asserted as an affirmative defense the comparative negligence of third parties, which included "entities or departments of federal, state, and local governments."

         On October 18, 2012, the Robinettes filed a Motion in Limine to Exclude Evidence of Third Party Fault of Governmental Agencies ("Motion in Limine"). The Robinettes argued that evidence of the alleged third party fault of the U.S. Army Corps of Engineers (the "Corps"), the Federal Emergency Management Agency ("FEMA"), the State of Louisiana, and the City of New Orleans was irrelevant because these governmental entities had no legal duty to Ms. Robinette and/or were immune from liability. The Robinettes also asserted that evidence of third-party fault would mislead and confuse the jury and unduly delay the trial, and that its probative value did not clearly outweigh the unfair prejudice to the Robinettes.

         On October 29, 2012, Lafon filed an opposition to the Robinettes' Motion in Limine, in which Lafon argued that, under La. Civ. Code art. 2323, Lafon was entitled to present evidence of the comparative fault of third-party governmental entities such as the Corps, FEMA, the State of Louisiana, and the City of New Orleans, and that the fault of these third parties must be included on the jury verdict form.[2] Lafon also argued that, had there not been a catastrophic failure of the hurricane protection system negligently designed, constructed, and maintained by the Corps, none of the flooding at Lafon would have occurred. Lafon further asserted that, absent a complete breakdown of the emergency response from local, state, and federal governmental authorities, Lafon's residents would have received the expected assistance following the storm.

         A hearing on the Robinettes' Motion in Limine was held on November 17, 2014. On January 7, 2015, the trial court signed a judgment granting the Motion in Limine.

         A jury trial was held on May 26, 2015 through June 5, 2015. At the close of the Robinettes' case, Lafon moved for a directed verdict on the Robinettes' direct action claim against Lafon's insurers, National Catholic Risk Retention Group and Christian Brothers Services Risk Pooling Trust. The trial court denied the motion. The verdict form given to the jurors only allowed them to allocate fault to Lafon, the Robinettes, and Ms. Robinette. On June 5, 2015, the jury found that Lafon breached its duty to protect the health and safety of Ms. Robinette, and found Lafon 100% at fault in her death. The jury awarded survival damages for Ms. Robinette's physical and conscious pain and suffering and mental anguish in the amount of $1, 000, 000.00. The jury also awarded wrongful death damages of $125, 000.00 each to the three Robinette children, for a total award of $1, 375, 000.00.

         On June 9, 2015, the trial court signed a judgment in favor of the Robinettes and against Lafon in accordance with the jury's verdict. Lafon appealed.


         On appeal, Lafon asserts six assignments of error:

1. The trial court improperly precluded Lafon from introducing any evidence of third party fault;
2. The Robinettes failed to prove medical causation as a matter of law;
3. The jury verdict for survival damages in the amount of $1, 000, 000.00 is excessive based on the evidence and jurisprudence;
4. The June 9, 2015 judgment failed to properly allocate the award for survival damages among all surviving beneficiaries of Ms. Robinette;
5. The trial court abused its discretion by refusing to allow Lafon to attack the credibility of the Robinettes' sole fact witness on causation; and
6. It was unreasonable for the trial court to deny Lafon's motion for directed verdict as to the Robinettes' direct action claims.

         First Assignment of Error

         Lafon contends that the trial court erred granting the Robinettes' Motion in Limine, and refusing to allow it to introduce evidence of the fault of non-party governmental entities and permit the jury to consider and allocate comparative fault under La. Civ. Code art. 2323(A).

         In general, this court reviews a ruling on a motion in limine involving the exclusion of evidence under an abuse of discretion standard. Joseph v. Williams, 12-0675, p. 10 (La.App. 4 Cir. 11/14/12), 105 So.3d 207, 214. But "[b]ecause an abuse-of-discretion standard almost always requires an appellate court to defer to the trial court's admittedly discretionary ruling, in order to obtain a reversal of such a discretionary ruling, a complaining party is usually required to show that the trial judge's ruling was based on a mistaken application of law." State v. Lee, 11-0398, p. 6 (La.App. 4 Cir. 1/30/12), 83 So.3d 1191, 1196 (citing Koon v. U.S., 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). "When a trial judge's ruling is based upon a legal mistake, the ruling is no longer entitled to deference by the reviewing court." Id. ("A district court by definition abuses its discretion when it makes an error of law.").

         La. Civ. Code art. 2323: Comparative Fault of Non-Parties

         La. Civ. Code art. 2323(A) states:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

         In Art. 2323(A), Louisiana adopted a pure comparative fault system which created a mandatory, substantive right to quantify the fault of "all persons causing or contributing" to the plaintiff's damage. Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 7 (La. 5/9/97), 694 So.2d 180, 183. In Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 02-0563, p. 11 (La. 10/15/02), 828 So.2d 530, 537, the Supreme Court, in upholding the defendant's right to present, as an affirmative defense, evidence relating to the fault of a third party, held that La. Civ. Code art. 2323(A) "clearly requires that the fault of every person responsible for plaintiff's injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person."

         Under Louisiana's comparative fault system, "it [is] the task of the factfinder to allocate shares of negligence." Keith, 96-2075, p. 7, 694 So.2d at 183. See also Dupree v. City of New Orleans, 99-3651, p. 18 (La. 8/31/00), 765 So.2d 1002, 1015 ("In any action for damages, the trier-of-fact must determine the percentage of fault of all persons causing or contributing to the damage.").

         In Lafon's Answer to the Robinettes' Petition, Lafon specifically pled, as an affirmative defense, the comparative fault of third parties, including but not limited to entities or departments of federal, state, and local government.

         Pursuant to the Supreme Court's holdings in Keith and Dumas, Lafon, therefore, was entitled to present evidence at trial of the negligence and fault of non-parties, including the Corps, FEMA, the State of Louisiana, and the City of New Orleans. Accordingly, we find that the trial court erred in depriving Lafon of the opportunity to present this evidence. Foley v. Entergy Louisiana, Inc., 04-1967, p. 4 (La.App. 4 Cir. 2/15/06), 925 So.2d 638, 641, aff'd in pertinent part, rev'd in part, 06-0983 (La. 11/29/06), 946 So.2d 144.

         La. Code Civ. P. art. 966(G): Motion for Summary Judgment As to Non-Parties

         We must also point out that the proper procedural vehicle for excluding evidence of non-party fault is not by a motion in limine, but by a motion for summary judgment under La. Code Civ. P. art. 966(G), which in October 2012 (when the Robinettes filed their Motion in Limine) provided as follows:

When the court grants a motion for summary judgment in accordance with the provisions of this Article, that a party or non-party is not negligent, is not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or non-party shall not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non-party nor shall the issue be submitted to the jury nor included on the jury verdict form. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005, except for negligence or fault.

See 2012 La. Acts, No. 257, § 1, effective August 1, 2012.

         Because Lafon was entitled to present evidence to the jury of non-party fault under La. Civ. Code art. 2323(A), and because the only procedural vehicle for excluding such evidence is by a motion for summary judgment under La. Code Civ. P. art. 966(G), we find that the trial court's judgment granting the Robinettes' Motion in Limine was a mistaken application of law such that the ruling is no longer entitled to deference by this court. We further find the trial court's error in denying Lafon the right to present evidence of non-party fault at trial is reversible error. Foley, 04-1967, p. 4, 925 So.2d at 641.

         That does not end our inquiry. In Foley, as here, this court concluded that the trial court erred in excluding evidence of third-party fault. But after reversing the trial court's ruling, the court went on to examine the evidence of such fault submitted by the defendant by virtue of its proffer. Upon reviewing that proffered evidence, and the record in its entirety, this court concluded that the third parties were not at fault in any way, and declined to assign a percentage of fault to either entity.

         On review by the Supreme Court, the defendant in Foley argued that this court erred in rendering judgment on the issue of third-party fault on the basis of the record before it, rather than remanding the case to the trial court for a new trial. The Supreme Court disagreed, stating that, "[a]lthough a court should always remand a case whenever the nature and extent of the proceedings dictate such a course, whether or not any particular case should be remanded is a matter which is vested largely within the court's discretion and depends on the circumstances of the case." Foley, 06-0983, p. 29, 946 So.2d at 164. The Supreme Court declared that, "[u]nder the particular circumstances of this case, and mindful of our repeated admonition that the remand procedure must be 'sparingly exercised, ' we cannot conclude that the court of appeal abused its discretion in this regard." Id., 06-0983, p. 30, 946 So.2d at 165.

         In light of the discretion afforded us, we elect to decide the issue of nonparty fault on the basis of the record before us, rather than remanding for a new trial.

         In apportioning fault under Louisiana's comparative negligence scheme, the Supreme Court has adopted the duty-risk analysis used to establish delictual liability under La. Civ. Code art. 2315. Fontenot v. Patterson Ins., 09-0669, p. 9 (La. 10/20/09), 23 So.3d 259, 267. Under the duty-risk analysis, the plaintiff must prove that: (1) the defendant had a duty to conform its conduct to a specific standard (the duty element); (2) the defendant's substandard conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); and (4) the defendant's substandard conduct was a "legal cause" of the injuries (the scope of liability or scope of protection element). Chatman v. Southern Univ. at New Orleans, 15-1179, pp. 10-11 (La.App. 4 Cir. 7/16/16), 197 So.3d 366, 375. If the plaintiff fails to satisfy even one of the elements of the duty-risk analysis, the defendant is not liable. Id., 15-1179, p. 11, 197 So.3d at 374-75.

         In this case, Lafon does not assign as error the jury's finding that Lafon breached its duty to protect the health and safety of Ms. Robinette, and that this breach was a proximate cause of Ms. Robinette's death. Although we are not required to address Lafon's fault, as part of our comparative fault analysis, we review the record for evidence relating to Lafon's conduct.

         Lafon's Emergency Preparedness Plan

         In 2005, state law required that Lafon have an emergency preparedness plan "designed to manage the consequences of natural disasters or other emergencies that disrupt the nursing home's ability to provide care and treatment or threaten the lives or safety of the nursing home residents." LAC 48:1.9729.[3] By law, Lafon's plan had to conform to the model plan issued by the Office of Emergency Preparedness (the "Model Plan").

         The Model Plan stated that, in developing an emergency preparedness plan, the following assumptions are to be "accepted as facts" and "govern the plan":

• Facility operators are responsible for their Clients at all times in all emergencies and evacuations, government-ordered or otherwise.
• In an emergency situation, usual utilities and services could be unavailable for 48 hours or more.
• The time required to obtain a response from emergency services will increase in proportion to the severity, magnitude, and nature of the emergency.

         The Model Plan also stated:

In an emergency, the facility may be without telephone, electric power, or public water and sewer service. Utility outages may last for several days. The facility must be able to exist on its own for at least 48 hours, without outside assistance. Plans must provide for alternative sources of water, lighting, temperature control for medicines, waste disposal, etc.

         The Model Plan required that the nursing facility "[s]how that [it] ha[d] an auxiliary emergency power generator(s)" and "[s]how whether the generator ha[d] the capacity to supply all the electric power to run the entire facility and all powered equipment." The Model Plan also required the facility to "indicate whether the generator [was] above the projected flood level."

         The Model Plan anticipated a hurricane such as Katrina, which would be a "catastrophic emergency" requiring an evacuation of the entire parish:

Catastrophic Emergencies: Many parishes in Louisiana are subject to catastrophic emergencies, such as hurricanes or widespread flooding that would require the evacuation of the entire parish, and relocation of the parish population to a safe area. . . . Nursing homes that are located in parishes that are subject to catastrophic emergencies will make arrangements to move out of the danger, or risk area, to safety. [Emphasis added.]

         The Model Plan also considered the option of sheltering in place: "In the event of a fast moving emergency, such as a tornado, a flash flood, or a hazardous materials incident, it may not be advisable to evacuate the facility."[4]

         Lafon's Evacuation Plan

         On April 16, 2005, Lafon submitted an "Evacuation Plan" to the City of New Orleans Office of Emergency Preparedness. According to Lafon's Evacuation Plan, the decision to evacuate or remain in the facility was the responsibility of a special Administrative Hurricane Committee which included Sister Thibodeaux, Sister Martin, Sister McDaniel, and Lafon's medical director, Dr. Joseph Labat. The Evacuation Plan provided that the committee's decisions about mobilization "may include" both sheltering in place and evacuation:

1. To remain at Lafon Nursing Facility, however, if there is a shortage of staff available, transfer beds to the dining area
2. To transfer residents:
a. To the second floor of Lafon
b. Move 10-12 residents to Lafon Child Care Center
c. Send resident sisters and 40 other residents to the Mother house[5]
d. Call family members to assist by taking loved ones home
e. Ask Methodist Hospital to admit residents who are tube ...

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