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Stein v. City of Gretna

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

CLOVINA STEIN
v.
CITY OF GRETNA, EMERGENCY MEDICAL SERVICES PARAMEDIC ASSOCIATION, MAYOR RONNIE C. HARRIS, ABC AND DEF EMPLOYEES, AND XYZ INSURANCE COMPANY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 678-724, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CLOVINA STEIN James E. Shields, Sr.

          COUNSEL FOR DEFENDANT/APPELLEE, CITY OF GRETNA Roy L. Schroeder

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson

          MARC E. JOHNSON JUDGE

         Appellant/Plaintiff, Clovina Stein, appeals the judgment from the 24thJudicial District Court, Division "K", that found no liability against Appellees/Defendants, the City of Gretna and its insurer, American Alternative Insurance Corporation (hereinafter collectively referred to as "Gretna"), for alleged injuries she sustained while being transported to the hospital. For the following reasons, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On the morning of December 12, 2008, emergency medical services were requested at the home of Clovina Stein in Gretna, Louisiana, and emergency medical technicians, Linda Kerns and Officer Steven Verrett, answered the request.[1] Ms. Stein was transported to the hospital in the ambulance, while her sister and caretaker, Cassandra Stein, was to meet the ambulance at the hospital. Officer Verrett drove the ambulance, and Ms. Kerns was in the back of the ambulance with Ms. Stein. During the transport, Officer Verrett was forced to make a sudden stop, causing Ms. Kern to fall on top of Ms. Stein. Upon arrival at the Ochsner Medical Center located on Jefferson Highway (hereinafter referred to as "Ochsner-Jefferson Campus"), Ms. Stein received treatment for a heart attack.

         On October 5, 2009, Ms. Stein filed a "Petition for Damages" against Gretna and other defendants[2], alleging she suffered severe personal injuries when Ms. Kerns fell on her while being transported to the hospital on December 12, 2008. Ms. Stein alleged she was struck in the face and head with an object believed to be a radio. In a later amended petition, [3] Ms. Stein alleged she was taken into the emergency room at Ochsner-West Bank Campus, was told she was transported to the wrong hospital, then was subsequently transported to Ochsner-Jefferson Campus. While en route, she asserted she was struck by Ms. Kerns' radio, causing her to go unconscious. Ms. Stein alleged Officer Verrett and Ms. Kerns were negligent in their actions and were improperly trained by Gretna. As a result of the incident, Ms. Stein alleged she was swollen and bruised upon arrival at the Ochsner-Jefferson Campus. She further alleged that she suffered permanent head and facial injuries, a concussion, a permanent ear injury, injury to her jaw, a hernia, a heart attack, a stroke, exacerbation of her lupus disease, and spinal injuries, all resulting from the incident in the ambulance.

         A bench trial on the merits was held on February 1 and 2, 2017, and was recessed to allow for the production of discovery responses and to locate a witness. The trial resumed on April 25, 2017. In a judgment rendered on May 15, 2017, the trial court entered a judgment in favor Gretna and dismissed Ms. Stein's claims with prejudice. In its "Reasons for Judgment, " the trial court applied the qualified immunity provided in La. R.S. 37:1732(A) and found that Ms. Stein failed to show that Officer Verrett or Ms. Kerns engaged in an intentional act or omission designed to harm Ms. Stein or committed a grossly negligent act or omission. The trial court also found that Ms. Stein failed to produce any evidence that Officer Verrett and Ms. Kerns were negligent in their actions. The instant appeal followed.

         ASSIGNMENTS OF ERROR

         On appeal, Ms. Stein alleges the trial court erred by: 1) finding that Gretna and its employees qualified for limited immunity pursuant to La. R.S. 37:1732(A); 2) applying the gross negligence burden of proof rather than the negligence standard; 3) finding Gretna was not negligent in failing to train its employees, specifically Linda Kerns and Steven Verrett; 4) failing to find Gretna committed spoilage of evidence and fraud under La. C.C. art. 1953; 5) failing to find that Gretna's employees committed an Emergency Medical Treatment and Active Labor Act (hereinafter referred to as "EMTALA") violation by removing her from the first hospital emergency room and transporting her to a second emergency room; 6) refusing to address the issue and cause of action that Gretna's employees committed civil fraud pursuant to La. C.C. art. 1953 in an attempt to cover their negligence; 7) failing to apply the "uncalled witness" presumption against Gretna for refusing to produce Linda Kerns for trial; and 8) denying her right to call rebuttal/impeachment witness, William Pierce.

         LAW AND ANALYSIS

         Qualified Immunity and Gross Negligence Standard[4]

         Ms. Stein alleges the trial court erred in finding that Gretna's employee, Ms. Kerns, was entitled to immunity under La. R.S. 37:1732. She argues that Gretna failed to present any evidence of Ms. Kern's training or certification and, thus, failed to meet its burden of proving that Ms. Kern qualified for the immunity. As a result, Ms. Stein alleges the trial court erred in applying the gross negligence burden of proof for this matter.

         Gretna asserts that its employees, Ms. Kerns and Officer Verrett, were entitled to the immunity provided to emergency medical personal under La. R.S. 37:1732, and the gross negligence standard was properly applied by the trial court. Gretna avers that, while it was its burden to prove the immunity for Officer Verrett and Ms. Kerns at trial, it was not required to provide documentation regarding the qualifications of each of the employees, as the statute has no such requirement. Gretna contends that sufficient testimony was produced at trial to justify its employees' entitlement to the immunity. Gretna further asserts that even if this Court were to find Ms. Kerns and Officer Verrett were not entitled to the immunity provisions of La. R.S. 37:1732, the error would be harmless because the trial court also found that it was not liable under general negligence.

         In its Reasons for Judgment, the trial court held that, in order for Ms. Stein to recover in her action, she was required to show that Ms. Kerns or Officer Verrett engaged in an intentional act or omission designed to harm her or committed a grossly negligent act or omission. The trial court found that Ms. Stein failed to meet her burden.

         La. R.S. 37:1732 provides:

A. Any fireman, policeman, or member of an ambulance or rescue squad who holds a valid current certification by the American Red Cross, L.S.U. Fireman Training Rescue Program, United States Bureau of Mines, or any equivalent training program approved by the Department of Health and Hospitals who renders emergency care, first aid, or rescue while in the performance of his duties at the scene of an emergency or moves a person receiving such care, first aid, or rescue to a hospital or other place of medical care shall not be individually liable to such person for civil damages as a result of acts or omissions in rendering the emergency care, first aid, rescue, or movement of such person receiving same to a hospital or other place of medical care except for acts or omissions intentionally designed to harm or grossly negligent acts or omissions that result in harm to such person, but nothing herein shall relieve the driver of an ambulance or other emergency or rescue vehicle from liability arising from the operation or use of such vehicle.
B. The immunity herein granted to a fireman, policeman or member of an ambulance or rescue squad in accordance with Subsection (A) of this section shall be personal to him and shall not inure to the benefit of any employer or other person legally responsible for the acts or omissions of such fireman, policeman or member of an ambulance or rescue squad nor shall it inure to the benefit of any insurer, except that no parish governing authority engaged in rendering ambulance services nor its insurer with respect to such ambulance services shall be liable for the act or omission of any member of any ambulance squad employed by it unless such individual would be personally liable therefor under the provisions of Subsection (A) hereof.
C. In order for any fireman, policeman, or member of an ambulance or rescue squad to receive the benefit of the exemption from civil liability provided for herein, he must first have taken, successfully completed, and hold a valid certification of completion of the standard first aid course recognized or approved by the American Red Cross, the United States Bureau of Mines, the L.S.U. Fireman Training Rescue Program, or any equivalent training program approved by the Department of Health and Hospitals, and further he shall have a valid certification from the Red Cross, the United States Bureau of Mines, the L.S.U. Fireman Training Rescue Program, or the Department of Health and Hospitals that he has successfully completed any necessary training or refresher courses. Any such certification or refresher courses ...

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