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Richard v. Calcasieu Cameron Hospital Service

Court of Appeals of Louisiana, Third Circuit

December 11, 2019

JOY RICHARD
v.
CALCASIEU CAMERON HOSPITAL SERVICE D/B/A WEST CALCASIEU CAMERON HOSPITAL, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2015-1395 HONORABLE RONALD F. WARE, DISTRICT JUDGE.

          Jack W. Caskey, Lake Charles, Counsel for Plaintiff/Appellee: Joy Richard.

          Robert W. Robison, Jr., Shelby L. Giddings, Watson, Blanche, Wilson & Posner, Counsel for Defendant/Appellant: West Calcasieu Cameron Hospital.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          PHYLLIS M. KEATY JUDGE.

         Joy Richard was injured in a trip and fall in the parking lot of Calcasieu Cameron Hospital Service District d/b/a West Calcasieu Cameron Hospital (WCCH). After a trial on the merits, judgment was rendered in favor of Richard and against WCCH, awarding her general and special damages. WCCH appeals, and for the following reasons, we amend the judgment and affirm as amended.

         FACTS AND PROCEDURAL HISTORY

         Richard tripped and fell in the parking lot of WCCH on the evening of July 7, 2014. Her adult daughter, Diana Piper, was an employee of the hospital, and Richard had gone there to pick her up after her shift ended. Richard filed this suit against WCCH to recover for the damages she allegedly sustained in the accident. The matter proceeded to a one-day bench trial, following which the trial court issued an oral ruling, finding that WCCH was negligent and 100% at fault for Richard's damages. Written judgment was signed on January 7, 2019, awarding Richard $50, 000.00 in general damages, $6, 750.07 in medical special damages, and $1, 500.00 in expert witness fees.

         On appeal, WCCH asserts that the trial court erred in finding that Richard met her burden of proof under La.Civ.Code art. 2317.1; in awarding excessive damages to Richard; in not assessing fault to Richard; and in awarding Richard special damages over and above her general damages award as the parties stipulated to a bench trial on the basis that her claims would not exceed $50, 000.00.

         DISCUSSION

         Richard's premise liability claims against WCCH are governed by La.Civ.Code art. 2317.1, [1] which provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

         To prevail under La.Civ.Code art. 2317.1, Richard had the burden of proving that:

(1) that the thing which caused the damage was in the defendant's custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care.

Owens v. McIlhenny Co., 18-754, p. 3 (La.App. 3 Cir. 3/27/19), 269 So.3d 839, 842 (quoting Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, p. 4 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817).

         Six witnesses testified at trial. Richard stated that she was seventy-five years old at the time of trial. Richard explained that Piper worked the 2:30 p.m. to 11:00 p.m. shift at WCCH, and Richard routinely drove her to and from work. On the night of the accident, Richard had arrived early in order to visit her granddaughter who was a patient at Cornerstone, an acute-care facility within WCCH. Richard parked in a handicap spot near the entrance to Cornerstone. She had some items for her granddaughter which she took out of the back of her car before walking up a handicap ramp and entering the facility. After Piper's shift ended, she met Richard in her daughter's room, and they left the facility through the same door that Richard had entered. Richard explained that it was "pitch dark," and as she stepped down into the parking lot in front of her car, her foot hit a concrete bar, she fell flat on her face, and her "head bounced on the concrete." She explained that "[t]here was a light further off in the distance, but it did not light up that area" of the parking lot.

         On cross-examination, Richard stated that she had been to the same parking lot and had entered through the same door at WCCH when visiting her granddaughter before the night of the accident. She confirmed that when the hospital door opened the night of the accident, "there was enough light for [her] to see[, b]ut when [she] came out, the door was closed; and it was completely dark again." Richard acknowledged that she did not walk down the handicap ramp when she and her daughter left the facility. Richard stated that because her daughter was walking down the ramp to get to the passenger side of the car, she "just naturally walked to the driver's side." When shown photographs that depicted the parking lot and building where she fell at nighttime, Richard emphatically stated that on the evening of her accident, there was no light on the corner of the building to the left of the entrance, nor under the canopy covering the doorway where she entered and exited the building.

         Richard testified that after she fell, she screamed for her daughter to help her. Piper ran back into the hospital to get assistance, and four people came out with a wheelchair. They rolled Richard over onto a sheet, lifted her up into the wheelchair, and rolled her to the Emergency Room (ER). After X-rays and a CAT scan were taken, an ER employee gently cleaned her face, which was bleeding and "all skinned up." When a physician later came into her room and spoke to her about ordering some diagnostic tests, Richard told him, "That's already been done." That doctor wrote her prescriptions for antibiotics and pain pills and said he would return after finding out the results of the X-rays and CAT scan. He never returned to Richard's room, however, and she was sent home that evening, never to learn the results of the tests run in the ER of WCCH.

         Richard said that the accident damaged the right side of her nose, explaining that "[t]he cartilage was shoved over to where it's almost completely closed." As a result, she "would literally panic because [she] wasn't getting enough air." Richard stated that she had experienced trouble with her lungs and with breathing before the accident, but now she requires oxygen around the clock. With regard to her lungs, Richard stated that she probably had issues with her lungs before she was aware of them. She said that a Dr. Luke Williams had recently told her that "about 43 percent of [her] lungs . . . work." Richard went to Dr. Brad LeBert, a board-certified otorhinolaryngologist, [2] approximately one month after the accident regarding problems with her hearing.[3] She told him about her difficulty breathing since the accident, and he attempted to perform a surgery to "scrape that cartilage that's blocking this right side," but when they tried to put her to sleep for the procedure, her oxygen levels dropped dangerously low, and they could not proceed.

         Richard described her pain level after her fall as excruciating. On a scale of one to ten, she ranked it a twelve. Richard identified two pictures of herself that were accepted into evidence. The first was taken by her daughter with her cellular telephone on the night of the accident, and the second was her driver's license photograph taken some time later. Richard said she had facial bruising for several months after the accident. She stated that she had fallen several times before the subject accident but had never hit her face or nose in any of them. She also described an incident that happened six months to one year after the subject accident in which she passed out when driving and woke up in the WCCH Intensive Care Unit (ICU). According to Richard, she did not injure her face or nose in that accident.

         Piper testified that she was living with her mother at the time of the accident. She did not have a car, so her mother drove her to and from her job as a housekeeper at WCCH. Her mother usually dropped her off at the employee entrance that was separate from, but in the same parking lot as, where this accident occurred. On the day of the accident, Richard told Piper that she would be visiting her granddaughter at Cornerstone before picking Piper up that evening. Therefore, Piper went to her daughter's room at the end of her shift. About ten minutes later, Piper and Richard left to go home. Piper knew where Richard's car was parked because she always parked in that same handicap spot if she was coming inside rather than waiting in the car for Piper to come out. Piper testified that she opened the door to exit the building, and then she walked down the handicap ramp toward the passenger side, and her mother walked on the sidewalk toward the driver's side, of the car. As Piper was opening the rear passenger door to put her bags into the car, she heard her mother scream that she had fallen. She then ran around the back of the car and saw her mother laying face down in the parking lot. No lights were on in the area where Richard's car was parked. Piper was shown photographs of the parking lot where the accident took place, and she confirmed that the light fixture shown was not working. According to Piper, there was a bench outside the exit she and Richard used to leave the building where she and several other hospital employees would smoke cigarettes because the light there "hardly ever worked." Piper did not report the light being out to anyone on the night of the accident.

         Piper explained that her mother was mobile and "could drive and get around by herself quite well" before the accident. Richard had experienced issues with her lungs, but not with her nose, and she had never needed oxygen. Piper estimated that her mother began needing oxygen within a year of the accident and has not been without it since then. Piper is currently Richard's full-time caretaker because of her declining health.

         Dr. Brad LeBert was recognized as an expert in the field of otorhinolaryngology. He testified that he first saw Richard on August 6, 2014, regarding her complaints of a "swooshing" sound in her right ear. Dr. LeBert stated that "upon examination of her head and neck, we also noticed that her septum or the midline portion of her nose was deviated; and we began discussing her problems with obstructive breathing." He testified that he diagnosed Richard with deviated nasal septum and that his notes indicated it occurred after she fell one month prior. He suggested that she consider septoplasty, surgical correction of her deviated septum, after getting her hearing problem resolved, which suggestion he reiterated when he saw her on August 20, 2014, and November 6, 2014. According ...


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