Kathryn M. Fontenot v. Louisiana Department of Public Safety and Corrections, Jim Rogers in his Official Capacity as Warden of the Louisiana Correctional Institute for Women and Lt. Thomas

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

N0. 2021 CA 1213

0 t- -
lkKATHRYN M. FONTENOT

jr-
VERSUS
fa
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
JIM ROGERS IN HIS OFFICIAL CAPACITY AS WARDEN
OF THE LOUISIANA CORRECTIONAL INSTITUTE FOR WOMEN
AND LT. THOMAS

Judgment Rendered. APR 0 8 2022

Appealed from the
18th Judicial District Court
In and for the Parish of Iberville
State of Louisiana
Case No. 74, 450, Division D

The Honorable Elizabeth A. Engolio, Judge Presiding

Jeff Landry Counsel for Defendants/ Appellants
Attorney General State of Louisiana, through the
Amber Mandina Babin Department of Public Safety and
Wm. David Coffey Corrections, Jim Rogers in his
Assistant Attorneys General official capacity as warden of the
New Orleans, Louisiana Louisiana Correctional Institute for
Women, and Charles Thomas
James L. Hilburn

Assistant Attorney General
Baton Rouge, Louisiana

Gary W. Bizal Counsel for Plaintiff/Appellee
New Orleans, Louisiana Kathryn M. Fontenot

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

THERIOT, J.

In this suit arising out of personal injuries sustained by an inmate, the

defendants appeal a trial court judgment in favor of the plaintiff. For the reasons

set forth herein, we amend the trial court judgment and, as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Kathryn M. Fontenot, an inmate in the custody of the Louisiana

Department of Public Safety and Corrections at the Louisiana Correctional

Institute for Women, filed a petition for damages on February 2, 2015, alleging

that she sustained serious injuries on March 11, 2014, when she was knocked to

the ground by a correctional officer, who was running to respond to a call for

assistance. Fontenot' s petition named the State of Louisiana through the

Department of Public Safety and Corrections, Warden Jim Rogers, and Lieutenant

Charles L. Thomas, III, the correctional officer who knocked Fontenot down, as

defendants.

Following a stipulation that Fontenot' s damages did not exceed $ 50, 000. 00,

a bench trial was held on June 18, 2021. The parties stipulated to the medical

expenses and exhibits, and testimony was presented from Fontenot, Lt. Thomas,

and Lt. Anthony Ennis.

Fontenot testified that on March 11, 2014, she was fifty-eight years old and

was standing in the inmate medication line when she heard someone yell " move."

She turned and saw Lt. Ennis running. Fontenot explained that inmates were

taught not to block the path of correctional officers, to follow instructions from

officers, and to move out of the way of officers responding to emergency calls for

assistance. However, Fontenot testified that she did not need to move in order to

avoid Lt. Ennis, as he passed through the line of inmates four or five feet away

from her. After Lt. Ennis passed through the area, Fontenot testified that she

looked and ... didn' t see nobody else and then when I turned back around again I

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saw [ Lt.] Thomas was pretty close, right there, and I just froze and then he hit me

and I flew and hit the ground." Fontenot denied hearing any warning or instruction

to move out of the way from Lt. Thomas and explained that by the time she saw

him sprinting towards her, she had no opportunity to do anything to avoid the

collision.
Although Fontenot testified that she would have moved out of the way if

there had been enough time, she also acknowledged that she did not know which

direction she should have moved in to avoid the collision.

Fontenot testified that the collision with Lt. Thomas knocked her to the

ground, where she landed on her left arm and shoulder. Following the accident,

she was taken to the infirmary in a wheelchair by another inmate. Fontenot

testified that she could not move her left arm after the fall, and she described her

pain on the day of the accident as a ten out of ten.' No x-rays were taken on that

day. She was given an arm sling, an ice pack, Ibuprofen, and a Toradol injection.

Her arm was x-rayed on March 13, 2014, after which Dr. Johnny Prejean

recommended an " urgent ortho referral." Fontenot testified that her pain continued

to increase. On March 17, 2014, Fontenot reported to the infirmary, complaining

of pain that she rated as 10 out of 10. On March 25, 2014, Fontenot was diagnosed

with a "[ c] omminuted fracture of the surgical neck of the left humerus with

minimal displaced fragments involving the greater and lesser tuberosities with

deformity." By late April 2014, Fontenot continued to complain of "throbbing

achy pain," which she rated as an 8 out of 10. She continued experiencing pain

and difficulty using her left arm, but was advised that surgery was not an option

because of the amount of time that had passed since the injury and because of the

location of the injury. In addition to pain, Fontenot testified that she required

assistance with dressing and bathing due to reduced range of motion in her left

arm. She began physical therapy on May 23, 2014, where she learned exercises to

The medical records from the infirmary on this day state that Fontenot rated her pain as 8 out of 10.

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perform on her own to help with her range of motion. She continued treating with

the physical therapist at least through the end of 2014. Although it is not clear

exactly when she stopped receiving physical therapy, she testified that she

continued doing the exercises she was taught following her release from

incarceration. In September 2014, she was advised to continue the restriction

against weight-bearing on her left arm for three months. In October 2014,

Fontenot continued to have discomfort and stiffness in her left arm and medical

records show that she rated her pain as a 5 out of 10. Although she had initially

been excused from her normal housekeeping work duties following the accident,

her request to extend her restricted -duty status was eventually rejected on October

1, 2014, and she was required to start working in housekeeping again. Fontenot

testified that in order to perform her housekeeping tasks, she often had to use both

of her arms, which caused her increased pain. Following her release from custody

in June 2015, Fontenot saw Dr. Thomas R. Lyons at the direction of her attorney.

Dr. Lyons sent her for an MRI,2 and he injected her shoulder on August 3, 2015

and again on October 2, 2015, in an attempt to relieve her pain. Fontenot testified

that she did not get any relief from the injections. Dr. Lyons also recommended

physical therapy, which Fontenot testified she was already doing at home twice a

day, continuing through the date of trial, and reevaluation in four to six weeks.

Fontenot did not return to Dr. Lyons after the October visit. Fontenot testified that,

in her opinion, her arm improved to a point that was " as good as it was going to

get" about a year after the accident. At the time of trial, over seven years after the

accident, she testified that she still takes ibuprofen four times a day and cannot

raise her left arm completely.

2 On October 2, 2015, Dr. Lyons noted that an MRI scan of Fontenot' s left shoulder was performed on September 4,
2015, which showed " evidence of proximal humerus fracture with intact rotator cuff' and "[ mjild acromioclavicular

joint arthropathy."

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Lt. Thomas testified that on the date of the accident, he received a call for

assistance while eating breakfast. Lt. Thomas explained that calls for assistance do

not give the nature of the situation; the control center just sends out a location and

the officers are trained to "[ s] top with what [ they' re] doing and go," "[ g] et there

with the most safe [ sic] as possible, and ... run." The reason for the call for

assistance could be anything from a false alarm caused by an officer accidentally

pressing his " beeper," an unruly inmate, or a stabbing. When Lt. Thomas received

the call for assistance on March 11, 2014, he stood up and began running toward

the unit requesting assistance. Lt. Ennis, who was standing nearby, began running

in response to the call as well, but he was ahead of Lt. Thomas by " maybe five or

six feet." Lt. Thomas testified that he heard Lt. Ennis yell " move," and the inmates

standing in line moved aside to allow Lt. Ennis to pass through and then

immediately went back to what they were doing. Lt. Thomas did not follow the

same path Lt. Ennis took because there were "[ t] oo many people there" obstructing

the path. Instead, he approached the area in which Fontenot was standing in line,

yelling " move, make a hole," and the line parted; however, when he was

approximately two to two -and -a -half feet away, Fontenot stepped right in front of

him. He was unable to avoid colliding with her, knocking her to the ground.

When asked whether he believed Fontenot intentionally stepped into his path, Lt.

Thomas testified that he could not think of any other reason besides defiance for

Fontenot to step out in front of him as he approached, although he admitted that

she appeared " startled" when she saw him approaching. Lt. Thomas testified that

although he could have written Fontenot up for a disciplinary violation for defiance

for interfering with a correctional officer' s lawful duties, he did not do so because

there was a lot going on that day and because Fontenot was injured. Aside from

the instruction to " make a hole," Lt. Thomas acknowledged that he did not gesture

or give any sort of instruction to let the inmates know which way they should move

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to get out of his way. Lt. Thomas explained that the inmates should simply use

their own judgment and get out of the way.

Lt. Ennis testified that he had no trouble passing through the line of inmates

on March 11, 2014, and he did not witness the collision between Lt. Thomas and

Fontenot. He testified that during his time as a correctional officer, when he

responded to a call for assistance and encountered inmates standing in line, he

would yell out commands, such as " get out of the way," and the inmates would

disperse. Lt. Ennis testified that he had never knocked an inmate down while

responding to a call for assistance.

The Unusual Occurrence Report prepared by Lt. Thomas on the date of the

accident was also filed in evidence. In this report, Lt. Thomas stated, " I gave a

loud verbal order for the offenders to move at this time [ Fontenot] stepped slightly

to her right side but appeared to be startled when I ordered the offenders to move

and she stoped [ sic] moving, I tried to get around her but when she stopped moving

I ran into her."

After taking the matter under advisement, the trial court rendered judgment

in favor of Fontenot and against DPSC, Warden Rogers, and Lt. Thomas,

specifically finding that the cause of Fontenot' s injuries was Lt. Thomas' s

negligence in running into her and rejecting the defendants' assertion that Fontenot

purposely stepped into Lt. Thomas' s path. The trial court awarded Fontenot

general damages of $48, 550. 00 and past medical expenses of $1, 450. 00.

The defendants appealed, arguing that the trial court erred in failing to

allocate any fault to Fontenot, in failing to reduce the award of damages due to

Fontenot' s failure to mitigate her damages, in awarding an excessive amount of

general damages, and in casting Warden Rogers in judgment.

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DISCUSSION

Appellants' first assignment of error addresses the trial court' s failure to

allocate any percentage of fault to Fontenot, despite the fact that she stepped into

Lt. Thomas' s path. Louisiana Civil Code article 2323( A) provides as follows with

regard to comparative fault:

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. If a person suffers injury, death, or loss as the result
partly of his own negligence and partly as a result of the fault of
another person or persons, the amount of damages recoverable shall
be reduced in proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or loss.

The trial court' s allocation of fault is a factual determination. Malta v.

Herbert S. Hiller Corp., 2021- 00209, p. 21 ( La. 12/ 10/ 21), --- So. 3d ---, ---, reh g

denied, 2021- 00209 ( La. 1/ 28/ 22). As with other factual determinations, the trier

of fact is vested with much discretion in its allocation of fault; therefore, the trier

of fact' s allocation of fault is subject to the manifest error or clearly wrong

standard of review. Id. In allocating fault between the parties, the trier of fact is

bound to consider the nature of each party' s wrongful conduct and the extent of the

causal relationship between that conduct and the damages claimed. Aaron v.

Exxon Mobil Corp., 2018- 0476, p. 18 ( La.App. 1 Cir. 12/ 27/ 18), 271 So. 3d 205,

217- 18, citing Watson v. State Farm Fire and Casualty Insurance Co., 469 So. 2d

967, 974 ( La. 1985). In assessing the nature of the parties' conduct, factors that

may influence the degree of fault allocated include: ( 1) whether the conduct

resulted from inadvertence or involved an awareness of the danger; ( 2) how great a

risk was created by the conduct; ( 3) the significance of what was sought by the

conduct; ( 4) the capacities of the actor, whether superior or inferior; and ( 5) any

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extenuating circumstances that might require the actor to proceed in haste, without

proper thought. Aaron, 2018- 0476 at p. 18, 271 So. 3d at 218. The allocation of

fault is not an exact science or the search for one precise ratio; rather, it is the

search for an acceptable range, and an allocation by the factfinder within that range

cannot be clearly wrong. Id.

Here, the finder of fact rejected the assertion that Fontenot intentionally

stepped in front of Lt. Thomas and found that she could not have known which

way she should move in order to avoid Lt. Thomas, who was rapidly approaching.

Although Lt. Thomas testified at trial that Fontenot stepped out in front of him at

the last second, making it impossible for him to avoid hitting her, the Unusual

Occurrence Report he prepared on the date of the accident actually corroborated

Fontenot' s trial testimony that she was startled and froze when she saw him rapidly

approaching her and that there was no time for her to react to avoid the collision.

Lt. Thomas testified that he made a decision while approaching at a sprint to cross

the line of inmates in a different place than Lt. Ennis had, and acknowledged that

the inmates could not read his mind to know which way to move to avoid him.

Considering the particular facts of the case, we find that the record supports that

the trial court was not manifestly erroneous or clearly wrong in finding Fontenot

free from fault. This assignment of error has no merit.

In their second assignment of error, appellants argue that the trial court erred

in failing to reduce the general damage award due to Fontenot' s failure to mitigate

her damages. Defendants argue that Fontenot failed to mitigate her damages by

failing to follow Dr. Lyons' s recommendation to repeat injections and to follow-up

for reevaluation in four to six weeks.

A tort victim has a duty to take reasonable steps to mitigate damages. Aisole

v. Dean, 574 So. 2d 1248, 1253 ( La. 1991). The victim need not make

extraordinary efforts or do what is unreasonable or impractical in his efforts to

minimize the damages, but his efforts to minimize them must be reasonable and in

accordance with the rules of common sense. Sepulvado v. Turner, 37, 912, p. 10

La.App. 2 Cir. 12/ 10/ 03), 862 So. 2d 457, 463. The failure to mitigate damages is

an affirmative defense, and the burden of proof is on the party asserting the

defense. Lemoine v. Mike Munna, L.L.C., 2013- 2187, p. 10 ( La.App. 1 Cir.

6/ 6/ 14), 148 So. 3d 205, 213.

As pointed out by Fontenot' s appellate brief, the appellants' argument that

Fontenot failed to mitigate her damages was raised for the first time on appeal.

Although the events giving rise to Fontenot' s alleged failure to mitigate damages

had not yet taken place when the answers were filed in March 2015 ( Fontenot saw

Dr. Lyons in August and October 2015), appellants did not raise Fontenot' s alleged

failure to mitigate her damages in later pleadings or in their pretrial memorandum

and did not raise the issue at trial. Further, they failed to put on any evidence that

Fontenot' s condition would have improved with continued treatment.

As a general rule, an appellate court will not consider issues that were not

raised in the pleadings, were not addressed by the trial court, or are raised for the

first time on appeal. Pinnacle Builders, Inc. v. John, 2021- 0335, p. 12 ( La.App. 1

Cir. 12/ 22/ 21), --- So. 3d ---, ---. For this reason, we decline to consider appellants'

argument that Fontenot failed to mitigate her damages.

In their third assignment of error, the appellants argue that the trial court' s

general damages award of $48, 550. 00 was excessive and an abuse of discretion

under the circumstances of the case.

It is well settled that a judge or jury is given great discretion in the

assessment of quantum, of both general and special damages. La. C. C. art. 2324. 1;

Guillory v. Lee, 2009- 0075, p. 14 ( La. 6/ 26/ 09), 16 So. 3d 1104, 1116.

Furthermore, the assessment of quantum, or the appropriate amount of damages,

by a trial judge or jury is a determination of fact that is entitled to great deference

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on review. Wainwright v. Fontenot, 2000- 0492, p. 6 ( La. 10/ 17/ 00), 774 So. 2d 70,

74. The standard for appellate review of general damages is set forth in Youn v.

Maritime Overseas Corp., 623 So. 2d 1257, 1261 ( La. 1993), cert. denied, 510 U.S.

1114, 114 S. Ct. 1059, 127 L.Ed.2d 379 ( 1994), wherein the Louisiana Supreme

Court stated that the discretion vested in the trier of fact is great, and even vast, so

that an appellate court should rarely disturb an award of general damages. The

appellate court' s initial inquiry is whether the award for the particular injuries and

their effects under the particular circumstances on the particular injured person is a

clear abuse of the much discretion of the trier of fact. Youn, 623 So. 2d at 1260.

Only after it is determined that there has been an abuse of discretion is a resort to

prior awards appropriate, and then only for the purpose of determining the highest

or lowest point that is reasonably within that discretion. Id.

Considering Fontenot' s testimony regarding the severity and duration of her

pain and the loss of mobility and strength in her left arm and shoulder and the

medical evidence in the record, we simply cannot say that the trial court abused its

great discretion in awarding general damages. This assignment of error lacks

merit.

In their final assignment of error, appellants argue that the trial court erred in

casting Warden Rogers in judgment, as the evidence shows that Warden Rogers

was neither Lt. Thomas' s employer nor his supervisor. Although Fontenot' s

petition alleges that Warden Rogers was negligent in his supervision and/ or

training of Lt. Thomas, no evidence was presented that Warden Rogers was Lt.

Thomas' s employer or was in any way responsible for training or supervising Lt.
Thomas. Fontenot' s appellate brief did not address this assignment of error, and

counsel for Fontenot informed this Court during oral argument that Fontenot does

not oppose the amendment of the trial court judgment to dismiss the claims against

Warden Rogers. As such, we find that there is merit to this assignment of error,

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and the June 25, 2021 trial court judgment is hereby amended to dismiss the action

against Warden Rogers.

CONCLUSION

For the reasons set forth herein, the June 25, 2021 trial court judgment is

amended solely to dismiss all claims against Warden Jim Rogers. As amended,

this judgment is affirmed. Costs of this appeal in the amount of $4, 706. 13 are

assessed to defendants -appellants, the State of Louisiana through the Department

of Public Safety and Corrections and Lieutenant Charles L. Thomas, III.

AMENDED, AND AFFIRMED AS AMENDED.

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