Clifford C. Baker, Et Ux. v. State of La, Dept. of Health and Human Resources

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-808

CLIFFORD C. BAKER, ET UX.

VERSUS

STATE OF LA, DEPT. OF HEALTH AND HUMAN RESOURCES, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 207,567
HONORABLE F. RAE SWENT, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

Cooks, J., Dissents without written reasons.

AFFIRMED.

Michael L. Glass
1733 White Street
Alexandria, LA 71301
(318) 484-2917
Counsel for Plaintiff/Appellant:
Clifford C. Baker
Sarah Lenora Baker

Charles H. Munsterman
3600 Jackson St., Suite 105
Alexandria, LA 71303-3096
(318) 487-4972
Counsel for Plaintiff/Appellant:
Clifford C. Baker
Sarah Lenora Baker

John Albert Ellis
Laurel I. White
Louisiana Dept. of Justice, AAG
P. O. Box 1710
Alexandria, La 71309
(318) 487-5944
Counsel for Defendant/Appellee:
Huey P. Long Medical Center
State of LA, Dept. of Health and Human Resources

GREMILLION, Judge.

The plaintiffs, Clifford C. Baker and Sarah Baker, appeal the judgment

in favor of the defendant, the State of Louisiana, Department of Health and Human

Resources, finding it was not negligent for injuries suffered by Sarah in a trip and fall

allegedly caused by a storm drain cover. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Bakers filed suit in February 2002, claiming that on March 6, 2001,

Sarah tripped and fell over an unreasonably dangerous storm drain cover in the

walkway of Huey P. Long Hospital, a state-owned and run institution, in Pineville,

Louisiana. Following a trial in November 2004, the jury returned a verdict in favor

of the State, finding that the sidewalk did not present an unreasonable risk of harm

on March 6, 2001. In December 2005, the trial court signed the judgment dismissing

the Bakers’ claims. The Bakers now appeal.

The Bakers assign as error:

1. The trial court’s exclusion of evidence and an instruction to the jury
to disregard the defendant’s clear admissions of fault; and

2. The jury’s finding that the State was not at fault.

WITNESS TESTIMONY

The Bakers first argument surrounds the trial court’s exclusion of

testimony by several hospital employees. We note that in reviewing the trial court’s

evidentiary decisions, we must determine whether the rulings were erroneous and, if

so, whether they prejudiced the plaintiffs’ case. See Eldridge v. Carrier, 04-203

(La.App. 3 Cir. 11/17/04), 888 So.2d 365, writ denied, 04-3175 (La. 3/11/05), 896

So.2d 66. Reversal is not warranted if the error is harmless. Id.

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First, the Bakers argue that James Williams, a security guard for the

hospital, would have testified that he observed that the storm drain cover rocked. The

trial court ruled that Williams’ potential testimony that the cover rocked was not

relevant in that he was not an expert witness regarding storm drain covers.

Furthermore, the trial court did not want the jury to infer from his non-expert

testimony that the fact that the cover rocks necessarily means that it is defective. We

find no error in the trial court’s ruling. Several other witnesses testified that it rocked

when stepped on or would rock due to its unlevel nature. Moreover, we find the issue

of whether the storm drain rocked bears little relevance in that Sarah does not claim

she fell because the storm drain rocked, but because the lip on the storm drain cover

was unlevel. In that regard, there was overwhelming evidence that the storm drain

cover did not sit flush. The jury had ample information to determine whether or not

it posed an unreasonable risk of harm without the testimony of this witness, which the

trial court felt could have improperly influenced the jury. Additionally, even if we

were to find that this testimony was improperly excluded, the exclusion was harmless

error as similar testimonial evidence was presented by several other witnesses.

Accordingly, this assignment of error is without merit.

The Bakers next argue that the trial court erred in failing to allow Millard

Sanders, a safety officer and chairman of the safety committee at the hospital, to

answer counsel’s question as to whether the hospital bore responsibility. The trial

court sustained the State’s objection finding that this question invaded the province

of the triers of fact.

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Sanders testified that the storm drain cover is not flush with its frame and

that the area in which it is located is heavily trafficked. He further testified that the

storm drain cover has “a little old play in it,” or rocks when you walk on it. He stated

the reason for this is because the storm drain cover has settled on the foundation

causing it to have about 3/8 of an inch of “play” in it. Sanders further stated he has

not made any attempt to replace the storm drain cover with a new one, although he

is responsible for the area in question. He testified that the 3/8 of an inch lip could

cause someone to fall if approached a certain way. He stated the lip is still present

today, but that he believed it could be fixed. The Bakers’ counsel then asked Sanders

if he agreed that “there is some responsibility on the part of the hospital,” to which

opposing counsel objected, and the trial court agreed that the question invaded the

province of the trier of facts. We agree. The Bakers cite La.Code Evid. arts.

801(D)(2), 701, and 704 in support of their position that the trial court should have

allowed this testimony.

Louisiana Code of Evidence Article 801(D)(2) declares that a statement

is not hearsay “if the statement is offered against a party and is [h]is own statement,

in either his individual or representative capacity.” We agree with the trial court that

Article 801(D)(2) has no application to this lay witness testifying as to his opinion on

the ultimate issue of liability and that this article refers to statements made prior to

trial by the witness.

Louisiana Code of Evidence Article 704 states that “testimony in the

form of an opinion or inference otherwise admissible is not to be excluded solely

because it embraces an ultimate issue to be decided by the trier of fact.” The trial

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court found that Article 704 applies to expert witnesses and that it did not apply to

Sanders, who was not qualified as an expert. We also agree. On cross-examination,

Sanders stated that he was appointed safety officer when the former one retired but

that his primary job is as an administrative maintenance manager taking care of

electrical, plumbing, air conditioning, bio-medical equipment, and utilities throughout

the hospital. He further testified he has no special expertise or training in working

with storm drain covers or catch basins nor does he have any engineering experience

in sidewalk construction or in inserting catch basins. There is no doubt that Sanders

was not qualified as an expert. Since Article 704 applies to expert witnesses, the trial

court did not err in refusing to admit his testimony pursuant to that article.

Next, the Bakers argue that Article 701, which addresses the testimony

of lay witnesses, applies to Sanders’ testimony. Article 701 states:

If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are:

(1) Rationally based on the perception of the witness; and

(2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.

The question posed by counsel was neither based on the perception of

the witness nor helpful to a clear understanding of a fact in issue; the question

pertained to the ultimate issue, which the trial court correctly found invaded the

province of the triers of fact.

Finally, the Bakers argue that the trial court erred in excluding Terry

Brouillette’s testimony, who testified that the storm drain cover was “something that

needs repair or attention.” The State objected citing a lack of foundation and the trial

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court sustained the objection instructing the jury to disregard the testimony. We find

no error in that ruling. Brouillette testified that he is employed in grounds

maintenance at the hopsital and that he mainly cuts grass and shrubbery. He stated

that the storm drain cover does not sit flush and that the area was heavily traveled.

We agree with the trial court that no foundation existed to elicit the opinion testimony

of Brouillette as to whether or not the drain needed repair. The jury had sufficient

evidence to make that determination. Accordingly, the foregoing assignments of

error are without merit.

LIABILITY

The State’s liability is governed by La.Civ.Code art. 2317 as limited by

La.R.S. 9:2800. Louisiana Civil Code Article 2317 states in part:

We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of persons for whom we
are answerable, or of the things which we have in our custody.

La.R.S. 9:2800(C) states in part:

Except as provided for in Subsections A and B of this Section, no person
shall have a cause of action based solely upon liability imposed under
Civil Code Article 2317 against a public entity for damages caused by
the conditions of things within its care and custody unless the public
entity had actual or constructive notice of the particular vice or defect
which caused the damage prior to the occurrence, and the public entity
has had a reasonable opportunity to remedy the defect and failed to do
so.

The State is not liable for every irregularity or defect in a sidewalk that

causes injury, but only for those that pose an unreasonable risk of injury. See Clark

v. Hartford Acc. and Indem. Co., 562 So.2d 50 (La.App. 3 Cir. 1990). In order to

decide what constitutes an unreasonable risk of harm, the fact finder must weigh the

social utility of the thing versus the likelihood and severity of harm. Id.; see also

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Oster v. Dep’t of Transp. and Dev., State of La., 582 So.2d 1285 (La.1991). Whether

or not the defect posed an unreasonable risk of harm must be decided on the

particular facts and circumstances of the case. Clark, 562 So.2d 50. If it is

determined that the condition presented an unreasonable risk of harm, the notice

requirement of La.R.S. 9:2800 must be satisfied. Id. The plaintiff bears the burden

of proving by a preponderance of the evidence that the State was at fault. Id.

Moreover, a pedestrian has a duty to see that which should be seen and exercise

ordinary care in her travels. Id.

In this case, the jury found that the sidewalk did not pose an

unreasonable risk of harm. Pursuant to the well-established law, we will not set aside

a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong.

Rosell v. ESCO, 549 So.2d 840 (La.1989). Having reviewed the evidence, we find

no manifest error in this ruling.

Sarah, who was eighty years old at the time of trial, testified that on the

date in question she and her husband arrived at the hospital at around 7 a.m. in order

to be with her son who was having surgery. She stated that as she was walking

toward the hospital, she “tripped her toe on something in the sidewalk,” and fell with

her knee hitting iron. When questioned if her foot was caught on the lip of the

manhole cover, Sarah testified “I just know it caught something that was sticking up

in the sidewalk.” She further stated that the reason she tripped was because

“something was in the sidewalk and my toe hit it.” Sarah stated that the she was

anxious about her son’s upcoming surgery.

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Clifford, who was eighty-three years old at the time of trial, testified that

Sarah “stumped her toe” on the storm drain, which was unlevel, causing her to fall

and injure her knee. We note Clifford testified that he dropped Sarah off while he

went to park the car and was approximately one hundred feet behind her when she

fell. Clifford stated shortly before the trial he went to examine the storm drain and

said that it rocked when he stepped on it. He further testified that he and his wife

have been to the hospital to visit others and had not experienced any problems.

Belle Bailey, an administrative specialist and the director of risk

management at the hospital, testified that if there is an incident at the hospital she is

required to take photographs and prepare a report and send them to Baton Rouge.

Bailey testified that she took a photograph of the sidewalk where Sarah claims to

have fell. She testified that this walkway is heavily traveled by patients and

employees of the hospital. Bailey also stated that she had heard that more than one

other person had fallen in the same area, but that there were no incident reports.

The essence of Williams, Sanders, and Brouillette’s testimony is that the

storm drain cover was unlevel and rocked slightly, a fact that is not disputed by the

State. It is clear from the testimony that the manhole cover is indeed unlevel, a

situation that is not uncommon in this state due to the settlement of foundations over

time and other reasons. In their brief and also in oral argument, the Bakers imply that

this fact alone poses an unreasonable risk of harm. The Bakers point to Boddie v.

State of Louisiana, 661 So.2d 617 (La.App. 2 Cir. 9/27/95), a case with facts similar

to this one in which the State was found liable after the plaintiff tripped over an

unlevel storm drain. However, this fact alone is not sufficient to deem that the storm

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drain poses an unreasonable risk of harm. The law requires an analysis of the

particular facts of each case. In Boddie, the plaintiff’s expert engineer testified that

the cover was unlevel:

[A] condition worsened by the addition of expanded metal to the top of
the drain cover. [The expert] stated that there was not a strong color
contrast between the sidewalk and the drain cover, adding to the unsafe
condition. [The expert] stated that the unsafe condition of the drain
cover could not be easily observed.

Id. at 621.

The trial court in Boddie found that the expanded metal plate extended above the

sidewalk between 3/4 of an inch to an inch and that the drain cover was gray in color,

which did not contrast dramatically with the sidewalk. On the contrary, in this case,

the photograph evidence shows wide bands of bold bright yellow paint surrounding

the drain and sidewalk where it drops off at the curb. The storm drain cover is

unlevel by 3/8 of an inch. Additionally, unlike in Boddie, there was no evidence that

Sarah actually tripped over the unlevel cover. For these reasons, we cannot say that

the jury manifestly erred in finding that the unlevel storm drain cover did not pose an

unreasonable risk of harm. Accordingly, the judgment of the trial court is affirmed.

CONCLUSION

The judgment in favor of the defendant-appellee, the State of Louisiana,

Department of Health and Human Resources, is affirmed. All costs of this appeal are

assessed against the plaintiff-appellant, Clifford and Sarah Baker.

AFFIRMED.

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