Kathleen C. Pfefferle v. Haynes Best Western of Alexandria

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-999

KATHLEEN C. PFEFFERLE, ET AL.

VERSUS

HAYNES BEST WESTERN OF
ALEXANDRIA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 226,737
HONORABLE GEORGE C. METOYER, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Marc T.
Amy, and J. David Painter, Judges.

AFFIRMED AS AMENDED.

Amy, J., concurs in part, dissents in part, and assigns written reasons.

Charles R. Sonnier
Post Office Drawer 700
Abbeville, LA 70511-0700
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kathleen C. Pfefferle and Troy Pfefferle

David C. Laborde
Bradley G. Frizzell
The LaBorde Law Firm
Post Office Box 80098
Lafayette, LA 70598-0098
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Kathleen C. Pfefferle and Troy Pfefferle

Michael J. Remondet, Jr.
Jeansonne & Remondet, LLC
Post Office Box 91530
Lafayette, LA 70509
COUNSEL FOR DEFENDANT/APPELLEE:
Haynes Best Western of Alexandria

PAINTER, Judge.

Plaintiffs, Kathleen C. Pfefferle and Troy Pfefferle, appeal a judgment, based

on a jury verdict, awarding special damages to Mrs. Pfefferle but no general damages.

Plaintiffs further assert that the jury erred in its allocation of fault and in its failure to

award any damages for loss of consortium to Mr. Pfefferle and their minor children.

We agree that the jury abused its discretion in awarding no general damages and that

it committed manifest error in its allocation of fault. We, therefore, amend the

judgment to re-allocate fault and to award general damages to Mrs. Pfefferle.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs checked into the Haynes Best Western in Alexandria, Louisiana,

around 2:00 a.m. on January 16, 2006. Mr. Pfefferle was traveling to Alexandria for

business and was accompanied by his wife, Kathleen, and three of their five minor

children, because they intended to make a vacation of the return trip to their home in

Wisconsin. Mrs. Pfefferle contends that she injured herself when she fell through the

sleeper sofa after kneeling on the corner of it. Mr. Pfefferle had pulled out the sleeper

sofa for his two daughters and had then gone to the car to retrieve their luggage.

When he returned to the room, in order to allow him access to cross the room, Mrs.

Pfefferle knelt on the corner of the sleeper sofa and, as she did, the mattress

collapsed, causing her to fall to the floor and injure herself. The Pfefferles did not

notify hotel personnel of the problem until they were checking out of the hotel. They

continued on their intended trip. However, Mrs. Pfefferle contends that her condition

deteriorated on the trip. She alleges that she sustained a disc herniation, neck pain,

and headaches. Once she arrived home in Wisconsin, she visited her family doctor,

who referred her to a neurosurgeon, Dr. Theresa Chang. Mrs. Pfefferle ultimately

underwent a lumbar hemilaminectomy, total facetectomy, and partial foraminectomy.

Plaintiffs filed suit against Haynes Best Western and alleged that the hotel was

“negligent for knowingly leaving faulty equipment in the room and for failing to

inform plaintiffs that the sleeper-sofa was not equipped with the proper springs and

supports[,] and it was therefore unsafe and should not have been used.” The matter

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proceeded to trial by jury, and the jury rendered a verdict in favor of Plaintiffs,

allocating forty-five percent of the fault to Haynes Best Western, ten percent to Mrs.

Pfefferle, and forty-five percent to “[a]ny other person of [sic] entity.” The jury

awarded past medical expenses in the amount of $15,000.00 to Mrs. Pfefferle but

declined to award any amount for future medical expenses, pain and suffering,

disability, loss of enjoyment of life, or any loss of consortium on the part of Mr.

Pfefferle or any of the children. Plaintiffs filed a motion for judgment

notwithstanding the verdict and/or a motion for new trial, both of which were denied

by the trial court. This appeal by Plaintiffs followed. Haynes Best Western answered

the appeal, seeking to be absolved of any liability and seeking a reversal of the award

of medical expenses.

DISCUSSION

Plaintiffs assert that the jury erred in three respects: (1) in apportioning fault

to Mrs. Pfefferle and/or a third party; (2) in awarding special damages, yet no general

damages; and (3) in failing to award any damages for injuries sustained by Chassen

Pfefferle, the minor child of the Pfefferles, whom Mrs. Pfefferle was holding at the

time of the fall, or to her husband and other children. In its answer to appeal,

Defendant asserts that the jury erred in allocating any fault to it and in awarding

medical expenses to Mrs. Pfefferle.

Allocation of Fault

We first address the arguments of Plaintiffs and Defendant concerning the

jury’s allocating forty-five percent of the fault to Haynes Best Western, ten percent

to Mrs. Pfefferle, and forty-five percent to “[a]ny other person of [sic] entity.”

Plaintiffs argue that the jury erred in finding third party fault because Defendant

failed to plead third-party fault, because there is no duty owed by Mr. Pfefferle to

warn Mrs. Pfefferle of any purported or threatened danger, and because Defendant

presented “no evidence whatsoever with regard to whom the manufacturer of the sofa

bed was and/or the absence of any warnings by that manufacturer.” Plaintiffs further

argue that there was no evidence that Mrs. Pfefferle contributed to her own injuries.

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On the other hand, Defendant argues that there was ample evidence in the record to

show that the entire accidence could not have occurred as alleged by Plaintiffs such

that it should be absolved of any liability or that, in the alternative, the allocation of

fault by the jury should be affirmed.

Since the jury’s allocation of fault is a factual finding, the manifest error

standard of review applies. Sims v. State Farm Auto Ins. Co., 98-1613 (La. 3/2/99),

731 So.2d 197. The question is whether a reasonable juror could have found that the

fault in this case should have been apportioned at forty-five percent to Haynes Best

Western, ten percent to Mrs. Pfefferle, and forty-five percent to “[a]ny other person

of [sic] entity.” To determine whether the jury’s verdict was unreasonable, we must

examine the liability of the parties using the same standards applied to juries as set

forth by the supreme court in Watson v. State Farm Fire and Casualty Ins. Co., 469

So.2d 967, 974 (La.1985):

In assessing the nature of the conduct of the parties, various
factors may influence the degree of fault assigned, including: (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
extenuating circumstances which might require the actor to proceed in
haste, without proper thought.

We are mindful that “the allocation of fault is not an exact science, nor is it the search

for a precise ratio.” Layssard v. State, Dep’t of Public Safety and Corrections, 07-78,

p. 4 (La.App. 3 Cir. 8/08/07), 963 So.2d 1053, 1058, writ denied, 07-1821

(La.11/09/07), 967 So.2d 511.

The jury found that Mrs. Pfefferle was ten percent at fault. She testified that

she was holding the baby and trying to get out of the way while her husband came

into the room to get the luggage. She did not assist him in pulling out the sofa bed

and was inattentive to its condition. The record reflects that she was not as prudent

as she should have been. Considering the Watson factors, her own negligence was

a substantial factor in the accident. Furthermore, Mrs. Pfefferle’s credibility was at

issue. As such, great deference must be given to the trier of fact, “for only the

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factfinder can be aware of the variations in demeanor and tone of voice that bear so

heavily on understanding and believing what is said.” Eisenhardt v. Snook, 43,128,

p. 4 (La.App. 2 Cir. 5/14/08), 986 So.2d 700, 705. After our review of the record, we

find no manifest error in the jury’s allocation of fault to Mrs. Pfefferle.

However, we conclude that the jury’s finding that “[a]ny other person of [sic]

entity” was forty-five percent at fault is manifestly erroneous. The record is devoid

of any evidence of any manufacturer’s defect or any evidence that the manufacturer

had any duty to warn. The record is also devoid of any evidence that another patron

at the hotel damaged the sofa bed. The only “other person” whom the jury could have

found to be at fault was Mr. Pfefferle. There is no evidence that he did anything to

the sofa bed to cause his wife to fall through it or that he noticed any problem with

the sofa bed and failed to tell his wife about it. Further, he was under no duty to warn

Mrs. Pfefferle about the sofa bed. There is no evidence that “any other person” other

than Mrs. Pfefferle herself and Defendant contributed to this accident. We, therefore,

find that the jury’s allocation of forty-five percent of the fault to “other persons” was

manifestly erroneous.

Having found manifest error, we must now re-allocate fault. Again, we are

mindful of the Watson factors. From the testimony, it is clear that Defendant, as the

owner of the property, was in a superior position to have knowledge about the

condition of the sofa bed. The head of maintenance at the Defendant hotel, Bobby

Fatheree, testified in deposition that the springs on the sofa beds needed to be

changed “about once a month” because missing springs were a problem and that he

kept a box of spare springs for this purpose. Robert Mitchell, a maintenance worker

at the hotel, also testified that he has had to replace the springs on the sofa beds.

Sheryl Chicola, the general manager of the hotel, testified that she has also

occasionally noticed missing springs on the sofa beds. There was also testimony

concerning the different inspections that occurred in each guest room between

occupancies of the room. Based on the evidence presented at trial and the Watson

factors, we allocate ninety percent of the fault to Defendant.

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General Damages

We next turn to Plaintiffs’ argument that it was error for the jury to award

special damages but no general damages to Mrs. Pfefferle. The jury awarded

$15,000.00 in past medical expenses to Mrs. Pfefferle but declined to award any

amounts for future medical expenses, pain and suffering, disability, or loss of

enjoyment of life. Defendant argues that in light of Mrs. Pfefferle’s credibility issues,

the jury could have reasonable concluded that she was not entitled to an award of

general damages.

In Wainwright v. Fontenot, 00-492, pp. 8-9 (La. 10/17/00), 774 So.2d 70, 76,

our supreme court noted:

And we do not dispute that, as a general proposition, a jury verdict such
as the one currently before us may be illogical or inconsistent.
However, . . . a jury, in the exercise of its discretion as factfinder, can
reasonably reach the conclusion that a plaintiff has proven his
entitlement to recovery of certain medical costs, yet failed to prove that
he endured compensable pain and suffering as a result of defendant’s
fault. It may often be the case that such a verdict may not withstand
review under the abuse of discretion standard. However, it would be
inconsistent with the great deference afforded the factfinder by this court
and our jurisprudence to state that, as a matter of law, such a verdict
must always be erroneous. Rather, a reviewing court faced with a
verdict such as the one before us must ask whether the jury’s
determination that plaintiff is entitled to certain medical expenses but
not to general damages is so inconsistent as to constitute an abuse of
discretion. Only after the reviewing court determines that the factfinder
has abused its much discretion can that court conduct a de novo review
of the record.

....

Additionally, our survey of the approaches used by our sister
states further buttresses the conclusion that a verdict awarding medical
expenses yet denying general damages is not per se invalid. While the
courts of many states have acknowledged that such a verdict can be
erroneous, they generally have rejected the factfinder’s determination as
to damages only where the failure to award general damages is factually
inconsistent with a reasonable reading of the record, giving due
deference to the jury’s findings of fact. See, e.g., Moody v. RPM Pizza,
Inc., 659 So.2d 877 (Miss.1995); Robertson v. Stanley, 285 N.C. 561,
206 S.E.2d 190 (1974); Laughlin v. Lamkin, 979 S.W.2d 121
(Ky.Ct.App.1998); Prescott v. Kroger, 877 S.W.2d 373
(Tex.Ct.App.1994).

Mrs. Pfefferle’s deposition and trial testimony concerning prior problems with

depression and prior neck and back problems was conflicting. She testified at trial

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that she was taking pain medication at the time of her deposition and that was

hampering her recollection of prior complaints. Dr. Theresa Cheng, Mrs. Pfefferle’s

treating neurosurgeon, testified at trial by deposition. Dr. Cheng opined that it was

more probable than not, according to Mrs. Pfefferle’s account of the accident, that the

“mechanisms” of the accident caused Mrs. Pfefferle’s disk herniation. Even after the

surgery was performed by Dr. Cheng, Mrs. Pfefferle testified that she was still in pain

and was undergoing epidural injections in an attempt to manage the pain.

Even if Mrs. Pfefferle had some pre-existing back and neck problems, the law

is clear that the defendant takes the victim as he finds her and is responsible for all

natural and probable consequences of his tortious conduct. Touchard v. Slemco Elec.

Foundation, 99-3577 (La.10/17/00), 769 So.2d 1200. Based on our review of the

record, we find that the jury abused its discretion in failing to award any amount of

general damages to Mrs. Pfefferle. Therefore, we award $75,000.00 in general

damages, subject to a reduction for the ten percent of fault attributable to Mrs.

Pfefferle.

Damages to Chassen Pfefferle and Damages for Loss of Consortium

Finally, Plaintiffs argue that the jury erred in failing to award any damages to

Chassen Pfefferle, the eighteen month old child whom Mrs. Pfefferle was allegedly

holding at the time of the subject fall, and in failing to award any damages to Mr.

Pfefferle and the other Pfefferle children for their loss of consortium.

We should only disturb an award of general damages, or a determination that

no amount should be awarded, if such an award for the particular injuries and their

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

abuse of trier of fact’s vast discretion. Youn v. Maritime Overseas Corp., 623 So.2d

1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379

(1994). Our role is not to decide what we think is an appropriate award, but rather

to review the trier of fact’s exercise of discretion. Andrus v. State Farm Mutual

Automobile Ins. Co., 95-801 (La.3/22/96), 670 So.2d 1206.

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The Pfefferle’s allege that Chassen sustained a wrist injury in the subject

accident and that, as a result of the injury, he had a cast for approximately six weeks.

The evidence presented at trial on this issue is conflicting. Chassen did not receive

any medical treatment for several weeks following the subject accident. X-rays taken

showed no evidence of any injuries. Photographs of the child taken after the subject

accident do not depict any injuries to the child. Thus, we find no abuse of the jury’s

vast discretion in failing to award any amount of damages to Chassen Pfefferle.

In concluding that Mr. Pfefferle and the Pfefferle children did not suffer any

loss of consortium, the jury apparently chose not to credit the testimony of Mr. or

Mrs. Pfefferle or that of Tiffani or Aleah Pfefferle. We cannot say that the jury was

clearly wrong in failing to make such awards. When findings of fact are based upon

evaluations of witness credibility, the clearly wrong standard of review requires that

we give great deference to the trier of fact’s findings. Billiot v. K-Mart Corp.,

99-1569 (La.App. 1Cir.6/23/00), 764 So.2d 329, writ denied, 00-2211 (La.10/13/00),

771 So.2d 653. We must, therefore, review the record to determine whether the jury

was clearly wrong in failing to make any awards for loss of consortium. While both

Mr. and Mrs. Pfefferle testified that they were “like two kids in love” before the

subject accident, Defendant produced evidence in the form of medical records that

appeared to show that Mrs. Pfefferle had complained about marital problems, lack of

libido, and domestic abuse on several occasions prior to the subject accident. Given

the questions of credibility and that the record reveals a reasonable factual basis for

the jury’s conclusions in this respect, we cannot say that the jury was manifestly

erroneous in failing to award any damages for loss of consortium. This assignment

of error is, therefore, without merit.

DECREE

For the foregoing reasons, we affirm the jury’s verdict in favor of Plaintiffs,

Kathleen C. Pfefferle and Troy Pfefferle. We, however, amend the jury’s verdict to

re-allocate the percentages of fault ten percent to Mrs. Pfefferle and ninety percent

to Haynes Best Western. We further amend the jury’s award of damages to include

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an award of $75,000.00 in general damages to Mrs. Pfefferle, subject to a reduction

for her percentage of fault. In all other respects, the jury’s verdict is affirmed. All

costs of this appeal are assessed to Defendant-Appellee, Haynes Best Western of

Alexandria.

AFFIRMED AS AMENDED.

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NUMBER 09-999

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

KATHLEEN C. PFEFFERLE, ET AL.

VERSUS

HAYNES BEST WESTERN OF ALEXANDRIA, ET AL.

AMY, J., concurring in part, dissenting in part.

The majority reverses the trial court’s allocation of fault and award of general

damages in favor of the plaintiffs. I respectfully dissent from those portions of the

opinion as I find an affirmation in full is appropriate.

First, I find no error in the jury’s allocation of forty-five percent of the fault to

a third person. The record includes conflicting evidence in regard to whether Mrs.

Pfefferle or any third person was at fault in the accident. There was testimony from

Best Western employees indicating that, if the sleeper was indeed in the defective

condition alleged, one would have noticed this when the sleeper sofa was initially

opened. The plaintiffs testified to the contrary, alleging they did not see that the sofa

sleeper was defective when they opened it. Based upon this evidence, I find that it

is possible the jury attributed fault to a patron of the defendant hotel who may have

caused a spring to fall out, the manufacturer of the sofa sleeper, or any other person

who may have contributed to the accident. It is not necessary that the third party fault

be attributed to any of the parties of this suit. La.Civ. Code art. 2323(A). In light of

the conflicted evidence and the manifest error standard of review, I would not disturb

the jury’s factual finding as to the allocation of fault.

Further, I find that the record supports the jury’s determination that no more

than the $15,000.00 for medical expenses should be awarded to the plaintiffs. It is

reasonable that the jury found Mrs. Pfefferle’s testimony incredible and determined

that her accident did not increase any level of pain and suffering, and that any injury

caused by the accident was treated by the surgery. Accordingly, I would not disturb

the jury’s $15,000.00 award.

In all other respects, I concur in the majority opinion.

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