Jeffery Smith v. Southwest Louisiana Hospital Association

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-502

JEFFERY SMITH

VERSUS

SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2012-2932, DIVISION “F”
HONORABLE SHARON WILSON, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Calli M. Boudreaux
Watson, Blanche, Wilson & Posner
Post Office Drawer 2995
505 North Boulevard
Baton Rouge, Louisiana 70821-2995
(225) 387-5511
COUNSEL FOR DEFENDANT/APPELLANT:
Southwest Louisiana Hospital Association

Claude P. Devall
Donald W. McKnight
Hoffoss Devall, LLC
3205 Ryan Street
Lake Charles, Louisiana 70601
(337) 433-2053
COUNSEL FOR PLAINTIFF/APPELLEE:
Jeffery Smith

GENOVESE, Judge.

Defendant, Southwest Louisiana Hospital Association, doing business as

Lake Charles Memorial Hospital, suspensively appeals a trial court judgment

awarding Plaintiff, Jeffery Smith, $60,268.70 in damages for injuries suffered

when he slipped on hospital property. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the rainy morning of March 21, 2012, Jeffery Smith went to Lake

Charles Memorial Hospital (LCMH) for a doctor’s appointment.1 Mr. Smith

claims that he slipped on the terrazzo floor as he walked into LCMH’s entrance.

Although he managed not to fall, his body twisted, and he felt pain in his neck and

back as a result thereby. Mr. Smith sued LCMH, alleging its liability pursuant to

La.Civ.Code art. 2317.1, due to the existence of an unreasonably dangerous

condition existing on the floor at its entrance, which allegedly caused an

aggravation of his pre-existing neck and back injuries. He sought medical

expenses and general damages.

In its defense of the case, LCMH pointed out that Mr. Smith had an

extensive medical history, including back surgeries for which he was still under a

physician’s care, at the time of this accident. Furthermore, it attributed Mr.

Smith’s accident to his own failure to exercise reasonable care on a rainy day.

Following a one-day bench trial, the trial court rendered judgment in favor

of Mr. Smith, awarding him $22,268.70 for past medical expenses, $18,000.00 for

past pain and suffering, and $20,000.00 for future pain and medical expenses, for a

total damage award of $60,268.70. In accordance with a stipulation between the

1
According to his son, Nakota Smith, Mr. Smith was on his way to an appointment with
Reynard C. Odenheimer, M.D.

parties as to a cap on the award, the award was reduced to $50,000.00. LCMH

suspensively appeals.

ASSIGNMENTS OF ERROR

LCMH assigns the following errors for our review:

1. The trial court erred in awarding damages to [Mr. Smith] for
injuries sustained from a condition which was open and obvious
and should have been observed in the exercise of reasonable
care.

2. The trial court erred in awarding damages to [Mr. Smith] when
there was no medical testimony of a causal relationship
between the accident and subsequent injury.

3. The trial court erred in its award of future medicals when there
was no medical testimony presented regarding same and erred
in its awarding of past medicals which were not supported by
the medical records in evidence.

LAW AND DISCUSSION

Mr. Smith contends that the condition of the floor where he entered LCMH2

was an unreasonably dangerous condition which caused his accident and injuries.

Mr. Smith’s action against LCMH is governed by La.Civ.Code art. 2317.1, which

states:

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. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.

In order for Mr. Smith to prevail under La.Civ.Code art. 2317.1, he had to prove:

(1) that the thing which caused him damage was in LCMH’s custody or control;

(2) that it had a vice or defect which created an unreasonable risk of harm; (3) that

2
The Quality Review Report prepared by LCMH’s security officer, Raymond D.
Laughlin, refers to the location of Mr. Smith’s accident as the MOB2 Lobby Entrance.

2

his injuries were caused by the defect; (4) that LCMH knew or should have known

of the unreasonable risk of harm; and, (5) that the damage could have been

prevented by the exercise of reasonable care, which LCMH failed to exercise. See

Grogan v. Women’s & Children’s Hosp. Inc., 07-1297 (La.App. 3 Cir. 4/16/08),

981 So.2d 162.

Liability

LCMH first assigns error with the trial court’s ruling on liability. LCMH

argues that the condition for which it was found negligent was open and obvious3

and should have been observed by Mr. Smith in the exercise of reasonable care.

LCMH contends that the evidence was insufficient to prove an unreasonably

dangerous condition at the entrance where Mr. Smith allegedly slipped. According

to LCMH, Mr. Smith “should have been barred from or at the very least have had a

reduction [in] his recovery at trial based on the fact that any alleged water on the

entrance way floor on a rainy day should have been an open and obvious

condition.”

Mr. Smith alleges that, at trial, LCMH “did not argue that the wet and slick

condition was an open and obvious hazard.” LCMH disputed the existence of any

water on the floor and, altogether, the occurrence of an accident. According to Mr.

Smith, “there is absolutely no evidence that rain water tracked onto a light colored

terrazzo floor would be ‘open and obvious[.]’” Mr. Smith argues that the facts in

the record support the trial court’s finding of an unreasonably dangerous condition

for which LCMH is liable.

3
Our supreme court has explained that the general rule is that a property owner has a duty
to keep the property in a reasonably safe condition; however, a property owner has no duty to
protect against an open and obvious hazard which can be shown as a condition which should be
obvious to all. Pryor v. Iberia Parish Sch. Bd., 10-1683 (La. 3/15/11), 60 So.3d 594 (per
curiam).

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Our first determination is whether it was proven by a preponderance of the

evidence that LCMH was negligent due to the existence of an unreasonably

dangerous condition. Our standard of review was set forth in Crews v. Broussard

Plumbing & Heating, 09-1268, p. 3 (La.App. 3 Cir. 5/12/10), 38 So.3d 1097, 1100,

as follows:

An appellate court may not set aside a trial court’s findings of
fact in the absence of a manifest error or unless it is clearly wrong.
Stobart v. State through DOTD, 617 So.2d 880 (La.1993); Rosell v.
ESCO, 549 So.2d 840 (La.1989). The appellate court must determine
not whether the trier of fact was right or wrong, but whether the
factfinder’s conclusion was a reasonable one, after reviewing the
record in its entirety. Mart v. Hill, 505 So.2d 1120 (La.1987);
Stobart, 617 So.2d 880; Rosell, 549 So.2d 840.

Even if the appellate court believes its inferences are more
reasonable than the factfinder’s, reasonable determinations and
inferences of fact should not be disturbed on appeal. Arceneaux v.
Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing
court must keep in mind that if a trial court’s findings are reasonably
based upon the record and evidence, an appellate court may not
reverse said findings even if it is convinced that had it been sitting as
trier of fact it would have weighed that evidence differently. Housley
v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of
review is grounded not only upon the better capacity of the trial court
to evaluate live witnesses, but also upon the proper allocation of trial
and appellate functions between the respective courts.

Accordingly, we review the entire record to determine whether the trial court’s

factual conclusions were reasonable.

In addition to documentary evidence and his own testimony, Mr. Smith also

presented live testimony from Raymond D. Laughlin, LCMH security officer;

William L. Wilkie, LCMH director of facilities and safety officer; Nakota Smith,

Mr. Smith’s son; and, Jason T. English, safety expert. LCMH presented only

documentary evidence via depositions and medical records.

The first to testify was Raymond D. Laughlin, who had been employed as an

LCMH security officer for twenty-five years and was on duty at the time of Mr.

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Smith’s accident. Mr. Laughlin recalled responding to the accident scene, and he

described the weather as rainy. According to Mr. Laughlin, either the linen

department or the housekeepers usually put down a warning cone at that entrance

when the weather was rainy. He stated that he brought Mr. Smith a wheelchair,

then he recorded the incident in a written report entitled Quality Review Report.

Mr. Laughlin testified that if a warning cone had been present, his report would

have indicated its presence; however, the report did not state that a warning cone

was present. He then brought Mr. Smith in the wheelchair to his doctor’s office for

his appointment.4 Mr. Laughlin recalled Mr. Smith saying he had undergone five

back surgeries. When questioned whether it was standard procedure to photograph

an accident scene, Mr. Laughlin admitted that it was; however, he could not

answer why LCMH had no pictures of the accident scene.

Mr. Smith next called William L. Wilkie, the director of facilities and safety

officer, who had been employed with LCMH for thirty-five years. According to

Mr. Wilkie, terrazzo flooring does not exist at any other entrances to LCMH, only

at the one where Mr. Smith slipped. Mr. Wilkie did acknowledge the existence of

a large embedded rug at a different entrance, but he could not explain the absence

of a large embedded rug at the entrance where Mr. Smith slipped. When

questioned about a previous fall involving a different claimant, Mr. Wilkie claimed

it was not in the same spot. According to Mr. Wilkie, after Mr. Smith’s accident, a

risk assessment was performed, and anti-slip safety strips were adhered to the

terrazzo floor in question.

4
It is unclear where the doctor’s office is located in the hospital; however, Mr. Laughlin
testified that he brought Mr. Smith to pulmonology and Mr. Smith testified he had an
appointment to undergo tests on his lungs.

5

At the time of the accident, Nakota Smith, Mr. Smith’s son, was walking in

front of his father when he slipped. He testified that he did not see Mr. Smith slip,

but he noticed something was wrong because he turned around to see Mr. Smith

holding onto the wall. Nakota Smith recalled his father’s complaints of pain being

profound and immediate.

Mr. Smith testified that he was sixty-two years old with a history of heart

surgery, elbow surgery, and four back surgeries.5 He explained that on the

morning of March 21, 2012, he was on his way to an appointment to see a doctor at

LCMH. He was accompanied by his son, Nakota Smith. While walking into the

entrance of LCMH behind his son, he slipped on the terrazzo floor. He stated that,

although he managed not to fall to the ground by placing his hands against the

wall, he twisted abruptly and felt immediate pain in his neck and back. Mr. Smith

recalled that a security guard brought him a wheelchair and asked him what

happened. Then, while sitting in the wheelchair, he was brought to his

appointment by the security guard. Mr. Smith stated that his pain became so bad

that he could not complete the tests being administered by his doctor. He went to

the emergency room of LCMH. Mr. Smith was seen by a nurse practitioner, who

performed x-rays; however, he was told nothing was wrong, and he was sent home.

On March 23, 2012, Mr. Smith went to the emergency room of Christus St. Patrick

Hospital in Lake Charles, Louisiana, complaining of severe neck and back pain as

a result of his accident at LCMH two days earlier.

The last witness to testify was Jason T. English. Mr. English has a

Bachelor’s of Science degree in industrial engineering with a safety engineering

5
Mr. Smith’s surgeries occurred before the accident at issue herein.

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specialty and a Master’s of Science degree in safety engineering. He is certified in

tribometry, which he explained is the measure and evaluation of pedestrian traction

on walking surfaces. Mr. English was accepted as an expert by the trial court in

the field of safety, specifically safety engineering, safety management, and floor

safety. He stated that he personally inspected the site of the accident as well as

other entrances at LCMH. Mr. English opined that Mr. Smith slipped because the

terrazzo floor lacked anti-slip material and that the floor was unsafe during wet

weather conditions. Mr. English further opined that a large embedded rug would

have prevented the accident. He observed another LCMH entrance, which had a

large embedded rug without a terrazzo floor.

We find the trial court’s findings relative to LCMH’s liability in this case are

reasonable in light of our review of the record in its entirety. The trial court

considered Mr. English’s uncontroverted expert testimony that an unreasonably

dangerous condition existed. The testimony of LCMH’s security officer, Mr.

Laughlin, was that a warning cone normally appeared at that door during rain.

This fact establishes that LCMH knew this area was slippery during wet weather

conditions and that it could have prevented the damage caused by Mr. Smith’s

accident with the exercise of reasonable care. Though there are two permissible

views of the evidence, the trial court’s choice between them cannot be considered

manifestly erroneous or clearly wrong, nor is this court allowed to substitute its

view for that of the trial court. Stobart, 617 So.2d 880. We conclude that there

was no manifest error in the trial court’s factual determination that the entrance of

LCMH where Mr. Smith slipped was unreasonably dangerous, that the trial court

was not clearly wrong, and that the trial court’s findings are reasonably based upon

the record and evidence presented.

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Causation

LCMH next assigns error with the trial court’s ruling on causation. LCMH

contends that Mr. Smith’s complaints of pain are simply the result of pre-existing

conditions and that he failed to prove a causal connection between the accident and

his subsequent injuries.

In defense of LCMH’s position that Mr. Smith’s extensive medical history

thwarts his claim, Mr. Smith admits that, prior to this accident, he sought treatment

with Peter Karam, M.D., for management of his back pain. Dr. Karam’s

deposition testimony was offered at trial. He confirmed that his treatment of Mr.

Smith began in 2010 and that he prescribed medication to control Mr. Smith’s back

pain. Prior to this accident on March 21, 2012, Mr. Smith had not seen Dr. Karam

since February 2, 2012.

Mr. Smith testified that when he slipped, his upper body also twisted and

that the onset of back pain was both immediate and much greater than his previous

back pain. He attempted, but failed to complete, his appointment due to his pain.

He then left his appointment and went to the LCMH emergency room. Two days

later, he went to Christus St. Patrick Hospital’s emergency room with

unmanageable pain. He also sought treatment from Lynn Foret, M.D., and Rodney

Acuna, M.D. According to Mr. Smith, Dr. Foret recommended surgery, but he did

not want to go through another surgery, and his cardiologist also purportedly

disapproved of another surgery.

Nakota Smith recalled the accident causing his father immediate pain. He

described profound differences between his father pre- and post-accident.

According to Nakota Smith, his father lived with and could manage his pain prior

to this accident. After, however, his pain became nearly unmanageable. Mr.

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Smith could no longer stand up straight; he dragged his leg when he walked; he

avoided leaving home; and, he is in constant pain.

We agree with the trial court that Mr. Smith is clearly an “eggshell plaintiff.”

This court noted recently in Bienemann v. State Farm Mutual Automobile

Insurance Co., 08-1045, p. 4 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623 (quoting

Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993)):

[T]he defendant’s liability for damages is not mitigated by the fact
that the plaintiff’s pre-existing physical infirmity was responsible in
part for the consequences of the plaintiff’s injury by the defendant. It
is clear that a defendant takes his victim as he finds him and is
responsible for all natural and probable consequences of his tortious
conduct.

In its reasons for judgment in this case, the trial court noted that:

Mr. Smith is unique in a sense that he truly is an eggshell plaintiff.
He is very defective prior to the accident, just looking at his medical
records. However, you do take plaintiff[s] the way that you find
them, and I believe the testimony of Mr. Smith. I believe that . . . this
fall has exacerbated his pain.

After carefully reviewing the testimony and evidence, we find there was a

causal connection between the accident and Mr. Smith’s subsequent injury, pain,

and suffering. The trial court did not manifestly err in ruling that LCMH’s

negligence caused an aggravation of Mr. Smith’s injuries.

Damages

The trial court awarded Mr. Smith damages as follows: (1) $22,268.70 for

past medical expenses; (2) $18,000.00 for past pain and suffering; and, (3)

$20,000.00 for future pain and medical expenses. LCMH raises two separate

arguments in its final assignment of error.

Firstly, LCMH contests the award for past medical expenses. The trial court

awarded Mr. Smith $22,268.70, which constituted the entirety of his requested past

9

medical expenses. LCMH alleges that Mr. Smith’s past medical expenses were not

supported by the record. Mr. Smith contends that the trial court made reasonable

factual findings based on the evidence presented at trial and did not err.

We recognize the following regarding awards of medical expenses:

[W]hen a plaintiff alleges that medical bills were incurred “and that
allegation is supported by a bill, unless there is sufficient
contradictory evidence or reasonable suspicion that the bill is
unrelated to the accident, it is sufficient to support the inclusion of
that item in the judgment.” [Esté v. State Farm Ins. Co., 96-99, p. 10
(La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857.] A fact finder errs if it
fails to award the full amount of medical expenses incurred as a result
of the accident and proven by a preponderance of the evidence. Revel
v. Snow, 95-462 [(]La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ
denied, 95-2820 (La.2/2/96), 666 So.2d 1084.

Barras v. Progressive Sec. Ins. Co., 14-898, p. 4 (La.App. 3 Cir. 2/11/15), 157

So.3d 1185, 1189 (quoting Gradnigo v. La. Farm Bureau Cas. Ins. Co., 08-1198,

pp. 15-16 (La.App. 3 Cir. 3/4/09), 6 So.3d 367, 377).

Mr. Smith introduced evidence of past medical expenses totaling the amount

requested that were incurred during his period of treatment for alleged accident-

related injuries. He testified that he had reviewed the bills, and they were all

incurred due to his increased back pain. No evidence was offered to contradict

these bills or to provide reasonable suspicion that they were incurred for any

unrelated accident or other occurrence. Therefore, we find that the trial court did

not manifestly err when it awarded Mr. Smith the entirety of his requested past

medical expenses.

Also, LCMH contests the award for future medical expenses. Complicating

this issue is the fact that the trial court included the future medical expense award

in its lump sum award of $20,000.00 for future pain and medical expenses.

LCMH alleges that Mr. Smith “failed to meet his burden of proof with regards to

10

future medicals as he provided no testimony that it was more probable than not that

future medical expenses would be incurred.” We agree.

This court addressed the issue of future medical expenses in Cormier v.

Colston, 05-507, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 541, 547-48:

Medical expenses are a component of special damages.
Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128,
writ denied, 04-2692 (La.2/18/05), 896 So.2d 31. The plaintiff bears
the burden of proving special damages by a preponderance of the
evidence. Iwamoto v. Wilcox, 04-1592 (La.App. 3 Cir. 4/6/05), 900
So.2d 1047. In meeting her burden of proof on the issue of future
medical expenses, the plaintiff must show that, more probably than
not, these expenses will be incurred and must present medical
testimony that they are indicated and the probable cost of these
expenses. Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App.
3 Cir.1991). An appellate court reviews an award of special damages
pursuant to the manifest error standard of review. Iwamoto, 900
So.2d 1047.

Our review of this record reveals merit to LCMH’s contention—there was

neither medical testimony that Mr. Smith would incur future medical expenses nor

evidence of the probable cost thereof. However, although we do find merit in

LCMH’s argument, we also find that it is misplaced.

The trial court’s lump sum award makes the amount awarded to Mr. Smith

for future medical expenses indeterminate. It is impossible to determine how much

of the $20,000.00 award was intended for either Mr. Smith’s future medical

expenses or future pain. The record indicates that Mr. Smith continued to endure

pain and suffering. Therefore, we are unable to say that the trial court’s award for

future pain is manifestly erroneous. Further muddling this issue is the stipulation

between the parties capping Mr. Smith’s total damage award at $50,000.00. Even

though we find no evidentiary support for an award of future medical expenses, we

also find that a reduction thereof would not impact the final amount awarded to

Mr. Smith.

11

In the eighteen-month period between Mr. Smith’s accident and the trial of

this matter, Mr. Smith incurred medical expenses of $22,268.70, and his past pain

and suffering was valued at $18,000.00. These awards total $40,268.70. All that

remains before reaching the $50,000.00 cap on Mr. Smith’s total damage award is

$9,731.30. Considering that Mr. Smith was awarded $1,000.00 per month for his

past pain and suffering, and that he will continue to endure pain and suffering, we

find the trial court’s erroneous award for future medical expenses to be

inconsequential. Thus, the judgment of the trial court rendered in favor of Mr.

Smith and against LCMH in the amount of $50,000.00 shall remain intact.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of

this appeal are assessed to Defendant/Appellant, Southwest Louisiana Hospital

Association.

AFFIRMED.

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