William Vance v. International House of Pancakes,llc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-33

WILLIAM VANCE

VERSUS

INTERNATIONAL HOUSE OF PANCAKES, LLC

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 90,372-B
HONORABLE LALA BRITTAIN SYLVESTER, DISTRICT JUDGE
**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Candyce G. Perret, and
Jonathan W. Perry, Judges.

PERRY, Judge, concurs and assigns reasons.

AFFIRMED.

Thomas Taylor Townsend
P. O. Box 784
Natchitoches, LA 71458-0784
Telephone: (318) 238-3612
COUNSEL FOR:
Plaintiff/Appellee – William Vance

Michael H. Ishee
Joseph C. Giglio, Jr.
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70503
Telephone: (337) 232-7424
COUNSEL FOR:
Defendant/Appellant –International House of Pancakes, LLC

THIBODEAUX, Chief Judge.

Plaintiff, William Vance, filed suit against International House of

Pancakes, LLC (IHOP), seeking damages for an injury he sustained in a slip and fall

on the restaurant’s premises. When IHOP failed to timely answer the suit, a

preliminary default was entered. After a confirmation hearing, the trial court

rendered a final default judgment in Mr. Vance’s favor, awarding $685,687.10 in

damages. Finding no manifest error or abuse of discretion, we affirm the trial court’s

judgment.

I.

ISSUES

We shall consider whether:

1. the trial court manifestly erred in confirming the
default judgment when the Record lacked evidence
that IHOP is a merchant under La.R.S. 9:2800.6 or
owns/manages the premises at issue;

2. the trial court manifestly erred in confirming the
default judgment when the Record lacked evidence
that Appellee’s wrist injuries were caused by the
slip and fall;

3. the trial court abused its discretion in awarding
$675,000 in general damages based on the facts and
circumstances in the Record.

II.

FACTS AND PROCEDURAL HISTORY

This action arises out of a slip and fall that occurred on November 1,

2017, at the IHOP in Natchitoches, Louisiana. As a result, Mr. Vance suffered

serious injuries, which ultimately required surgery. On June 20, 2018, Mr. Vance

filed suit against IHOP, and service was made on IHOP, through its duly appointed

agent for service of process, Corporation Service Company, located at 501 Louisiana

Avenue, Baton Rouge, Louisiana. Due to administrative oversight, IHOP failed to

timely answer the suit. A preliminary default was then entered, at Mr. Vance’s

request, on July 26, 2018. The confirmation hearing was held on August 22, 2019,

over a year later.

During the hearing, Mr. Vance testified that he slipped and fell in the

men’s bathroom at the IHOP in Natchitoches, Louisiana, on a “wet, slippery

surface.” He recalled that when he fell, he hit his right side, injuring his right wrist,

elbow, and shoulder, and that when he was finally able to get up, his “clothes were

wet” from water that appeared to be “all over the floor[.]” According to his

testimony, Mr. Vance immediately reported the incident to an IHOP employee, and

he explained he knew the person was an employee by virtue of what the man was

wearing and his representation to him that he was, in fact, an IHOP employee. The

employee, Mr. Vance testified, admitted that “they’ve had a problem with [the

bathroom floor] and they couldn’t do nothing about it.” He further testified that

there was nothing he did to contribute to the fall.

Mr. Vance recalled for the court that he went to Dr. W. Jack Corley, his

general practitioner, with complaints of pain in his right wrist, elbow, and shoulder,

which he characterized as a six on a scale of one to ten, if he held his arm steady.

He explained that, if he tried to move his arm, he couldn’t and that his pain level

reached a ten while awaiting surgery.

In his sworn statement, Dr. Corley testified that Mr. Vance was a

regular patient and that, on November 3, 2017, he saw him for injuries to his right

shoulder and thigh resulting from the slip and fall. Based upon his records, Dr.

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Corley opined that, at that time, Mr. Vance, more probable than not, suffered an

injury to his right shoulder when he fell at IHOP. According to Dr. Corley’s

statement, Mr. Vance’s past medical history did not indicate a prior injury to that

shoulder.

When he returned to Dr. Corley’s office on November 17, 2017, Mr.

Vance’s record showed that he was still complaining of pain in his right shoulder.

Although an MRI was needed to show ligaments and injuries thereto, Mr. Vance,

Dr. Corley explained, could not have an MRI because he has a brain stimulator. The

x-rays taken of his shoulder, wrist, and hand “show[ed] nothing.” Dr. Corley then

injected Mr. Vance’s shoulder and gave him anti-inflammatories and pain

medication.

Dr. Corley noted Mr. Vance was still in pain and had “limited motion”

of his right shoulder when he returned to see Dr. Corley on December 1, 2017. A

CAT scan was ordered. It showed no fractures, but without the use of contrast Dr.

Corley could not pinpoint exactly the nature and extent of the injury so to render a

final diagnosis. Dr. Corley then referred Mr. Vance to Dr. Steven Kautz, an

orthopedic surgeon.

In his sworn statement, Dr. Kautz recalled that he saw Mr. Vance on

December 2, 2017, and ultimately diagnosed him with a rotator cuff tear. On April

25, 2018, Dr. Kautz surgically repaired Mr. Vance’s cuff and proximal biceps tendon

and also performed a tenodesis for labral pathology. While in surgery, Dr. Kautz

confirmed that Mr. Vance’s right rotator cuff and labrum were torn, which he opined

made the surgery warranted and medically necessary. He further opined that, more

probable than not, the fall caused the rotator cuff and labrum tears as well as the

need for surgery and his treatment of Mr. Vance. According to Dr. Kautz, “rotator

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cuff surgery, in general, is both painful before, but in particular it is probably one of

the more uncomfortable surgeries to go through.” Dr. Kautz also testified that Mr.

Vance’s medical visits and the expenses incurred were related to his injury suffered

in the fall and were medically necessary. Based upon his examination and

preliminary diagnosis coupled with his communication with Dr. Kautz, Dr. Corley

similarly opined that the rotator cuff repair surgery was both medically necessary

and caused by Mr. Vance’s fall at IHOP on November 1, 2017.

Dr. Kautz then referred Mr. Vance for rehabilitation with Prism II,

LLC, and continued to see him until September 18, 2018. Though having followed

all rehabilitative instructions, Mr. Vance testified that only some of his pain was

eliminated after the surgery and that he still suffers from pain in his wrist and

shoulder.

Describing his current pain for the court, Mr. Vance stated that he still

cannot lift up his arm and has difficulty opening doors. Reaching up for a cabinet

or above his head, he explained, is still a very difficult task. He further testified that

because he is right-handed, his injuries limit his ability to do daily life activities, like

getting dressed, brushing his teeth, and doing household chores such as cleaning,

vacuuming, and washing dishes. Mentally, this is all “[v]ery aggravating” and a

daily struggle, but he stated it was something he just “had to get used to.” As for his

wrist, Mr. Vance testified that Dr. Kautz conveyed to him that there is nothing that

can be done and there is no surgery to fix it because when he “fell it started some

arthritis or something in that wrist[.]” According to his testimony, the things he

enjoyed doing all his life, roping and swimming in the lake, he can no longer do.

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At the close of the hearing, the trial court questioned Mr. Vance as to

whether or not he had scarring from the surgery to which he responded in the

affirmative. The court also requested that he supplement the record with cases “for

the wrist and the elbow” as the cases previously submitted only involved shoulder

injuries.

On September 9, 2019, the trial court issued its ruling, finding in Mr.

Vance’s favor and awarding him $10,687.10 in special damages for past due medical

expenses, and $675,000.00 in general damages, as follows:

Physical Pain & Suffering: $350,000.00

Mental Pain & Anguish: $150,000.00

Loss of Enjoyment of Life: $100,000.00

Permanent Disfigurement & Scarring: $ 75,000.00.

IHOP now appeals the final default judgment as to both the

confirmation of the preliminary default and the general damages awarded.

III.

STANDARD OF REVIEW

An appellate court’s review of a default judgment is “restricted to

determining the sufficiency of the evidence offered in support of judgment.”

Bordelon v. Sayer, 01-717, p. 3 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1235, writ

denied, 02-1009 (La. 6/21/02), 819 So.2d 340. From the record, the appellate court

determines “whether the evidence upon which the judgment is based was sufficient

and competent.” Id. Nevertheless, as a factual determination, the trial court’s

findings on the sufficiency of the evidence are still subject to manifest error review.

Id.

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“As a determination of fact, a judge’s . . . assessment of quantum, or

the appropriate amount of damages, is one entitled to great deference on review.”

Menard v. Lafayette Ins. Co., 09-1869, p. 14 (La. 3/16/10), 31 So.3d 996, 1007; see

also La.Civ.Code art. 2324.1 (“much discretion must be left to the judge” in damage

assessments). “The reason for this well-settled principle of review is based not only

upon the trial court’s better capacity to evaluate live witnesses (as compared with

the appellate court’s access only to a cold record), but also upon the proper allocation

of trial and appellate functions between the respective courts.” Perkins v. Entergy

Corp., 00-1372, p. 10 (La. 3/23/01), 782 So.2d 606, 613 (quoting Canter v. Koehring

Co., 283 So.2d 716, 724 (La.1973), superseded by statute as stated in Walls v. Am.

Optical Corp., 98-455 (La. 9/8/99), 740 So.2d 1262). “Because the discretion vested

in the trier of fact is so great, and even vast, an appellate court should rarely disturb

an award on review” and only on an abuse of discretion. Guillory v. Lee, 09-75, p.

14 (La. 6/26/09), 16 So.3d 1104, 1117.

IV.

LAW AND DISCUSSION

Pursuant to La.Code Civ.P. art. 1701, a preliminary default may be

entered against a defendant who fails to answer within the time prescribed by law.

The procedure for confirming a preliminary default is set forth in La.Code Civ.P.

art. 1702, which provides, in pertinent part:

A. A preliminary default must be confirmed by
proof of the demand that is sufficient to establish a prima
facie case and that is admitted on the record prior to the
entry of a final default judgment.

....

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B. (2) When a demand is based upon a delictual
obligation, the testimony of the plaintiff with
corroborating evidence, which may be by affidavits and
exhibits annexed thereto which contain facts sufficient to
establish a prima facie case, shall be admissible, self-
authenticating, and sufficient proof of such demand. The
court may, under the circumstances of the case, require
additional evidence in the form of oral testimony before
entering a final default judgment.

....

D. When the demand is based upon a claim for a
personal injury, a sworn narrative report of the treating
physician or dentist may be offered in lieu of his
testimony.

“A prima facie case is established when the plaintiff proves the essential

allegations of the petition, with competent evidence, to the same extent as if the

allegations had been denied.” Power Mktg. Direct, Inc. v. Foster, 05-2023, pp. 10-

11 (La. 9/6/09), 938 So.2d 662, 670. Simply put, the evidence submitted by a

plaintiff must “convince[] the court that it is probable that he would prevail at trial

on the merits.” Id. “A final default judgment shall not be different in kind from that

demanded in the petition. The amount of damages awarded shall be the amount

proven to be properly due as a remedy.” La.Code Civ.P. art. 1703.

In his petition, Mr. Vance sought judgment in his favor against IHOP

for “such amounts as will reasonably and adequately compensate him for all injuries

and damages he has sustained and will sustain as a result of” IHOP’s failure to

exercise reasonable care in maintaining the restaurant’s bathroom in a safe condition

and keeping its premises free of hazardous conditions. As the petition sets forth an

action in merchant premises liability, this matter is governed by La.R.S. 9:2800.6,

which provides:

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A. A merchant owes a duty to persons who use his
premises to exercise reasonable care to keep his aisles,
passageways, and floors in a reasonably safe condition.
This duty includes a reasonable effort to keep the premises
free of any hazardous conditions which reasonably might
give rise to damage.

B. In a negligence claim brought against a merchant
by a person lawfully on the merchant’s premises for
damages as a result of an injury, death, or loss sustained
because of a fall due to a condition existing in or on a
merchant’s premises, the claimant shall have the burden of
proving, in addition to all other elements of his cause of
action, all of the following:

(1) The condition presented an
unreasonable risk of harm to the claimant and
that risk of harm was reasonably foreseeable.

(2) The merchant either created or had
actual or constructive notice of the condition
which caused the damage, prior to the
occurrence.

(3) The merchant failed to exercise
reasonable care. In determining reasonable
care, the absence of a written or verbal
uniform cleanup or safety procedure is
insufficient, alone, to prove failure to
exercise reasonable care.

C. Definitions:

(1) “Constructive notice” means the
claimant has proven that the condition
existed for such a period of time that it would
have been discovered if the merchant had
exercised reasonable care. The presence of
an employee of the merchant in the vicinity
in which the condition exists does not, alone,
constitute constructive notice, unless it is
shown that the employee knew, or in the
exercise of reasonable care should have
known, of the condition.

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(2) “Merchant” means one whose
business is to sell goods, foods, wares, or
merchandise at a fixed place of business. For
purposes of this Section, a merchant includes
an innkeeper with respect to those areas or
aspects of the premises which are similar to
those of a merchant, including but not limited
to shops, restaurants, and lobby areas of or
within the hotel, motel, or inn.

D. Nothing herein shall affect any liability which a
merchant may have under Civil Code Arts. 660, 667, 669,
2317, 2322, or 2695.

Herein, IHOP contends that Mr. Vance failed to establish a prima facie

case insofar as he did not prove: (1) IHOP was a merchant under La.R.S. 9:2800.6

or that IHOP owned/managed the premises at issue, and (2) his wrist injuries were

caused by the slip and fall.

Although IHOP argues that the record is devoid of evidence that IHOP

was a merchant, our plain reading of the provisions of La.R.S. 9:2800.6(C)(2)

reveals the flaw in this argument. Under its provisions as recited above, a restaurant,

like IHOP, is explicitly included in the definition of a merchant, and Mr. Vance has

consistently referred to IHOP as a restaurant throughout this proceeding.

Specifically, he testified that he was a “patron of the IHOP restaurant” and stated in

his various filings in this action that IHOP is a restaurant and that La.R.S. 9:2800.6

applies. Moreover, according to his testimony, Mr. Vance spoke with an IHOP

employee, identifiable by his clothing and his own representations, on the premises

immediately following the accident, which employee acknowledged a problem with

the restaurant’s bathroom floor about which the restaurant could do nothing.1

1
Because this matter sounds in merchant liability under La.R.S. 9:2800.6 and the evidence
sufficiently and competently establishes IHOP’s status as a merchant, we need not address IHOP’s
second contention that Mr. Vance failed to establish IHOP owned/managed the property as actions

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Accordingly, we find the contention that IHOP is not a merchant under La.R.S.

9:2800.6 as established by the evidence of record lacks merit.

As to the injuries to Mr. Vance’s wrist and elbow, we find the record

does contain sufficient and competent evidence regarding these injuries. He

specifically testified that he injured his wrist, elbow, and shoulder in the fall and that

he sought medical attention for pain in his wrist, elbow, and shoulder. He further

testified to his inability to lift or raise his arm, and Dr. Corley x-rayed his shoulder,

arm, and hand, which anatomically includes his elbow and wrist, in an attempt to

pinpoint the nature and extent of his injuries. Because his complaints were

corroborated by Dr. Corley’s and Dr. Kautz’s sworn statements in which they both

opined that Mr. Vance’s injuries were caused by the fall, the record would

reasonably support a finding that he made a prima facie showing as to these injuries.

Regardless, though, IHOP’s contention “fail[s] to take into account the

well-settled rule that the district court’s oral or written reasons for judgment form no

part of the judgment, and that appellate courts review judgments, not reasons for

judgments.” Bellard v. Am. Cent. Ins. Co., 07-1335, p. 25 (La. 4/18/08), 980 So.2d

654, 671. And as the supreme court explained in Wooley v. Lucksinger, 09-571, p.

77 (La. 4/1/11), 61 So.3d 507, 572, “[j]udgments are often upheld on appeal for

reasons different than those assigned by the district judges.” It logically follows,

therefore, that whether or not Mr. Vance carried his burden regarding his wrist and

against owners and custodians fall under the general liability for things and buildings articles in
our Civil Code—La.Civ.Code arts. 2317, 2317.1, and 2322. Cf. Owens v. McIlhenny Co., 18-754
(La.App. 3 Cir. 3/27/19), 269 So.3d 839 (distinguishing actions that arise under La.R.S. 9:2800.6
from actions arising under La.Civ.Code art. 2317.1). The issue of ownership, therefore, is not
relevant to the merits of Mr. Vance’s merchant liability action under La.R.S. 9:2800.6, and so
further discussion of this issue is pretermitted.

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elbow injuries is immaterial as he more than sufficiently established a prima facie

case against IHOP for damages arising from his shoulder injuries.

Because the evidence of record does reasonably show that Mr. Vance

slipped and fell on the restaurant’s slippery, wet bathroom floor, of which IHOP was

aware, and that his injuries, more probable than not, were caused by his fall, we find

no manifest error in the trial court’s conclusion that Mr. Vance’s evidence was

sufficient and competent to establish a prima facie case as to IHOP’s status as a

merchant under La.R.S. 9:2800.6 and its liability thereunder for his injuries due to

its failure to maintain its floors in a reasonably safe condition. Accordingly, we

cannot find the trial court manifestly erred in confirming the preliminary default and

rendering a final default judgment against IHOP based on the record before this

court.

In its final argument, IHOP challenges the trial court’s general damage

award. As summarized above, the record evidence does reasonably and sufficiently

show that Mr. Vance suffered and complained of an injury to his shoulder as well as

to his wrist and elbow, which directly affected his ability to use his right arm on a

daily basis in performing common place activities as well as those he always enjoyed

doing, like swimming and roping. He rated his pain from a six to a ten before the

surgery and testified as to his continued pain after the surgery, which Dr. Kautz

characterized as “one of the most uncomfortable surgeries to go through” both before

and after. Dr. Corley testified that Mr. Vance had no prior injury or problems with

his right shoulder. His testimony further revealed the daily mental aggravation he

endures in not being able to use his right arm, particularly because he is right-handed,

and the scarring he has due to the extensive surgery he underwent to his right arm

and shoulder. Based on this evidence as well as her personal observance of this

11

particular plaintiff, the trial court herein awarded $100,000.00 for loss of enjoyment

of life, $350,000.00 for pain and suffering, $150,000.00 for mental pain and anguish,

and $75,000.00 for permanent disfigurement and scarring.

When reviewing general damages, like the damages in this case, we are

tasked with determining whether the award was an abuse of discretion. The supreme

court in Youn v. Maritime Overseas Corporation, 623 So.2d 1257, 1260-61

(La.1993) (citations omitted), discussed the two-part inquiry a reviewing court must

engage in when making this determination:

The 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. Only
after such a determination of an abuse of discretion is a
resort to prior awards appropriate and then for the purpose
of determining the highest or lowest point which is
reasonably within that discretion.

The standard for appellate review of general
damage awards is difficult to express and is necessarily
non-specific, and the requirement of an articulated basis
for disturbing such awards gives little guidance as to what
articulation suffices to justify modification of a generous
or stingy award.... Reasonable persons frequently disagree
about the measure of general damages in a particular case.
It is only when the award is, in either direction, beyond
that which a reasonable trier of fact could assess for the
effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court
should increase or reduce the award.

In the present case, IHOP argues that the general damage award is

clearly excessive. To support its argument, IHOP points out that within six months

of his accident, Mr. Vance received the requisite surgery to repair his shoulder and

that within a year of the accident, he was fully recovered from his surgery. IHOP

further contends that “[b]ased on the nature of the surgery and expeditious recovery

12

of [Plaintiff], the trial court abused its discretion in an award of $675,000.00 in

general damages.” IHOP avers this is especially true given that the trial court

awarded $150,000.00 for mental impact, which Mr. Vance merely described as

“[v]ery aggravating,” and $75,000.00 for some scarring at the surgical site. At the

conclusion of its argument, IHOP recites a litany of cases awarding significantly

smaller amounts for shoulder, wrist, and elbow injuries.

Before examining those cases, however, this court must first determine

“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. Although IHOP argues

that a lesser award would be more appropriate, what IHOP does not address is Mr.

Vance’s testimony that, although he has recovered from his surgery, he is still greatly

limited by his injury, to the extent that he, as a right-handed sixty-two-year-old man,2

can no longer perform simple, daily tasks, which include dressing and grooming

himself, with his right arm. As his testimony demonstrated, Mr. Vance’s mobility

in his right arm and shoulder is also significantly limited, and he is unable to do

things he has enjoyed for most of his life. IHOP seemingly overlooks the pain that

Mr. Vance testified was not and cannot be alleviated by surgery. It also fails to

consider the effect that Mr. Vance’s foreseeable ongoing pain, limitations,

inabilities, and physical scarring have on his mental and emotional wellbeing as well

as his overall enjoyment of life.

Considering these and other factors under the standards discussed

above, we cannot say that the trial court abused its discretion in fixing the awards of

2
According to the medical summary, Mr. Vance was born on March 6, 1958.

13

general damages. The awards are reasonably related to the elements of the proven

damages and are not obviously the result of passion or prejudice. While we review

a cold record, the trial court evaluated Mr. Vance’s physical condition and observed

his mental and emotional state from the bench during his live testimony. And

although other factfinders could have found, as IHOP argues, that a lower award

would be more appropriate, we cannot conclude from the entirety of the evidence in

this record that a rational trier of fact could not have fixed the awards of general

damages at the level set by the trial court or that the awards are so gross as to be

contrary to right reason. Accordingly, we find no abuse of discretion in the trial

court’s general damage awards.

Having found no manifest error or abuse of discretion, we affirm the

judgment of the trial court in its entirety.

V.

CONCLUSION

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

Costs of this appeal are assessed to Defendant/Appellant, International

House of Pancakes, LLC.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-033

WILLIAM VANCE

VERSUS

INTERNATIONAL HOUSE OF PANCAKES, LLC

PERRY, Judge, concurring.

I agree with the majority there is no clear error in the trial court’s confirmation

of the preliminary default against the defendant. Nevertheless, I write separately to

declare my belief the trial court was quite generous in fixing the awards of general

damages. Considering the evidence of record, I feel constrained to agree the trial

court did not clearly abuse its “much discretion” when setting general damages

herein. Youn v. Maritime Overseas Corporation, 623 So.2d 1257, 1260 (La.1993).

However, were this not an appeal from a default judgment where evidence was

offered solely by the plaintiff—without cross-examination or opposing medical

evidence—I cannot say with certainty I would not find a reduction of general

damages is required under the principles set forth in Coco v. Winston Indus. Inc.,

341 So.2d 332 (La.1976).