Transcription

! 1: t! 1.,NO.ll-CA-776BRANDI ANDRESS HOFFMAN 31HDECiReUIVERSUSFIFTH CIRCUITJEFFERSON PARISH HOSPITAL SERVICESDISTRICT NO.2, PARISH OF JEFFERSON,STATE OF LOUISIANA, D/B/A EASTJEFFERSON GENERAL HOSPITAL ANDEAST JEFFERSON GENERAL HOSPITALFOUNDATIONCOURT OF APPEALSTATE OF LOUISIANAON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURTPARISH OF JEFFERSON, STATE OF LOUISIANANO. 614-709, DIVISION "D"HONORABLE ROBERT M. MURPHY, JUDGE PRESIDINGApril 10, 2012MARC E. JOHNSONJUDGEPanel composed of Judges Marion F. Edwards,Marc E. Johnson, and Robert A. ChaissonROBERT H. MURPHYJEFFREY A. RAINESAttorneys at Law701 Poydras StreetSuite 400New Orleans, LA 70139COUNSEL FOR PLAINTIFF/APPELLANTJULIAN R. MURRAY, JR.BRANDON M. BENNETTAttorneys at LawOne Galleria BoulevardSuite 1100Metairie, LA 70001COUNSEL FOR DEFENDANT/APPELLEEAFFIRMED

This appeal anses from a judgment in favor of Defendant!Appellee,Services District No. 2 d/b/a East Jefferson GeneralHospital (hereinafter referred to as "EJGH"), and against Plaintiff/Appellant,Brandi Andress Hoffinan (hereinafter referred to as "Hoffman"), involving a slipand fall on the premises of the hospital. For the following reasons, we affirm.FACTS AND PROCEDURAL HISTORYOn February 22, 2004, Hoffinan was visiting her twins in EJGH's neonatalintensive care unit. During her visit, Hoffman entered the 4-East Patient BreakRoom, also known as the nourishment room, to obtain a cup of coffee.Thenourishment room is a small room that has a refrigerator, ice machine, sink, coffeemachine, microwave and countertop used by nurses, nursing assistants, patients,visitors, and doctors. While there, Hoffinan slipped on a wet substance on thefloor near the refrigerator. Hoffman injured her left knee as a result of the fall andunderwent four left knee surgeries.-2

Hoffman filed a petition for damages against EJGH and the East JeffersonGeneral Hospital Foundation) alleging her accident was due to negligence, fault,and/or strict liability of the defendants. A bench trial took place on March 21,2011. After taking the matter under advisement, the trial court rendered a rulingon May 5, 2011 in favor ofEJGH and dismissed Hoffman's claims with prejudice.In its reasons for judgment, the trial court found that EJGH exculpated itself fromany presumption of negligence by exercising reasonable care through its formalprocedures and personnel policies, and it did not receive the required notice of adefect. The trial court further found that no evidence was submitted showing thatthe spill existed for a period of time sufficient to reasonably permit its discovery toshow EJGH's constructive knowledge, and EJGH's policies could not includeHoffman's slip on the spill as a foreseeable risk because it may have occurred onlymoments before the accident by a non-hospital employee. Ultimately, the trialcourt concluded that EJGH was not liable to Hoffman for the injuries she sustainedfrom the fall. The instant appeal followed.ASSIGNMENTS OF ERRORIn her assignments of error, Hoffman alleges the trial court was erroneous infinding: 1) Hoffman was required to prove EJGH had actual or constructive noticeof the dangerous condition in its kitchen because that standard is inapplicable to ahospital slip and fall caused by the temporary presence of a foreign substance, and2) EJGH acted reasonably to discover and correct the dangerous conditionsreasonably anticipated in its kitchen.LAW AND ANALYSISGeneral LawIt is well-settled law that a Court of Appeal may not set aside a trial court's) East Jefferson General Hospital Foundation was later dismissed from the action.-3

or a jury's finding of fact in the absence of "manifest error" or unless it is "clearlywrong." Florreich v. Entergy Corp., 09-411 (La. App. 5 Cir. 2/23/10); 32 So.3d965,968, writ denied, 10-1057 (La. 9/3/10); 44 So.3d 691. However, where one ormore trial court legal errors interdict the fact finding process, the manifest errorstandard is no longer applicable, and if the record is otherwise complete, theappellate court should make its own independent de novo review of the record anddetermine a preponderance of the evidence. Id. A legal error occurs when a trialcourt applies incorrect principles of law and such errors are prejudicial. Id. Legalerrors are prejudicial when they materially affect the outcome and deprive a partyof substantial rights. Id.Assignment of Error Number 1Hoffman alleges the trial court committed a legal error in finding that EJGHneeded actual or constructive notice of the liquid substance on its kitchen floorbecause the Merchant Statute, LSA-R.S. 9:2800.6, does not apply to hospitals andnursing homes because that statute only applies to claims arising under LSA-C.C.art. 2317. Consequently, Hoffman avers none of the hospital or nursing homecases decided after the enactment of the Merchant Statute impose the requirementthat the plaintiff prove actual or constructive notice of the foreign substance priorto the accident. Also, Hoffman alleges that the foreign substance was not a defectfor the purposes of Article 2317. Hoffman further asserts the decision rendered bythis Court in Blount v. East Jefferson General Hospital, 04-407 (La. App. 5 Cir.10/12/04); 887 So.2d 535, erroneously applied LSA-R.S. 9:2800 to slip and fallcases occurring in a hospital, is contrary to the decisions in Millet v. EvangelineHealth Care, 839 So.2d 357 (La. App. 5th Cir. 2003) and LeBlanc v. Alton OchsnerMedical Foundation, 563 So.2d 312 (La. App.authority to apply to this matter.-4 s"Cir. 1990), and is not good

In opposition, EJGH argues that it is a subdivision of the State of Louisianaand is subject to the provisions of LSA-R.S. 9:2800. Additionally, EJGH aversBlount is controlling law, and Hoffman had the burden of proving it had actual orconstructive notice of the dangerous condition of the break room.LSA-R.S. 9:2800 provides, in pertinent part,A. A public entity is responsible under Civil Code Article 2317 fordamages caused by the condition of buildings within its care andcustody.***C. Except as provided for in Subsections A and B of this Section, noperson shall have a cause of action based solely upon liabilityimposed under Civil Code Article 2317 against a public entity fordamages caused by the condition of things within its care andcustody unless the public entity had actual or constructive noticeof the particular vice or defect which caused the damage prior tothe occurrence, and the public entity has had a reasonableopportunity to remedy the defect and has failed to do so.D. Constructive notice shall mean the existence of facts which inferactual knowledge.***G. (1) "Public entity" means and includes the state and any of itsbranches, departments, offices, agencies, boards, commissions,instrumentalities, officers, officials, employees, and politicalsubdivisions and the departments, offices, agencies, boards,commissions, instrumentalities, officers, officials, and employees ofsuch political subdivisions. Public entity also includes housingauthorities, as defined in R.S. 40:384(15), and their commissionersand other officers and employees and sewerage and water boards andtheir employees, servants, agents, or subcontractors.[Emphasis added].In order to consider the validity of Hoffman's assignment of error, we willnow review our previous decisions concerning the legal standard for a slip and fallin a hospital setting.In LeBlanc v. Alton Ochsner Medical Foundation, supra, the plaintiff filedsuit after she slipped and fell on a piece of cucumber on the floor of the hallway-5

corridor as she was walking and sustained injuries. After a trial on the merits, thetrial court ruled in the plaintiffs favor by finding Alton Ochsner MedicalFoundation liable for her injuries and awarding her damages. On review, thisCourt held that a prima facie case is established when the "plaintiff shows that aforeign substance was on the floor, that he slipped and fell on the foreign substanceand that he suffered injury as a result." This Court further stated, "[t]o provefreedom from fault the business establishment must show that it exercisedreasonable care for the safety of its patrons. This showing includes evidence of theenforcement of reasonable protective measures, including periodic inspections, tokeep the floors free of foreign substances and debris." This Court affirmed the trialcourt's judgment in favor of the plaintiff.In a similar slip and fall case, Millet v. Evangeline Health Care, Inc., supra,the plaintiff sustained injuries after she slipped and fell on the wet floor of thehallway corridor as she exited her brother's room at the nursing home. The trialcourt ruled in favor of the plaintiff, found the defendant nursing home liable, andawarded her damages.On appeal, this Court, in affirming the trial court'sjudgment, found that the proper burden of proof in a claim for injuries caused by acondition in a hospital was set forth in Neyrey v. Touro Infirmary, 94-0078 (La.App. 4 Cir. 6/30/94); 639 So.2d 1214, and adopted the Louisiana Fourth Circuit'srationale that "[T]he burden of proof that LSA-R.S. 9:2800.6 establishes . shouldnot have been used in this case where the accident occurred on a hospital'spremises, instead of a merchant's premises."In Blount v. East Jefferson General Hospital, supra, the plaintiff, a visitor toEJGH, slipped and fell in a slippery substance on the floor of the hospital cafeteriaas she was exiting to return to her mother's hospital room. The plaintiff filed apetition for damages under theories of both negligence and strict liability. EJGH-6

filed a motion for summary judgment contending that the plaintiff failed toproduce any factual support for her allegations of fault on the part of the hospital.The trial court granted EJGH's motion for summary judgment, and the plaintiffappealed the decision.On appeal, this Court affirmed the trial court's ruling andheld that the plaintiff had the burden to prove EJGH's actual or constructive noticeof the hazard under both of the theories of liability because it is a public entityunder LSA-R.S. 9:2800.After review, we find the arguments of Hoffman that the trial court erred infinding she had to prove EJGH had actual or constructive knowledge of thedangerous condition in the nourishment room are unpersuasive.Whileacknowledging the holdings set forth in LeBlanc and Millet, we find those casesare distinguishable from Blount and the instant matter because of the commondefendant, a public entity. Unlike the defendants in LeBlanc and Millet, EJGH is apolitical subdivision. The other hospitals were privately owned facilities; as such,LSA-R.S. 9:2800 would not apply to them. However, LSA-R.S. 9:2800 doesapply to EJGH pursuant to paragraphs (A) and (G)(l) of that statute. Additionally,Blount and the trial court in this matter applied LSA-R.S. 9:2800, not LSA-R.S.9:2800.6 (a statute specifically addressing claims against merchants), as argued byHoffman.Accordingly, we hold that Blount is the controlling law for this matter anddo not find the trial court committed a legal error in requiring Hoffman to proveEJGH's actual or constructive notice of the liquid substance found on thenourishment room's floor.Assignment of Error Number 2Hoffman alleges the trial court erred in finding EJGH acted reasonably todiscover and correct the dangerous conditions reasonably anticipated in its kitchen.-7

Hoffman asserts she established that she slipped in a foreign substance. However,Hoffman avers EJGH failed to rebut the presumption of negligence in thefollowing ways: 1) there were no scheduled cleanings or inspections of the breakroom on the weekends; 2) even if the weekday inspection schedule applied onweekends, the number of inspections was inadequate considering the presence ofliquids and the use of the break room by the public; 3) there is no evidence that thebreak room was actually cleaned or inspected on the day of the accident; 4)random inspections of the break room by nurses, when time permitted, wereinadequate considering the presence of liquids and the use by the public, and 5)there is no evidence the break room was, in fact, inspected by nurses or otherhospital staff of the day of the accident.EJGH argues the evidence presented at trial exculpated it from anypresumption of negligence. EJGH avers that it had an adequate procedure to guardagainst spills and was not negligent in its actions.In Blount, this Court set forth the following analysis of the theories ofnegligence and strict liability for a slip and fall case against EJGH by stating,Under the negligence standard, a hospital owes a duty to itsvisitors to exercise reasonable care to keep the premises in a safecondition commensurate with the particular circumstances involved;but the duty owed is less than that owed by a merchant. In order to besuccessful in a negligence claim, plaintiff must also prove that theowner or custodian knew or should have known of the unreasonablerisk of harm posed by the property. Under a theory of strict liability,the hospital is liable for defective things in its custody only upon ashowing that it knew or, in the exercise of reasonable care, shouldhave known of the defect which caused the damage and failed tocorrect it with reasonable diligence. Thus, under either theory ofliability, plaintiff has the burden to prove actual or constructive noticeof defendant. In order to maintain a claim for damages caused by thecondition of things within the care and custody of a public entity, thecomplainant has the burden of proving that the public body had actualor constructive notice of the hazard and had a reasonable opportunityto remedy the condition, but failed to do so. Constructive notice isdefined as "the existence of facts which infer actual knowledge."Constructive notice can be found if the conditions which caused the-8

injury existed for such a period of time that those responsible, by theexercise of ordinary care and diligence, must have known of theirexistence in general and could have guarded the public from injury.The plaintiff bears the burden at trial of proving actual or constructivenotice. [Citations omitted].887 So.2d at 537-38.During the trial, it was admitted by Hoffman's attorney that no evidence waspresented that EJGH had actual notice of the liquid substance on the floor of thenourishment room.The charge nurse on duty at the time of the accident, Holly Williams,provided live testimony. Ms. Williams stated that she was assigned to the 4-Eastsection of the hospital on the day of Hoffman's accident. Although she had nospecific recollection of the day in question, Ms. Williams testified that sheregularly looked in the nourishment room as she passed by it in order to remainaware of the surroundings of the entire unit. In addition, Ms. Williams stated that,in the event of a spill in the nourishment room, the procedure was that the nursingstaff would attend to it right away. She further testified that the nursing staffwould occasionally enter the nourishment room to fulfill a need of a patient andcould look though the rectangular glass panel of the nourishment room's door tosee if anything was on the floor without having to enter the room.Yvonne Labostrie, the Environment Services Sectional Supervisor, alsotestified at the trial. Ms. Labostrie stated that she supervises EST-Is and EST-2s,which are team members that clean areas of the hospital, e.g., patient rooms, publicareas, restrooms, etc. Ms. Labostrie stated that she was on duty the day of theaccident; however, she had no recollection of that day. Ms. Labostrie testified shehad never seen a weekend assignment sheet, which designates the number of timesa particular area is supposed to be cleaned and/or inspected, for the nourishmentroom. However, Ms. Labostrie testified that there is usually an assignment sheet-9

completed for the weekdays. She further testified that the policy for the ESTs onduty was to "police" or inspect an area for cleaning, at least, twice during a shift.In the event of a spill, Ms. Labostrie stated a hospital employee was to contact anEST or clean it him or herself, if the spill could be taken care of by that employee.After review of the evidence presented to the trial court, we find Hoffmandid not prove EJGH had actual or constructive notice of the liquid on the floor ofthe nourishment room. Hoffman failed to present any evidence that EJGH hadactual notice of the spill.Additionally, EJGH presented sufficient evidenceconcerning its cleaning procedures to rebut the claim that it had constructive noticeof the spill. Accordingly, we do not find the trial court manifestly erroneous infinding that EJGH was not negligent or strictly liable for Hoffman's fall andmjunes.DECREEFor the foregoing reasons, the judgment of the trial court in favor ofJefferson Parish Hospital Service District No. 2 and against Brandi AndressHoffman is affirmed.AFFIRMED-10

MARION F. EDWARDSPETER J. FITZGERALD, JR.CHIEF JUDGECLERK OF COURTSUSAN M. CHEHARDYCLARENCEE. McMANUSWALTER J. ROTHSCHILDFREDERICKA H. WICKERJUDE G. GRAVOISMARC E. JOHNSONROBERT A. CHAISSONJUDGESGENEVIEVE L VERRETTECHIEF DEPUTY CLERKMARY E. LEGNONFIRST DEPUTY CLERKFIFTH CIRCUIT101 DERBIGNY STREET (70053)TROY A. BROUSSARDDIRECTOR OF CENTRAL STAFFPOST OFFICE BOX 489GRETNA, LOUISIANA 70054www.fifthcircuit.org(504) 376-1400(504) 376-1498 FAXNOTICE OF JUDGMENT ANDCERTIFICATE OF MAILINGI CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-]'WMBERED MATTER HAS BEENMAILED ON OR DELIVERED THIS DAY APRIL 10. 2012 TO THE TRIAL JUDGE, COUNSEL OFRECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:ll-CA-776ROBERT H. MURPHYJEFFREY A. RAINESATTORNEYS AT LAW701 POYDRAS STREETSUITE 400NEW ORLEANS, LA 70139BRANDON M. BENNETTJULIAN R. MURRAY, JR.ATTORNEYS AT LAWONE GALLERIA BOULEVARDSUITE 1100METAIRIE, LA 70001

Apr 10, 2012 · Foundation liable for her injuries and awarding her damages. On review, this Court held that a prima facie case is established when the "plaintiff shows that a foreign substance was on the floor, that he slipped and fell on the foreign substance . Touro Infirmary, 94-0078 (La. App. 4 Cir