Arthur v. State, Department of Health & Human Resources

605 So. 2d 635, 1992 La. App. LEXIS 2664, 1992 WL 226166
CourtLouisiana Court of Appeal
DecidedSeptember 17, 1992
DocketNo. 91-CA-0496
StatusPublished
Cited by1 cases

This text of 605 So. 2d 635 (Arthur v. State, Department of Health & Human Resources) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arthur v. State, Department of Health & Human Resources, 605 So. 2d 635, 1992 La. App. LEXIS 2664, 1992 WL 226166 (La. Ct. App. 1992).

Opinion

PLOTKIN, Judge.

Defendants State of Louisiana, Department of Health and Human Resources, and City of New Orleans appeal a trial court judgment finding them both liable for injuries suffered by plaintiff Albertine Arthur when she fell in front of the Tulane Avenue entrance to Charity Hospital on January 27, 1986. We affirm the portion of the trial court’s decision holding the State liable and reverse the portion holding the City liable.

FACTS

Ms. Arthur, who was 80 years old at the time of the accident, fell on the sidewalk as she was leaving the hospital after visiting a sick relative. As a result of the accident, Ms. Arthur suffered a fracture of two bones in her left ankle, for which she underwent surgery the next day. The surgery involved the placement of a plate and six screws to repair the broken bones. Ms. Arthur was hospitalized for nine days and left the hospital wearing a short leg cast; she had to use a walker to help her get around.

Ms. Arthur filed suit against both the State of Louisiana, Department of Health and Human Resources, which owns Charity Hospital, and the City of New Orleans, which owns the sidewalk in front of the hospital. The trial judge found the two defendants solidarily liable; Both have appealed.

STATE’S LIABILITY

In holding the State liable for the plaintiff’s injury, the trial judge stated in his reasons for judgment as follows:

[T]he evidence points clearly to the fact that the plaintiff fell on “broken pieces of concrete” which said concrete was debris on the sidewalk, emanating from construction work for the use and benefit of Charity Hospital of New Orleans, a state agency. More than one witness, including those of Charity Hospital, acknowledged that if there was debris in the area, the responsibility for removing the debris was that of Charity Hospital.

This finding is amply supported by the record in this case. Ms. Arthur’s daughter, Shirley Fazande, who accompanied her mother at the time of the accident, described the area as follows:

Q. Let's talk about the fall for a minute. Did you see your mother fall?
A. She went, when I felt her butt against me, because I was looking waving to my son, she went down and, you know, on her back. She was on her back.
Q. Could you describe the area where she fell?
A. Well there was a lot of, look like construction going on or something. It was a lot of debris all around, you know.
Q. By debris what type?
A. Broken up cement. You know, rocks, look like, you know, big piece of cement, small pieces, you know, it just was a lot of look like shattered concrete or something.
Q. How large of the area that was shattered, broken up, to use your words from what you know.
A. I mean I didn’t just stand and observe all over but from what we could see, no, it was a great area of it.
THE COURT:
Well—
THE WITNESS:
A. Like all in front of the hospital. That front entrance.
THE COURT:
The front entrance to the hospital was torn up?
THE WITNESS:
A. Yes, Sir.
THE COURT:
And you saw that?
THE WITNESS:
[637]*637A. Yes I did.
BY MR. MORIAL:
Q. And the area where your mother fell was in this broken up area?
A. Yes it was.

Trial transcript, Vol. I, pp. 26-28. Later in the trial, Ms. Fazande testified as follows:

Q. When you look down was your mother’s feet or was she lying on concrete or broken concrete?
A. She was lying on broken concrete.
Q. How much of her body was covered by the broken concrete?
A. Covered.
Q. Was just her foot on top of it?
A. She was down on her back and her leg was under her. There was a lot of broken concrete underneath.
Q. When you say broken concrete do you mean pieces of concrete treat [sic] situated on top of the sidewalk or just concrete broken?
A. Just broken up pieces on the sidewalk, and, you know, it was broken up.
Q. Did it look as if someone was doing some work there to you?
A. It could have been, could have been some construction going on there.
Q. As you were walking toward the sidewalk could you see the broken up concrete at all?
A. Yes, you could see it.
Q. Why did you all continue to walk in that direction?
A. I mean I don’t care how you would go you would have to pass in between it.
Q. You’re aware of it as you were walking is that?
A. Well, yes.
Q. And were you kind of dodging some of it?
A. Yes.

Trial transcript, Vol. I, pp. 81-82. Ms. Arthur testified that she “stumbled and fell over those rocks, concrete,” “some concrete, broken up concrete.” She stated specifically that she did not fall on a crack in the sidewalk.

Raymond Brown, who worked for Charity Hospital as a landscaper, witnessed the accident. He stated that Ms. Arthur fell in an area where the “pavement was sort of like cracked up and damaged in certain areas where she fell.” He testified that construction was going on, “not directly by the spot but ... there was some construction being done on the drain and they was tearing up the ground right up in that area.” He said the “ground” was “made of concrete” and that men were breaking it up with an air hammer. The area where the construction was going on was roped off, Brown said, but the workers were piling the concrete up to the side in a big pile some three feet from the construction area.

On appeal, the State claims that the evidence presented by the plaintiff was insufficient to support the trial court’s decision that the State is liable for the plaintiff’s injuries. The State claims that the evidence establishes that Ms. Arthur fell on cracks on the sidewalk, an area exclusively within the jurisdiction of the City of New Orleans. We disagree. The evidence is clearly sufficient to support the trial court’s judgment. Because the record reveals that the trial court’s judgment on this issue was not manifestly erroneous, that portion of the judgment holding the State liable for the plaintiff’s injuries is affirmed.

CITY’S LIABILITY

The trial judge justified his decision to hold the City liable by stating in his reasons for judgment as follows:

[T]he evidence indicates that there was a substantial

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Bluebook (online)
605 So. 2d 635, 1992 La. App. LEXIS 2664, 1992 WL 226166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arthur-v-state-department-of-health-human-resources-lactapp-1992.