Baumeister v. Plunkett

661 So. 2d 510, 1995 WL 517500
Louisiana Court of Appeal·Decided August 23, 1995·No. 27,185-CA·Published·Cited by 4 cases

Opinion

661 So.2d 510 (1995)

Amy Elizabeth BAUMEISTER, Plaintiff-Appellee,
v.
Loyce PLUNKETT, et al., Defendants-Appellants.

No. 27,185-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1995.

*512 Julia Mann, Lunn, Irion, Johnson, Salley & Carlisle, John Stephens, Shreveport, for appellant.

A. Michael Boggs, Bossier City, for appellee.

Before SEXTON, NORRIS and WILLIAMS, JJ.

WILLIAMS, Judge.

Humana Hospital—Brentwood ("Humana") appeals from a trial court judgment holding it vicariously liable for the sexual battery of Amy Elizabeth Baumeister ("Baumeister") by Loyce Plunkett ("Plunkett"), a Humana employee.[1] Baumeister answered the appeal, asserting that the damages awarded her are inadequate. We affirm the judgment of the trial court.

FACTS

On December 27, 1987, Baumeister was working the 3:00 p.m.-11:00 p.m. shift at Humana as a clinical technician. Plunkett was the nursing supervisor on duty. According to Baumeister, she was on break, sitting *513 in a chair drinking a soda and reading, when Plunkett entered the room and suddenly, without warning, was on top of her. She testified that he put one hand between her legs and forced her upward and backward against the wall, while twisting her breast with his other hand and "mashing" his teeth into her face. Baumeister pushed Plunkett off of her, left the room, and returned to her work area. She telephoned her regular supervisor at home and told her what had occurred. She then telephoned her boyfriend to come for her and terminated her shift early.

Plunkett, however, testified that Baumeister entered the supervisor's office and made advances toward him. According to Plunkett, he told Baumeister that he thought she needed to return to her unit and she left. Plunkett stated that the following day, he was contacted by Baumeister's boyfriend who accused him of attacking Baumeister.

Baumeister subsequently filed suit for damages against Plunkett and Humana, asserting that Humana was vicariously liable for the actions of Plunkett. The trial court found in favor of Baumeister and awarded her a total of $265,735.50 in damages.

On appeal, Humana asserts that the trial court erred in finding that the attack occurred, in finding Humana vicariously liable for Plunkett's conduct and in awarding excessive damages. Baumeister contends that the damages awarded are abusively low.

The Battery:

Humana argues that the evidence does not support the finding that the attack actually occurred and, specifically, that because of inconsistencies in Baumeister's account of the alleged attack, the trial court erred in crediting her testimony over that of Plunkett.

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. In order to reverse a factfinder's determination, the reviewing court must review the record in its entirety and meet the following two-part test: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

During the plaintiff's case in chief, Plunkett testified:

Well, the incident that Ms. Baumeister talks about I remember her coming into my office that day. The door was open, the door was never closed, but I don't remember attacking Ms. Baumeister. I remember her coming in and making some advances. I did tell her that I thought she needed to go back to her unit.

Plunkett also stated, "I'm not admitting there was any physical contact." However, he further testified that she touched him but he did not touch her. On direct examination by the defense, when asked what Baumeister said or did, Plunkett testified that he remembered only that she came around the desk and touched him. He indicated that a few days after the incident, at the request of Cynthia Joiner, Humana's director of nursing, he wrote a detailed statement of the events of the evening.

Later, during the trial, after reviewing his previous statement of January 13, 1988, *514 Plunkett testified that he, rather than Baumeister, entered the room while Baumeister was sitting in a corner chair reading a magazine. According to Plunkett, Baumeister called him over and began making advances toward him. He stated, "[S]he stood up rubbing herself all over me. I backed up and sat down in my chair." Plunkett testified that he did not initially recall the incident because he deemed it insignificant.

According to Plunkett, the day after the incident, Baumeister's boyfriend telephoned him and asked why Plunkett did that to her. Plunkett indicated that he then telephoned Baumeister. Plunkett testified that although Baumeister said, "You know what you done to me," she never gave him a specific explanation. Plunkett further testified that he did not know what was going on and did not learn the specifics of the alleged incident until he was contacted for deposition some two years later.

However, Plunkett's written statement of January 13, 1988, which was admitted into evidence, states that her boyfriend who telephoned him accused him of bruising and trying to "rape" Baumeister. In addition, Plunkett's statement indicates that Baumeister informed him that she had reported that he "twisted her wrist, slammed her against the wall, burst her lips and bruised her nipples." In his statement, Plunkett described her as "hysterical and screaming" as she ended the telephone conversation. When confronted with the discrepancy in his accounts, Plunkett responded that he did not recall that conversation. He further testified, "This incident was not really significant. I didn't think any more about this incident."

Plunkett also testified that he could not have committed the attack described by Baumeister because he had "constant back pain" in 1987, and did not do any lifting, bending or strenuous work. Dr. Robert E. Holladay, an orthopedics specialist, testified that he first saw Plunkett for disk problems in October 1987 and performed back surgery on him in February 1988. Given the description of the attack, Dr. Holladay indicated that he would be surprised if Plunkett could have exerted himself to that degree without experiencing significant pain or difficulty with his back. He acknowledged, however, that it would not have been impossible for Plunkett to execute th

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Baumeister v. Plunkett, 661 So. 2d 510, 1995 WL 517500 (La. Ct. App. 1995).

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