Choyce v. SISTERS

642 So. 2d 287, 1994 WL 460683
CourtLouisiana Court of Appeal
DecidedAugust 19, 1994
Docket25958-CA
StatusPublished
Cited by14 cases

This text of 642 So. 2d 287 (Choyce v. SISTERS) 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
Choyce v. SISTERS, 642 So. 2d 287, 1994 WL 460683 (La. Ct. App. 1994).

Opinion

642 So.2d 287 (1994)

Viola CHOYCE & Calvin Choyce
v.
SISTERS OF the INCARNATE WORD d/b/a Schumpert Medical Center.

No. 25958-CA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1994.
Rehearing Denied September 15, 1994.

*288 Mayer, Smith & Roberts by Kim Purdy, Shreveport, for defendant-appellant.

Fredric Lewis, Jr., Shreveport, for plaintiffs-appellees.

Before NORRIS, LINDSAY and BROWN, JJ.

BROWN, Judge.

At about 5 p.m. on Sunday, April 14, 1991, plaintiff, Viola Choyce, entered Schumpert Medical Center (Schumpert) to visit a friend. After passing through the reception lobby, she walked the main hallway to the elevators where she slipped and fell, sustaining a spiral fracture of the left distal femur above the knee. Plaintiff filed this action against Schumpert, along with her husband, Calvin Choyce, who sought damages for loss of consortium. Judgment was rendered in plaintiffs' favor. Schumpert appealed and plaintiffs answered, seeking an increase in the award. For the reasons set forth below, we affirm.

FACTS

On April 14, 1991, at approximately 5:00 p.m., Viola Choyce went to Schumpert to visit a friend. She entered the main hallway, walked down the hall past the business; office toward the elevators, slipped and fell backwards. Mrs. Choyce, who was employed by Schumpert as a part-time nurse's aide since 1981, had walked this hall many times. She was wearing a dress and had on shoes with closed toes, rubber soles, 3½ inch heels and no heel strap or back. The shoes were approximately 10 years old and Mrs. Choyce had been wearing them since 9:00 that morning.

There was no foreign substance on the floor. The floor was a marble type tile also described as terrazzo. The trial court found that the floor "was highly waxed or buffed to the extent that it was slippery." The trial *289 court further found "[t]he testimony is diverse as to exactly how the floor is maintained, but the preponderance of the evidence supports the conclusion that some type of wax or cleaner is sprayed on the floor after which it is buffed and polished to a bright shine. The testimony is consistent from all of the witnesses that a tile floor such as the one on which Mrs. Choyce fell, becomes slick or slippery when repetitively buffed or waxed."

Mrs. Choyce had a pre-existing injury to her left knee as the result of a February 1990 accident at her residence. Following surgery to her left kneecap, she was released by her doctor in 1990 without restrictions.

The trial court resolved the issue of whether the condition of the floor caused the plaintiff to fall by examining the testimony of the witnesses and evaluating their credibility. The trial court found that a preponderance of the evidence supported the conclusion that the slippery condition of the floor was a hazard that caused Mrs. Choyce to slip and fall. The trial court awarded Mrs. Choyce general damages of $85,000.00; $34,303.43 in past medical expenses; $3,100.00 in future medical expenses; and $8,943.04 in lost wages. The trial court awarded Calvin Choyce $3,500.00 for loss of consortium.

DISCUSSION

Causation

Schumpert contends that the mere fact that plaintiff fell is not evidence of why she fell. This court recognizes that proof of an accident does not, in and of itself, prove negligence or defect; however, when coupled with other evidence, it has considerable significance. Mrs. Choyce testified that after her fall, she noticed a long black skid mark and that the floor around where her accident occurred was "very slippery, very waxed and very shiny," but was no different in appearance from the rest of the floor. Mrs. Choyce stated that she fell because the floor was slippery. Shortly after the accident, Calvin Choyce visited his wife and inspected the area of the floor where she fell. He found the floor to be waxed, buffed, shiny and slippery.

Two witnesses, Anthony Barton and Robert McIntosh, were summoned to the scene after the fall. Barton, a security guard at Schumpert, stated that he examined the area and found that the floor was not slippery and appeared normal with no traces or markings. After assisting Mrs. Choyce, Barton returned and found nothing, in his opinion, that would have caused the fall.

Robert McIntosh, also a Schumpert security guard, assisted Mrs. Choyce. McIntosh was responsible for investigating the incident. He agreed with Barton's testimony regarding the condition of the floor. He ran his shoes over the floor at the spot of the fall and did not believe it to be slippery. A report prepared by McIntosh at 5:20 p.m. on the date of the accident was consistent with his trial testimony.

Mrs. Choyce's testimony that the floor was slippery was supported by the testimony of J.L. Dent. Dent was, at the time of trial, employed by Western Hills Baptist Church as a custodian and had previously worked as a "floor technician" for various custodial service companies. He was accepted by the defense and trial court as an expert on floor maintenance. Dent testified that marble tile, like that in Schumpert's lobby, does not require waxing. Once it ages, marble tile may be waxed in order to enhance its appearance; however, if it is "constantly buffed" or "buffed every night," the tile will become slippery. Dent further testified that judging by its appearance, the floor at Schumpert was old and well maintained. He stated that to make such an old marble floor look good, it would have to be waxed and buffed. Dent was unable to view the area where the accident occurred because it had been carpeted, but he did view the floor in Schumpert's lobby, which was the same type of floor as the area where the fall occurred.

Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court is convinced that had it been the trier of fact, it would have weighed the evidence differently. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990). The trier of *290 fact is in a better position to evaluate the credibility of witnesses and make factual determinations than a reviewing court. Where two permissible views of the evidence exist, the trier of fact's choice cannot be manifestly erroneous or clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

The trial judge found Viola Choyce to be a credible witness, stating that her testimony was "probably the most singularly credible testimony I've ever heard in any case." The conflicting testimony of the two employees of Schumpert is also reasonable, but no more so than the testimony of Mrs. Choyce. The trial court had the benefit of hearing and seeing the witnesses testify first hand and, as noted above, was obviously impressed with the credibility of Mrs. Choyce.

The only testimony concerning the frequency of waxing and buffing the floor in question was given by Mrs. Choyce and the two Schumpert security guards, Anthony Barton and Robert McIntosh. Mrs. Choyce stated that she noticed at work that the floor was sprayed and buffed each morning between 2:00 and 3:00 a.m. She did not know exactly what substance was sprayed on the floor.

Barton testified that on week nights, a crew buffed the floors at the hospital, though they did not buff each floor every night. Therefore, he assumed that the floor was last buffed early Friday morning, while the accident occurred on Sunday. Barton's shift, however, ended at 11:30 p.m. and he was not present at 2:00 and 3:00 a.m. when Mrs. Choyce said the floors were buffed.

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Cite This Page — Counsel Stack

Bluebook (online)
642 So. 2d 287, 1994 WL 460683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/choyce-v-sisters-lactapp-1994.