Foster v. Town of Mamou

616 So. 2d 837, 1993 La. App. LEXIS 1432, 1993 WL 105564
CourtLouisiana Court of Appeal
DecidedApril 7, 1993
DocketNo. 92-520
StatusPublished
Cited by2 cases

This text of 616 So. 2d 837 (Foster v. Town of Mamou) 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
Foster v. Town of Mamou, 616 So. 2d 837, 1993 La. App. LEXIS 1432, 1993 WL 105564 (La. Ct. App. 1993).

Opinion

SAUNDERS, Judge.

In this tort suit, defendant, Town of Mamou, appeals a judgment in favor of the plaintiff, Sharon Foster (Foster), finding the Town of Mamou (the Town) liable under both negligence and strict liability and awarding plaintiff $150,000.00, subject to a reduction'of a comparative fault finding of 50%. Plaintiff answers the appeal, objecting to the finding of comparative fault. We affirm, as amended.

FACTS

While walking through an alley at approximately 7:00 p.m. on October 28, 1989, Sharon Foster stumbled into an unmarked trench. Foster broke her heel bone and ultimately developed Reflex Sympathetic Dystrophy as a result of this fall.

THE ACCIDENT SITE:

The Town was excavating earth to uncover its main sewer line so that a local resident could tie into the line. The construction began on October 25, 1989. There was no lighting in the alley. The hole was six feet deep and approximately ten feet long and ran across the alley north to south. The excavation was improperly marked. Photographs of the scene indicated only one barricade was placed and it was placed in position to keep out vehicular traffic, but not pedestrian traffic. Plaintiff’s safety expert, John D. Roberts, testified that there should have been a physical barrier surrounding the hole and making it physically impossible for a person to fall into it. Additionally, according to Roberts, some type of illumination, such as amber lights or torch lanterns, should have been placed at various intervals around the perimeter of the hole. There was nothing to prevent pedestrians from walking into the hole at its northern edge. The deepest portion of the hole was nearly 5½ feet deep on the south, gradually sloping upward to IV2 feet deep. The east-west portion of the excavation was 4½ feet deep and approximately 4 feet wide.

At trial, Foster testified that she left her mother’s house at 6:55 p.m., at which time she stated “it was pitch black.” It was a Saturday night, October 28, 1989. She used the alley since it was a shortcut from her mother’s house to her own house nearby. She was walking at a normal pace when she suddenly stubbed her foot and sidestepped to the left. When she put her right foot down to regain her balance, it went down into the hole. She fell into the hole, hitting her arm and head, and landed on her right foot. Foster thinks she may have been unconscious for a short time. When she tried to stand up, the pressure placed on her right foot caused burning and throbbing. It was at this time that she knew that she had broken her foot in the fall.

Foster testified that she screamed for help. When none came, she crawled back to her mother’s house. Her mother called Mr. Buford Perron, a neighbor, who drove Foster to the Savoy Memorial Hospital in Mamou, Louisiana.

PLAINTIFF’S INJURY:

Prior to the fall and resulting injury, Foster never had any problems with her foot or leg.

At the emergency room on the night of the accident, Foster was seen by Dr. Gerald Murdock. Dr. Murdock took X-rays of her foot; however, no definitive diagnosis could be made at that time. Dr. Murdock requested that she return in two or three days for more X-rays.

Foster denies having any other accident that day.

[839]*839The following Monday, Foster visited Dr. Murdock in the emergency room at which time Dr. Murdock immobilized her foot.

A week and a half later, Foster went back to Dr. Murdock’s office because the pain in her foot and leg became “really unbearable.” Repeat X-rays were taken which showed a non-displaced cortical fracture of the oscalcis.1 Dr. Murdock placed her foot and leg in a long length cast extending above the knee which she remained in until December, 1989. She also testified to constant burning and some throbbing when she walked too much.

On December 5, 1989, Dr. Murdock removed the long length cast and placed Foster in a short cast until December 20. On December 20, Dr. Murdock ordered more X-rays which showed that the fracture had healed. The cast was then removed.

Upon removing the short cast, Foster testified that she noticed that her leg was “shiny” and unusual to her. She stated, “And I had never seen my leg shiny like that. So it kind of scared me a little bit. I didn’t know what was going on.” She further testified that the burning was still there and that her right leg would “like be real hot ... and at other times my right leg would be really cold.”

Dr. Murdock’s deposition does not indicate that on December 20, 1989, Foster had any complaints of pain which were out of the ordinary. His notes did not reflect whether any swelling was present.

Dr. Murdock saw Foster again on January 5, 1990. At that time, her ankle was “quite stiff.” Sharon complained of pain as well as stiffness. Dr. Murdock recommended continuation of physical therapy and urged Foster to walk on the foot and exercise it to get it mobilized and to get over the stiffness. He testified that he was not unduly concerned; however, he did note that she was not progressing as fast as he would have liked.

On February 5, 1990, Dr. Murdock examined Foster again. She was complaining of pain in her heel. He urged Foster to walk on the foot but she stated it was too painful and requested a cane.

On Foster’s March 5, 1990, visit, Dr. Murdock referred her to Dr. Stephen Na-son, an orthopedic surgeon. She only saw Dr. Nason once, on March 23, 1990. Dr. Nason’s report indicated his finding of Reflex Sympathetic Dystrophy which involves the nerves that control pain, the blood vessels and sweating and is brought about by trauma. The full physiology of the disorder is not fully understood, but there is a theory that the nerves in the spinal cord itself actually become abnormal producing abnormal activity in the sympathetic nerves in the affected extremity which continue beyond the time of the actual healing of the trauma. If the syndrome is severe, it can result in complete disuse of an extremity if it goes untreated.2 He recommended sympathetic nerve blocks and referred her to a specialist for this procedure. He also recommended vigorous physical therapy, with exercise and full weight bearing.

Foster’s last visit with Dr. Murdock was May 11, 1990, at which time she was still complaining and the symptoms of Reflex Sympathetic Dystrophy were still present. He referred Foster to Dr. Olga Arter, a pain specialist.

Dr. Arter’s deposition indicated that her original consultation with Foster was on September 6, 1990. Dr. Arter’s impression of the right foot was that Foster had Reflex Sympathetic Dystrophy. She recommended lumbar sympathetic blocks in conjunction with physical therapy to treat the dystrophy.

Dr. Arter examined Foster again and her opinion remained the same. Dr. Arter stated that the plaintiff did not have much swelling, but continued to have pain. As to her prognosis, Dr. Arter testified that there is no permanent disability if treated.

Dr. Arter also testified that Foster had a problem with alcohol abuse and smoking, which were aggravating factors of her condition. Dr. Arter expressed great concern [840]*840over Foster’s alcoholism and her inability to deal with Foster’s pain and get Foster well as long as she was drinking. She did testify that Foster would have to quit drinking before she would be willing to treat her.

Foster also visited with Dr.

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616 So. 2d 837, 1993 La. App. LEXIS 1432, 1993 WL 105564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-town-of-mamou-lactapp-1993.