Hanewinckel v. ST. PAUL'S PROP. & LIABILITY INSURANCE, CO.

611 So. 2d 174, 1992 WL 381790
CourtLouisiana Court of Appeal
DecidedDecember 16, 1992
Docket92-CA-613
StatusPublished
Cited by10 cases

This text of 611 So. 2d 174 (Hanewinckel v. ST. PAUL'S PROP. & LIABILITY INSURANCE, CO.) 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
Hanewinckel v. ST. PAUL'S PROP. & LIABILITY INSURANCE, CO., 611 So. 2d 174, 1992 WL 381790 (La. Ct. App. 1992).

Opinion

611 So.2d 174 (1992)

J. Houlberg HANEWINCKEL and Ernest Hanewinckel
v.
ST. PAUL'S PROPERTY & LIABILITY INSURANCE, CO., et al.

No. 92-CA-613.

Court of Appeal of Louisiana, Fifth Circuit.

December 16, 1992.
Writ Denied March 12, 1993.

*175 George C. Stringer, Jr., Harahan, for plaintiff-appellee.

Thomas E. Loehn, Benjamin R. Slater, Jr., Gerard A. Bos, New Orleans, for defendant-appellant.

Before GAUDIN, DUFRESNE and GOTHARD, JJ.

DUFRESNE, Judge.

This is an appeal by Alton Ochsner Medical Foundation (AOMF), defendant-appellant, from a judgment in favor of Jacobine Hanewinckel, plaintiff-appellee, for damages suffered by her when she was attacked and beaten during an attempted rape in defendant's parking lot. For the following reasons, we affirm.

The basic facts are these. On February 4, 1988, Mrs. Hanewinckle, a 52 year old nurse-anesthetist, arrived for work at the Ochsner medical complex at about 5:25 *176 A.M. She drove into the parking lot and proceeded to back into a parking space. Before she could stop her motor, a man about 30 years old, of medium height and weight, and wearing a blue plaid shirt, opened the driver's door, pushed her over in the seat, and got behind the wheel. As he started to drive off, plaintiff asked what he was doing and he told her he intended to rape her. She jumped out of the passenger door, falling to her knees on the asphalt. Before she could escape further, however, her assailant got out of the car, grabbed her and began striking her in the head and face. She continued to struggle as he dragged and pulled her toward the nearby River Road and the levee beyond. At this time another hospital employee drove into the parking lot, saw what was happening, and immediately notified the hospital security. Three security employees went to the parking lot and found plaintiff's car with the motor running and the lights on, but because of a heavy fog, they did not immediately see plaintiff and her attacker, who by then were apparently crossing River Road and moving up the levee. After a short search security finally saw them on the top of the levee, and plaintiff was rescued. The assailant managed to escape on foot and has never been caught.

During the course of this attack, which lasted some twenty minutes, plaintiff was pulled and dragged over 500 feet while being repeatedly struck. The force of these blows was such that her left wrist was broken, some twelve teeth were knocked out or broken, her face was severely battered and bruised, and she had numerous cuts and abrasions on her legs and knees. It was further shown at trial that the wrist injury had left her with an 18% disability rating, and that she additionally had suffered serious mental trauma from which she has not yet recovered.

She brought the present delictual action against AOMF, the owner of the parking lot and provider of the security force at the medical complex, alleging that it had breached its duty of protecting her from criminal attack on its premises. After a bench trial, the trier of fact found that the defendant had a duty to provide reasonable and adequate security in the parking area, that it had breached this duty in not providing such security, and that as a result plaintiff was injured. He fixed total damages at $733,000, of which $460,000 was awarded for pain and suffering.

AOMF now appeals and urges five errors:

1. Plaintiff's sole remedy lies in the workman's compensation laws;
2. As lessor of parking spaces, AOMF cannot be liable for acts of third parties illegally on the premises;
3. Improper legal standards were applied to AOMF;
4. Plaintiff failed to prove her case by a preponderance of the evidence; and
5. The award of damages is excessive.

Because the first two asserted errors involve common facts concerning the institutional structure of the medical center, they are considered together here. The defendant, AOMF, is a non-profit Louisiana corporation which owns and operates a 20 acre medical complex in Jefferson Parish. The major components of the complex are the Ochsner Foundation Hospital, the Brent House (a hotel for recovering patients and their families) and the Ochsner Clinic. The Ochsner Clinic is, however, a completely separate for-profit partnership of physicians, which leases a building from AOMF where out-patients are treated. The doctors in this group also make up the physicians corps at the hospital. All parking lots on the campus are owned by AOMF, and it also provides the security for these areas. The employees of the other entities park in these lots and AOMF is paid a fee for this service by these entities under a written "memorandum of parking cost division" agreement. It further appears that parking Lot A, where the attack began, was open to the public, being unfenced and without any entry gates. Finally, Mrs. Hanewinckel was a long-time employee of the for-profit Ochsner Clinic at the time of the incident.

The defendant urges here, as it did in the district court, that the Ochsner medical complex is in reality a single health care *177 research and treatment center, albeit comprised of several discrete entities. Its technical legal position is that the entities are in fact engaged in a joint venture, and therefore all of them enjoy immunity from suits in tort by any employee of any of the other joint ventures, citing Latiolais v. B.F.I. of Louisiana, Inc., 567 So.2d 1159 (La.App. 3rd Cir.1990). While we have serious reservations about defendant's argument that it is a joint venturer, particularly in regard to sharing of profits and losses, see Latiolais, supra, we pretermit this question because its resolution is not required here. We, like the district judge, conclude instead that resolution of the tort immunity question is controlled by the rule set forth in Mundy v. Dept. of Health and Human Resources, 593 So.2d 346 (La.1992). The facts there were that while reporting for work plaintiff was attacked in a hospital elevator. The attack occurred before the employee had reached her work station, and was unrelated to any of her job duties. Further, the elevator was accessible to the public. In rejecting the workman's compensation immunity defense, the court noted that the attack clearly did not arise out of plaintiff's employment duties, and that she had not yet reported for work. The court further emphasized that because the incident occurred in an elevator accessible to the public, any member of the public could just as easily have been the victim, and there was thus no relationship between the job and the injury. In the present case, plaintiff had not yet reported to work, the attack was unrelated to the work, and it took place in an area accessible to the public. Given these facts, we are unable to distinguish this case from Mundy, supra, and we must therefore rule that AOMF is not entitled tort immunity under the workman's compensation laws.

AOMF's second argument, that as lessor it is not liable to its lessee for acts of third persons, pursuant to La.Civ.Code art. 2703, is equally without merit. Defendant acknowledges that the lessor can warrant that the premises are safe, thus exposing itself to such liability, citing Thompson v. Cane Gardens Apts., 442 So.2d 1296 (La. App. 3rd Cir.1983). It denies, however, that any such warranty was given here. We disagree. AOMF undertook to maintain the security force in the parking areas.

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Bluebook (online)
611 So. 2d 174, 1992 WL 381790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanewinckel-v-st-pauls-prop-liability-insurance-co-lactapp-1992.