Harkins v. Natchitoches Parish Hospital

696 So. 2d 19, 97 La.App. 3 Cir. 83, 1997 La. App. LEXIS 1299, 1997 WL 226193
CourtLouisiana Court of Appeal
DecidedMay 7, 1997
DocketNo. 97-83
StatusPublished
Cited by3 cases

This text of 696 So. 2d 19 (Harkins v. Natchitoches Parish Hospital) 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
Harkins v. Natchitoches Parish Hospital, 696 So. 2d 19, 97 La.App. 3 Cir. 83, 1997 La. App. LEXIS 1299, 1997 WL 226193 (La. Ct. App. 1997).

Opinion

liWOODABD, Judge.

This appeal arises out of a lawsuit for damages sustained by plaintiff, Melba H. Harkins, a seventy-six-year-old woman, when she tripped and fell in a grassy median area in the defendant’s parking lot. The trial court awarded $50,000.00 for personal injuries. The defendant is Natchitoches Parish Hospital. We affirm.

FACTS

As a part of its facilities, the Natchitoches Parish Hospital (Hospital) has workout equipment located on the 4th floor at the rehabilitation unit. Ms. Harkins joined the Hospital’s good health program on April 12, 1994, which allowed her to use the equipment. Ms. Harkins worked out at the Hospital four or five times per week. She had been a member of the program for more than two months prior to the day of her fall and always parked her automobile in the same area when working out at the Hospital. Then, she would walk across the grassy median in the parking area going to and from the entrance to the hospital. She was very familiar with the general area |2where she ultimately fell, as she had crossed it between seventy-two and eighty times, going into and coming out of the Hospital the previous two months.

On June 15, 1994, Ms. Harkins arrived at the hospital at approximately 5:00 p.m. For one hour, she worked out in the hospital by walking laps and exercising on the treadmill, stationary bike, and another machine to work her shoulder area. She left the hospital around 7:00 p.m. and walked across the grassy median along the cement driveway, in order to get to her ear, where she tripped on a piece of black vinyl garden border material, hidden in the grass, and fell to the ground, seriously injuring herself. Another person helped her to get up and walked her to her car. Ms. Harkins drove herself home. In considerable pain, she then went to see her neighbor, Ms. Maggie LeVasser, who immediately brought her back to the hospital for treatment between 7:00 and 7:30 p.m. In the emergency room, Ms. Harkins told the doctor, Dr. Zev-David Nash, and Nurse Ellen Matthis that she had tripped when stepping over the curb. She was given medicine for the pain, an TV, and x-rays were taken. She was found to have an anterior dislocation of the right shoulder and had to endure a painful procedure to reset her shoulder. Notwithstanding, she was dispatched to an Schumpert Medical Center in Shreveport, Louisiana, for additional treatment, as the emergency room personnel thought her shoulder was not back in place. Eventually, she got home at 2:30 a.m. that night.

Two weeks after the fall, Ms. Harkins went back to the area to see just exactly where the accident happened. Then, she asked her daughter, Ms. Sandra Martin, to take photographs of the grassy median where she had fallen.

Dr. A.E. Dean treated Ms. Harkins after the fall. The degenerative changes in her shoulder resulting from her fall required surgery, an acromioplasty, to repair a tom rotatory cuff. This was accomplished on November 1, 1994. Dr. Dean noted pre-existing degenerative changes in the tendons of her rotatory cuff. He opined that Ms. Harkins may have had a partial tear of the rotatory cuff, which subsequently tore completely with motion and use by Mr. Harkins after her fall. He last saw her for a checkup on June 19, 1995. At that time, he released her without any restrictions other than to do some limited home stretching exercises.

Ms. Harkins never regained full use of her right shoulder even after the surgery. The doctor opined that the surgery might have to be redone but that he did not|3recommend it at that time. Ms. Harkins does not want to go through the surgery again and she lives with constant pain from her injury.

Prior to her fall, she was completely independent and able to care for herself and her apartment. After the fall, she requires assistance in cleaning her apartment and managing her daily life’s activities because of the partial loss of use of her right shoulder. This loss of use is permanent, and it continues to be painful to her.

Accordingly, the trial court awarded her $50,000.00, which included medical expenses of $8,600.00 and general damages for pain [21]*21and suffering, past and future disability, and deterioration of her general lifestyle.

ASSIGNMENTS OF ERROR

The hospital contends:

1. The trial court committed legal error by holding Natchitoches Parish Hospital negligent under La.R.S. 9:2800.6; that it is not covered by this statute governing liability of merchants for actions that occur on their premises; that the wrong burden of proof was applied by the trial court.
2. The trial court committed manifest error by failing to assign fault for any injuries to the actions of Ms. Harkins.
3. The trial court committed manifest error in holding that Ms. Harkins may require additional surgical intervention and that the trial court’s award of $50,-000.00 is clearly improper and excessive based upon the testimony presented at trial.

LAW

Ms. Harkins relies on the theories of negligence and strict liability to establish the liability of the hospital. Finding that there was sufficient evidence of negligence under La. R.S. 9:2800.6, the trial court did not address the strict liability argument.

We agree with the hospital’s contention that hospitals are not covered by this statute governing merchants. See Neyrey v. Touro Infirmary, 94-0078 (La.App. 4 Cir. 6/30/94); 639 So.2d 1214; Reynolds v. St. Francis Medical Center, 597 So.2d 1121 (La.App. 2 Cir.1992). Accordingly, we must examine the duty the hospital does have in light of the facts of this ease.

I4A hospital owes a duty to its visitors to exercise reasonable care commensurate with the particular circumstances. Morrison v. Baton Rouge Gen. Med. Cen., 93-1055 (La.App. 1 Cir. 4/8/94); 635 So.2d 768, writ denied, 94-1192 (La.7/1/94); 639 So.2d 1165; Reynolds, 597 So.2d 1121, cited in Neyrey v. Touro Infirmary, 639 So.2d 1214. It must prove it acted reasonably to discover and correct a dangerous condition reasonably anticipated in its business activity. LeBlanc v. Alton Ochsner Medical Foundation, 563 So.2d 312 (La.App. 5 Cir.1990) cited in Neyrey v. Touro Infirmary, 639 So.2d 1214.

In the instant case, Ms. Harkins is required to prove that she tripped and fell and was injured because of some defect at the hospital’s premises, creating a presumption of negligence on the hospital’s part. If she meets this burden of proof, the hospital must exculpate itself from that presumption. Neyrey, 639 So.2d 1214; Reynolds, 597 So.2d 1121; LeBlanc, 563 So.2d 312.

Ms. Harkins established that she fell because she tripped on the black vinyl plastic gardening border, which was partially hidden, by the grass, on the grassy median leading to the parking lot where she parked her car, that she suffered a dislocated shoulder, which ultimately required surgery, and that she might require additional surgery.

It was then up to the hospital to exculpate itself from this presumption of liability. Reynolds, 597 So.2d 1121. This, it failed to do. It offered no proof to show that it acted with reasonable care, under the circumstances, by having a black vinyl gardening border hidden in an area, near its entrance, which was regularly traversed by persons using the hospital’s facilities and which apparently served no useful purpose.

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Bluebook (online)
696 So. 2d 19, 97 La.App. 3 Cir. 83, 1997 La. App. LEXIS 1299, 1997 WL 226193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkins-v-natchitoches-parish-hospital-lactapp-1997.