Lewis v. State

546 So. 2d 484, 1989 La. App. LEXIS 639, 1989 WL 35069
CourtLouisiana Court of Appeal
DecidedApril 13, 1989
DocketNo. 88-CA-1676
StatusPublished
Cited by2 cases

This text of 546 So. 2d 484 (Lewis v. State) 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
Lewis v. State, 546 So. 2d 484, 1989 La. App. LEXIS 639, 1989 WL 35069 (La. Ct. App. 1989).

Opinion

BARRY, Judge.

Mary Lewis, a 38 year old female, was enrolled in a job training program at Collier Vo-Tech School. On November 26, 1980 she returned from lunch during a heavy rain and slipped inside a side entrance to the school. Lewis filed suit for damages against the State based on negligence and strict liability.

The case was referred to a commissioner who recommended a $100,000.00 judgment, plus medicals of $8,023.56, expert fees and costs. The district court overruled exceptions to the commissioner’s report and rendered judgment.

The State basically urges that it was not negligent or strictly liable and alternatively that Lewis was comparatively negligent.

Whether the State is negligent requires a factual consideration of the risk involved and the reasonableness of the measures to prevent it. Sansonni v. Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th Cir.1977), writ denied 346 So.2d 209 (La. 1977).

David Jones, a former janitor/custodian for Collier Vo-Tech, was on duty the day of the accident. He found water on the floor that morning and mopped it, but did not mop immediately prior to the accident. He testified that his duties included keeping the building “presentable” when it rains. He said when the floor was wet he usually put a sign “Use Main Entrance” at the side entrance because there were not enough “Wet Floor” signs. On the day of the accident he had not done so. He also usually removed the floor mat when it got wet.

Jones stated that the roof at the side entrance had a history of water seepage. He explained the leaks occurred at the side and main entrances after the building was redone and an addition made. He informed Leroy Kendrick, school director, of the problem and there had been attempts to fix the leak(s) which occurred every time it rained.

Linda Eubanks, a counselor at Collier Vo-Tech and a former classmate of Lewis’, testified she did not see the accident and was speaking to Dorothy Wilson at the time. Eubanks said Wilson was not with Lewis when she slipped. Eubanks claimed there had never been a problem with water “coming into the door” or with roof leaks near the door.

Dorothy Wilson, a teacher in Lewis’ program and not a State employee, testified that the accident occurred on a very rainy day. She and eight or ten people, including Lewis, had just returned from lunch. There was water on the floor because people were “coming in and out” and no warning sign. She said Lewis had used a cane since joining her class three months earlier and was using it on the day of the accident.

Wilson stated that because it was wet and Lewis could not walk fast, they walked slowly along the outside covered walkway. As she entered the door Lewis took one or two steps and her “feet went from under her, it appeared.” According to Wilson, “we stood her up”, walked her to the cafeteria, and Leroy Kendrick handled the matter. Wilson assumed the accident brought Eubanks out of her office. She denied speaking to Eubanks prior to the fall.

Willestine Davis, a friend of Lewis and a student at the school, testified that Lewis always used her cane, never ran or rushed, and was not known to slip. Davis said that on the day of the fall Wilson accompanied Davis and Lewis back from lunch. Davis opened the school’s door and Lewis entered. As Davis closed the door Lewis took “one, two, maybe three steps” and slipped. Davis and Wilson tried to break her fall. Davis stated she did not see water on the floor until she tried to get Lewis up and there were no warning signs at the side entrance.

Leroy Kendrick testified that he was unaware of an accident on November 26,1980 [486]*486or any water leak in the building. He stated he did not know Lewis.

Cedric Davis and Virginia Stephens, instructors at the school, testified that they did not know the door entrance had a leak. Davis, a welding instructor, stated he would normally be contacted to make repairs that could be made by his department. Stephens stated she walked through the side entrance about five times a day and never saw water on the floor, even when it rained.

Estella Lain, assistant school director, testified her duties included the repair of leaks and she was “in charge that afternoon.” She said there was no leak above the door and no rainy day procedure, except that custodians should check for water on the floor. She acknowledged water could have been tracked inside. She stated it was reasonable to expect custodians to be stationed by the doors to mop up water and there should have been a mat outside the door. She noted the school had “Wet Floor” signs and the floors were waxed about twice a month and buffed to a very shiny surface.

Two experts conducted tests to determine the coefficient of friction at the en-tranceway.

Gordon Goldman, plaintiffs expert, used tests which were conducted four years after the accident. Using a Brungraeber testing device, Goldman got an average static co-efficient of .32 dry and .28 with a thin film of water. Goldman testified that the Federal Trade Commission recommends a static co-efficient of .50 or greater and a dynamic co-efficient of .40 or greater for a floor to be considered safe. Using his findings and Pappas’ report, he concluded the floor was inherently dangerous.

George Pappas’ report, submitted by the defense and introduced by stipulation, states that Lewis’ expert did not use the proper machine. His report was based on tests conducted seven years after' the accident. Pappas used a Brungraeber testing device and concluded the average co-efficient on a dry floor was .71. A “ASTM Technical Products Model 80” found the average co-efficient was .59. Pappas did not consider either test to be valid on a wet floor. Using an NBS Sigler Pendulum Slipperiness Tester, Pappas found an average dynamic co-efficient of .34 on a dry floor and .20 on a wet floor. All the tests were performed with leather heels.

Pappas’ report states that when a slip is involved the dynamic co-efficient is the most important characteristic because it considers motion. The report concludes that the floor was not unreasonably dangerous or defective.

Mary Lewis testified that she used a cane and wore “desert boots” with a “grip sole”. She described the weather as “stormy” when she returned from lunch. She walked under the covered walkway to the side door, took a “couple” of steps, her left leg slipped, she fell on her back and hit her head on the wall. She said she was not running.

Lewis testified she did not know water was on the floor until she tried to get up and put her hand in water. Lewis said there was no warning sign at the entrance and the floor mat had been removed.

Lewis claims that after the accident she spoke to Eubanks and was taken to the cafeteria where Kendrick asked if she wanted to go to the hospital. Lewis said Kendrick authorized payment for her medical expenses.

The State claims it was not negligent, rather, Lewis “had been running down a 40 foot long and 10 foot wide covered breezeway adjacent to the building” and

[N]o proof was presented whatsoever that water was actually present or actually was the cause of the alleged slip and fall, nor at trial was there no [sic] proof that the roof leaked.

Dot Wilson, Willestine Davis and Lewis testified that Lewis was not running and slipped in water inside the door. Lewis’ use of a cane and her physical condition tends to support their assertions.

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Related

Thumfart v. Lombard
613 So. 2d 286 (Louisiana Court of Appeal, 1993)
Lewis v. State
551 So. 2d 1326 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
546 So. 2d 484, 1989 La. App. LEXIS 639, 1989 WL 35069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-lactapp-1989.