Mundy v. Dept. of Health & Human Res.

620 So. 2d 811, 1993 WL 227773
CourtSupreme Court of Louisiana
DecidedJune 30, 1993
Docket92-C-3251
StatusPublished
Cited by197 cases

This text of 620 So. 2d 811 (Mundy v. Dept. of Health & Human Res.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mundy v. Dept. of Health & Human Res., 620 So. 2d 811, 1993 WL 227773 (La. 1993).

Opinion

620 So.2d 811 (1993)

Jenera MUNDY
v.
The DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.

No. 92-C-3251.

Supreme Court of Louisiana.

June 17, 1993.
Dissent with Reasons filed June 30, 1993.

Julian R. Murray, Jr., Thomas P. Breslin, Jr., Chehardy, Sherman, Ellis & Breslin, Metairie, for applicant.

Philip H. Kennedy, New Orleans, for respondent.

Dissent with Reasons filed by Justice Watson, June 30, 1993.

MARCUS, Justice.[*]

Jenera Mundy filed this tort action against her employer, the Department of Health and Human Resources (Department), State of Louisiana, and Charity Hospital of Louisiana at New Orleans to recover damages for injuries sustained when she was attacked by an unknown assailant in an elevator at Charity Hospital in New Orleans. Plaintiff alleged that defendants were negligent in failing to provide adequate *812 security in the hospital and in failing to maintain a safe environment for employees, patients and visitors. The trial judge rendered judgment in favor of plaintiff against the Department[1] in the amount of $125,000, together with interest and costs, subject to a credit of $6,338.61 for compensation benefits paid by her employer. The Department appealed. The court of appeal reversed, finding that plaintiff was in the course and scope of her employment at the time of the incident and her exclusive remedy was in worker's compensation.[2] We granted certiorari and reversed, finding that the Department failed to prove that plaintiff was in the course and scope of her employment at the time of the incident and thus it was not entitled to tort immunity.[3] We remanded to the court of appeal to review the trial judge's findings on the issues of negligence and quantum. On remand, the court of appeal found that plaintiff failed to prove that the hospital was negligent.[4] On plaintiff's application, we granted certiorari to review the correctness of that decision.[5]

Plaintiff was employed by Charity Hospital as a licensed practical nurse and had worked the 11 p.m. to 7 a.m. shift for about ten years. At the time of the incident, she was working the evening shift in the dialysis department located on the eleventh floor of the hospital. On the evening of November 13, 1986, plaintiff arrived at the hospital at approximately 11:20 p.m. and entered the hospital through the pediatric emergency room entrance on the first floor of the east wing of the hospital as was her customary procedure. She testified that there were a lot of people in the hallway near the entrance. She proceeded down the hall and turned left to the east bank elevators. Plaintiff testified that two security guards were usually standing near the elevators when she arrived but on this evening they were not present. While waiting for the elevator plaintiff noticed people walking in the area and by the telephones which were nearby.

After plaintiff entered the elevator and just as the doors were closing, a man "jumped" in the elevator and pushed the second floor button. As the man was leaving the elevator on the second floor, he turned suddenly and attacked plaintiff with a knife. A struggle ensued in which the assailant attempted to pull plaintiff off the elevator. Plaintiff pressed the alarm button on the elevator, expecting a signal to go off and someone to come onto the speaker in the elevator, but nothing happened. During the struggle, plaintiff received knife wounds on her back, neck, chest and left hand. Finally, during his attempt to pull plaintiff off the elevator, the assailant fell backward off the elevator and the elevator doors closed. Plaintiff then pressed the seventh floor button and sought assistance.

The defense presented the testimony of Robert Coleman, hospital police captain in charge of the night shift security at Charity Hospital for about fifteen years. In November of 1986, he had about twentyfive persons working the night shift under his supervision. He testified that some security personnel had specific posts or assignments while others were roving personnel. All visitors to the hospital were supposed to receive a routing slip or visitors pass and one of the duties of security personnel was to check persons for a slip or pass.

Coleman testified that the east bank elevators where this incident occurred was not one of the post assignments. However, when he had extra personnel, he would place them in the lobby of the east and west bank elevators, and this would occur about two or three nights a week. Besides the post assignments, the hospital security provided routine patrols and an escort service *813 upon request for employees leaving the premises.

Coleman further stated that about 1500 to 2500 employees would enter and leave the hospital during a change of shifts. There are several entrances that both employees and visitors can use to enter and exit the hospital. At the time of the incident, someone was posted at the pediatric entrance (where plaintiff entered the premises) which is down the hall from the east bank elevators. While Coleman was aware of assaults and other problems occurring near the emergency room, he testified that he did not know of any prior assaults occurring near the east bank elevators. Coleman testified that the hospital routinely discarded incident reports and security assignment sheets after one year. Thus, he did not have an incident report or a security assignment sheet from the night of November 13, 1986.

Clara Whitelow, an elevator console operator at Charity Hospital at the time of the incident, testified that while monitoring the operation of the east bank elevators from a panel on the second floor that evening, a buzzer and a flashing light went off under elevator number three around the time of the alleged incident. She spoke into the two way communication system asking if she could help someone but no one answered. She testified that the elevator was leaving the fourth floor and was on the first floor when she first noticed the signal.

Coleman further testified that on the night of the incident, the two roving security personnel had called in to the dispatcher after hearing a lady screaming around the eighth floor. Subsequently, there were several calls from different floors. The dispatcher sent someone to check and Coleman and another officer proceeded to the east side to check on the situation.

The issue presented for our review is whether the Department is liable to plaintiff for the injuries inflicted upon her by an unknown assailant in the elevator of Charity Hospital.

Plaintiff contends that the Department was negligent in failing to maintain a reasonably safe environment for the employees, patients and visitors of Charity Hospital, in failing to provide adequate security around the elevators in the lobby of the hospital and in failing to maintain the elevator alarm system in working order. For the reasons set forth below, we find that plaintiff failed to prove that defendant was negligent and we deny recovery.

In order to determine whether liability exists under the facts of a particular case, our court has adopted a duty-risk analysis. Under this analysis plaintiff must prove:

(1) the conduct in question was the cause-in-fact of the resulting harm
(2) defendant owed a duty of care to plaintiff
(3) the requisite duty was breached by the defendant
(4) the risk of harm was within the scope of protection afforded by the duty breached

Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289 (La.1993); Mart v.

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Bluebook (online)
620 So. 2d 811, 1993 WL 227773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mundy-v-dept-of-health-human-res-la-1993.