Mundy v. DEPT. OF HEALTH & HUMAN RES.

609 So. 2d 909, 1992 WL 335273
CourtLouisiana Court of Appeal
DecidedFebruary 19, 1993
Docket90-CA-1264
StatusPublished
Cited by10 cases

This text of 609 So. 2d 909 (Mundy v. DEPT. OF HEALTH & HUMAN RES.) 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
Mundy v. DEPT. OF HEALTH & HUMAN RES., 609 So. 2d 909, 1992 WL 335273 (La. Ct. App. 1993).

Opinion

609 So.2d 909 (1992)

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

No. 90-CA-1264.

Court of Appeal of Louisiana, Fourth Circuit.

November 13, 1992.
Writ Granted February 19, 1993.

*910 Philip H. Kennedy, Dept. of Health and Hospitals, Bureau of Legal Services, New Orleans, for appellants.

*911 Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin & Murray, Metairie, for appellee.

Before CIACCIO, LOBRANO and WARD, JJ.

CIACCIO, Judge.

ON REMAND FROM THE SUPREME COURT

This appeal has been remanded to this Court pursuant to the Louisiana Supreme Court's decision in Jenera Mundy v. The Department of Health and Human Resources, et al., 593 So.2d 346 (1992), for a review of the trial court's findings on the issues of negligence and quantum. The defendants, the Louisiana Department of Health and Human Resources and Charity Hospital in New Orleans, had originally appealed the trial court's judgment in favor of the plaintiff, finding Charity Hospital, plaintiff's employer, liable, in tort, for plaintiff's injuries.

This Court reversed the lower court's judgment, finding the trial court erred in holding that that plaintiff's injuries did not arise out of or occur in the course and scope of her employment.[1] The Supreme Court granted writs and reversed our judgment, finding that the defendant employer failed to meet its burden of proving entitlement to tort immunity under LSA-R.S. 23:1032.

Plaintiff filed this tort action against her employer, Charity Hospital, alleging Charity's negligence in failing to provide adequate security in the hospital and to maintain procedures for the safety of patients, visitors and employees.

The facts of this case as set forth by the Supreme Court in Jenera Mundy v. Department of Health and Human Resources, et al., supra are as follows:

Plaintiff had been employed by the Department of Health and Human Resources as a licensed practical nurse for eleven years. At the time of the incident she was working the evening shift in the dialysis department located on the eleventh floor of Charity Hospital. Evening shift employees in that department were expected to report to work at 11:15 p.m. and were considered to be late at 11:20 p.m., although the afternoon shift did not end until 11:30 p.m.
On November 13, 1986, plaintiff arrived at the hospital at approximately 11:17 p.m. and proceeded to the east elevators. She noticed that the two guards usually stationed at those elevators were not present at the time. After plaintiff entered the elevator on her way to work on the eleventh floor, a man jumped into the elevator as the doors closed and pressed the second floor button. When the elevator stopped at the second floor, the man began to leave the elevator, but turned suddenly and attacked plaintiff with a knife. Plaintiff pressed the emergency button on the elevator panel, hoping that the alarm would scare off the assailant or attract assistance. However, the button was not in working order, and the alarm did not sound. The assailant stabbed plaintiff repeatedly while standing in the elevator door before losing his balance and falling backward, allowing the doors to close. Plaintiff then sought assistance on an upper floor.
593 So.2d at 348.

Following a trial on the merits, the trial court found that Charity was negligent in the maintenance and operation of the hospital premises under LSA-C.C. art. 2315, and rendered judgment in favor of plaintiff in the amount of $125,000.00, subject to a credit of $6,338.61 for compensation benefits paid by her employer.

As to Charity's negligence, the trial court made the following findings as stated in his oral reasons for judgement:

The court further finds, as a matter of fact, that in this record, in this regard, in this situation the hospital was negligent. That the hospital owed a duty to the plaintiff to protect her as she came into *912 the hospital. It is difficult for the Court to believe that the hospital has a policy that says we will protect those persons who are departing the hospital late at night but we have no policy whatsoever to protect those who are coming into the hospital. I'm quite sure that this is the policy of the hospital but for the chief of security to make such a statement from the stand would indicate to me that at least the policy of the hospital's own security is not sufficiently strong as would affect the chief of security to the extent that he would make such an admission on the stand. I think that that statement, that admission indicated that at the time of this accident security regulations were lax, at least.
The trial judge further stated:
But this Court cannot ignore the fact or the cause as they were developed on this witness chair and the Court is convinced that in several areas the hospital was negligent. The hospital violated it's duty and that the plaintiff should not have had to run the risk of being injured in the fashion that she was injured. That she had come to rely upon the presence of a guard in the area. And that on this occasion there was no guard in the area. But I would like to underscore the Court's finding that she could not possibly have contemplated any injury at the time that she got on the elevator because the testimony of Miss Mundy, uncontradicted, was that the assailant got on the elevator at the very last moment and she did not know that she was in any danger until such time as the assailant had pushed the button to stop on the second floor and the elevator had come to a stop on that second floor and the doors were about to open or had opened.
For all of these reasons the Court finds that the defendant Charity Hospital has been negligent and that under 2315 the plaintiff is entitled to recover as follows:

Louisiana courts employ a duty/risk analysis to determine what constitutes actionable negligence in a tort suit. See, e.g.: Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976). In order to prevail in a negligence action under the duty/risk analysis, plaintiff must prove (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached the duty; (3) that the breach was a cause-in-fact of the harm; (4) that the risk and harm encountered by the plaintiff falls within the scope of the protection afforded by the duty breached (proximate cause). Harris v. Pizza Hut of Louisiana, Inc., supra, 455 So.2d at 1370. Duty is a question of law. Id. at 1371. Whether a defendant has breached a duty owed is a question of fact. Annis v. Shapiro, 517 So.2d 1237 (La.App. 4th Cir.1987).

In general, owners and occupiers of land have a duty to refrain from acting negligently toward those they know will come onto their property. The proper test is "whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others..." Cates v. Beauregard, 328 So.2d 367 (La.1976); Shelton v. Aetna, supra; Barcia v. Estate of Keil, 413 So.2d 241 (La. App. 4th Cir.1982). The duty is not to insure against the possibility of an accident, but to act reasonable. Id. at 243. Thus, the landowner has a duty to discover any unreasonably dangerous conditions on the premises and to either correct the conditions or warn of the danger. Shelton v. Aetna, supra, 334 So.2d at 410; Malcolm Sutter v.

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Bluebook (online)
609 So. 2d 909, 1992 WL 335273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mundy-v-dept-of-health-human-res-lactapp-1993.