Philippe v. Lloyd's Aero Boliviano

710 So. 2d 807, 97 La.App. 1 Cir. 0258, 1998 La. App. LEXIS 310, 1998 WL 79132
CourtLouisiana Court of Appeal
DecidedFebruary 20, 1998
DocketNo. 97 CA 0258
StatusPublished
Cited by1 cases

This text of 710 So. 2d 807 (Philippe v. Lloyd's Aero Boliviano) 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
Philippe v. Lloyd's Aero Boliviano, 710 So. 2d 807, 97 La.App. 1 Cir. 0258, 1998 La. App. LEXIS 310, 1998 WL 79132 (La. Ct. App. 1998).

Opinion

SHORTESS, Judge.

Robert “Brown” Philippe (Brown) suffered a stroke in October 1987 while on a “Grand Tour of South America.” The tour was organized by Olson Travelworld, Ltd.1 The stroke allegedly occurred as he was deplaning in La Paz, Bolivia, after a Lloyd’s Aero Boliviano [809]*809(LAB) flight from Arica, Chile. Brown sued LAB, Olson-Travelworld Organization, Ltd. (Olson) and its insurer, Home Insurance Company (defendants), alleging he was damaged by LAB’s failure to properly pressurize the plane and Olson’s failure to warn him of the dangers of high-altitude travel, to design a safe itinerary, and to properly care for him after the stroke.2 Brown’s wife Viola joined in the suit seeking damages for loss of consortium (Brown and Viola Philippe are hereinafter referred to as plaintiffs). After a bench trial, the court found plaintiffs’ damages totaled $1,168,320.09. It assessed fault equally between LAB and Olson. Defendants appealed both liability and damages. Plaintiffs answered the appeal, challenging the trial court’s apportionment of fault to LAB.

The parties stipulated to the following facts. Arica, Chile, is 180 feet above sea level, while La Paz’s altitude is 13,313 feet. Plaintiffs’ flight from Arica to La Paz lasted only thirty to forty minutes. Olson determined the itinerary for the trip. Before leaving on the tour, plaintiffs received four brochures: 1987 Travel World South Amer-ica, Travel Facts, South America Digest, and the Final Itinerary. Karen Bergstrom, an employee of Olson, was the tour leader and arrived with plaintiffs in La Paz.

Plaintiffs contend Olson failed to warn them of the dangers of high-altitude travel and to immediately return Brown to sea level after the stroke. Plaintiffs further contend the design of the tour, including the decision to go to La Paz and to go there by plane from Arica, exposed plaintiffs to an unreasonable risk of harm. Defendants contend, however, that Olson was free from fault because it was completely unforeseeable that Brown might sustain the type injury he suffered, that ^plaintiffs failed to show their damages were caused by altitude, and that such risk was not within the scope of the duty owed to plaintiffs.

Among the terms used by the experts in this case were hypoxia, mountain sickness, and altitude illness. Hypoxia simply means lack of oxygen, although medical experts commonly use the term to refer to problems caused by lack of oxygen. Mountain sickness is a reaction to hypoxia. In its mild form, it causes slight, short-lived light-head-edness, dizziness, and headache. In its acute form, it consists of headache, nausea, vomiting, shortness of breath, and fatigue, sometimes described as feeling like “a bad hangover.” Altitude illness is a much broader term. It refers to the spectrum of ill effects from high-altitude travel ranging from mild headache to stroke.

The trial court found that Bergstrom, as Olson’s employee, had a duty to warn plaintiffs “of the danger of hypoxia or altitude sickness”; that stroke “is a rare but extreme form of altitude sickness”; that Bergstrom was given no special instructions about altitude and medical problems at La Paz and gave plaintiffs no warnings; that Brown’s recovery was impeded by Olson’s failure to immediately arrange to return him to sea level when his symptoms began; that the “accident” caused Brown’s stroke; and that as a result of the stroke, plaintiffs were damaged.

Defendants asserted eleven assignments of error. In their first assignment, defendants contend the trial court erred in finding Olson was obligated under its contract with plaintiffs to protect them from the risk of Brown having a stroke under the facts and circumstances of this case. Defendants argue in their second assignment that the trial court erred in finding Bergstrom had a duty to warn plaintiffs “of the potential of having a stroke” when flying from Arica to La Paz. In their seventh assignment of error, defendants contend plaintiffs failed to prove causation. These assignments of error are interconnected and will be addressed herein under a duty-risk analysis, which our su[810]*810preme court has recommended as helpful in resolving this type of negligence case.3

14Under a duty-risk analysis, four inquiries must all be answered affirmatively for plaintiffs to prevail on a negligence theory, i.e.:

(1) Was the conduct in question a cause-in-fact of the resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Were the requisite duties breached?
(4) Was the risk and harm caused within the scope of protection afforded by the duty breached?4

Normally we first determine whether the conduct in question was a cause-in-fact of plaintiffs’ harm.

Plaintiffs allege the failure of both Berg-strom and Olson to warn them of the dangers of altitude illness caused their damages. The trial court addressed only Bergstrom’s conduct in its written reasons, finding she had a duty as Olson’s employee to warn plaintiffs of the dangers of altitude illness but failed to do so. The court did not directly address whether her conduct caused plaintiffs’ damages but held Brown was injured “[a]s a result of the accident....”

Defendants contend Bergstrom was only a tour guide and had no duty to warn the plaintiffs of health risks. Alternatively, they argue the warning she gave them was sufficient. Viola testified Bergstrom told them that because of the altitude in La Paz, they should take it easy when they first arrived and should not drink alcohol. Other than a paragraph describing the tour guide’s role in one of Olson’s brochures, there is no evidence in the record that it is required, or even expected, in the travel industry, for a tour guide to advise the tour group of health risks.

Even if we assume for the sake of argument that Bergstrom had a duty to warn plaintiffs of the risk of altitude sickness and failed to do so, was her failure to warn a cause-in-fact of plaintiffs’ damages? Cause-in-fact is generally determined by asking “but for” the defendant’s substandard conduct, would the plaintiff probably have sustained the injuries.

To prove cause-in-fact in this case, plaintiffs were required to show that more likely than not they would have refused to travel to La Paz had they known of the risk of altitude illness. Although the parties state in brief that Bergstrom met plaintiffs in Miami, the only evidence in the record indicating when Bergstrom was Isfirst in contact with plaintiffs is Viola’s testimony that the tour began in Rio. There is no evidence in the record whatsoever to show they would have left the tour either in Rio or at some other point before reaching La Paz had Bergstrom warned them. Thus, plaintiffs have failed to show Bergstrom’s failure to warn them more fully of the dangers of high-altitude travel was a cause-in-fact of their damages.

Plaintiffs had a similar burden of proving they probably would not have gone on the tour to begin with had Olson warned them of the risks. Both Dr. Charles S. Houston and Dr. Peter Hackett, plaintiffs’ and defendants’ experts in altitude medicine, respectively, testified the warnings given by Olson were inadequate. Those warnings are found in two brochures, South America Travel Facts and South America Travel Digest.

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Bluebook (online)
710 So. 2d 807, 97 La.App. 1 Cir. 0258, 1998 La. App. LEXIS 310, 1998 WL 79132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philippe-v-lloyds-aero-boliviano-lactapp-1998.