Simoneaux v. Humedicenters, Inc.

642 So. 2d 318, 1994 La. App. LEXIS 2352, 1994 WL 466000
CourtLouisiana Court of Appeal
DecidedAugust 30, 1994
DocketNo. 93-CA-2044
StatusPublished
Cited by3 cases

This text of 642 So. 2d 318 (Simoneaux v. Humedicenters, Inc.) 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
Simoneaux v. Humedicenters, Inc., 642 So. 2d 318, 1994 La. App. LEXIS 2352, 1994 WL 466000 (La. Ct. App. 1994).

Opinion

11WARD, Judge.

Leroy and Elvira Simoneaux sued Humana Hospital for damages he sustained in a slip and fall at the Hospital. Humana denied liability and pled Simoneaux’s contributory and comparative negligence as a defense. The jury found Humana liable and awarded Leroy Simoneaux $387,000 in damages, which was later reduced by the trial court to conform with the evidence.1

Humana has appealed and now argues the jury erred by finding it negligent, by awarding excessive damages, and by failing to find Leroy contributorily negligent. Humana also argues the trial court erred in evidential rulings.

Leroy and Elvira Simoneaux have answered the appeal. He seeks an increase in damages; she seeks damages for loss of consortium. We affirm in part and amend in part to award damages to Elvira Simoneaux for loss of consortium.

Trial testimony indicated that on January 6, 1990, as Leroy Simoneaux entered the men’s bathroom from the lobby of Humana Hospital he noticed water spots on the floor in several places — some in front of the urinals, others on the floor in the stalls. Simo-neaux ^testified that the lighting was not working to capacity and there was no warning of any substance on the floor. He attempted to avoid the puddles as much as possible in using the facilities but stated it was impossible to do so. When exiting the bathroom, as he stepped onto the lobby floor his feet slipped out from under him in a “banana split” fashion. He attempted to avert the fall and landed on his right arm. [320]*320After the fall, he noticed water on his pants’ leg and he felt lower back pain.

He reported the incident to hospital personnel and proceeded to the emergency room for treatment. The doctor on duty examined him, took x-rays, gave him a “couple” of prescriptions for pain and diagnosed his condition as a “lumbar strain.” The doctor recommended that he seek additional medical attention if the pain persisted.

Simoneaux offered the corroborating testimony of his ten year old daughter who saw him fall. Although his wife did not actually witness her husband’s fall, she also corroborated his testimony as to his wet clothing and his injury.

Chris Howard, a Humana maintenance engineer, testified that he took a statement from Simoneaux in the emergency room and inspected the bathroom after the incident. He said he found nothing on the floor in front of the bathroom but he did notice liquid in front of the urinals and beneath the urinals on the floor. Mr. Howard told the court that he inspected the bathroom and found nothing leaking and he therefore presumed someone had “missed” the urinal.

In its first assignment of error, Hu-mana contends that the jury’s response to interrogatories are inconsistent and warrants a reversal of the finding of liability. Humana finds inconsistency in the jury’s response to the interrogatories wherein in one response the jury said Humana was negligent in failing to inspect and clean the bathroom within a reasonable period of time before the accident while in another response the jury said that there was not an unreasonably dangerous and/or hazardous condition on the premises. Humana argues that the inconsistency precludes a finding of negligence. We disagree.

Mr. and Mrs. Simoneaux alleged a defective toilet leaked, creating an unreasonably dangerous or hazardous condition, contending Humana was strictly liable for because it had ‘garde’ of the toilet. The evidence was considered by the jury, and |gundoubtedly persuaded by Mr. Howard’s testimony, the jury found that there was not an unreasonably dangerous condition, — the toilet was not defective. Nonetheless, there was evidence of Humana’s failure to clean up the floors, a matter of negligence, not a defect in a thing over which Humana had control, and the jury could well find negligence even if there was not a defective toilet.

In a slip and fall suit a prima facie case is established when plaintiff shows that a foreign substance was on the floor, that he slipped and fell on the foreign substance and that he suffered injury as a result. Fitzgerald v. Gulf Intern. Cinema Corp., 489 So.2d 306 (La.App. 4 Cir.1986). Once plaintiff makes this threshold showing, the burden of proof shifts to the premises owner to exculpate itself from the presumption of negligence. Pfiffner v. Touro Infirmary, 529 So.2d 102 (La.App. 4 Cir.1988). To prove freedom from fault, the business establishment must show that it exercised reasonable care for the safety of its patrons. This showing includes evidence of the enforcement of reasonable protective measures, including periodic inspections, to keep the floors free of foreign substances and debris. Carrollo v. Shoney’s Big Boy Enterprises, 433 So.2d 803 (La.App. 5 Cir.1983). A slip and fall in a hospital caused by a foreign substance on the floor is not a claim for malpractice, but a claim for negligence. See, e.g., LeBlanc v. Alton Ochsner Medical Found., 563 So.2d 312 (La.App. 5 Cir.1990).

Although Mr. Simoneaux and Chris Howard offered contradictory testimony concerning the condition of the entrance to the toilet and the bathroom floor, the jury obviously credited Simoneaux’s testimony and found that there was a foreign substance on the floor which in fact caused his fall.

Once Mr. Simoneaux established that he fell, the burden shifted to Humana to exculpate itself by showing it took reasonable precautions. Humana failed to present any evidence that its employees cleaned or inspected the bathroom or the area in front of the bathroom on the day of the incident.

We find no error in these findings of fact or the jury’s conclusion.

In a second assignment, Humana argues the jury erred in not finding Mr. Simo-neaux contributorily negligent, because Mr. [321]*321Simoneaux’s testimony shows he observed |4the hazardous condition of the bathroom floor and yet encountered that hazard voluntarily. Humana contends he slipped and fell through his own carelessness.

Simoneaux stated that upon entering the bathroom he saw “water spots in several places” on the floor. He “dodged” as much of the water as he could but stepped in some “when [he] got in front of the urinal” ... “[bjecause [he] didn’t have any choice, it was there. You had to step in it to get to the urinal.” He testified that the lighting was inadequate, no sign warned of the presence of water on the floor and the floor was a light colored tile. Simoneaux- did not note the presence of water outside the bathroom because “[he] wasn’t looking for any.”

Allocation of comparative fault is a factual matter lying within the discretion of the fact finder and will not be disturbed unless manifestly erroneous. Scamardo v. New Orleans Stevedoring Co., 595 So.2d 1242 (La.App. 4 Cir.1992). Under the facts of this ease we find no manifest error in the jury’s allocation of fault solely to Humana.

Humana’s next assignment charges error in the trial court’s refusal to allow Mrs. Shirley Trout, Simoneaux’s next door neighbor, to testify. Humana moved to add her as a witness the day before trial. The trial court refused Humana’s request and Huma-na proffered her testimony which in essence contradicted Simoneaux’s assertions that his back injury disabled him.

Mrs. Trout stated that Humana’s investigator had approached her about testifying approximately two months before trial. She told the investigator that Mr. Simoneaux was her next door neighbor. She also admitted that she and the investigator were friends.

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642 So. 2d 318, 1994 La. App. LEXIS 2352, 1994 WL 466000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simoneaux-v-humedicenters-inc-lactapp-1994.