Varnell v. Louisiana Tech University

709 So. 2d 890, 1998 La. App. LEXIS 250, 1998 WL 78684
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1998
Docket30260-CA
StatusPublished
Cited by5 cases

This text of 709 So. 2d 890 (Varnell v. Louisiana Tech University) 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
Varnell v. Louisiana Tech University, 709 So. 2d 890, 1998 La. App. LEXIS 250, 1998 WL 78684 (La. Ct. App. 1998).

Opinion

709 So.2d 890 (1998)

Margie Faye VARNELL, et al., Plaintiffs-Appellees,
v.
LOUISIANA TECH UNIVERSITY, et al., Defendants-Appellants.

No. 30260-CA.

Court of Appeal of Louisiana, Second Circuit.

February 25, 1998.

*891 William James Staser, LaVon Denise Raymond, Baton Rouge, for Defendants-Appellants.

Paul Boyd Wilkins, Gregory Lee Lewellyan, Columbia, for Plaintiffs-Appellees.

Before NORRIS, BROWN and PEATROSS, JJ.

NORRIS, Judge.

Louisiana Tech University and the Board of Trustees for State Colleges and Universities appeal a judgment finding them 100% at *892 fault in a slip and fall that injured the plaintiff, Margie Faye Varnell, and awarding Mrs. Varnell and her husband $576,454.47 in damages. The defendants (hereinafter, "the State") contest the allocation of fault as manifestly erroneous and two items of damage as duplicating other elements of recovery. We amend the judgment to find the State only 75% at fault, but in all other respects affirm.

Factual and procedural background

This case has been before us on a prior occasion; we reversed and remanded because of the improper imposition of a discovery sanction. Varnell v. Louisiana Tech Univ., 28,266 (La.App.2d Cir. 4/3/96), 671 So.2d 1238. We will restate the facts as they appeared in that opinion, with minor changes.

Pamela Varnell is the daughter of the plaintiff, Margie Faye Varnell ("Mrs.Varnell"). Pamela and her roommate, Hyun McLemore, were students at Louisiana Tech in the summer of 1991, living in Room 418 of Kidd Hall, a campus dormitory. In mid-June, water began leaking from the air conditioning unit in their room. Pamela and Hyun notified their residence assistant, Shelly McCullough, of the problem several times. Each wrote her name, room number, and "leaking air conditioner" on the bulletin board outside the R.A.'s door. Pamela also testified that she verbally reported the problem to the R.A. several times. The school's maintenance personnel twice attempted to repair the leak, but water resumed dripping within 48 hours of each repair.

The air conditioner was located over the sink; the dripping water ran down the wall to the sink counter and onto the floor. In order to catch and absorb the dripping water, Pamela and Hyun placed large plastic cups and towels on the floor. They testified that the water leaked so profusely that they needed to empty the cups and change the towels two or three times each day. When the room was unoccupied for an extended period, water puddles would form on the floor.

On Thursday, August 8, 1991, Pamela left the dorm to visit her parents at home in Grayson, and returned on Sunday, accompanied by her mother. Hyun was also away for the weekend. Pamela entered the room, noticed phone messages on her answering machine, and immediately sat on her bed to listen to the messages. Mrs. Varnell, who had stopped in the doorway and was holding two bags of groceries, started to walk toward Hyun's bed to set down the bags. After a step or two, however, she slipped in accumulated water on the floor. She fell and injured her right knee.

Pamela and her mother went to the R.A.'s room and reported again that the air conditioner in Room 418 needed repair and that Mrs. Varnell had fallen and hurt her leg. The next day, Pamela spoke with Mr. King, the director of housing and residential life. She related the ongoing problem with the leaking unit, the failed repairs, and the accident. Within one hour of this conversation, maintenance personnel repaired the leak.

Mrs. Varnell sought medical attention for her injury in February 1992, almost six months after the accident. Shortly thereafter, her orthopedic surgeon (who became her treating physician), Dr. Baer Rambach, performed arthroscopic surgery to repair damage in Mrs. Varnell's right knee. He monitored her until January 1993, when he released her to return to work with a 25% permanent partial disability in her knee. She returned to him, however, because of persistent pain and swelling in the right knee, as well as pain in the left knee from overwork. In September 1993, Dr. Rambach performed incisional surgery to correct hyper mobility and moderate-to-severe chondromalacia of her left kneecap.

Mr. and Mrs. Varnell filed the instant suit in July 1992, alleging that the State was negligent and strictly liable for the injuries they had sustained. They named Pamela as a defendant. The State answered and filed a third party demand against Pamela, urging that she was responsible for all or part of any damages because she failed to warn her mother of a dangerous condition.

The first trial was held in November 1993. The Varnells filed a motion in limine to exclude defense witnesses' testimony on grounds that the State had not provided the names and addresses of their witnesses until *893 six days before trial. The District Court excluded from evidence those witnesses and their exhibits, and ultimately rendered judgment holding the State was liable for all injuries, and fixing damages at $551,454.47 for Mrs. Varnell and $25,000 for Mr. Varnell.[1] As noted, this court reversed and remanded on a finding that the exclusion of all defense evidence was an unwarranted sanction for the discovery violation. Varnell v. Louisiana Tech Univ., supra.

At the second trial, in November 1996, the State presented the live testimony of an expert economist and various documentary evidence. Without stating additional reasons, the District Court in January 1997 re-rendered its original judgment. The State has appealed.

Applicable law

Liability in slip and fall cases is normally based on strict liability, La. C.C. art. 2317,[2] negligence, La. C.C. art. 2315,[3] or both. Fontenot v. Fontenot, 93-2479 (La.4/11/94), 635 So.2d 219; Choyce v. Sisters of the Incarnate Word, 25,958 (La.App.2d Cir. 8/19/94), 642 So.2d 287, writ denied 94-2510 (La.12/9/94), 647 So.2d 1119. A strict liability claim requires a showing that the premises which caused the accident were in the care, custody or control of the defendant, that the premises had a vice or defect which created an unreasonable risk of harm, and that the plaintiff's damages were caused by the vice or defect. Fontenot v. Fontenot, supra. When the owner or custodian of the premises is a public entity, the plaintiff must additionally show that the defendant had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and a reasonable opportunity to remedy the defect but has failed to do so. La. R.S. 9:2800 B; Maxwell v. Board of Trustees, 96-1207 (La.App. 3d Cir. 3/19/97), 692 So.2d 641, writ denied 97-0996 (La.6/13/97), 695 So.2d 987.

A negligence claim requires a showing that the defendant had a duty to conform her conduct to a specific standard, that she failed to conform her conduct to that standard, that her conduct was the cause in fact and a legal cause of the plaintiff's injuries, and that the plaintiff incurred damages as a result. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Fitzgerald v. Files Timber Co., 29,145 (La.App.2d Cir. 1/22/97), 687 So.2d 674, writ denied 97-0467 (La.4/4/97), 692 So.2d 419. In a slip and fall claim based on negligence, the defendant's awareness of the dangerous condition of the premises gives rise to a duty to act. Oster v. Department of Transp. & Dev., 582 So.2d 1285 (La.1991); Maxwell v. Board, supra. The duty may be to warn third persons of the hazard. See, e.g., Stevens v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Davis v. Foremost Dairies
58 So. 3d 977 (Louisiana Court of Appeal, 2011)
McGee v. AC AND S, INC.
933 So. 2d 770 (Supreme Court of Louisiana, 2006)
Review Panel v. Bernice Rehab. Hosp.
870 So. 2d 467 (Louisiana Court of Appeal, 2004)
Matos v. Clarendon Nat. Ins. Co.
808 So. 2d 841 (Louisiana Court of Appeal, 2002)
Morace v. Melvyn's Restaurant, Inc.
719 So. 2d 139 (Louisiana Court of Appeal, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
709 So. 2d 890, 1998 La. App. LEXIS 250, 1998 WL 78684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varnell-v-louisiana-tech-university-lactapp-1998.