Whiteman v. Worley

688 So. 2d 207, 96 La.App. 4 Cir. 0305, 1997 La. App. LEXIS 325, 1997 WL 70853
CourtLouisiana Court of Appeal
DecidedFebruary 19, 1997
DocketNo. 96-CA-0305
StatusPublished
Cited by1 cases

This text of 688 So. 2d 207 (Whiteman v. Worley) 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
Whiteman v. Worley, 688 So. 2d 207, 96 La.App. 4 Cir. 0305, 1997 La. App. LEXIS 325, 1997 WL 70853 (La. Ct. App. 1997).

Opinions

|!ARMSTRONG, Judge.

This is a personal injury case. The eleven month old baby of defendants Robert B. and Catherine S. Worley jabbed plaintiff Paulette Tokar Whiteman in the right eye with a ballpoint pen. Ms. Whiteman suffered a corneal abrasion which healed satisfactorily. However, soon thereafter, Ms. Whiteman developed an infection in her eye, which eventually was diagnosed as the sexually-transmitted disease chlamydia. Ms. Whiteman suffered for several months from the chlamydia eye infection and was left with some visual impairment to her right eye which can be remedied (perhaps not entirely) only by a corneal transplant.

Ms. Whiteman sued the Worleys for Civil Code Article 2318 strict liability, as the parents of the baby who had injured Ms. White-man, and their insurer, Aetna Insurance Company. After trial, a jury found liability and fixed damages at $160,000. The Worleys and their insurer appealed.

The parties agree that the Worleys are strictly liable under Civil Code Article 2318 for any injury-causing act of their baby which would have constituted negligence if the baby had been of rational age. Also, there appears to be no contest that the jabbing would have constituted negligence if the baby had been of ^rational age. Thus, we express no opinion as to those aspects of the strict liability determination.

However, the Worleys and their insurer raise a number of issues on appeal including causation (cause-in-faet as to the chlamydia infection), contributory negligence, quantum of damages, and evidentiary and jury instruction issues. We find that Ms. Whiteman failed to prove that the jab in the eye with the ballpoint pen was the cause-in-fact of her chlamydia infection, that the jury was not clearly wrong or manifestly erroneous in determining that Ms. Whiteman was not con-tributorily negligent, and that the other issues raised on appeal are rendered moot by our decision as to causation. We award Ms. Whiteman damages of $25,000 for the jab in her eye and the corneal abrasion (but not the chlamydia infection) but otherwise reverse the judgment of the trial court.

Ms. Whiteman and Ms. Worley were teachers at Trinity Episcopal School. On January 13, 1992, Ms. Worley was in the school’s faculty lounge, with her eleven month old baby, putting report cards into cubby holes for home room teachers. Ms. Whiteman observed that Ms. Worley’s baby was crawling about on a table and, fearing that the baby might fall, volunteered to hold onto her. Ms. Whiteman held the baby [209]*209around the tummy. While she was doing this, the baby began playing with Ms. Wor-ley’s purse. Suddenly, without any warning, the baby jabbed a ballpoint pen, apparently taken from the purse, into Ms. Whiteman’s right eye.

Ms. Whiteman was taken to the emergency room. Ms. Whiteman’s contact lens was tom in half. She was examined and given some treatment at the emergency room but was told to see an ophthalmologist right away.

|3Ms. Whiteman was seen by Dr. Dabezies, an ophthalmologist, the same day, January 13, 1992. He determined that she had suffered an abrasion to her comea. He treated Ms. Whiteman with a topical anaesthetic, an antibiotic and a bandage. The anaesthetic was given due to pain from exposed nerve endings resulting from the abrasion. The antibiotic was given due to a general risk of infection. Dr. Dabezies testified that there was an increased possibility of infection generally (not chlamydia) due simply to “germs in the atmosphere”.

Dr. Dabezies saw Ms. Whiteman for follow-up visits on January. 14, 15, 16 and 20, 1992 and continued to treat her with antibiotics. On January 20, 1992, her eye “seemed to be fairly clear and that’s the time I [Dr. Dabezies] first discharged her”. As of January 20,1992 her corneal abrasion had healed.

However, three days later, on January 23, 1992, Ms. Whiteman returned to Dr. Dabez-ies with an eye infection. He was surprised to see signs of infection at that point. He could not tell the source of the infection. He saw Ms. Whiteman again on January 24 and 27, 1992 and continued to treat her with an antibiotic as well as an ointment (apparently, a steroid) for swelling. However, her eye seemed to be the same or worse and she complained of pain during this period. The last time he saw Ms. Whiteman was January 27, 1992, as he was informed she was seeing another doctor, and he never conclusively established the cause of her eye infection.

Dr. Dabezies’ testimony was that Ms. Whiteman’s symptoms of eye infection, beginning on January 23, 1992, were “consistent” with a chlamydia infection although he had never diagnosed a chlamydia infection. He also testified that the most common way to get a chlamydia eye infection is to touch one’s genitals and then one’s eye. Dr. Da-bezies testified that he never determined that |4the infection was caused by a germ that she picked up when she had the corneal abrasion. He testified, in response to a hypothetical question from Ms. Whiteman’s counsel, that he “guessed” that it was “possible” that Ms. Whiteman had chlamydia germs in her eye at the time she suffered the corneal abrasion, she was treated by him with steroids that masked the symptoms of a chlamydia infection, and that the symptoms manifested later. However, Dr. Dabezies did not testify that the corneal abrasion made it any more likely that she would get a chlamydial infection of the eye nor did he testify that the jab with the ballpoint pen transmitted the chlamydia germs to her eye.

Ms. Whiteman went to see another ophthalmologist, Dr. Scott Lanoux, for a second opinion as to her eye infection. He was “suspicious” that “something” other than the jab with the ballpoint pen was “going on”. He had some concern that it could be a chlamydial infection and, because he did not have the equipment to do a culture for chlamydia, he referred her to Dr. Delmar Caldwell.

Dr. Caldwell is an ophthalmologist with a corneal subspecialty. He first saw Ms. Whiteman on February 5, 1992. Her right eye was infected and her left eye was clear. He performed cultures for both chlamydia and herpes. Later, the herpes culture was negative and the chlamydia culture was positive. But, on the February 5,1992 first visit, even before having the culture results, he started Ms. Whiteman on topical tetracy-clines which are a treatment for chlamydia. On her second visit, on February 10,1992, he started Ms. Whiteman on oral tetracyclines in addition to the topical tetracyclines. He saw Ms. Whiteman for a number of follow up visits. During this period she began to have an infection problem with her left eye. On March 11, 1992 Ms. Whiteman was much better and her eyes were mostly cleared up.

| gHowever, on March 25, 1992, Ms. White-man returned to Dr. Caldwell with a severe flareup or recurrence of the chlamydial infec[210]*210tion. Dr. Caldwell repeated the chlamydial culture and it later proved to be positive as to her left eye and negative for her right eye. Dr. Caldwell testified that, as of April 1, 1992, they were effectively starting the chla-mydial treatment over again. By April 29, 1992, the chlamydial infection was finally cleared up and Dr. Caldwell discontinued Ms. Whiteman’s medications on May 20, 1992.

Dr. Caldwell testified that chlamydia is a sexually-transmitted disease. That is, it is almost always transmitted from one person to another by sexual contact although there are rare exceptions when it is transmitted by some other means. He testified that, most likely, Ms. Whiteman got the chlamydia germs into her eye by her own hand.

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Bluebook (online)
688 So. 2d 207, 96 La.App. 4 Cir. 0305, 1997 La. App. LEXIS 325, 1997 WL 70853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiteman-v-worley-lactapp-1997.