Sistler v. Liberty Mut. Ins. Co.

• Decision Date: 12 March 1990
• Docket Number: No. 89-C-1736,89-C-1736
• Citation: 558 So.2d 1106
• Parties: Lola SISTLER and David Sistler v. LIBERTY MUTUAL INSURANCE COMPANY. 558 So.2d 1106
• Court: Louisiana Supreme Court

Page 1106

558 So.2d 1106

Lola SISTLER and David Sistler v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 89-C-1736.

558 So.2d 1106

Supreme Court of Louisiana.

March 12, 1990.

Don M. Arata, John N. Gallaspy, Michael Paduda, Jr., Gallaspy & Paduda, Bogalusa, for applicant.

Bruce J. Borrello, Metairie, for respondent.

COLE, Justice.

The issue is whether evidence supports the trial court's determination that the difference in elevation between the entrance landing and the foyer floor of the Western Sizzlin in Bogalusa created an unreasonable risk of harm to restaurant patrons. The trial court determined the quarry tile, which covers both the landing and the foyer floor, "could give the sense that no change in elevation existed." It concluded the change of elevation combined with its lack of warning created an unreasonable risk of harm. In reaching this conclusion, the trial court found the risk of harm outweighed the utility of the elevation, which was to retard wind-driven rain. On appeal, the appellate court compared the testimony of the parties' experts, applied the risk/utility rule espoused in Entrevia v. Hood, 427 So.2d 1146 (La.1983), and concluded the trial court manifestly erred. Accordingly, it reversed the judgment rendered in favor of plaintiffs and dismissed their petition with prejudice. 544 So.2d 75 (La.App. 1st Cir.1989). Finding no manifest error in the trial court's holding, we reverse the judgment of the court of appeal.

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs, Lola and David Sistler, filed this tort action against Liberty Mutual Insurance Company, the liability insurer of Western Sizzlin in Bogalusa, for the injuries Mrs. Sistler ¹ sustained on January 19, 1986, when she tripped while entering the restaurant.

The Sistlers arrived at the steakhouse intending to partake the Sunday noon meal with Mrs. Sistler's sister and brother-in-law, Carmen and Owen Davis. Mr. Sistler opened the outside door to the foyer of the restaurant and stepped aside for his wife to pass. Looking down, he observed her catch the toe of her right shoe on the vertical face of the one inch high elevated portion of the quarry tile floor, located a few inches in front of the one-half inch high extruded aluminum threshold. ² Without success, Mrs. Sistler attempted to brake her fall with her arms. As a result, her upper limbs absorbed the impact of her fall.

Immediately after the fall, Mrs. Sistler attempted to rise but Mr. Sistler told her to lie still for a few minutes, on the foyer floor, so they might ascertain whether she had been seriously injured. Afterwards, he helped her rise.

During their meal, Mrs. Sistler began feeling worse. She was shaking and unable to eat. The next morning, she went to Dr. Foret who identified a fracture involving the shoulder. After x-raying her arm and shoulder area and placing her right arm in a sling, he referred her to Dr. Luis F. Matta, the orthopedist who had performed her prior knee replacement operation. Examining the x-rays taken by Dr. Foret, Dr. Matta diagnosed two fractures, a lineal fracture of the body of the scapula and an avulsion fracture of the greater tuberositas. ³ Preferring conservative management to surgery, Dr. Matta directed Mrs. Sistler to keep her right arm in the sling and visit him weekly. He also prescribed pain medication. Nevertheless, the intensity of the pain forced Mrs. Sistler to sleep nights sitting in a chair.

Once Dr. Matta felt migration of the avulsion was no longer possible, he started Mrs. Sistler on rehabilitative exercises. By March 4th, x-rays revealed good position of the bony fragment so he referred her to a physical therapist who continued to treat her through June. Dr. Matta discharged her on May 19th, but directed her to continue her physical therapy at home. By August or September of 1986, the permanent partial disability of her upper right extremity was estimated at 15-25%.

In March, two months after her fall, Mrs. Sistler began experiencing pain in her right leg and back. She told the physical therapist who was treating her shoulder about the pain in her lower extremities and he applied heat treatment to the area. Her pain, however, gradually became worse. Eventually, she visited a chiropractor who treated her with a Tens Unit. By July 15th, six months after the fall at the Western Sizzlin, she returned to Dr. Matta with complaints of back pain. He performed a Patrick's Test to which she tested positive, indicating hip pathology.

X-rays of Mrs. Sistler's lumbosacral spine and pelvis showed elongated pars or first degree spondylolisthesis of the sacrum, a condition which is degenerative in the elderly. Dr. Matta opined that it pre-existed the accident at the steakhouse and he explained it is associated with osteoarthritis or severe degenerative changes of the hip. Superimposed on the arthritic (rheumatoid and degenerative) changes in the hip, Dr. Matta found aseptic necrosis. ⁴ He believed Mrs. Sistler's January 19, 1986 fall "most likely caused" the aseptic necrosis in her hip.

As both the osteoarthritis and the aseptic necrosis are progressive, Dr. Matta recommended Mrs. Sistler undergo a total hip replacement operation. He performed the operation on August 6th. Afterwards, he considered Mrs. Sistler's permanent partial disability of her lower right extremity (knee and hip) 60%. Without her knee problems, he estimated her hip problems alone would result in 50% permanent partial disability.

The Sistlers filed this strict liability and negligence action against Liberty Mutual on September 31, 1986. They claimed damages for Mrs. Sistler's pain and suffering, medical expenses and disability, and for Mr. Sistler's loss of consortium. Liberty Mutual answered and specifically pled plaintiff's comparative negligence in failing to observe the area over which she walked, walking in a careless manner, and failing to observe what a reasonable and prudent person would have observed.

The trial court rendered judgment on December 30, 1987, in favor of Lola Sistler and against Liberty Mutual in the amount of $175,256.20, and in favor of David Sistler and against Liberty Mutual in the amount of $25,000.00. It reasoned the face of the elevation at the entranceway created an unreasonable risk of harm to the restaurant's invitees. In support, the court cited Howard's conclusion that the change in elevation created an unreasonable risk of harm. But the court went further, finding it especially created an unreasonable risk of harm to the infirm elderly. Moreover, the court found the use of the same quarry tile on the landing and in the foyer could easily give the sense that no change in elevation existed. The lack of warning and the lack of highlighting of the change of elevation was noted. The court determined remedies to the hazardous condition could easily have been provided without affecting adversely the utility of the entrance to the foyer. As the utility of the elevation was solely to keep out the wind-driven rain, the trial court found its utility paled in the face of the undue risk of harm it caused to others. The trial court, therefore, concluded Liberty Mutual was strictly liable for the plaintiffs' injuries. In addition, the trial court found Liberty Mutual liable for negligence in failing to warn patrons of the dangerous entrance.

Liberty Mutual appealed suspensively and the appellate court reversed. Rather than focusing on the danger created by the flat face of the entranceway's elevation as did the trial court, the court of appeal's decision dwelt upon Liberty Mutual's evidence showing the aluminum threshold did not constitute an unreasonable risk of harm. The court indicated Maxwell had not considered such thresholds "hidden traps" and he had never seen one painted yellow. It further noted Maxwell had not considered the configuration of the sill and the threshold to be in violation of the Standard Building Code. The court of appeal also appeared impressed by Case's testimony that he had no knowledge of anyone else having tripped and fallen since his business operation commenced. After comparing the testimony of Howard and Maxwell, and after considering the testimony of Case and the others, the appellate court concluded the trial court manifestly erred "in finding the threshold at the entrance of the restaurant constituted an unreasonable risk of harm." Due to its finding on liability, the appellate court did not consider Liberty Mutual's arguments on whether Mrs. Sistler was comparatively negligent or on whether the trial court awarded excessive damages. The ruling of the trial court was reversed and plaintiffs' petition dismissed at their cost.

From this adverse judgment, the Sistlers sought writs from this court. We granted certiorari, 551 So.2d 1309 (La.1989), to examine the risk-utility of the elevated portion of the Western Sizzlin's western entranceway and to determine whether the trial court manifestly erred in finding the restaurant strictly liable and negligent.

EVIDENCE

Trial commenced on November 5, 1987. Plaintiffs testified, submitted the deposition of Dr. Matta, called Dennis Howard and Dempsey Allen as expert witnesses, and called Carmen and Owen Davis as rebuttal witnesses. Howard is a safety consultant with Safety Management, Inc. His specialty is assisting his clients in recognizing, evaluating, controlling and eliminating hazards to which their employees or the general public might be exposed. Certified by the Board of Certified Safety Professionals, he received his training on-the-job. His formal education consisted of an associate degree in biological science and a bachelor of science degree in industrial management/marketing.

He testified that when a floor surface has irregularities or

changes in elevations, it creates the opportunity for people to be caught offguard ... it has to do with ... their perception of the irregularities and how that's going to affect their locomotion or walking activity. If...