Housley v. Cerise
| Decision Date | 25 September 1990 |
| Docket Number | No. 89-CA-2140,89-CA-2140 |
| Citation | 568 So.2d 571 |
| Parties | William James Henry HOUSLEY, Individually and on Behalf of the Community and as the Administrator of the Estate of his Minor Daughter, Vickie Housley and Vickie Ann Housley, his Wife v. Dr. and Mrs. Elmo CERISE and/or E. John Cerise and Aetna Casualty and Surety Company. |
| Court | Court of Appeal of Louisiana — District of US |
Perrin C. Butler, Robert Stern, Butler & Stern, Metairie, for plaintiffs-appellees.
Gerald J. Nielsen, Middleberg, Riddle & Gianna, New Orleans, for defendants-appellants.
Before GARRISON, KLEES and CIACCIO, JJ.
Plaintiffs, Vickie Ann Housley, wife of/and William Housley, individually and on behalf of their minor daughter, Vickie Ann Housley, filed this action for damages against defendants, Dr. and Mrs. Elmo Cerise and their liability insurer, Aetna Casualty and Surety Company, for injuries to them resulting from an accident allegedly sustained by Mrs. Housley on June 5, 1982 in an apartment on 624 Commerce Street in Gretna rented by the Housleys and owned by Dr. and Mrs. Cerise. Mrs. Housley, who was six months pregnant at the time, was descending the stairway in the apartment when she allegedly fell down the stairs due to condensation on the carpet at the top of the stairway caused by an air conditioning unit. Plaintiffs claim that this fall caused the premature birth of the Housley's daughter Vickie Ann and her resulting severe health problems including two and one-half months of hospitalization following her birth. Plaintiffs further claim that the defendants are strictly liable to plaintiffs for the defect on the leased premises, i.e. the leaking air conditioning unit which caused the condensation at the top of the stairway, or, alternatively, that this accident was caused by the defendants' negligence.
After trial in this matter, the trial judge rendered judgment, with written reasons, as follows:
1) in favor of the minor, Vickie Ann Housley, and against Dr. Elmo Cerise and Aetna Casualty and Surety Company for $400,000.00, including $250,000.00 for past and future pain and suffering, mental anguish and physical and intellectual permanent disabilities and $150,000.00 for loss of earning capacity, together with legal interest from the date of judicial demand;
2) in favor of William Housley and against Dr. Elmo Cerise and Aetna Casualty and Surety Company, for medical expenses of the minor, Vickie Ann Housley, in the sum of $55,552.58, including $50,552.58 for past medical expenses and $5,000.00 for future medical expenses, together with legal interest from date of judicial demand;
3) in favor of Mrs. Vickie Housley and against Dr. Elmo Cerise and Aetna Casualty and Surety in the sum of $35,000.00 for her physical and emotional pain and suffering, together with legal interest from date of judicial demand;
4) expert witness fees assessed against the defendants.
From that judgment, the defendants now appeal arguing five assignments of error.
In the first assignment of error, the appellants argue that appellees failed to prove by a preponderance of the evidence that Mrs. Housley sustained a fall in her apartment on June 5, 1982 which caused the injuries claimed in this lawsuit. The trial judge observed the credibility of the witnesses and stated in his reasons for judgment that he was convinced by Mrs. Housley's testimony at trial that she fell down the stairway in her apartment after slipping on the condensation at the top of the stairway on the afternoon of June 5, 1982. The trial judge also noted that Mary Bates, Mrs. Housley's sister-in-law, testified that she witnessed Mrs. Housley's fall. There was no testimony by any eyewitness indicating that the fall did not occur.
Appellees argue that the fact that the fall was not noted in the hospital records by any physician or nurse who treated Mrs. Housley at either of the two hospitals visited by the Housleys shortly after the accident proves that the fall did not occur. However, after lengthy testimony concerning the medical records in this case, the trial judge observed the credibility of the witnesses and concluded that the testimony of Mrs. Housley about the fall and the testimony of Mr. Housley about Mrs. Housley's complaints after the fall and his assertion that the occurrence of the fall was reported to hospital personnel and to Mrs. Housley's doctor's answering service right after the accident were not impeached by the fact that none of the medical records pertaining to Mrs. Housley mentioned a fall on the afternoon in question. Because the fact finder is in the best position to determine the credibility of the witnesses, we do not find the trial judge's conclusion that Mrs. Housley's fall did occur to be manifestly erroneous.
In the second assignment of error, the appellants argue that the appellees failed to sufficiently prove that Mrs. Housley's fall caused the premature birth of her child by cesarean section. The appellants base this argument primarily upon the testimony of Dr. Vincent Culotta, an expert gynecologist, who stated that, in his opinion, the premature birth in this case was not caused by a trauma or fall; rather, it was probably caused by an infection. However, as noted by the trial judge, Dr. Culotta never examined Mrs. Housley and based his testimony upon the records of two of Mrs. Housley's treating physicians which indicated that Mrs. Housley had a minor infection in the first trimester of her pregnancy.
Appellants' more compelling argument in this assignment of error is that the appellees failed to establish through medical testimony that the premature birth of Vickie Ann Housley by cesarean section was caused more probably than not by the fall allegedly sustained by Mrs. Housley on the afternoon of June 5, 1982. In Mart v. Hill, 505 So.2d 1120 (La.1987), the Louisiana Supreme Court held that:
"In a personal injury lawsuit, the test for determining the causal relationship between the accident and subsequent operations is whether the plaintiff proved through medical testimony that it was more probable than not that subsequent operations were caused by trauma suffered in the accident ... Lawsuits cannot be decided on speculation or suspicion alone."
As mentioned above, Mrs. Housley's fall was not noted in any of the medical records prepared by any of the physicians or nurses who treated her at either of the two hospitals visited by the Housleys shortly after the accident. At trial, Dr. Juan Labadie, one of Mrs. Housley's obstetricians, was asked the following hypothetical question by appellees' counsel:
"Can a fall cause a woman to rupture what is known as the bag of water that surrounds the baby prior to birth?" Tr. pp. 279-280
Dr. Labadie's response to that hypothetical question was:
"As a possibility, yes."
Later in Dr. Labadie's examination by appellees' counsel, the following exchange occurred:
I note an objection. He has the date wrong and also the testimony today that it was not water but mucous.
Objection overruled.
THE WITNESS:
I would say that I would have to consider that as a contributing factor.
EXAMINATION BY MR. STERN:
Q. And it is your experience based upon your own personal practice and your review of the literature, both in your training and your on-going practice, that a fall such as this can in fact contribute to the rupturing to the bag of water?
Objection overruled.
EXAMINATION BY MR. STERN:
Q. Assume the same type of fall that I...
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