94-0078 La.App. 4 Cir. 6/30/94, Neyrey v. Touro Infirmary

• Decision Date: 30 June 1994
• Citation: 639 So.2d 1214
• Parties: 94-0078 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1214

639 So.2d 1214

94-0078 La.App. 4 Cir. 6/30/94

Mavis NEYREY v. TOURO INFIRMARY.

No. 94-CA-0078.

Court of Appeal of Louisiana, Fourth Circuit.

June 30, 1994.

Patricia D. Miskewicz, Ramirez & Miskewicz, New Orleans, for plaintiff/appellee.

Katherine B. Muslow, Thomas, Hayes, Beahm and Buckley, New Orleans, for defendant/appellant.

Before BARRY, BYRNES and PLOTKIN, JJ.

[94-0078 La.App. 4 Cir. 1] BARRY, Judge.

Touro Infirmary appeals a $30,000 judgment for Mavis Neyrey in this slip and fall case. The issues are: 1) the burden of proof applicable to Touro when Neyrey established that she slipped and fell on a foreign substance on Touro's premises; 2) reasonableness of Touro's inspection and clean-up procedures; 3) causation; and 4) vicarious liability. We affirm.

FACTS

On November 15, 1990 Neyrey slipped and fell because of a liquid in the middle of the third floor hallway at Touro. The substance was (clear) vomit from an eight year old boy who spit up 7-Up. Testimony conflicts concerning how long the spill was on the floor prior to Neyrey's fall.

Bobbie Morales and George Lyttle, mother and grandfather of the boy, were walking with him when he got sick. Morales was employed by Touro as a nurse but did not work on the date of the accident. Her son had tonsillitis and was at Touro for pre-operative tests.

[94-0078 La.App. 4 Cir. 2] Morales testified that the boy spit up a small amount in the middle of the hall and she pulled him to the side. She claimed that within seconds, before she brought the boy to the bathroom, she turned and saw Neyrey on the floor. Morales brought her son to the bathroom, then she reported the spill between 9:00 and 10:00 a.m.

Lyttle testified that the spill was on the floor for "a couple of minutes at the most" before Neyrey fell. He stated that he was present when Neyrey fell and he helped her get up. Lyttle said that Morales notified housekeeping, but the spill had already been reported and was cleaned within minutes.

Neyrey's daughter, Kim Bordonaro, was with her mother when she fell. Bordonaro did not see anyone in the hall before the fall, including Morales and her son. She testified that an older man helped Neyrey after the accident.

Neyrey did not see anyone in the hall. She testified that an older man helped her up.

Neyrey and Bordonaro testified that Neyrey was carrying boxed board games which scattered when she fell. Neither Morales nor Lyttle recalled any items on the floor.

Constance Smith, housekeeping manager, testified that housekeeping received two reports of the spill between 8:30-8:35 a.m. The reports were recorded in a log which she claimed was stolen by a former employee and were not available. She testified that the spill was cleaned within nine minutes. Rosalin Ross, housekeeping supervisor for the third floor, testified that she learned of Neyrey's fall after 9:00 a.m. When Ross checked the area she did not see the spill or Neyrey.

[94-0078 La.App. 4 Cir. 3] Smith testified that the housekeeping staff and porters perform regular inspections of the floors each day. Housekeeping is responsible for corridors within their respective departments (e.g., surgery, ICU) and porters are responsible for the general corridors between departments. She stated that the porters' policing procedure includes a 7:00 a.m. inspection followed by dusting and damp mopping the entire corridor; a fifteen minute break at 9:15 a.m.; buffing and general inspection until 11:00 a.m. lunch. Smith said all employees are instructed to report a spill.

The porter for the third floor was not called to testify. Smith testified that housekeeping logs are not kept but violations are recorded. Rosalin Ross, housekeeping supervisor assigned to the third floor, testified there was no report of a violation that day.

The trial court ruled in favor of Neyrey and clearly did not believe that Morales and Lyttle were present when Neyrey fell. The court stated:

Defendant ... suggested that the plaintiff slipped and fell while the child was vomiting. If this was the situation Bobbie Morales, seeing plaintiff lying on the floor would certaintly [sic] not have taken her child down and around the hall to clean him up. Her nursing instinct would have demanded that she direct her attention to the injured plaintiff.... If the clean-up calls were made at 8:30 A.M. and the vomit was cleaned up after 9:00 A.M., as some of the testimony has suggested, this would be in variance with the testimony by Connie Smith that the clean-up call from the recovery room resulted in a clean-up in nine minutes....

The court found that Touro breached its duty to exercise reasonable care because its employees had actual notice of the spill and it failed to take reasonable steps to remedy the situation.

[94-0078 La.App. 4 Cir. 4] BURDEN OF PROOF

Touro argues that the trial court incorrectly imposed a greater burden to exculpate itself from the presumption of negligence than the burden imposed on a merchant. Touro's argument appears to be that a merchant should be held to a higher standard of care than a hospital and since the legislature has lessened the merchant's burden through LSA-R.S. 9:2800.6, Touro's burden of proof should be lessened.

A plaintiff in a slip and fall case against a hospital must show the fall occurred and injury resulted from a foreign substance on the premises. Reynolds v. St. Francis Medical Center, 597 So.2d 1121, 1122 (La.App. 2d Cir.1992); LeBlanc v. Alton Ochsner Medical Foundation, 563 So.2d 312, 315 (La.App. 5th Cir.1990); Bordelon v. Southern Louisiana Health Care Corp., 467 So.2d 167, 169 (La.App. 3rd Cir.), writ den. 469 So.2d 989 (La.1985). The burden then shifts to the hospital to exculpate itself from the presumption of negligence. Reynolds v. St. Francis Medical Center, supra, citing LeBlanc v. Alton Ochsner Medical Foundation, supra. A hospital owes a duty to its visitors to exercise reasonable care commensurate with the particular circumstances. Reynolds v. St. Francis Medical Center, supra at 1123. The hospital must show that it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity. LeBlanc v. Alton Ochsner Medical Foundation, supra at 316.

LSA-R.S. 9:2800.6 sets the burden of proof in a claim for injuries caused by a condition in or on a merchant's premises. The statute was enacted to legislatively overrule McCardie v. Wal-Mart Stores, Inc., 511 So.2d 1134 (La.1987), which held that to exculpate itself from the presumption of negligence [94-0078 La.App. 4 Cir. 5] in a slip and fall case, a store owner must prove that none of its employees caused the spill. As originally enacted, subparagraph (C) provided that "the merchant need not introduce the testimony of every employee" to exculpate itself, and thereby lessened the store owner's burden of proof.

Under § 2800.6 as amended by Acts 1990, No. 1025, § 1, effective September 1, 1990, a plaintiff in a slip and fall case against a merchant must show that the condition which caused the fall presented an unreasonable risk of harm, that the merchant either created or had actual or constructive notice of the condition (i.e., the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care) which caused the damage, prior to...