Chambers v. Vill. of Moreauville.

• Decision Date: 06 April 2011
• Docket Number: No. 10–1368.,10–1368.
• Citation: 60 So.3d 125
• Parties: Arlene CHAMBERSv.VILLAGE OF MOREAUVILLE.
• Court: Court of Appeal of Louisiana — District of US

60 So.3d 125

Arlene CHAMBERS

v.VILLAGE OF MOREAUVILLE.

No. 10–1368.

Court of Appeal of Louisiana, Third Circuit.

April 6, 2011.

Darrel D. Ryland, Wesley K. Elmer, Attorneys at Law, Marksville, LA, for Plaintiff/Appellee Arlene Chambers.Karen Day White, Louisiana Municipal Association, Baton Rouge, LA, for Defendant/Appellant Village of Moreauville.Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.GREMILLION, Judge.

[3 Cir. 1] The Village of Moreauville, Louisiana, appeals a judgment in favor of Arlene Chambers finding it 100 percent at fault for Chambers' April 19, 2008 fall on a sidewalk in the Village's care, custody, and control. For the reasons that follow, we affirm in part, as amended, and reverse in part.

FACTS

On April 19, 2008, Arlene Chambers and a friend, Annette Bowman, were returning from the Simpson Baptist Church on Tassin Street, where they had attended the funeral of a co-worker, to Chambers' home. The two ladies had ridden to the church with Bowman's husband, but were walking to Chambers' home, where Bowman's car was parked. Prior to this date, Chambers had never walked along this stretch of Tassin Street before. Chambers is a resident of Moreauville, Louisiana, where she had lived for approximately four years. The church is about seven-tenths of a mile from Chambers' home. As she was walking, Chambers tripped on a section of sidewalk and fell.

The particular section of sidewalk at which Chambers fell abuts a driveway. Two sections had become, or were installed, depressed in relation to the rest of the sidewalk ¹. As a result, those two sections sit a few inches lower than the remaining sidewalk. They also tilt slightly toward the street. At the point where this depression ends, the sidewalk abruptly rises again, creating an approximately one-and-one-quarter to one-and-one-half inch immediate elevation change in addition to the elevation change created by the depression. Grass grows in the crack beneath this [3 Cir. 2] elevation change but does not extend across the width of the sidewalk.

Chambers and Bowman were walking abreast on the Tassin Street sidewalk. The weather was fair and the sky sunny. Chambers noted that the sidewalk was uneven, but failed to notice this immediate elevation change that Chambers described as a “ledge.” The toe of Chambers' boot caught on this ledge, causing her to fall. She sustained a comminuted fracture of the radius of her right arm.

Because Bowman had to go to Baton Rouge to visit her hospitalized brother, Chambers called another friend, who transported Chambers to Avoyelles Hospital in Marksville, Louisiana. Dr. Paul Fenn, an orthopedic surgeon, placed Chambers in a splint and informed her that her wrist would require surgery. He informed her that he could perform the surgery, or he could refer her to Dr. Diego Miranda, an orthopedic surgeon specializing in hand and wrist injuries. Chambers preferred to see Dr. Miranda.

Chambers' surgery was performed at Rapides Regional Medical Center in Alexandria, Louisiana, on April 28, 2008. Dr. Miranda performed an open reduction of the fracture and installed two plates to affix the fracture. The surgery was performed with no adverse reactions on Chambers' part. Dr. Miranda saw Chambers for a few follow-up visits, then referred her to Dr. Douglas Gamburg, an orthopedic surgeon within the same clinic, because Dr. Miranda was relocating his practice.

Following surgery, Chambers was referred for physical therapy with Brenda Wood of The Therapy Center of Avoyelles in Marksville. The physical therapy records demonstrate steady progress on Chamber's part. According to Wood's records, she felt that Chambers had achieved the maximum benefits from therapy, and recommended that she be discharged from therapy on August 15, 2008.

[60 So.3d 129 , 3 Cir. 3]

In October 2008, Chambers returned to Dr. Gamburg complaining of pain and limited range of motion in her right shoulder. At that time, Chambers related this shoulder pain to her fall in April. Dr. Gamburg referred Chambers for an MRI of the shoulder. That MRI, taken on October 22, 2008, demonstrated some degenerative changes in the shoulder but no evidence of any rotator cuff tear. Dr. Gamburg returned Chambers to physical therapy. Chambers resumed physical therapy on October 28. By November 18, she had achieved all short and long term goals of therapy and appeared ready for discharge to home exercises.

In March 2009, Chambers experienced more problems with her shoulder and returned to Dr. Gamburg. Dr. Gamburg returned Chambers to physical therapy. Again, after about a month, Chambers' shoulder had progressed to the point that it was felt that she could adequately control her condition through home exercises and she was discharged from therapy.

Chambers returned to Dr. Gamburg in October 2009 with complaints in both the wrist and shoulder. Dr. Gamburg gave Chambers' shoulder an injection of Depo–Medrol and Marcaine. He also ordered that she undergo nerve conduction studies of the right median and ulnar nerves, which demonstrated no evidence of carpal tunnel syndrome. By February 2010, Chambers was beginning to experience pain in her left shoulder, which Dr. Gamburg felt were related to the fact that her right shoulder problems were restricting her movements. Dr. Gamburg diagnosed this condition as adhesive capsulitis. He also determined that Chambers had developed inflammatory palmar fasciitis in her right hand. Dr. Gamburg ordered Chambers to undergo a functional capacity evaluation (FCE) that was performed by Alexandria physical therapist, Eugene Noel. The FCE demonstrated that Chambers had limitations in both [3 Cir. 4] shoulders and her right wrist. However, the limitations in Chambers' left shoulder were, according to Mr. Noel, considerable. Her right wrist demonstrated limited motion but her hand strength was above normal. Her frequent lifting capacity was rated as “medium,” as defined by the U.S. Department of Labor physical demand limit. Control tests built into the test showed that Chambers was exerting maximal effort on almost every task.

Dr. Gamburg noted in his testimony that he could find no notation in the records from Drs. Fenn or Miranda to corroborate Chambers' claim that her right shoulder had caused her problems from the date of the accident until he first saw her. However, he testified that, assuming her complaints had been present from that date, he would relate her right shoulder complaints to the April 2008 fall. Although he found no evidence of a trauma to the right shoulder, Dr. Gamburg felt that the prolonged immobility of the shoulder necessitated by the right wrist injury caused Chambers to develop problems with the shoulder. Dr. Gamburg testified that Chambers will always have permanent stiffness in her wrist, and will have occasional pain in her shoulder that may necessitate physical therapy in the future. He did not foresee any future treatment for Chambers' wrist, and her shoulder can be treated with anti-inflammatory medication, probably Ultram.

Chambers filed suit against the Village in September 2009, and a bench trial was conducted on August 4, 2010. At trial, plaintiff testified, and called Linda Neland, former Human Resources Manager of the Avoyelles Correctional Center; Vickie Dufour, a friend who testified to the extent of Chambers' difficulties from her injuries; and Philip Beard, a civil engineer who testified as an expert. She introduced the depositions of Dr. Gamburg, Mr. Noel, and Dr. G. Randolph Rice, an economist. [3 Cir. 5] Chambers also introduced a report from Dr. Richard Galloway, a vocational rehabilitation expert.

The trial court took the matter under advisement and gave oral reasons in support of its ruling in favor of Chambers on August 11, 2010, during a conference call held on the record with counsel. The trial court found the Village 100 percent at fault and awarded Chambers the following damages: $200,000.00 for past and future pain and suffering; $25,000.00 in hedonic damages; $54,148.00 in future wage loss; $46,616.17 in past medical expenses; $10,000.00 in future medical expenses; and $3,617.34 in past wage loss. The Village was also ordered to pay all court costs, including Chambers' expert witness fees. A judgment comporting with the trial court's oral reasons was signed and the Village now appeals.

ASSIGNMENTS OF ERROR

The Village urges that the trial court committed the following errors:

I. The trial court erred in finding that the elevation differential in the sidewalk presented an unreasonable risk of harm in accordance with La.R.S. 9:2800 and Louisiana jurisprudence.

II. The trial court erred in finding that the Village of Moreauville is 100 percent liable for Ms. Chambers' tumble when the uncontradicted facts established at trial clearly show that plaintiff must bear a percentage of fault, if not all fault, for the accident and the ensuing damages.

III. The trial court erred in awarding plaintiff money for future lost wages when there is absolutely no documentary or testimonial evidence to support such an award.

IV. The trial court erred in awarding plaintiff money for future medical expenses when there is absolutely no documentary or testimonial evidence to support such an award.

V. The trial court abused its discretion in awarding plaintiff $200,000 in general damages /pain and suffering for her injury.

VI. 6The trial court abused its discretion in awarding plaintiff $25,000 as an award for loss of enjoyment of life.

ANALYSIS

Liability of the Village

Liability for defects in premises is generally founded upon Louisiana Civil Code articles 2317, 2317.1, and 2322. When a public entity is involved, that liability is also governed by La.R.S. 9:2800, which provides that when liability is premised upon La.Civ.Code art. 2317, the public entity must have either actual or constructive knowledge of the defect and had a reasonable opportunity to remedy...