Gorton v. Ouachita Parish Police Jury

• Decision Date: 03 April 2002
• Docket Number: No. 35,432-CA.,35,432-CA.
• Citation: 814 So.2d 95
• Parties: Linda M. GORTON, Plaintiff-Appellant, v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

814 So.2d 95

Linda M. GORTON, Plaintiff-Appellant, v. OUACHITA PARISH POLICE JURY, Defendant-Appellee.

No. 35,432-CA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 2002.

Deal & Cook, Philip T. Deal, for Appellant Linda Gorton.

Neal G. Johnson, for Appellant Richard Fewell, Sr.

Hayes, Harkey, Smith & Cascio, Joseph D. Cascio, Jr., Charlen Trascher Campbell, for Appellee Ouachita Parish Police Jury and Coregis Ins. Co.

Before CARAWAY, PEATROSS and DREW, JJ.

DREW, Judge.

The Ouachita Parish Sheriff appealed a judgment awarding a deputy, Linda Gorton, damages for injuries sustained when she fell on a wet floor in the hall outside her office. The sheriff asserted that the trial court erred (1) in finding no liability on the part of the other defendants, the Ouachita Parish Police Jury (OPPJ) and its insurer, (2) in concluding that the condition of the floor created an unreasonable risk of harm to Gorton, (3) in failing to find fault on Gorton's part, (4) in awarding excessive damages and (5) after ruling the plaintiff totally and permanently disabled, in awarding damages for lost future earnings and earning capacity of plaintiff. Gorton also appealed and urged that the trial court erred in failing to find the police jury and its insurer solidarily liable with the sheriff for her damages. For the following reasons, the judgment is amended and affirmed. The matter is remanded for the trial court to set the amount of trial and record preparation costs. La. R.S. 13:5112.

FACTUAL AND PROCEDURAL BACKGROUND

A deputy sheriff with the Ouachita Parish Sheriffs Office (OPSO), Linda M. Gorton, did clerical work at the Ouachita Parish Correctional Center (OPCC). On February 15, 1995, plaintiff sustained injuries when she slipped and fell on a terrazzo floor in the hallway outside her office. There was no worker's compensation coverage. Plaintiff sued the OPSO and the OPPJ, the owner of the correctional facility, and the police jury's insurer. She alleged that the condition of the floor created an unreasonable risk of harm to her and that the sheriff failed to provide her a reasonably safe place to work.

Following a two-day bench trial, the trial court rendered lengthy reasons for judgment. The trial court dismissed with prejudice plaintiffs claims against the OPPJ and its insurer. Plaintiffs award was a total of $451,230.24 for various elements of damages against the OPSO along with costs and expert witness fees.

TESTIMONY

Plaintiff, Linda Gorton

Linda Gorton (DOB 2/28/42) testified that she attended school until tenth grade and later obtained a GED. Divorced in 1983, her only work experience was working a debit route for a life insurance company for a couple of years. On July 18, 1983, she began working for the OPSO as a deputy at the correctional center where she assisted the shift sergeants with general clerical duties such as answering the phone and opening mail. She transferred to the Patrol Unit in December, 1983. After several years of working as a patrol deputy, she transferred back to the correctional center in August of 1990 or 1991 as secretary to the warden. Initially, her office was located in what she described as the outer compound in a different building from the site of her fall. Her office was moved to the location where she fell in the inner compound in January, some six weeks before her mishap in February 1995.

In the five years she worked at the correctional center before she was transferred to the office where she fell, Gorton stated she usually went to the accident site to pick up mail about 7:00 A.M. when her work day began. Gorton also stated that during the years she was on patrol, she occasionally went to the Correctional Center and used the hall where she fell. Gorton said she seldom ate at the dining hall when she worked in the outer compound, but when she did, she used that same hall which led to the dining area.

Concerning health problems prior to her fall, Gorton set out her earlier medical history which included neck vertebrae surgery in 1979 and a mastectomy for cancer in 1985. Gorton recounted that in 1990 she had a CAT scan of her back when she went to the emergency room with back pain. Dr. Albert Donald treated her in the ER and gave her a shot. Gorton reported that two hours later she was fine and had no further problems with her back until her fall in February 1995. Gorton testified she had a heart attack in 1993, had triple by-pass surgery, was off work from May to October, was released with no restrictions and returned to work with no problems. For the year 1995, the year of her fall, and from her rehire in 1996 through her termination, Gorton recounted all of the days she missed work due to illness. Her last day of actual work at the OPSO was April 7, 1999 when she had another heart attack which she characterized as very mild. After her cardiologist treated her with a balloon procedure, he released her to return to work. Gorton was informed she would not be allowed to return to her employment at the OPSO and advised that her last day of employment was June 3, 1999.

On February 15, 1995, Gorton described stepping out of her office into the hall where she slipped and fell. Not a complete fall, Gorton said she broke the fall with her hand and knee. She returned to the office and reported her accident to Lt. Don Wheelis. She told him that the floor was wet and something needed to be done. Stating she normally had lunch between 11 and 12 noon, she recalled she had been in her office about two hours before she fell about 2 PM. She did not notice water on the floor when she went and came back from lunch, but stated she saw it was wet when she slipped. As she lost her footing, she described doing a lot of twisting and fancy footwork in her effort to avoid falling. Her back hurt and continued to get progressively worse along with her right hip and leg. After the fall which took place on a Wednesday, she was barely able to walk by the following Monday.

Lt. Wheelis instructed Gorton to fill out an accident report. Gorton first sought medical care on Monday, February 20. The OPSO made her an appointment with Dr. Elliot whom she saw several times. Treated with medication, Gorton stated her condition worsened. In March, she had a CAT scan after which Dr. Elliot referred her to Dr. Brown, an orthopedic surgeon.

In June 1995, Dr. Brown performed a percutaneous back surgery with a needle due to Gorton's constant pain in her leg and hip and her difficulty walking. That surgery was not effective. Gorton testified she worked off and on and with difficulty and pain. On August 8, 1995, Dr. Brown performed regular back surgery. Gorton stated she did not return to work that year. When she used up her accumulated leave time, Gorton was cut back to half pay in September which she received for a couple of months. Because she could not live on the reduced pay, she resigned effective December 1, 1995, and drew out her retirement contributions to secure funds on which to live.

During the period in 1995 she was on half pay, she testified she consulted with Chuck Cook who was elected sheriff in the fall of 1995. When informed about the fall and the subsequent events, Cook advised her to seek legal advice, according to Gorton. Gorton testified that prior to Cook's taking office in July 1996, she again talked to him in May or June 1996 about her returning to the sheriff's office and Cook offered her employment when he took office. Gorton testified that they discussed her pending lawsuit and Cook said it would not relate to her returning to work, since "that's on Laymon Godwin."

Although during her twelve years of employment with the OPSO, Gorton had seen blankets on the hall floor, she testified she had never noticed condensation on the floor before her fall. She had never heard anyone discuss the condensation or slipping problems before her fall. She also testified she did not recall whether or not the outside door was open when she arrived at work in the morning, nor when she left and returned from lunch and nor when she went home after working several hours of overtime on the evening after her fall. However, she was certain the door was open when she fell, because the fall resulted in her facing the door.

Former OPSO Deputy Dale Robert

When he left the OPSO in 1996 after twelve years, Dale Robert testified he was program director/operational officer at the OPCC. In charge of maintenance at the facility, Robert took care of the heating and air among other things. In the building where plaintiff fell, there was a heating unit, but the only air conditioning was from window units in supervisors' offices. Robert testified that moisture accumulated on the terrazzo floor every time there was a dramatic temperature change and the doors were left open. He explained that if the floor was warm and the temperature was cold outside with high humidity, condensation formed on the hall floor when the door was left open. The open door made the situation worse and the door was opened frequently because many people came in and out that way. A film of moisture built up on the entire floor. The deputies attempted to alleviate the wetness with inmates mopping or putting down blankets. Robert stated this occurred many times during a year and he described clean up efforts as "fighting a losing battle." Because the floors were kept waxed, Robert testified that when the moisture developed, the floors became slick. Robert stated mats were used to alleviate the problem after Gorton's accident. He did not recall mats being used on the floors any time prior to plaintiffs fall. Wet floor signs were used during mopping. Although he requisitioned from the OPPJ products to make concrete floors in the area anti-skid, he did not recall anyone trying to get anything to skid-proof the terrazzo floors. Robert testified that members of the OPPJ toured the facilities.

On cross-examination, Robert acknowledged that the...