Mundy v. Department of Health and Human Resources

• Decision Date: 16 May 1991
• Docket Number: No. 90-CA-1264,90-CA-1264
• Citation: 580 So.2d 493
• Parties: Jenera MUNDY v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al. 580 So.2d 493
• Court: Court of Appeal of Louisiana — District of US

Page 493

580 So.2d 493

Jenera MUNDY v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, et al.

No. 90-CA-1264.

580 So.2d 493

Court of Appeal of Louisiana, Fourth Circuit.

May 16, 1991.

Philip H. Kennedy, Dept. of Health & Hospitals, Bureau of Legal Services, New Orleans, for appellants.

Julian R. Murray, Jr., Murray, Braden, Gonzalez & Richardson, New Orleans, for appellee.

Before CIACCIO, LOBRANO and WARD, JJ.

CIACCIO, Judge.

This suit arises out of an attack which occurred on the night of November 13, 1986 at Charity Hospital in New Orleans. At approximately 11:20 p.m., plaintiff, Jenera Mundy, a licensed practical nurse employed by Charity Hospital, had entered an elevator on the ground floor of the hospital's east wing in order to go to her work station located on the 11th floor. Two security guards usually stationed by the elevators at night were not present.

At the time, plaintiff was working the 11:15 p.m. to 7:15 a.m. shift in the Nephrology Department. As the elevator door was about to close, an unknown man entered the elevator with plaintiff and pressed the button for the second floor. When the elevator car reached the second floor and the door opened, the man, without warning, brandished a knife, stabbing plaintiff in the neck, chest, back, arms and hands. During the course of the attack, plaintiff attempted to secure help by pressing the emergency button in the elevator but allegedly the alarm did not sound. The elevator door attempted to close several times but each time it would hit either plaintiff's or the assailant's body and automatically re-open. As the assailant tried to stab plaintiff one more time, he lost his balance, stepping back out of the elevator allowing the door to close. Plaintiff rode the elevator to the seventh floor where she found assistance. The doctors in Charity's emergency room treated plaintiff's wounds.

As a result of the attack, plaintiff received worker's compensation benefits in the amount of $6,338.61. Defendant, the Louisiana Department of Health and Human Resources, also paid plaintiff's medical expenses of $3,580.00.

After plaintiff recuperated from her injuries, she returned to work at Charity for a brief period of time. Unable to fulfill her assigned duties due to fear and emotional anxiety as a result of the attack, she resigned from her job, losing her hospitalization and retirement benefits. Plaintiff later went to work as a nurse at a convalescent home earning less than she had at Charity.

Plaintiff filed this tort suit, naming as defendants, the Louisiana Department of Health and Human Resources, Charity Hospital in New Orleans and A.B.C. Insurance Corporation, Charity's unknown insurer. In her petition, plaintiff alleges her injuries were caused by defendant's negligence in A) failing to maintain a reasonably safe environment for the employees, patients and visitors of Charity Hospital; B) failing to provide adequate security in or around the elevators located in the lobby of Charity; and C) failing to maintain alarm buttons in the elevators located at Charity Hospital in working order.

Defendants filed a motion for summary judgment, arguing plaintiff's exclusive remedy was worker's compensation as provided for in LSA-R.S. 23:1031. The trial court denied defendants' motion. After a trial on the merits, the trial judge rendered judgment in favor of plaintiff awarding her $125,000.00 subject to a credit for the amounts paid by defendants in worker's compensation benefits and medical expenses. The trial judge found that plaintiff was not within the course and scope of her employment at the time of the attack, and therefore, not limited to worker's compensation as her exclusive remedy. Defendants appeal.

On appeal, defendants raise three assignments of error. They contend the trial judge erred: 1) in concluding that plaintiff was not within the course and scope of her employment at the time of her injuries, and therefore, not within the exclusive remedy provisions of the Louisiana Worker's Compensation Law, LSA-R.S. 23:1031 and 1032; 2) in finding that Charity Hospital was negligent in the maintenance and operation of its premises; and, 3) in awarding plaintiff $125,000.00 in damages.

In determining the applicability of the Worker's Compensation Act, the following principle must be considered:

" 'The liberal Construction of the Workmen's Compensation Act required to accomplish its humane purpose by including all workmen reasonably afforded its protection must equally be applied when an injured person seeks exclusion from the Act in order to seek damages in tort. Spanja vs. Thibodeaux [Thibodaux] Boiler Works [La.App], 2 So.2d 668. Schmolke vs. Krauss Company, Ltd. [La.App.], 217 So.2d 789, at 791. (Emphasis added) See also, Kenner vs. Harenco [Hanreco] [La.App.], 161 So.2d 142, and Pinchera vs. Great Atlantic and Pacific Tea Co. [La.App.], 206 So.2d 793.' "

Fabre v. Travelers Insurance Company, 286 So.2d 459 (La.App. 1st Cir.1973) writ denied, 288 So.2d 646 (La.1974). In applying this principle, every reasonable manner of including plaintiff under the Act must be explored, and if any be found she will be limited to that exclusive remedy. Id. at 462.

In applying the principles of the Worker's Compensation Act, the Supreme Court in Raybol v. Louisiana State University, 520 So.2d 724, 726 (La.1988), expressly stated:

The terms arising out of, and in the course of constitute a dual requirement. The former suggests an inquiry into the character or origin of the risk while the latter brings into the focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the arise-out-of requirement may compensate for a relatively weak showing on the during-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973) (citing Malone, Louisiana Workmen's Compensation, Sections 162, 192 (1st ed.))

Judicial experience has taught that these two elements, arising out of and in the course of, should not be understood as entirely separate requirements to be rigidly and independently exacted. Rather, they should be understood simply as closely interwined issues that may usefully illuminate the common sense, practical question of whether the injury bears some significant relationship to the business operation. Lisonbee v. Chicago Mill and Lumber Company, supra, at 9. Malone & Johnson, Workers' Compensation Law and Practice, 13 Civ. Law.Treat. Sections 144, 145 (2d ed. 1980).

An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. (Citations omitted), Reid v. Gamb, Inc., 509 So.2d 995 (La.1987). Further, an employee who has finished the day's work and is preparing to leave, or is in the act of leaving, is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment. The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs. This applies also to the periods prior to the actual beginning of work under similar circumstances. [Emphasis ours], Gorings v. Edwards, 222 So.2d 530 (La.App. 4th Cir.1969) (citing Malone, Louisiana Workmen's Compensation, Sec. 169).

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