Pitre v. Jefferson Parish Hosp. Serv. Dist. No. 2

• Decision Date: 28 December 2016
• Docket Number: NO. 16–CA–361,16–CA–361
• Citation: 210 So.3d 502
• Parties: Michael PITRE and Nancy Pitre Desalvo, Individually and on Behalf of their Decedent, Verna R. Pitre v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital and DCI Door Controls, Inc. d/b/a Door Controls, Inc.
• Court: Court of Appeal of Louisiana — District of US

210 So.3d 502

Michael PITRE and Nancy Pitre Desalvo, Individually and on Behalf of their Decedent, Verna R. Pitre

v.JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital and DCI Door Controls, Inc. d/b/a Door Controls, Inc.

NO. 16–CA–361

Court of Appeal of Louisiana, Fifth Circuit.

December 28, 2016

COUNSEL FOR PLAINTIFF/APPELLANT, MICHAEL PITRE AND NANCY PITRE DESALVO, INDIVIDUALLY AND ON BEHALF OF THEIR DECEDENT, VERNA R. PITRE, Jennifer L. Thornton, Richard P. Voorhies, III, James F. Flinn, Jennifer R. Rust

COUNSEL FOR DEFENDANT/APPELLEE, J.P. HOSPITAL SERVICE DIST. #2, PARISH OF JEFFERSON, STATE OF LOUISIANA, D/B/A EAST JEFFERSON GENERAL HOSPITAL, Conrad Meyer, Charles O. Taylor, Ryan P. Monsour

Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst

WINDHORST, J.

Plaintiffs, Michael Pitre and Nancy Pitre DeSalvo, individually and on behalf of decedent, Verna R. Pitre ("the Pitres"), appeal from the granting of a motion for involuntary dismissal¹ in favor of defendant, Jefferson Parish Hospital Service District No. 2, Parish of Jefferson, State of Louisiana d/b/a East Jefferson General Hospital ("EJGH") and DCI Door Controls, Inc. d/b/a Door Controls, Inc., ("Door Controls"), dismissing the Pitres' cause of action with prejudice. For the reasons that follow, we affirm the decision of the trial court.

FACTS

On August 13, 2013, Mrs. Verna Pitre was attempting to exit EJGH through the automatic doors located on the second floor, exiting into the Hudson Street garage, when she was struck by the automatic door which closed on her. At the time, Mrs. Pitre was eighty-seven years old and was walking with the aid of a walker. The door, which struck her on the left side, caused her to fall to her right, and she struck her head on the terrazzo floor immediately inside the automatic doors. Her husband, who had been with her, exited earlier to retrieve their automobile and drive it up to the door to pick her up. He did not witness the accident, but arrived moments later. Mrs. Pitre died approximately eighteen days later from her injuries and resultant complications. The parties stipulated that the fall and resultant injuries were the cause of Mrs. Pitre's death.

Mrs. Monica Friedrichs was leaving the hospital at the same time as Mrs. Pitre and was an eyewitness to the accident. She testified that as she was approaching the automatic doors, trailing behind her husband and two grandchildren. She saw this "little lady," later identified as Mrs. Pitre, with a walker, coming from the left of the doors, which were open. Mrs. Pitre was getting ready to go through the doors and the doors started closing. Mrs. Friedrichs' husband tried to grab Mrs. Pitre's walker to stabilize it, and her grandson tried to stop the doors from closing, however they were unsuccessful. The doors slammed shut and struck Mrs. Pitre, and she fell to the right and hit her head on the floor. According to Mrs. Friedrichs, "the door hit her hard enough that it knocked her basically off her feet, hit her from the left, and she fell to the right and fell just straight out and hit her head."

Wilmer Calix is a technician for Door Controls. He testified that the door at issue was manufactured by Stanley, and was a full-power automatic door. He had gone on many service calls to EJGH, and on these calls he would deal with EJGH employee Freddy Fernandez.

On July 26, 2013, Mr. Calix went to EJGH to replace some parts on the exit door, second floor, Hudson Garage, after another Door Controls employee, Mr. Rueben Urbina, generated a work ticket on July 23, 2013. Mr. Urbina's ticket indicated an unsatisfactory safety rating in that the door did not have I-One sensors.² Mr. Calix also indicated an unsatisfactory rating on his work ticket for the same reason. In his testimony, Mr. Calix stated that, in an automatic door without these presence sensing detectors, "the risk is that the door will close on somebody, should they be moving slow enough or coming at just the right angle where the motion sensors wouldn't see them...Although it's a very slight chance, the risk was still there." It was this risk that the presence sensors were designed to address.

Mr. Calix testified that he discussed the lack of these sensors with Mr. Fernandez on July 26, 2013, and that he went over scenarios with Mr. Fernandez in which these additional sensors might be important, including "like some little old lady on a walker, you know, going through there and being hit by the door." Mr. Calix testified that Mr. Fernandez asked for a price quote to address the issue. Mr. Calix also stated that he believed he had discussed this issue in general with Mr. Fernandez, concerning both this door and other doors, although he admitted that his memory was vague.³

At trial, Mr. Calix stated that he did not think that the doors were "essentially unsafe," but that there was always a small chance that if someone moved slowly enough in the right direction, the doors had the potential to close on them. He stated that the doors were "up to the original manufacturer's specification, but not up to the current [American National Standards Institute (ANSI) ] standards." He further stated that he discussed the lack of sensors with Mr. Fernandez because they were not up to current standards, however this did not mean that the doors were unsafe. Mr. Calix clearly stated that he did not think that the doors were unsafe and that the work tickets, which found that they were unsatisfactory for failure to have the most current sensor, did not mean that the doors were dangerous.

Mr. Calix testified that he could not force a client to perform work on one of its doors, nor could he take a door out of service if it exhibited a "clear safety problem." Mr. Calix stated that "There was no reason to take it [the doors] out of service since I already explained the door was safe."

Freddy Fernandez testified that he was employed by EJGH in the Building Services Department, and that he was the person who oversees the maintenance and operation of the automatic doors in the facility. If there was a problem with an automatic door, he would call Door Controls. If Door Controls makes a recommendation, he would submit a purchase requisition to have the work performed. Mr. Fernandez testified that EJGH did not have a preventive maintenance contract on the automatic doors, but would call Door Controls on an as needed basis. Mr. Fernandez stated that he had made the call that led to Mr. Calix's repair visit because the doors in question had begun opening and closing slowly. After the accident, Mr. Urbina of Door Controls inspected the doors, and recommended that presence sensors be upgraded. Thereafter, Mr. Fernandez took the necessary steps to upgrade the automatic doors.

After Mr. Urbina inspected the doors, they were taken out of service until upgraded. Mr. Fernandez stated that he turned off the power to the doors after they were inspected "because someone got hit by the door, to prevent it happening again." When asked if the doors had ever hit someone else, Mr. Fernandez responded, "Never."

Dr. Charles Carr was stipulated as an expert in the field of power-operated automatic doors and the standards that govern that industry. Dr. Carr stated that the cause of the accident was that the sensors failed to detect Mrs. Pitre, and that the accident could have been avoided had the sensors been upgraded. He also stated that, in his review of the records, he found that EJGH did not conduct regular safety checks, and had these checks been performed, the "defect" with the sensors would have been discovered prior to the accident. However, Dr. Carr acknowledged that three other experts disagreed with his conclusion that the doors presented an unreasonable risk of harm of which EJGH should have been aware.⁴ Dr. Carr also agreed that had Mrs. Pitre's husband been with her, the doors would not have closed.

DISCUSSION

Mr. Pitre, the decedent's husband, and Nancy Pitre DeSalvo, the decedent's daughter, filed this petition for survival injuries and wrongful death against EJGH pursuant to La. C.C. arts. 2315, 2315.1, 2315.2 and 2317 and La. R.S. 9:2800, alleging that the automatic doors presented an unreasonable risk of harm and that EJGH knew or should have known of the risk. The matter proceeded to trial, and at the conclusion of the plaintiffs' case, the trial court granted a motion for involuntary dismissal, dismissing their cause with prejudice.

In this appeal, the Pitres allege that the trial court failed to apply the proper legal test to determine constructive knowledge, and further failed to find that EJGH was not shielded from liability by Door Control's failure to recommend removing the doors from service pending upgrade. The Pitres also allege that the trial court committed manifest error in failing to find that EJGH had actual knowledge that the sensors were not up to date, and that this created an unreasonable risk of harm.

In a claim for injury as a result of an alleged defective...