Toussaint v. Baton Rouge Gen. Med. Ctr.

• Decision Date: 04 June 2018
• Docket Number: NO. 2018 CA 0029,2018 CA 0029
• Citation: Toussaint v. Baton Rouge Gen. Med. Ctr., 251 So.3d 1151 (La. App. 2018)
• Parties: Torsor TOUSSAINT v. BATON ROUGE GENERAL MEDICAL CENTER and XYZ Insurance Company
• Court: Court of Appeal of Louisiana

251 So.3d 1151

Torsor TOUSSAINT

v.BATON ROUGE GENERAL MEDICAL CENTER and XYZ Insurance Company

NO. 2018 CA 0029

Court of Appeal of Louisiana, First Circuit.

Judgment rendered June 4, 2018

GREG A. ROZAS, PAUL J. TANNER, BATON ROUGE, LA, ATTORNEYS FOR PLAINTIFF–APPELLEE TORSOR TOUSSAINT

N. COURTENAY SIMMONS, CRAIG J. SABOTTKE, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANT–APPELLANT, BATON ROUGE GENERAL MEDICAL CENTER

JERALD L. ALBUM, SUZANNE M. GANUCHEAU, METAIRIE, LA, ATTORNEYS FOR DEFENDANT–APPELLEE, HOSPITAL HOUSEKEEPING SYSTEMS, LLC

BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

PETTIGREW, J.

In this case involving a slip and fall in a hospital, the hospital appeals a trial court judgment in favor of the plaintiff. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 19, 2014, Torsor Toussaint accompanied her mother to Baton Rouge General Medical Center's Bluebonnet Campus ("BRGMC") for medical services. Mrs. Toussaint and her mother entered the hospital through the emergency room entrance and proceeded down a hallway towards the admissions desk. At some time prior to their arrival, a spill was discovered on the floor near the admissions desk, and BRGMC's housekeeper, Lakeysha Franklin, was sent to mop the spill. After Ms. Franklin located the spill, set up a "wet floor" sign, and began mopping, Mrs. Toussaint and her mother entered the admissions area from behind Ms. Franklin, walked to their right around the area being mopped by Ms. Franklin, and stopped at the admissions desk. After mopping, Ms. Franklin repositioned the "wet floor" sign within the area she had just mopped and left the area. After checking in at the admissions desk, Mrs. Toussaint and her mother sat down in a waiting area across from the admissions desk. Less than a minute later, Mrs. Toussaint stood back up and began walking back down the hall towards the emergency room entrance, this time passing on the opposite side of the mopped area. After walking past the "wet floor" sign placed by Ms. Franklin, Mrs. Toussaint slipped and fell in what she later described as "an excessive amount of water on the floor," striking her right knee on the floor and allegedly sustaining injuries.

Mrs. Toussaint filed a petition for damages for the injuries she sustained in the slip and fall against BRGMC, as well as the contractor that manages BRGMC's housekeeping department, Hospital Housekeeping Services, LLC ("HHS"). After the bench trial in this matter began, Mrs. Toussaint settled her claims against HHS for $2,500.00, reserving her rights against BRGMC. After the conclusion of the trial, the trial court ruled in favor of Mrs. Toussaint, finding that BRGMC did not do enough to warn the public of the wet floor. The trial court allocated one hundred percent of the fault for Mrs. Toussaint's injuries to BRGMC, and awarded Mrs. Toussaint special damages of $6,900.40, general damages of $15,000.00, and deposition costs of $1,500.00. BRGMC filed a suspensive appeal, arguing that the trial court erred in finding that BRGMC was negligent, in not allocating any comparative fault to Mrs. Toussaint or HHS, and in awarding an excessive amount of general damages for Mrs. Toussaint's injuries.

DISCUSSION

Negligence of BRGMC

The legislature has not specifically addressed the burden of proof applicable in a slip-and-fall claim against a hospital. Consequently, jurisprudence addressing the burden placed on a hospital is not affected by the statute governing merchant liability for slip-and-fall claims found at La. R.S. 9:2800.6. See Terrance v. Baton Rouge Gen. Med. Ctr., 10-0011, pp. 3-4 (La. App. 1 Cir. 6/11/10), 39 So.3d 842, 844, writ denied, 10-1624 (La. 10/8/10), 46 So.3d 1271. Because the hospital is not a "merchant," we must examine the hospital's duty in light of the facts of this case under a negligence theory of liability.

Under a negligence standard, a hospital owes a duty to its visitors to exercise reasonable care for their safety, commensurate with the particular circumstances involved; but the duty owed is less than that owed by a merchant. Mrs. Toussaint must show that she slipped, fell, and was injured because of a foreign substance on the hospital's premises. The burden then shifts to the hospital to exculpate itself from the presumption of negligence by showing that it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity. The trial court must consider the relationship between the risk of a fall and the reasonableness of the measures taken by the hospital to eliminate the risk. Smith v. Northshore Reg'l Med. Ctr., Inc., 14-0628, pp. 3-4 (La. App. 1 Cir. 1/26/15), 170 So.3d 173, 176 ; Terrance, 10–0011, p. 4–5, 39 So.3d at 844. The determination of whether the measures taken by the hospital to eliminate the risk were reasonable is a question of fact. See Osorio v. Target Corp. of Minnesota, 11–1761, 2012 WL 3443333, p. 3 (E.D. La. 8/14/12).

A trial court's findings of fact will not be disturbed on appeal unless the appellate court finds they are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La. 1993). The appellate court may not reverse the trial court even if the appellate court determines it would have weighed the evidence differently if sitting as the trier of fact, as long as the trial court's findings are reasonable in light of the entire record. Id. at 882. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous. Id. at 883.

BRGMC argues on appeal that Mrs. Toussaint did not carry her burden of proving that she slipped and fell in a foreign substance on the floor. Although BRGMC concedes that a small spill was discovered in the admissions area hallway just prior to Mrs. Toussaint's fall, they argue that this does not imply that the entire eighteen-foot-wide hallway was wet. In addition to testimony from Mrs. Toussaint and Ms. Franklin about the condition of the floor on the date of the accident, the trial court also viewed the BRGMC surveillance video of the events at issue in this case, starting about a minute before Ms. Franklin arrived to clean the spill and continuing until after Mrs. Toussaint left the area following the fall.

Mrs. Toussaint testified that the floor was wet in the spot where she slipped. Although she did not see water on the floor beforehand, she said that after she fell, she looked at the floor to see why she had slipped, and realized that it was wet. She also recalled that a man walked up after she fell and moved the "wet floor" sign to the spot where she slipped, which she said was "where the water actually was."

Ms. Franklin testified that on the date of the slip and fall, she was paged to clean up a spill in the admissions area while she was in the process of cleaning a nearby bathroom, so she took her damp string mop and one "wet floor" sign and walked to the admissions area. Once she located the spill, which she said covered an area of the floor smaller than a letter-size sheet of paper and appeared to be water, she placed her "wet floor" sign on the floor, mopped up the spill, and then positioned the "wet floor" sign in the center of the area where the spill had been. Although she described the spill as small, Ms. Franklin explained that she ultimately had to mop a larger area because after she mopped one spot, she noticed another area nearby was damp, so she mopped it as well. She was not able to wring out her mop during this process, because she did not have her housekeeping cart, with her mop bucket and wringer. However, she felt certain that she had identified and mopped all of the wet areas.

Although whether the floor was wet or dry cannot be seen on the surveillance video, the video does offer support for Mrs. Toussaint's assertion that there was water on the floor where she slipped. The video shows Ms. Franklin mopping an area that appears to extend several feet in each direction without wringing out her mop; and less than two minutes after she finished, the video shows Mrs. Toussaint slipping and falling while walking in what appears to be the outer edge of the area Ms. Franklin mopped. After Mrs. Toussaint fell, the video shows a man who had been sitting nearby pointing out something on the floor where she slipped to a BRGMC employee, then moving the "wet floor" sign to that spot. Although there was no evidence offered at trial about how long the spill existed before Ms. Franklin's arrival, the surveillance video shows that nothing was done to prevent passersby from walking through the spill until Ms. Franklin arrived to clean it. In the one minute of video before Ms. Franklin's arrival, several people walked through the vicinity of the spill, potentially spreading the spill into a larger area. In light of all the evidence before the trial court, we cannot say that the trial court's conclusion that Mrs. Toussaint slipped on a wet floor was manifestly erroneous or clearly wrong.

BRGMC argues that even if there was a foreign substance on the floor where Mrs. Toussaint fell, BRGMC overcame the presumption of negligence by proving that it acted reasonably to discover and correct any dangerous condition. In concluding that BRGMC's actions were not reasonable considering the risk, the trial court found that Ms. Franklin did not use a sufficient number of "wet floor" signs to properly notify the public of the area that was wet, and that BRGMC should have had someone stand near the spill until housekeeping arrived to ensure that people did not continue to walk through it, potentially spreading the spill to other areas. BRGMC argues on appeal that this finding was erroneous because its employee, Ms. Franklin, followed housekeeping department policies and procedures, which were established with patient safety in mind.

BRGMC contracted with HHS for the provision of housekeeping management services, including management and oversight of...