THIRTY FOURTH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD STATE OF LOUISIANA TERRENCE FEDELE VERSUS CHALMETTE MEDICAL CENTER, INC.

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1 THIRTY FOURTH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD STATE OF LOUISIANA NUMBER DIVISION B TERRENCE FEDELE VERSUS CHALMETTE MEDICAL CENTER, INC. FILED DEPUTY CLERK REASONS FOR JUDGMENT This matter was initiated by Petitioner, Terrence Fedele, against Chalmette Medical Center, Inc., seeking damages for personal injury allegedly resulting from a slip and fall accident occurring at the Defendant s hospital on February 21, Petitioner contends that he was visiting his niece, a patient who was hospitalized at Chalmette Medical Center at approximately 7:15 in the evening, when he exited her hospital room to leave and slipped on a slippery substance that was being used to clean or strip the floor. Petitioner describes his movements while leaving the hospital room as either backing out of the door or looking back toward the patient to say his goodbye. In any event, his testimony shows that his attention was not entirely in the direction in which he was exiting the hospital room. As Petitioner exited the doorway from the room into the hall, he took only a few steps, slipped on the substance and fell injuring his shoulder, causing a nosebleed and injuring his neck. Defendant s cleaning personnel were cleaning or stripping the floor a few more steps away from the area of Petitioner s fall. Petitioner contends that there was a cleaning cart and cones warning of a wet floor at some distance removed down the hall in the direction he was walking from the location of his fall and injury. Petitioner contends that the area in which he fell was that portion of the hallway adjacent to and nearest the side of the hall of the door to the hospital room from which he exited. In essence, Petitioner contends that the warning cones and cleaning cart were not properly located to provide warning that the floor was recently cleaned and /or stripped and that

2 the floor was wet and slippery in the area in which he fell and no warning cone or signs were located. Defendant contends that the floor maintenance personnel were governed by a policy or procedure adopted by Defendant to clean or strip only one side of the hallway at one time in order to accommodate pedestrian traffic on the side of the hall opposite from that which was being maintained. According to the policy and procedure adopted by Defendant and which they contend was being properly implemented at this time, warning cones would be employed to define the area being cleaned and would have additionally been placed in the doorway of each room on the side of the hall which was being maintained. Once one side of the hallway was completed, the policy required that the same procedure be employed on the opposite side. Additionally, the procedure further required that cleaning carts be placed at each end of the side of the hall that was being maintained and that sheets or cloth material be placed between the side of the hall being cleaned or stripped and the opposite side of the hall reserved for pedestrian traffic. Defendant called Micole Mallone and Rodney Davis at trial. Ms. Mallone was the nurse supervisor who had administrative responsibility to supervise the cleaning operation, as well as several other administrative duties. Mr. Davis was conducting the cleaning or stripping operation on the day in question. The major difference in the testimony of those witnesses is that they gave distinctly different versions of whether the side of the hallway that was being cleaned or stripped was that which was closest to the doorway from which the Petitioner entered the hallway. Ms. Mallone states that the area being maintained was the opposite side of the hallway from the patient s room. Mr. Davis, however, recalls the side of the hallway being cleaned or stripped as that closest to or on the side of the patient s room from which Petitioner entered the hall. The distinction is not without a difference. If, as Mr. Davis testifies, the side of the hall being maintained was indeed that which was on the side of the patient s room from which the Petitioner entered the hall, there should have been warning signs or cones at the doorway of the patient s room. The Court, in appreciation that Mr. Davis was present throughout the cleaning operation, was in a better position to have known and recalled in testimony which side of the hall was being worked on, while Ms. Mallone came upon the accident scene only after Petitioner s fall. This credibility determination is further bolstered by their appearance at trial, demeanor and recall of the actual events from a first party position.

3 Defendant further argues that even should Mr. Davis testimony be deemed more credible that Mr. Davis also testified that the floor should have been dry in the area from which Petitioner entered the hall due to the passage of approximately twenty (20) minutes, and further that he applied a blow dryer to the floor prior to moving to the next segment of the area to be maintained. The nature of this argument is an assumption not considering varying effect of humidity, time estimates, or other factors and is directly in conflict with witnesses offered by Petitioner that the floor was wet with a slippery substance when Petitioner fell. Defendant has argued that it is free from fault and it should not be cast in judgment. For the reasons set forth here, this court cannot completely agree with Defendant s argument. Defendant instituted a policy and procedure for maintaining their floor and apparently did not entirely execute that policy or procedure for which they must bear some culpability or civil responsibility for the damages occasioned thereby. Defendant called their witnesses and thereby vouched for their credibility. They cannot now disavow them. However, having said the foregoing, the same rules apply to Petitioner s witnesses. Petitioner was obviously distracted from his exit from the patient s hospital room by conveying his salutations and best wishes to the ill patient he was visiting and candidly admits same. His attention was not directed to the hallway he was about to enter, but was either backing out of the door into the hall or, at least, looking back to the patient while advancing to the door to enter the hall. La. C. C. Article 2317 provides in relevant parts, that we are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of other persons for whom we are responsible or for the things we have in our custody While the premises owner is not the insurer of his premises, he has a duty to act reasonably in view of probability of injuries to another. The inquiry must take the form of discerning whether a duty is owed and was there a breach of that duty. Furthermore, a determination must be made whether there is presented a risk of injury within the scope of protection afforded by the duty breached. Shelton vs. Aetna Casualty and Surety Company 334 So. 2d 406 (La. 1976). Wrongful conduct to be actionable in negligence must be found to be a cause in fact of the resulting harm. If a Plaintiff can show that he probably would have not suffered injury but for the Defendant s conduct, he has carried the burden of proof relative to cause in fact Katsanis vs. State Farm Insurance Company, 615 So. 2d 1114 (La. App. 5 th Cir. 1993).

4 The measure, degree or extent of the liability to respond to a claim for damages lies in the application of comparative fault. La. C. C. Article 2323 provides, in para materia If a person suffers injury, death or loss partly of his own negligence and partly as a result of another person or persons the amount of damages shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss. The assessment of the degree or percentage of fault is factually intensive, embracing the duty of the premises owner owed and the risk presented in that duty-risk analysis. Ruby vs. Yeager 759 So. 2d 905 (La. App.4th Cir. 2000). Gilley vs. Wendy s Inc. 723 So. 2d 517 (La. App. 2 nd. Cir. 1998) Wilson vs. National Fire Insurance Company, 665 So. 2d 1252 (la. App. 2 nd Cir. 1995) E Tief vs. National Railroad Passenger Corporation 733 So. 2d 155 (La. App. 4 th Cir. 1999) Accordingly, this court shall assess comparative fault to the Petitioner at SEVENTY-FIVE (75%) PERCENT and fault to Defendant at TWENTY-FIVE (25%) PERCENT. Now turning to the question of damages. Petitioner had undergone cervical surgery in He was further involved in an automobile accident in March, His injuries from the slip and fall accident involved here in 1999 resulted primarily in a shoulder injury and an aggravation of the prior injury to the cervical area. Upon examination of the stipulated medical evidence in the record of this cause, the shoulder injury stands out as a prominent one attributed to the matter here. There is no mention of a shoulder injury in the surgeries of 1993 and the complaints referable to the shoulder injury persists even beyond the 2000 accident until this date. This court specifically finds that the shoulder injuries are reasonably referable to the slip and fall accident of February, The medical testimony supports that conclusion, particularly that of Doctor Seltzer. The testimony of Doctor Seltzer is further corroborated by impressions of Doctors Vogel and Moss. Each at one time or another have stated that surgery would be necessary to correct the impingement shoulder syndrome that Petitioner apparently has as a result of this injury. The future surgery is questionable in light of Petitioner s cardiac problems and will probably never be performed, although recommended if the cardiac situation improves. After an evaluation of the medical evidence, this court determined that Petitioners total general damages are FORTY THOUSAND DOLLARS ($40, ) and the total medical expenses attributed to this injury are SEVENTEEN THOUSAND NINETY ($17, ) DOLLARS AND 75/100 and that judgment herein at the rate of Twenty-five percent comparative negligence of the

5 Defendant, Chalmette Medical Center, Inc., shall result in a judgment in favor of the Petitioner, Terrence Fedele, and against the Defendant, Chalmette Medical Center, Inc., in the amount of FOURTEEN THOUSAND TWO HUNDRED SEVENTY-TWO ($14,272.50) AND 50/100 together with legal interest thereon and for twenty five percent of the cost of these proceedings. Judgment shall be entered accordingly. Chalmette, Louisiana on this 31 st day of July, 2002 MANUEL A. FERNANDEZ DISTRICT JUDGE

6 THIRTY FOURTH JUDICIAL DISTRICT COURT PARISH OF ST. BERNARD STATE OF LOUISIANA NUMBER DIVISION B TERRENCE FEDELE VERSUS CHALMETTE MEDICAL CENTER, INC. FILED DEPUTY CLERK JUDGMENT This matter came to be heard on trial on the merits. PRESENT: WILLIAM MURA, Attorney for Plaintiffs, and Plaintiff, Terrence Fedele and DOUG KRAUS, Attorney for Defendant, CHALMETTE MEDICAL CENTER, and Defendant, CHALMETTE MEDICAL CENTER The Court, upon considering testimony of witnesses, the pleadings and stipulations of the parties, and the record of this proceeding, the law and evidence that judgment herein at the rate of Seventy-five (75%) Percent comparative negligence of the Plaintiff and at the rate of Twenty-five (25%) Percent comparative negligence of the Defendant, CHALMETTE MEDICAL CENTER, shall result in a judgment in favor of the Plaintiff, TERRENCE FEDELE, and against the Defendant, CHALMETTE MEDICAL CENTER, in the amount of FOURTEEN THOUSAND TWO- HUNDRED SEVENTY DOLLARS ($14,272.50) AND FIFTY CENTS, together with legal interest thereon and for Twenty-five (25%) Percent of the costs of these proceedings and for the reasons provided in the Reasons for Judgment filed herein. July, JUDGMENT RENDERED AND SIGNED at Chalmette, Louisiana, this 31 st day of MANUEL A. FERNANDEZ DIVISION B

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