Deborah Hallal and George Hallal Versus Walter H. Eversmeyer, and East Jefferson General Hospital ( 2020 )

DEBORAH HALLAL AND GEORGE HALLAL NO. 20-CA-263
VERSUS FIFTH CIRCUIT
WALTER H. EVERSMEYER, AND EAST COURT OF APPEAL
JEFFERSON GENERAL HOSPITAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 742-834, DIVISION "M"
HONORABLE ROBERT J. BURNS, JUDGE PRO TEMPORE, PRESIDING
December 23, 2020
MARC E. JOHNSON
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Hans J. Liljeberg
AFFIRMED
MEJ
FHW
HJL
COUNSEL FOR PLAINTIFF/APPELLANT,
DEBORAH HALLAL AND GEORGE HALLAL
Douglas D. McGinity
COUNSEL FOR DEFENDANT/APPELLEE,
JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, PARISH OF
JEFFERSON, STATE OF LOUISIANA D/B/A EAST JEFFERSON GENERAL
HOSPITAL
Meghan E. Ruckman
Charles O. Taylor
JOHNSON, J.
Plaintiffs-Appellants, Deborah Hallal and George Hallal seek review of the
district court’s February 13, 2020 judgment in favor of Defendant-Appellee,
Jefferson Parish Hospital Service District No. 2 doing business as East Jefferson
General Hospital ("EJGH"), which dismissed Plaintiffs’ demand with prejudice at
Plaintiffs’ cost. Ms. Hallal allegedly tripped on an uneven sidewalk and fell into a
glass door entrance of EJGH’s Professional Building on her way to a medical
appointment. Both Mr. and Mrs. Hallal sued EJGH for damages arising from Mrs.
Hallal’s subsequent injuries. We affirm the trial court’s judgment for the following
reasons.
FACTS AND PROCEDURAL HISTORY
On the afternoon of October 7, 2013, Deboral Hallal visited the EJGH
Professional Building, located at 4315 Houma Boulevard, Metairie, LA, to visit her
rheumatologist, Dr. Walter H. Eversmeyer1. Mrs. Hallal had been receiving
treatment for polymyalgia rheumatic – an inflammatory disorder that causes pain
and stiffness in the joints and shoulders – since 2011. Mrs. Hallal visited the
building every three months to see her doctor. She usually used a different
entrance, but decided to use the south side entrance on the west wall of the
building because she had found a parking spot nearby on the day of the incident.
Mrs. Hallal recalled, “I was just walking down there, and I saw this man, and I just
kind of nodded at him, and then I was looking for the handle, and, I mean, I just
fell into the door and hit it with my head.” The glass door cracked upon impact.
Mrs. Hallal “couldn’t get up” and “didn’t even know where [she] was.”
The man Mrs. Hallal greeted, James Lanzetta, had been smoking a cigarette
next to a nearby ash can. He witnessed the accident and offered assistance. Mrs.
1
Dr. Eversmeyer was initially named as a defendant in the lawsuit but was subsequently dismissed.
20-CA-263 1
Hallal sat on the ground for a minute, then walked to take the elevators to her
rheumatologist’s office, where she reported the incident. Office staff brought her
an icepack for her head, but Mrs. Hallal declined further treatment at that time. At
trial, the parties disagreed on the cause and the extent of Mrs. Hallal’s injuries;
however, both sides agreed that she sustained a black eye as a result of her fall.
Approximately three months later, Mrs. Hallal saw Mr. Lanzetta at the
doctor’s office. Mr. Lanzetta, a beginner amateur photographer, offered Mrs.
Hallal photographs he had taken with a phone camera while on his knees of the
spot where she had fallen. The photographs of the defective sidewalk and cracked
glass door were admitted into evidence at trial. Mr. Lanzetta testified that, on the
day of the accident, the weather was clear and sunny. He observed a one-and-one-
half inch height differential “on the cement where the ground had sunk on one side
and where she stepped crossing it and . . . when she stepped, that she [tripped] over
that spot right where she was.” He said that Mrs. Hallal “stumbled four or five feet
from the place where she tripped into the door” and that she was “bleeding with a
serious cut.” Mr. Lanzetta had worked as a maintenance man at a few area
facilities and said that he “[knew] about bad concrete” from installing sidewalks
during Hurricanes Betsy and Camille. In Mr. Lanzetta’s lay opinion, the sidewalk
defect posed a dangerous and hazardous condition. Mr. Lanzetta admitted he had
moved a piece of loose cement before taking the picture of the spot where Mrs.
Hallal tripped.
The court also heard testimony from several employees of the hospital’s
Safety and Security Risk Management team and SRSA, EJGH’s contractor
responsible for security and building management. Those witnesses testified that
that entrances of the building are checked at least two times a day. None of the
witnesses had personal knowledge of when the sidewalk defect was repaired, but
20-CA-263 2
the record shows it was repaired a month later. All facility personnel believed that
they did not see the defect because there was no defect to see.
Mrs. Hallal testified that after her fall and doctor’s appointment, she drove
herself home but went to the hospital the evening of her fall complaining of pains
in her nasal bridge, neck and right orbital. The results of her MRI and CAT scan
did not preclude her from being discharged from the hospital – she also never lost
consciousness. Mrs. Hallal testified that she suffers from headaches and neck pain
periodically since the accident, but admitted that she fell a total of three times
between October 7, 2013 and April 4, 2014. At trial, EJGH presented testimony
that Mrs. Hallal’s fall was more likely than not caused by pre-existing conditions
rather than the defective condition of the sidewalk.
At the end of the three-day bench trial, the court concluded that Plaintiffs-
Appellants failed to prove that an unreasonable risk of harm existed at the time of
the accident by a preponderance of the evidence. The judge conceded that the
Plaintiffs successfully defended against a motion for summary judgment before he
began to preside over the case but reminded the parties that he had the benefit of
observing the witnesses in person during live testimony while making credibility
determinations. The court acknowledged that Mrs. Hallal was injured as a result of
her fall but noted that the parties disputed the extent of those injuries. The judge
then referred to Mrs. Hallal’s testimony and found she “did not see what she
should[‘ve] seen and was obligated to see.” Although one of Appellants’ expert
witnesses opined that the sidewalk defect he observed in the pictures taken by Mr.
Lanzetta and security personnel was a hazardous condition, the court noted that in
Chambers v. Vill. of Moreauville, 11-898 (La. 1/24/12); 85 So.3d 593, the
Louisiana Supreme Court found that a one-and-one-half inch deviation did not
present an unreasonable risk of harm.
20-CA-263 3
The trial judge also found that EJGH did not have active or constructive
knowledge of the sidewalk defect. In his oral reasons for judgment, the judge
credited the testimony of Clarence Millet, the hospital’s director of facility
management, called as a witness by both Plaintiffs and Defendant and qualified as
an expert in building management by the court. Mr. Millet proposed the different
colors of concrete may have been caused by pressure washing. He also testified
that 2,500 people a month traverse the sidewalk while entering and exiting the
building, but there has been no other complaint about the sidewalk defect. Mr.
Millet explained that both the security detail and the property management
company perform cursory inspections of the building, its entrances, and the
surrounding area every single day, and no defects regarding the sidewalk were ever
identified because “there was really nothing to be noticed.” The district court
judge concluded that “[Mrs.] Hallal unfortunately was distracted when she turned
and nodded to [ . . . ] Mr. Lanzetta [ . . . ] and she slipped and fell into the glass.”
The trial court rendered a written judgment in favor of EJGH, referenced its
reasons for judgment recited in open court on February 20, 2020, and dismissed
Plaintiffs’ case with prejudice. Appellants timely filed the instant appeal.
ASSIGNMENTS OF ERROR
On appeal, Appellants assign the following district court findings as error:
1) the sidewalk defects did not create an unreasonable risk of harm; 2) EJGH did
not have actual or constructive notice of the defects; 3) Plaintiffs did not meet their
burden of proving EJGH failed to take corrective action within a reasonable time;
and 4) that the sidewalk defects were not the cause in fact of Mrs. Hallal’s injuries.
LAW AND ANALYSIS
Under La. R.S. 9:2800, in order to prove a public entity is liable for damages
caused by a thing, the plaintiff must establish: (1) custody or ownership of the
defective thing by the public entity; (2) that the defect created an unreasonable risk
20-CA-263 4
of harm; (3) the public entity had actual or constructive notice of the defect; (4) the
public entity failed to take corrective action within a reasonable time; and (5)
causation.” Barker v. City of Grand Isle, 19-451 (La. App. 5 Cir. 1/8/20); 288
So.3d 286, 288, writ denied, 20-230 (La. 4/27/20); 295 So.3d 949 citing Chambers,
supra at 597. The question of whether a defect presents an unreasonable risk of
harm is a mixed question of law and fact that is to be determined by the trier of
fact. Lincoln v. Acadian Plumbing & Drain, LLC, 17-684 (La. App. 5 Cir.
5/16/18); 247 So.3d 205, 210, writ denied, 18-1074 (La. 10/15/18); 253 So.3d
1302. A court of appeal may not set aside a trial court’s factual findings absent
manifest error, or unless those findings are clearly wrong. Rosell v. ESCO, 549
So.2d 840, 844 (La.1989). Where there is conflict in the testimony, a trial court’s
reasonable evaluations of credibility and inferences of facts should not be disturbed
upon review, even if they differ from those of the appellate court. Id.The Louisiana Supreme Court has adopted a risk-
utility balancing test to assist the fact-finder in
determining whether the condition of a thing creates an
unreasonable risk of harm that weighs four factors: “(1)
the utility of the complained-of condition; (2) the
likelihood and magnitude of harm, including the
obviousness and apparentness of the condition; (3) the
cost of preventing the harm; and (4) the nature of the
plaintiff's activities in terms of its social utility or
whether it is dangerous by nature.
Lincoln, supra, citing Broussard v. State ex rel. Office of State Bldgs., 12-1238
(La. 4/5/13); 113 So.3d 175, 178. The cost of repair, or preventing the harm,
includes not just the relatively minor cost of repairing the single defect in question,
but the cost of repairing all similar or worse defects existing in the miles and miles
of sidewalk Jefferson Parish is responsible for maintaining. See Boyle v. Bd. of
Sup'rs, Louisiana State Univ., 96-1158 (La. 1/14/97); 685 So.2d 1080, 1083.
Whether the Parish had actual or constructive notice of a potential defect is a
question of fact. Drury v. Allstate Ins. Co., 11-509 (La. App. 5 Cir. 12/28/11); 86
20-CA-263 5
So.3d 634, 639. Constructive notice shall mean the existence of facts which
infer actual knowledge. La. R.S. 9:2800(D). Id. Constructive notice can be found
if the conditions which caused the injury existed for such a period of time that
those responsible, by the exercise of ordinary care and diligence, must have known
of their existence in general and could have guarded the public from injury. Id.Upon review, we find the trial court did not err when it determined that
Plaintiff-Appellants did not prove the existence of an unreasonable defect by a
preponderance of the evidence and found that EJGH did not have actual or
constructive notice of the sidewalk defect. In Casborn v. Jefferson Par. Hosp.
Dist. No. 1, 11-1020, (La. App. 5 Cir. 5/22/12); 96 So.3d 540, this Court observed
that, although there is no bright line rule, a height differential of one-half to two
inches between sidewalk sections has not been held to be present an unreasonable
risk of harm. In Casborn, the plaintiff fell after catching her foot on what she
estimated to be a height difference of two inches between concrete sections of a
walkway adjacent to a hospital parking garage. Applying the risk-utility balancing
test, the Court found that the deviation in the sidewalk did not rise to the level of
an unreasonably dangerous condition. Id. at 544. The vice or defect must be of
such a nature as to constitute a dangerous condition that would be reasonably
expected to cause injury to a prudent person using ordinary care under the
circumstances. Id. citing Chambers, supra.
We also noted in Jeansonne v. S. Cent. Bell Tel. Co., 08-568, (La. App. 5
Cir. 1/13/09); 8 So.3d 613, 619, that a pedestrian has a duty to see that which
should be seen and is bound to observe whether the pathway is clear. Further, the
fact that a pedestrian fell does not alone automatically elevate the condition of a
sidewalk to that of an unreasonably dangerous defect. Id. “Although public
entities are responsible for maintaining their sidewalks in a reasonably safe
condition, they are neither required to maintain the sidewalks in perfect condition
20-CA-263 6
nor are they the insurers of pedestrians' safety.” Campbell v. Evangeline Par.
Police Jury, 14-1301 (La. App. 3 Cir. 5/6/15); 164 So.3d 408, 415].
We also find that the trial court did not commit manifest error when it found
that EJGH did not have actual or constructive notice of the defective sidewalk. In
Casborn, supra, at 542, the defendant produced evidence that showed it had no
notice of the height differential in the walkway where the plaintiff fell. Similarly,
in the instant case, affidavits and testimony of several facility personnel supported
EJGH’s assertion that they had no notice of the sidewalk defect that Mrs. Hallal
claimed caused her to fall. Employees of the hospital’s property management firm
testified Mrs. Hallal’s incident was the only one reported regarding the defective
sidewalk. Also, the sidewalk defect was never identified as hazardous or
dangerous, or even observed, by security and property management personnel after
years of daily inspections. Because we find that the sidewalk defect did not
present an unreasonably hazardous condition, and find that the trial court did not
commit error when it determined that EJGH did not have actual or constructive
knowledge of the defect, we find that EJGH did not breach its duty to keep its
premises reasonably safe and pretermit discussion of the remaining assignments of
error.
DECREE
For the foregoing reasons, we affirm the trial court decision in favor of
EGJH dismissing Plaintiffs’ petition with prejudice at plaintiffs’ costs.
AFFIRMED
20-CA-263 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 23, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-CA-263
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
DOUGLAS D. MCGINITY (APPELLANT) CHARLES O. TAYLOR (APPELLEE) MATTHEW A. SHERMAN (APPELLEE)
MEGHAN E. RUCKMAN (APPELLEE)
MAILED
HONORABLE ROBERT J. BURNS,
JUDGE PRO TEMPORE (DISTRICT JUDGE)
JUDGE DIVISION "M"
24TH JUDICIAL DISTRICT COURT
4TH FLOOR, SUITE 4100
GRETNA, LA 70053