
    Chianni YATES appearing through her Natural Tutrix Adrienne YATES v. The CHILDREN’S WORKSHOP, et al.
    No. 89-CA-0569.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1989.
    
      David M. Cambre, Lozes & Cambre, New Orleans, defendant/appellant.
    Marc H. Morial, New Orleans, for plaintiffs/appellees.
    Before LOBRANO, WARD and WILLIAMS, JJ.
   LOBRANO, Judge.

On July 22, 1985, Chianni Yates (Chianni) fell from a sliding board and fractured her right elbow while playing in the back yard/playground of The Children’s Workshop, the day care center she attended. Chianni, through her mother and natural tutrix Adrienne Yates (Adrienne), filed suit in the Civil District Court for the Parish of Orleans against The Children’s Workshop and its insurers, ABC Insurance Company and St. Paul Fire & Marine Insurance Company for the injuries she suffered.

The trial court found The Children’s Workshop liable, awarding Chianni $30,-000.00 for pain and suffering, $15,000.00 for future medical expenses, and $1,100.00 for past medical expenses, for a total of $46,100.00.

The Children’s Workshop appeals, asserting that the court erred: (1) in concluding that the sliding board was unsafe for a child of Chianni’s age; (2) in placing the burden of proving the safety of the apparatus for a child of Chianni’s age upon the defendant; (3) in finding that Chianni had not been properly supervised; and (4) in awarding Chianni an excessive amount for future medical expenses.

These assignments of error can be consolidated into the following dispositive issues:

(1) Was Chianni negligently supervised by personnel of the Children’s Workshop at the time of the accident?
(2) Were the damages awarded Chianni for future medical expenses excessive?

FACTS:

The accident in question took place after school hours on July 22, 1985. Chianni, then four years old, was the only child on the playground at the time the accident occurred. Marva Doughty, the administrator/owner of The Children’s Workshop, had gone inside to answer the telephone. Chi-anni was under the sole supervision of Brendel Wharton (Wharton), a 17 year old girl who was a paid assistant at the Children’s Workshop.

There are two slides on the playground. The smaller slide was built according to specifications for children ages 3-8. The larger slide is similar, but its platform is taller by several feet. The accident occurred on the larger slide. At the time, Wharton was seated in a chair approximately 16 feet from the larger slide. She watched Chianni climb up the slide steps, and saw her fall from the next-to-highest step. She testified:

“Q. Explain to us how Chianni fell.
A. She was walking up this way, straight up, and she fell over that side of it.
Q. So she was walking up the slide backwards or up the steps?
A. No, up the steps.
Q. In the back?
A. In the back.
Q. And she fell down?
A. Yes, she fell over this little edge.

As a result of the fall, Chianni suffered a non-displaced fracture of the elbow which involved damage to the growth plate and required a cast.

LIABILITY

Defendants argue that the trial court erred'in finding them at fault. Specifically, they argue that the court, rather than require plaintiff to prove the slide was unsafe, instead placed the burden on them to prove that the slide was safe for use by four year olds. Defendant • also argues that-the court overlooked plaintiff’s stipulation at the start of the trial that the slide was not defective.

Although the trial court suggested that there was no evidence showing that the slide from which plaintiff fell was safe for use by four year olds, it is clear that the basis for liability is defendant’s lack of supervision. Defendant’s reliance on the burden of proof analysis in Waters v. McDaniel Recreation Center Inc., 521 So.2d 788 (La.App.2nd Cir.1988), writ denied, 524 So.2d 520, is not applicable to the instant case. That case involved a claim based on an allegedly defective walkway. In Waters, plaintiff sought recovery under theories of strict liability and negligence. However, both theories were predicated on the assertion that the walkway posed an unreasonable risk of harm, i.e. it was defective. The court in that case held that under either theory the plaintiff had the burden of proving that the walkway was defective.

In the instant case, plaintiffs claim is predicated, not on a defective slide, but on defendant’s failure to supervise those entrusted to its care. This court, in Drueding v. St. Paul Fire and Marine Ins. Co., 482 So.2d 83 (La.App. 4th Cir.1986) summarized the duty of care, which we deem applicable in this case, as follows:

“Although charged with the highest duty of care toward children placed in their custody, supervisors at day care nurseries are not absolute insurers of the children’s safety and cannot be expected or required to prevent them from falling or striking each other during normal childhood play. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir.1962). Also well established in school-related accident cases is the rule that supervising teachers must follow a reasonable standard of care commensurate with the age of the children under the attendant circumstances, and liability is imposed only where there is a causal connection between the lack of supervision and the accident that could have been avoided by the required degree of supervision.” Id. at 86.

Plaintiff was four years old at the time of the accident. The evidence shows that she fell from the higher of the two slides. Wharton, who was watching plaintiff, was seated approximately sixteen feet away. Although Wharton’s testimony, quoted supra, is not clear as to whether Chianni was climbing the steps backwards, or climbing up the back of the steps, we are satisfied that she was not in a position to assist plaintiff or physically prevent the fall. Nor is there any evidence to suggest she advised or attempted to prevent plaintiff from climbing the steps in a fashion that apparently was not normal. Wharton was seventeen at the time, and although had worked for defendant since she was twelve, had no formal training in child care or supervision nor was she licensed in child care.

Although Doughty highly praised Wharton’s past work experience, given the facts of this case we cannot say that the trial court was clearly wrong in finding defendant at fault because of inadequate supervision. Defendant strenuously urges that nothing they could have done would have prevented the accident; that-plaintiff was the only child Wharton had to watch; that she was in fact looking at her the whole time; and that plaintiff had never had an incident in the use of the slide. We find no merit in those arguments.

Wharton could have easily prevented the accident by prohibiting plaintiff from climbing the steps in an unusual fashion; by positioning herself closer in order to assist plaintiff since she was using the taller slide; and, possibly by prohibiting her use of that particular slide. The fact that plaintiff was the only child on the playground at that time is suggestive that Wharton could have taken any one of these preventive measures.

QUANTUM

Plaintiff sustained a fracture of her right elbow which involved her growth plates. The medical evidence indicates that the growth plate had closed. In addition to the general damage award, the trial court awarded $15,000.00 in future medicals. Defendant argues that this award is not supported by the evidence, and relies on our decision in Landry v. Bill Garret Chevrolet, Inc., 443 So.2d 1139 (La.App. 4th Cir.1983), writ denied, 445 So.2d 441 (La.1984). The thrust of defendant’s argument is that plaintiffs future medical treatment is speculative.

The standard fot determining future medical expenses was set out in Martinez v. U.S. Fidelity and Guaranty Co., 423 So.2d 1088 (La.1982). In Martinez, the Louisiana Supreme Court held that a plaintiff must prove that there is a probability that he or she will incur future medical expenses because of injury or illness caused by the defendants’ negligence. The Second Circuit Court of Appeal in Edwards v. Lewis Grocery Co., 391 So.2d 13, 16 (La.App. 2nd Cir.1980), stated: “[pjrerequi-sites for such an award include some medical testimony that future medical treatment is indicated and setting out the probable costs.”

The medical problem which is the basis for the award of future medical expenses is the probability of future surgery to correct the angular deformity which may occur to Chianni’s elbow as she reaches skeletal maturity.

Two orthopaedic surgeons testified at trial. Dr. James Butler examined Chianni once, on August 8, 1988, three years after' the accident. He testified that Chianni had suffered a non-displaced fracture of the right elbow going through the epiphyseal or growth plate (the area where the bone grows lengthwise.) An evaluation made at that time revealed an alteration in growth, and x-rays revealed a closure of the growth plate.

Dr. Butler further testified that any injury or medical condition that might affect normal growth through a growth plate may alter the growth in that area. He testified that some difference in elbow an-gulation would be probable as the person continued to grow. An osteotomy, (a cutting and realigning of the bone to match the other side), would be the required surgery to correct such a deformity. However, the necessity for such surgery would be determined by the degree of angular deformity, either from a cosmetic or functional point of view, when the patient reaches skeletal maturity. When asked to what degree of medical certainty could he opine that surgery would be required, he answered: “I don’t think I can say with any degree of medical certainty.” On cross examination however he stated that from a cosmetic point of view, a difference of ten degree angulation of the unaffected side to the affected side would be sufficiently noticeable to require surgery. Then, when asked if Chianni’s condition would progress to the point where a ten degree angulation would develop, he answered, “I think there is a distinct probability that it will.”

Dr. Ruel was the treating physician. He also testified to the non-displaced fracture of the right elbow through the growth plate. He stated that closure of the growth plate usually takes place between the ages of 14 and 17, and expressed concern that Chianni’s growth plate had closed at age 6. He would not confirm the probability that a deformity would develop requiring surgery. However, he did express his desire to see Chianni periodically over the next ten years to monitor the progress of the deformity. His opinion was that he would recommend surgery only if a functional disability resulted, and at this time it was too early to opine with any degree of certainty. If the surgery becomes necessary, he estimates its cost to be between $2,000.00 and $3,000.00, while the hospital cost will be approximately $8,000.00 to $10,000.00.

In this case, we believe the plaintiff has not proved by a preponderance the medical probability required to substantiate an award of future medical expenses. Dr. Butler’s testimony is contradictory on this point, and Dr. Ruel’s opinion is that it is too early to say with any degree of certainty. However, it is apparent that Chianni will need observation at least once a year for the next ten years. Dr. Ruel testified those costs would be approximately $50.00 per visit, plus $120.00 per x-ray, or a total cost of $1,700.00. We therefore reduce the award for future medical expenses to $1,700.00. In all other respects the judgement is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

WILLIAMS, J., dissents with reasons.

WILLIAMS, Judge,

dissenting with reasons.

Because the record is devoid of any evidence to show that the slide from which Chianni fell was unsuitable or unsafe for four year olds or that the supervision provided by defendant fell below the standard of care required by nursery school providers, I dissent from the majority’s holding that defendant is liable.

To begin with, the trial court’s reasons for judgment clearly indicate that liability was based largely on a finding that the slide from which Chianni fell was unsuitable or unsafe for use by four year olds, and not upon defendant’s lack of supervision as the majority states. The trial court stated:

The Court’s been provided with no evidence as to whether that equipment [i.e., the sliding board] carried any literature with reference to the suitability for any particular age group, so the Court is not convinced that the equipment was safe for a child of 4 years of age given the dimensions and other particulars of this particular slide. [Emphasis added.]

Flying in the face of a principle of law so basic as that requiring a plaintiff to prove every element of its case, the trial court apparently began with the presumption that the slide was not safe for use by four year olds and erroneously placed upon the defendants the burden of proving otherwise.

As to adequacy of the supervision rendered by defendant, the trial court did not indicate that this was a basis for liability, but simply stated:

The evidence did not establish any particular guidelines with regard to supervision of children on this play yard, whether a teacher was required, for instance to stand at the steps as the children climbed the steps, [sic] there’s been no testimony that the [sic] Ms. Wharton was required to stand by the side of slide [sic] as the children descended, [sic] in fact, the record is void of any instructions whatsoever with regard to how this situation should be handled when the play ground equipment was in use. [Emphasis added.]

The court then noted that Ms. Wharton was sitting about sixteen feet from the slide when Chianni fell and was unable to reach the child before she was injured. The remainder of the trial court’s reasons focus on the injury itself.

Thus, it appears that liability was based on the finding that the slide was not suitable for use by four year olds. If, in fact, liability was based upon lack of supervision as the majority states, then we can only conclude from the language of the trial court that liability was grounded on the unfounded assumption that defendant allowed Chianni to use a slide which was unsuitable for use by four year olds.

In fact, however, the record is without the slightest evidence that the slide was unsafe or unsuitable for use by four year olds. The trial court stated it was not convinced that the slide was safe for four year olds “given the dimensions and other particulars of this particular slide.” Yet, the record is Vacant of any evidence showing the dimensions or any particulars of either slide. Plaintiffs introduced into evidence a page from a booklet which pictured a slide comparable to the smaller slide, which Chianni was not using at the time of the accident and the dimensions of which are unknown, as part of a multi-use swing and play combination set. In addition to the small slide, the set included two tire swings, two belt swings, a swinging bridge, and a fireman’s pole. The recommended age for the play set was three to eight years old, a fact which by itself is immaterial and from which we cannot infer that the larger slide alone was unsafe or unsuitable for four year olds. Furthermore, neither the testimony nor evidence established that the larger slide was “several feet” taller than the smaller slide, as the majority states. Ms. Doughty, then owner of the Children’s Workshop, testified that the platform of the larger slide was a “few” feet higher than that of the smaller slide, and it appears from photographs introduced into evidence that the larger slide was approximately only three steps higher than the smaller slide. I note that it is apparent from the photographs that the slide from which Chianni fell was not by any calculation an inordinately high sliding board, and in fact, was not unlike those used by children of all ages on many area playgrounds. As there is absolutely no evidence in the record from which a trier of fact could reasonably conclude that the slide from which Chianni fell was unsafe or unsuitable for four year olds, this finding of the trial court was clearly wrong.

Next, while correct in its statement of the duty of care owed by defendant in this case, the majority fails to apply the reasonableness standard it so aptly sets forth.

While charged with the highest degree of care toward children placed in their custody, supervisors at day care nurseries are not the absolute insurers of the children’s safety and cannot be required to prevent them from falling during normal childhood play. Comeaux v. Commercial Union Insurance Co., 269 So.2d 500, 501 (La.App. 4th Cir.1972); Drueding v. St. Paul Fire & Marine Insurance Co., 482 So.2d 83, 86 (La.App. 4th Cir.1986); Oldham v. Hoover, 140 So.2d 417, 421 (La.App. 1st Cir.1962). The supervising persons must follow a reasonable standard of care commensurate with the age of the children under the attendant circumstances. Drueding v. St. Paul Fire & Marine Insurance Co., 482 So.2d at 86.

The record establishes that Ms. Wharton, who was seventeen years old at the time of the accident, was experienced in supervising children. She had worked at the Children’s Workshop since she was twelve, had largely assumed the responsibility for her younger sibling after her mother’s untimely death, and was experienced in babysitting. Although Ms. Wharton did not have formal training in child supervision and was not licensed in child care, there was absolutely no showing made that her actions fell below the standard required by those who are licensed in child care.

At the time of the accident, Chianni was adequately furnished with one-on-one supervision, see Oldham v. Hoover, 140 So.2d at 421, and in fact, Ms. Wharton witnessed the fall from just sixteen feet away. Chi-anni had used the slide numerous times in the past without incident, and there was no evidence presented to show that the circumstances on the day of the accident necessitated a heightened degree of care in supervising her play. The majority’s finding that Chianni was climbing the steps of the slide backwards “in a fashion that apparently was not normal” was not a finding of the trial court and is not substantiated by credible evidence in the record. The only evidence in this regard adduced at trial was the testimony of Ms. Wharton, the only eye witness to the accident:

Q: Explain to us how Chianne [sic] fell.
A: She was walking up this way, straight up, and she fell over that side of it.
Q: So she was walking up the slide backwards or up the steps?
A: No, up the steps.
Q: In the back?
A: In the back.
Q: And she fell down?
A: Yes, she fell over this little edge.

This testimony does not establish that Chi-anni was using the slide in an improper manner.

Under the circumstances, Ms. Wharton could not reasonably be expected or required to stand at four year old Chianni’s side as she played on the sliding board. In holding otherwise, the majority discards the standard of reasonableness and imposes one approaching absolute liability. While day care providers certainly owe the children in their custody a very high degree of care, they should not be held liable in the absence of any evidence showing that they fell below this standard. The majority sets an unfortunate precedent with the imposition of such an onerous burden. As a result, day care providers might now be forced to discontinue their services which are so vital in our society of working women and mothers who desire responsible care for their children.

Finally, the majority states in footnote 2 that the day care center in Drueding v. St. Paul Fire & Marine Insurance Co., supra, was liable, although the facts of that ease were “less egregious than the instant case.” However, the plaintiff in Drueding introduced testimony to support the conclusion that the defendant day care center was negligent in permitting the children to engage in frisbee throwing in such a confined area as was available there. Unlike Drueding, plaintiff in the instant case presented no evidence to show that the actions of defendant in supervising Chianni fell below the required standard of care under the circumstances.

For the foregoing reasons, I respectfully dissent. 
      
      . As a result of plaintiff's stipulation, the trial court dismissed the third party demand of defendant against the manufacturer of the slide. Defendant does not appeal that dismissal, and thus that issue is not before us.
     
      
      . The facts in Drueding were less egregious than the instant case. In Drueding there were fifteen children in the playground under the supervision of only two persons. In addition, the mother of the child was present when the injury occurred. Nonetheless, the Court found the day care center responsible.
     
      
      . The trial court misapplied this standard when it stated:
      Of course, we’re not perfect human beings and accidents happen, and it’s incumbent upon owners of businesses to provide for that eventuality. The problem in this instance is the seriousness of this injury. [Emphasis added.]
     