
    Robert S. WEBRE v. ALTON OCHSNER MEDICAL FOUNDATION HOSPITAL.
    No. 99-CA-697.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 22, 2000.
    Melvin Ripp, Jr., Gretna, Louisiana, Attorney for Plaintiff/Appellee.
    Joseph J. Lowenthal, Jr., Michelle A. Bourque, Jones, Walker, Waechter, Poitev-ent, Carrere and Denegre, New Orleans, Louisiana, Attorneys for Defendant/Appellant.
    Panel composed of Judges CHARLES GRISBAUM, Jr., SOL GOTHARD, JAMES L. CANNELLA, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   IsGOTHARD, Judge.

This is an action in negligence for injuries sustained by a patient of Ochsner Foundation Hospital (Ochsner). After a trial on the merits, the trial court found for plaintiff in the amount of $12,000.00. Defendant, Ochsner, has appealed the judgment. Plaintiff, Robert Webre, has filed an answer to the appeal. For reasons that follow, we reverse.

At trial, plaintiff, Robert Webre, testified that in February, 1997 his wife, Donna, began suffering severe headaches. She was also experiencing difficulty with speech and writing, and memory loss. On February 5, 1997 Mrs. Webre underwent a CAT scan at Ochsner Hospital, which revealed a brain tumor. She was admitted into the hospital and surgery to remove the tumor was performed on February 7, 1997. Mr. Webre and the couple’s two daughters, Christy and Judy, were encouraged immediately after the | ¿surgery when Mrs. Webre came out of the surgery “feisty”. Unfortunately, a subsequent biopsy resulted in the diagnosis of an incurable malignancy. The tragic news devastated the family members, who were now required to make heart-rending decisions on the best course of treatment for Mrs. Webre. Mrs. Webre elected to have radiation treatment, and was doing well for about one month after the surgery. During that period, Judy was helping her mother with personal hygiene needs.

On March 14, 1997, Mr. Webre noticed his wife seemed weaker than usual when he took her in for her daily radiation treatment. After the treatment the couple went to visit a friend in the hospital and drove home. Later that evening, Judy noticed that one side of Mrs. Webre’s face was “quivering”, and she seemed unable to speak. Later that evening, Mrs. Webre passed out and was brought to the hospital. Shortly after she arrived, she had a grand mal seizure and was taken into the emergency room for treatment. She was subsequently admitted to the hospital.

On March 16, 1997 she was sedated and resting comfortably. The next evening, she was awake and alert and discussing family matters with her daughters. According to Mr. Webre, it was the last time she was coherent. On the 17th Mrs. We-bre began physical therapy. She was unable to carry on a conversation, but was responsive. The next day she was slightly improved.

Mr. Webre testified that he left the. hospital at about 4:00 p.m. on March 18, 1997. Later that evening he received a telephone call from Dr. Laura Young who informed him that his wife had been struck in the head by a grate which fell from the ceiling of an elevator. Mrs. Webre was being transported from physical therapy back to her room when the incident | occurred. Dr. Young called back shortly afterward to inform Mr. Wqbre that another .CAT scan was being conducted on. his wife.

When Mr. Webre returned to the hospital, his wife was unresponsive. He observed a bruise on the top of her head. She was released from the hospital on March 24 th. Mr. Webre stated that his wife never returned to her “old self’. Mrs. Webre died on June 13,1997.

The court also heard testimony from Judy Webre Chaisson, who testified that she lived three doors down from her parents and visited her mother every day. She chronicled her mother’s illness with testimony which corroborated that of her father. She stated that her mother was alert and able to carry on a normal conversation with family members on March 16th . Mrs. Chaisson testified that she did not see her mother again until the evening of March 18th. She arrived at the hospital in the evening after being informed of the accident. She found her mother asleep and unresponsive. From that time until her death on June 13th, Mrs. Webre did not recognize her family members. Mrs. Chaisson described her mother as “childlike”. Mrs. Webre was unable to feed or dress herself, and required constant care. It was necessary for Mrs. Chaisson to bathe and groom her mother as she was unable to attend to basic hygiene needs herself.

When questioned about the injury her mother sustained from the falling grate, Mrs. Chaisson testified that she observed redness on the left side of the head above the surgical scar. She described the area as a large, bruised area.

On cross-examination, Mrs. Chaisson admitted that her mother was disoriented on March 14th, before the incident in question. On the next day, |Kher mother was drowsy and non-verbal. However, she was responsive. She would nod and smile when spoken to by family members.

The court also heard testimony from Marcus Campbell, who was employed by Ochsner Hospital on March 14, 1997. He testified that he was transporting Mrs. Webre from her room to physical therapy when the grate over the light fixture in the elevator fell and hit her on top of the head. She cried out in pain. Mr. Campbell rushed Mrs. Webre to the department of physical therapy and told the therapist, who checked the patient and wrote an incident report. Mr. Campbell testified that Mrs. Webre did not lose consciousness and was not cut in the incident. Mr. Campbell further stated that he transported Mrs. Webre before and after the incident and did not notice any change in her behavior as a result of the accident.

' The record contains Mrs. Webre’s medical records for both the February and the March hospital stays. The medical record of the emergency room visit on March 14th shows that the medical history given indicates Mrs. Webre was “talking incoherently tonight” and passed out and hit her head.

The medical record indicates that Dr. Laura Young attended to Mrs. Webre after the accident on the 18th. The doctor observed a large red mark on the top of the head, and ordered a CT scan of the head. The doctor noted that the patient was “arouseable” and tried to answer questions. A note on the record dated March 15 th shows Mrs. Webre did not respond to painful stimuli. A nurse’s notation on March 16th shows that the patient was “lethargic, responding to verbal stimuli. After a great deal of stimulation, follows command slowly. Bilateral hand grasp after a great deal of | ^stimulation. Opens eyes to command, moves leg freely, however, not to command”.

The record also contains the deposition of Dr. Edward Coleman, the neurosurgeon who diagnosed and treated Mrs. Webre’s brain tumor in February of 1997. Dr. Coleman explained that a CAT scan of the brain revealed a large enhancing lesion in her left temporal lobe. In laymen’s terms Mrs. Webre had a malignant primary tumor of the left side of the brain. Dr. Coleman performed a left frontal temporal craniotomy, in which he opened the skull on the left side over the eye and temporal area. He used intraoperative ultrasound to identify the location of the tumor. The tumor was removed with an ultrasonic machine which vibrates at a very high rate of speed, breaking up the tissue and allowing it to be sectioned. Dr. Coleman stated that the survival rate for this type of tumor is three months to five years depending on factors such as the age and general health of the patient.

Dr. Coleman also stated that the grand mal seizure Mrs. Webre suffered on March 14th would certainly indicate a worsening of her condition. Dr. Coleman testified that Mrs. Webre’s level of consciousness improved slightly until March 19 th. On that day his notes show that Mrs. Webre looked better on March 19th than she did on the 17th. She was brighter and more alert, although her speech was still incoherent.

An MRI conducted on March 17th showed an infarct in the region of the left anterior cervical artery which is an area in which an insufficient blood supply results in the death of a portion of the brain. Dr. Coleman compared the results of the CT scan done after the accident with Mrs.

17Webre’s prior tests and found no physical evidence of change to her brain as a result of the ceiling grate falling on her head. It is Dr. Coleman’s opinion that the incident neither caused or contributed to any worsening of Mrs. Webre’s condition.

Dr. Coleman next saw Mrs. Webre on April 30, 1997, one week after her discharge from the hospital. At that time her family reported that she was still confused and using jargon speech, but was able to dress and feed herself. He saw her again on May 29 th. At that time Mrs. Webre was hospitalized in a semi-comatose state. A CT scan done at that time showed a large recurrence of the left temporal lobe tumor. Because Mrs. Webre did not respond to the first surgery, Dr. Coleman determined a second surgery would not be helpful, and that Mrs. Webre’s illness was terminal.

Dr. Coleman testified that Mrs. Webre’s condition deteriorated in April and May of 1997. However, he opined that the worsening of her health was unrelated to the incident which is the subject of this lawsuit. He stated that the incident on March 18 th did not aggravate her condition, nor hasten or accelerate her demise. He further testified that the changes in Mrs. Webre’s condition were related to having a fulminating, very aggressive malignant tumor and not related to any minor head injury.

After reviewing all of the evidence the trial court rendered judgment in favor of plaintiff in the amount of $12,000.00 for loss of quality of life. It is clear from the judgment that the trial court made a factual finding that the accident which occurred while Mrs. Webre was under Ochsner’s care was not an aggravating'or contributing cause of her death.

IsLSA-C.C. art. 2322 provides as follows:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only wpon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. (Emphasis added)

On appeal, Ochsner argues the doctrine of res ipsa loquitur does not apply, and the plaintiff failed in his burden of proof to show negligence. We agree. The above cited code article, which was in effect at the time of the injury, changed the law from the previous rule of strict liability to negligence. The law as applicable now requires a showing that the defendant knew or should have known of the defect. The mere showing that a defect existed which caused the injury is insufficient to carry the burden of proof.

The evidence offered at trial goes to causation and extent of damages. It does not address the essential element of knowledge of the defect. There was no showing at trial which would impact the knowledge requirement of the code article. Thus, an essential element necessary to find liability is absent. Accordingly, we must reverse the trial court.

Because we reverse the ruling and find for the defendant, we pretermit discussion of the issues presented by plaintiffs answer.

REVERSED.

CHEHARDY, J. Dissents.

hCHEHARDY, J.,

dissenting.

There is no dispute that the law of strict liability has been changed by the legislature to include a requisite showing that a defendant knew or should have known of an injury-causing defect prior to liability attaching. It is equally clear that plaintiff did not introduce any testimony or evidence at trial of Ochsner’s knowledge of the defective ceiling grate. However, I believe that because the facts of this case are quite unique, such a showing was not required.

At the time of the accident, the plaintiff, Ms. Webre, was Ochsner’s patient. She had been admitted into the Ochsner Foundation Hospital for testing, treatment and observation, and was being transported by an Ochsner employee in one of Ochsner’s elevators. At this time, she was under the sole care, custody and control of Ochsner and its employees. Given the fact that she was stricken with terminal brain cancer, Ms. Webre was in a weak and vulnerable position, and was confined to a wheelchair. She did not place herself under the ceiling grate in the elevator, and could do nothing to prevent it from hitting her.

I find the facts of this case to be analogous to those involving common carriers, where a passenger is entitled to a high degree of care and protection. This high degree of care has been extended to patrons of innkeepers and also to passengers of elevators. In Banks v. Hyatt Corp., 722 F.2d 214, 221 (1984), the U.S. Fifth Circuit Court of Appeals held that “the distinction is no doubt rooted in the belief that business patrons of [ ¡^innkeepers, like those of common carriers and unlike those of other businesses, have entrusted their personal security to the innkeeper.” Likewise, in this matter, Ms. Webre clearly entrusted her personal security, and her health and well-being, to Ochsner.

It is well established that common carriers are charged with the highest degree of care to their passengers and that the slightest negligence causing injury to a passenger will result in liability. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Gross v. Teche Lines, 207 La. 354, 21 So.2d 378 (1945). Further, where there is proof of injury to a fare-paying passenger, the burden shifts to the defendant carrier to show that he is free from negligence. Wise v. Prescott, supra; Carter v. New Orleans Public Service, Inc., supra.[] It is here that the court of appeal erred when it stated that the plaintiff must not merely prove that the injury occurred but that the injury was caused by an incident, occurrence or condition which is attributable to the carrier before the presumption is created in favor of the plaintiff. Properly stated, the rule is that the mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincing by overcoming the prima facie case. Wise v. Prescott, supra. [emphasis added.]
In this case, the uncontroverted testimony of two witnesses, the plaintiff and her brother, is that she fell and injured herself while alighting from the bus. Thus, the evidence before the trial court was that a fare-paying passenger had been injured and had not reached her destination safely. At this point, the burden shifted to the defendant to show that the incident had not occurred, or that the defendant had exercised reasonable care in discharging the plaintiff or that any negligence on its part was not the legal cause of the plaintiffs mishap. This the defendant failed to do. Defendant offered no evidence or testimony to rebut that presented by the plaintiff or the prima facie case of negligence thereby created. Since the defendant did not prove itself free from negligence, the trial court properly found in favor of the plaintiff.

Galland v. New Orleans Public Service, Inc., 377 So.2d 84,

Likewise, in this case, the testimony was uncontroverted that Ms. Webre was pushed in a wheelchair into the elevator by an Ochsner employee, and that, once inside, the ceiling grate fell directly onto her head, causing her to cry out in pain. At this point in the trial, the burden shifted to Ochsner to show that it had exercised reasonable care. No |sshowing of reasonable care was made by Ochsner. Therefore, I believe that the trial court properly found that Oehsner was liable for Ms. Webre’s injuries.

For these reasons, I respectfully dissent from the majority opinion, and I would affirm the trial court’s judgment. 
      
      
        . See also Rosell v. ESCO, 549 So.2d 840, 850 (La.1989), at footnote four (and the cases cited therein), where the Supreme Court held that Louisiana law "places a high degree of care upon elevator/escalator owners, similar to that imposed upon common carriers.”
     
      
      . Carter v. New Orleans Public Service Inc., 305 So.2d 481 (La.1974).
     