text:
    In re MEDICAL REVIEW PANEL FOR the CLAIM OF GERTRUDE YOUNG, Plaintiff-Appellant v. BERNICE COMMUNITY REHABILITATION HOSPITAL, et al, Defendants-Appellees.
    No. 38,402-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Rickey K. Swift, for Appellant Gertrude Young.
    Mayer, Smith & Roberts, by Paul R. Mayer, Jr., Shreveport, Steven E. Soileau, for Appellees Continental Casualty Co. and Bernice Community Rehabilitation Hospital.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   I, STEWART, J.

The plaintiff, Gertrude Young, appeals a judgment dismissing her medical malpractice claim against Bernice Community Rehabilitation Hospital (“BCRH”) and its insurer, Continental Casualty Company. The judgment of dismissal was rendered in accordance with a jury verdict finding no negligence on the part of BCRH in its treatment of Young. Under the facts of this case, we find manifest error in the jury’s negligence determination, and we reverse the trial court’s judgment.

FACTS

Gertrude Young, then age 71, was a patient at BCRH from August 14, 2000 to October 3, 2000. She entered BCRH with significant health problems, including obesity, hypertension, diabetes, general debility, and post-polio syndrome. Young’s left leg was amputated above the knee, and her right leg was significantly weakened due to post-polio syndrome. Young sought rehabilitation in order to strengthen herself and become more self-sufficient.

On October 2, 2000, the day before her discharge from BCRH, Young sustained a nondisplaced tibial plateau fracture just below her right knee joint. Just prior to the incident, Young had left her room and was wheeling herself to B CRH’s activity room. Her route took her in front of the “weight room” where patients were weighed. Barbara Polk, the director of nursing, was in the weight room with a representative from a scale company who was there to determine whether the scale was functioning properly. Polk saw Young in the hallway and asked whether she would allow herself to be weighed in order to check the scale. Young agreed to be weighed. She ^entered the weight room and was physically lifted from her chair into the chair used for weighing the patients. After weighing, Young went to the hallway to transfer back to her own wheelchair. A slide board was brought from her room, the two chairs were placed side by side, and Young transferred from one chair to another with the assistance of Polk and LaQuana Bailey, a certified nursing assistant.

Accounts differ as to when and how the injury to Young occurred. Young claims that her right foot slipped out in the middle of sliding over from one chair to the other. She heard a pop and felt “very excruciating pain.” She claims that she was wearing an ordinary white sock on her foot. Both Bailey and Polk were holding her from behind with Polk to her left back and Bailey to her right back. Though there was some testimony from Young that the left brake of her wheelchair did not lock properly, she also testified that the wheelchair did not move during the transfer.

Polk testified that Young wanted to do the transfer herself rather than have someone physically place her back into her own wheelchair. Therefore, they went into the hallway where there was more room for the wheelchairs to be placed side by side for the transfer. Polk claims that she locked the wheels and stood with one foot in front of the front wheel and one foot behind the rear wheel. Her hands were on Young’s left hip to assist her over to the other chair. Polk did not see Young’s foot slip. Once Young went across the slide board into her chair, Polk turned around to speak with the scale company representative. She then heard Young say that she was hurt. Polk turned around and saw that Young’s leg was | ahyperextended. Polk admitted that she neither checked nor noticed Young’s footwear when the transfer was done.

LaQuana Bailey also assisted Young with the transfer. Bailey observed that Young was wearing a sock, and she described the sock as a “booty sock” with rubber grips underneath. Bailey claimed that Young wanted to do the transfer herself using the sliding board and that Young did these transfers about four to five times a day. Bailey explained that Young used her arms to help with the transfer and that she used her leg to then push back into her chair. Bailey testified that Young’s foot did not slip during the transfer between chairs. Rather, Bailey testified that she saw Young’s foot slip when she used her knee to push herself to the back of her chair. Young denied using her right leg to push herself back into the chair. She claimed she does not do this due to her weight.

Young filed suit against BCRH after a medical review panel rendered an opinion in favor of BCRH. Young alleged that B CRH’s employees failed to follow standard transfer procedures, particularly since the transfer was done on a slick, tile surface, and failed to stabilize her leg or block her foot to prevent it from slipping or sliding forward during the transfer. At trial, Young introduced and relied on a list of safety rules for transferring, which she asserted to be the standards that should have been followed. The pertinent rule states, “Make sure the patient has footwear that will not slip on the floor.” BCRH presented testimony from two members of the medical review panel, both of whom testified that the transfer was done appropriately and met the standard of care. The jury concluded that there | ¿was no negligence on the part of BCRH in its treatment of Young. Thereafter, the trial court rendered a judgment dismissing Young’s claim. This appeal by Young followed.

DISCUSSION

Unless a jury’s factual findings are manifestly erroneous or clearly wrong, such findings may not be set aside on appeal. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reversal of the fact-finder’s determinations requires the appellate court to find that no reasonable factual basis exists for the findings and that the record establishes the findings to be clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). The issue to be resolved on appeal is not whether the trier of fact was right or wrong, but whether the conclusion was a reasonable one. Id. Where conflict exists in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Id.

A hospital is responsible for the negligence of its nurses or other medical personnel through the doctrine of respon-deat superior. Hinson v. Glen Oak. Retirement System, 37,550 (La.App.2d Cir.8/20/03), 853 So.2d 726, writ denied, 2003-2835 (La.12/19/03), 861 So.2d 572. In a medical malpractice action against a hospital, the plaintiff is required to prove, as in any negligence action, that the defendant owed a duty to the plaintiff to protect against the risk involved, that the defendant breached this duty, and that the breach caused the injury. Smith v. State, through Dept. of Health and Human Resources, 523 So.2d 815 (La.1988); Bellard v. Willis Knighton Medical Center, 34,360 (La.App.2d Cir.5/09/01), 786 So.2d 218, writ denied, 01-1686 (La.9/21/01), 797 So.2d 676. The mere occurrence of an injury or accident, alone, does not raise a presumption of negligence on the part of the hospital. Galloway v. Baton Rouge Gen. Hospital, 602 So.2d 1003 (La.1992).

A hospital is bound to exercise the degree of care toward a patient that his or her condition requires and to protect the patient from external circumstances peculiarly within the hospital’s control. The determination of whether a hospital breached the duty of care owed a patient depends on the facts and circumstances of each particular case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974); Borne v. St. Francis Medical Center, 26,940 (La.App.2d Cir.5/10/95), 655 So.2d 597, writ denied, 95-1403 (La.9/15/95), 660 So.2d 453. Great deference is due the jury’s findings when medical experts express different opinions as to whether the standard of care was met. Hunter v. Bossier Medical Center, 31,026 (La.App.2d Cir.9/25/98), 718 So.2d 636.

Young argues that the jury’s verdict is manifestly erroneous because there was unrebutted testimony establishing that BCRH’s employees, Polk and Bailey, failed to follow the hospital’s safety guidelines when transferring her from the “weight room” wheelchair to her own wheelchair. Young contends that the evidence establishes that Polk and Bailey failed to make sure that she was wearing non-slip footwear before conducting the transfer on a slippery tile surface.

BCRH contends that the evidence supports the jury’s verdict. The evidence shows that Young was wearing a non-slip sock, that she performed |fithe same type of transfer on the same surface at least four to five times a day, and that the transfer and actions of BCRH’s employees met the standard of care. BCRH also argues that the safety rules relied on by Young apply only in the gym and have no application in the hospital setting. Moreover, BCRH contends that the injury did not occur until after the transfer when Young was attempting to push herself back into the seat of her chair by pushing down with her leg.

Young introduced into evidence a list of safety rules for transferring patients. These rules are for the protection and safety of both the patient and anyone assisting with the transfer. Kirk Ellis, a physical therapist at BCRH during Young’s stay, identified the safety rules and testified that they were used in the gym at BCRH for working with the patients. He also testified the rules applied to every patient in the hospital and that the rules would not be inconsistent with rules applicable in the hospital setting as opposed to the gym setting. Ellis explained that the safety rule requiring that the patient wear footwear that will not slip on the floor should be followed. Though the purpose of the rule is self-evident, Ellis testified that footwear is necessary so that the patient will not slip. Ellis also testified that because Young did not like to wear footwear, a dycem or rubber mat was used in the gym when working with her to prevent her from slipping. Ellis did not believe that nurses would know to use a dycem in the hospital setting. He explained that therapists have more knowledge about how to conduct transfers since they are trying to push the patients to be more independent. However, personnel in a hospital setting would take a more 17“hands on” approach in transferring patients because hospital personnel are “taught that they are supposed to do everything for the patient.” Ellis also testified that during her stay at BCRH, Young had progressed to performing “minimum assist” transfers, but there was no explanation in the record as to what exactly that entailed when a patient, such as Young, was elderly, obese, and had only one leg that was weakened from childhood polio.

Theresa Christian, an occupational therapist at BCRH, also worked with Young during her stay. Christian was familiar with the safety rules. She noted that Young usually wore a regular cotton sock, therefore a mat would be used during therapy. Christian explained that more safety devices were used in therapy because the purpose is to push the patients, whereas in a hospital setting, the personnel are only trying to make the transfer.

Young also presented expert testimony from Timothy Jones, an occupational therapist, and Albert David Green, a physical therapist. Jones opined that the transfer was not performed properly, particularly because Young was not wearing appropriate footwear to prevent her from slipping. We note that Jones mistakenly believed that Young fell to the floor. Green testified that the safety rules are basic rules to be followed on every transfer as the rules are designed to protect the patient and any person assisting with a transfer. He opined that BCRH’s employees failed to take adequate precautions to ensure that Young’s foot did not slip during the transfer and this failure led to her injury. Green noted that the transfer was not conducted on a non-skid surface and that Young did not have on appropriate footwear to allow her some traction on the tile surface. He also opined that |sYoung’s foot was not properly blocked to keep it from slipping. Young, too, testified that her foot would not have slipped if Bailey had been standing with her foot in front blocking Young’s foot.

BCRH presented the testimony of two members of the medical review panel, J. Eric Bicknell, M.D., and Don K. Joffrion, M.D. Both opined that the transfer met the standard of care and believed that the injury could have occurred either through hyperextension of the knee or by Young pushing down on the leg or knee with her weight. Interestingly, both Bicknell and Joffrion commented that the safety rules must be tailored to individual situations, such as this one involving a lady with one amputated leg and the other almost paralyzed.

The record establishes that an elderly lady, whose left leg had been amputated some years ago and who had significant health problems, entered BCRH for rehabilitation to strengthen herself so that she could remain as self-sufficient as possible and more easily handle the transfers that are part of her daily life. During the course of her stay at BCRH, Young progressed to performing “minimum assist” transfers, which involve the patient performing at least seventy-five percent of the transfer. Then, on the day before she was to be discharged, Young sustained an injury to her right leg after being needlessly imposed upon for the purpose of testing the scale.

After being weighed, Young was wheeled into the hallway to transfer to her own wheelchair. This was not a planned transfer; rather, it was performed on the spur of the moment after Polk enlisted Young’s assistance to test the scale. No effort was made to ensure that Young had on footwear Rthat would not slip even though there was a safety rule specifically addressing the need to make sure that patients have on non-slip footwear. Although Bailey testified on cross-examination that Young had on a “booty sock” with rubber grips on the foot of the sock, she did not testify that she actually checked Young’s foot to make sure that it was a nonslip sock. When first questioned, Bailey recalled only that Young was wearing a sock. Other testimony indicated that Young normally wore regular cotton or nylon socks. The evidence establishes that although Young was wearing a sock of some sort, her foot slipped. Apparently, the sock was not sufficient as a non-slip device nor was Young’s foot being blocked from slipping.

Though there was expert testimony indicating that Young’s injury could have been caused either by hyperextension or pushing down with her weight, the eyewitness accounts establish that Young’s foot slipped and her knee hyperextended. Both Polk and Bailey observed that Young’s leg was hyperextended. In addition, Bailey testified that Young’s foot slipped. Whether this slip occurred midway through the transfer as Young contended or while Young attempted to push herself back into her seat as Bailey testified, the fact remains that a slip occurred and that an injury resulted. We have no doubt that the common sense rule requiring non-slip footwear serves to protect the patient not only during the transfer between chairs but also in any maneuver performed by the patient to become comfortably seated in the recipient chair. This is especially so where the patient must use her leg or foot to push back into the chair. We note that Polk testified that the safety rules were consistent with rules that would apply in the |inhospital. We find that the evidence establishes that basic, common sense safety rules for transferring were to be followed both in the gym and hospital setting. Such rules would be especially important in the hospital setting where transfers are conducted by personnel lacking the specialized skills of physical and occupational therapists and where personnel are expected to take a more “hands on” approach and do more for the patients to successfully and safely complete the transfer.

Under the facts and circumstances of the case, we find that the jury was manifestly erroneous in concluding that BCRH was not negligent in its treatment of Young. BCRH used Young to test its scale and then failed to follow the most basic safety rule to ensure that Young could safely transfer back to her own wheelchair after being weighed. Young’s foot slipped, her knee hyperextended, and a fracture resulted. Weeks of progress were undone by the negligence of B CRH’s employees. The facts that Young may have performed similar transfers each day in her room on a tile floor or that she was able to perform “minimum assist” transfers are not persuasive, since it is this transfer only that is at issue. The specific facts and circumstances at issue here convinces us that BCRH failed to exercise the degree of care owed Young to protect her from the harm of injury during a transfer, particularly a transfer that was wholly unnecessary. Accordingly, we must reverse the trial court’s judgment and find in favor of Young on her claim of medical malpractice.

The appellate court shall render any judgment which is just, legal and proper upon the record on appeal. La. C.C.P. art. 2164. When the trial In court has erred in rejecting the plaintiffs claim, and the record on appeal is complete, then the appellate court may review the evidence and make an appropriate award of damages. Byrd v. Bossier Parish School

Board, 543 So.2d 35 (La.App. 2d Cir.1989), writ denied, 550 So.2d 628 (La.1989).

The record establishes that Young sustained a nondisplaced tibial plateau fracture just below her right knee joint. She was treated by Dr. Douglas Brown, an orthopaedic surgeon, who testified that Young’s knee was immobilized for about one month, and she was treated with pain medication. By October 30, 2000, the fracture was healing well, and Young could bend the knee seventy degrees. By December 4, 2000, Young still complained of pain, and there was some tenderness on the upper part of the tibia. However, x-rays showed that the fracture had healed. Young could bend her knee to a right angle, and her ligaments were strong. Brown testified that even though the fracture was healed, pain might last up to a year. While he initially believed that Young might be a candidate for joint replacement surgery, his opinion changed once he became aware of the significant health problems that Young had been experiencing. He concluded that she would receive no benefit from surgery. Finally, Dr. Brown testified that the injury hastened the progression of Young’s arthritis, and he assigned a thirty percent disability rating to her knee.

Young testified that her leg hurts whenever she puts pressure on it, though she candidly admitted that her weight may also be part of the problem. The pain and weakness hinders her ability to transfer as needed in her daily life. Overall, she is less active than prior to the injury. Because ofjjgthe injury, Young was unable to take a trip that she had planned for after her stay at BCRH. Finally, the record establishes that Young has also suffered a number of serious health problems that are unrelated the injury at issue, and that these problems have likely been the most significant factor in her ability to be less active. She has had congestive heart failure, and she has been placed on dialysis.

Citing Varnell v. Louisiana Tech University, 30,260 (La.App.2d Cir.2/25/98), 709 So.2d 890, writ granted, 98-0785 (La.6/5/98), 720 So.2d 1203, and writ denied, 98-0776 (La.6/5/98), 720 So.2d 680, and Carpenter v. Hartford Fire Ins. Co., 537 So.2d 1283 (La.App. 2d Cir.1989), Young argues that she is entitled to an award of no more than $325,000 and no less than $170,000. We disagree as both of these cases involved victims whose injuries required surgery and who were rendered disabled from the incident of negligence. Here, considering the plethora of health problems afflicting Young both pri- or to and after the incident at BCRH, the fracture she suffered had only a minimal impact on her overall physical condition and quality of life.

In Lilly v. Allstate Ins. Co., 577 So.2d 80 (La.App. 1st Cir.1991), writ denied, 578 So.2d 914 (La.1991), the court found that $20,000 was a reasonable award of damages for a nondisplaced fracture of the knee which resulted in arthritis, some continuing pain, and a ten percent disability of the right leg. In Hinton v. Wal-Mart Stores, Inc., 33,557 (La.App.2d Cir.6/21/00), 764 So.2d 203, a jury awarded general damages in the amount of 11S$10,000 for a 63 year old plaintiff who sustained a non-displaced fracture of the knee.

In the instant case, Young’s nondis-placed fracture healed within two months, though she continued to experience some pain. Young was already disabled when her injury occurred and suffering from an assortment of serious maladies. Apparently, her health has continued to decline due to conditions unrelated to the injury she suffered at BCRH. Under the facts and circumstances of this case, we believe that an award of general damages in the amount of $20,000 is sufficient to compensate Young for her injuries. We find no basis in the record for an award of special damages.

CONCLUSION

For the aforementioned reasons, we reverse the judgment of the trial court and render judgment in favor of the plaintiff, Gertrude Young, on her claim of medical malpractice against the defendants, Bernice Community Rehabilitation Hospital and Continental Casualty Company. Damages in the amount of $20,000 are hereby awarded to Young, and all costs are assessed to the defendants.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

GASKINS, J., would grant rehearing.


source: Caselaw Access Project

author: |, GASKINS, J.

license: Public Domain

text:
    Preston ROMERO, Plaintiff-Appellee v. WILLIS-KNIGHTON MEDICAL CENTER, Defendant-Appellant.
    No. 38,374-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    Rehearing Denied May 6, 2004.

      Watson, Blanche, Wilson & Posner by Chris J. LeBlanc, Baton Rouge, for Appellant.
    Ronald D. Miciotto, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   |, GASKINS, J.

The defendant, Willis-Knighton Medical Center d/b/a Willis-Knighton Pierremont Health Center (Willis-Knighton), seeks review of a trial court judgment denying its exception of prematurity. The defendant argues that the claims of the plaintiff, Preston Romero, fall under the Louisiana Medical Malpractice Act, and must initially be submitted to a medical review panel. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiff claims that on September 12, 2002, he was undergoing physical therapy at Willis-Knighton following knee surgery. While walking on a treadmill, the device suddenly and without warning changed direction, causing the plaintiff to fall and injure his left knee and back. On May 15, 2003, the plaintiff filed suit against Willis-Knighton, listing several acts of negligence and specifically pleading the application of res ipsa loquitur. He asserted that the defendant knew or should have known that the treadmill was malfunctioning and failed to take the necessary steps to warn patrons.

Willis-Knighton filed an exception of prematurity, arguing that the plaintiffs allegations, if proven, fall within the scope of the Louisiana Medical Malpractice Act (MMA). According to Willis-Knighton, the allegations in the petition concern negligence of the hospital; it argues that allegations of negligence by a patient concerning physical therapy must be reviewed by a medical review panel (MRP) before suit is filed. Because no MRP was convened in this matter, Willis-Knighton contends that the petition is premature.

LThe exception was considered by the trial court on July 28, 2003. The court found that this matter concerned a malfunctioning treadmill and was not a medical malpractice case. Therefore, the exception of prematurity was denied. Willis-Knighton appealed, asserting that the trial court erred in finding that this is not a medical malpractice claim that must be submitted to a MRP panel pri- or to filing suit.

Legal Principles

La. C.C.P. art. 926 provides for the dilatory exception of prematurity. A suit is premature if it is brought before the right to enforce the claim has accrued. La. C.C.P. art. 423. Prematurity is determined by the facts existing at the time a suit is filed. Yokem v. Sisters of Charity of the Incarnate Word, 32,402 (La.App.2d Cir.6/16/99), 742 So.2d 906.

La. C.C.P. art. 930 provides that, on the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

The exception of prematurity may be utilized in cases where the applicable law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Generally, the person aggrieved in such a case must exhaust all administrative remedies before being entitled to judicial review. Yokem v. Sisters of Charity of the Incarnate Word, supra.

The MMA provides such a mechanism by requiring all medical malpractice claims against covered health care providers to be submitted to a MRP prior to filing suit in court. This administrative procedure affords |3the MRP an opportunity to render its expert opinion on the merits of the complaint. Yokem v. Sisters of Charity of the Incarnate Word, supra.

A judgment rejecting an exception of prematurity is interlocutory and unappealable in the absence of irreparable injury. However, a judgment requiring a health care provider to forgo the benefit of the MRP is considered appealable because MRP proceedings cannot be adequately replicated after reversal on appeal. The instant judgment is therefore appealable. Fincher v. State Department of Health and Hospitals, 29,640 (La.App.2d Cir.4/2/97), 691 So.2d 844.

The MMA, in La. R.S. 40:1299.41(A)(8), defines “malpractice” as follows:

A. As used in this Part:
(8) “Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

“Health care” is defined under La. R.S. 40:1299.41(A)(9) as “any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.”

|4Discussion

At the hearing, the defendant showed that it was a qualified health care provider under the MMA. It argues that the rendition of physical therapy to the plaintiff was health care as defined in the MMA.

The plaintiff claims that he did not allege a tort based upon health care services rendered. Rather, he argues that his case was based solely on strict liability for a defective thing in the defendant’s custody. He also urges that he did not allege that any act or omission by the health care provider caused the treadmill to be defective or contributed to its malfunction.

The plaintiffs petition lists several acts of negligence including, but not limited to:

1.Failure to use reasonable and ordinary care in order to protect patrons from a dangerous condition;
2. Failure to properly inspect the premises;
3. Failure to properly maintain the premises;
4. Failure to warn patrons of the presence of a dangerous condition; and
5. Any other acts of negligence later shown.

Romero also specifically pled the application of res ipsa loquitur. He further alleged that Willis-Knighton knew or should have known that the treadmill was malfunctioning and should have taken the necessary steps to alert patrons. In his prayer for relief, the plaintiff seeks judgment finding the defendant strictly liable for his damages, or in the alternative, | ¡^apportioning fault between the plaintiff and the defendant under Louisiana’s comparative negligence principles.

The plaintiff claims that this case is analogous to Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992). In Sewell, a patient, hospitalized following neck surgery, was injured when his hospital bed collapsed. He sued the hospital arguing only that the hospital was strictly liable for providing a hospital bed that was defective and unreasonably dangerous in normal use.

The supreme court reasoned as follows: The Legislature originally defined malpractice principally as any unintentional tort based on health care or professional services which were rendered or should have been rendered by a health care provider to a patient, clearly indicating an intent to include liability in negligence for all acts and omissions by a health care provider during the furnishing of medical care or treatment or the confinement of a patient. However, the Legislature further defined malpractice to “also include[ ]” a health care provider’s strict liability for some injury-causing defective things, specifically enumerating defective blood, tissues, transplants, drugs, medicine and prosthetic devices used during the course of the patient’s treatment. Clearly, the Legislature did not intend to include liability for all defective things in the custody of the provider which cause injury to a patient. By including liability for all negligent acts or omissions by a health care provider in providing care and services and for only those defective things which are specifically enumerated, the Legislature intended to exclude from the definition of malpractice a health care provider’s strict liability for other defective things, unless negligence by the health care provider caused the thing to be defective or unreasonably dangerous. [Footnotes omitted; emphasis supplied.]

The supreme court in Sewell concluded that the cause of action was based solely on strict liability for a defective thing under the defendant’s custody. A hospital bed was not one of the defective things specifically | (¡enumerated in the definition of malpractice for which the MMA limits a health care provider’s strict liability. The supreme court noted that the plaintiff in Sewell did not allege that any act or omission by the health care provider caused the bed to be defective or contributed to its collapse, nor had the plaintiff alleged that the hospital knew or should have known of the defects. In a footnote that court stated:

Thus, a health care provider’s liability may arguably be included under the Act when a patient is injured in a fall from the hospital bed because the provider’s employee was negligent under the particular circumstances in failing to raise the sides, but the provider’s liability may not be included under the Act when the patient is injured in a fall because the same bed collapsed from a metallurgical defect, unless the provider caused the defect or knew or should have known of the defect and neglected to repair it. [Emphasis supplied.]

However, we note that since the rendition of Sewell, the provisions regarding strict liability in the Louisiana Civil Code have been revised significantly.

La. C.C. art. 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La. C.C. art. 2317.1, which became effective April 16,1996, specifies that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, 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 [7application of the doctrine of res ipsa loquitur in an appropriate case.

Under the present statutory scheme, a person may be held liable for damage caused by a thing in his custody only if he knew of the ruin, vice, or defect and of the thing which caused the damage, that damage could have been prevented by the exercise of reasonable care, and the owner failed to exercise such reasonable care. Because concepts of liability for damage caused by things in a person’s custody have changed dramatically since the rendition of Sewell in 1992, we find that the case does not govern the issue presented here.

The Louisiana Supreme Court has furnished guidance in determining whether a claim is covered by the MMA. The supreme court set forth the following factors in Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and
(3) whether the pertinent act or omission involved assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

When applying the factors enumerated in Coleman v. Deno, supra, to the allegations in the petition, this matter does not fall under the MMA. Willis-Knighton has failed to show that the injury involved was related to the plaintiffs medical treatment. Such information might have been | ^furnished to the court under La. C.C.P. art. 930. Although the plaintiff makes general claims that the injury occurred while taking physical therapy, the record does not show whether the therapy was being taken under the direction of a doctor, whether therapy was monitored by a physical therapist with progress notes furnished to a doctor, or whether this accident occurred in an area specifically designated for physical therapy rather than in the general health club area available to all fitness club members.

Expert medical evidence would not be necessary to determine whether the appropriate standard of care was breached. The malfunction of the machine would not require medical expertise, although the evaluation of the resulting injury might.

We cannot determine from the record whether the pertinent act or omission involved assessment of the patient’s condition. We have no information to show whether the plaintiffs injury occurred while he was being monitored by medical personnel.

The record does not show whether the incident occurred in the context of a physician-patient relationship or was within the scope of activities which a hospital is licensed to perform. The defendant failed to show whether the therapy was prescribed by a physician or was a medical service that the hospital was licensed to perform. The record is silent as to whether this injury occurred while the plaintiff was a patient in the hospital receiving physical therapy or while he was in the health club under general medical advice to exercise.

| flIt appears that the injury would not have occurred if the plaintiff had not used the treadmill. However, as specified above, the defendant failed to show that the injury was related to medical treatment.

There are no allegations that the tort was intentional.

The defendant contends that under Renz v. Ochsner Foundation Hospital/Clinic, 420 So.2d 1008 (La.App. 5th Cir.1982), this matter falls under the MMA and requires the appointment of a MRP. In Renz, a plaintiff was injured as a result of a malfunction in a medical life support system following coronary bypass surgery. The fifth circuit found that use of a life support system is part of professional services rendered and the claim fell under the MMA.

In Dominick v. Rehabilitation Hospital of New Orleans, 1997-2310 (La.App. 4th Cir.4/15/98), 714 So.2d 739, a plaintiff slipped and fell on a wet floor in the hospital kitchen. At the time of the accident, the plaintiff was receiving physical therapy and was walking with a small walker, with the aid of a physical therapist. The plaintiff filed suit alleging negligence on the part of the hospital. The hospital’s exception of prematurity was granted, finding the injury occurred during the rendition of health care and was subject to malpractice procedure, even though the plaintiff alleged alternative theories of liability.

In Harris v. Sternberg, 2001-1827, 2001-2170 (La.App. 4th Cir.5/22/02), 819 So.2d 1134, writ denied, 2002-1617 (La.9/30/02), 825 So.2d 1198, a plaintiff fell off the scales in a doctor’s office and was injured. Applying the factors of Coleman v. Deno, supra, the fourth circuit found |inthat the incident involved medical malpractice. This injury occurred during the rendition of medical services.

In all the cases cited by Willis-Knigh-ton, there was a showing that the injury sustained by a patient was related to medical treatment. Conversely, the plaintiff cites jurisprudence in which patients were injured under circumstances not involving the rendition of medical services.

In support of his argument that the MMA does not apply in this case, the plaintiff cites Stapler v. Alton Ochsner Medical Foundation, 525 So.2d 1182 (La.App. 5th Cir.1988), and Head v. Erath General Hospital, 458 So.2d 579 (La.App. 3d Cir.1984), writ denied, 462 So.2d 650 (La.1985). In Stapler and Head, hospital patients were injured in slip and fall accidents. In each case, the plaintiff slipped on a substance on the floor. The courts concluded that the accidents were not related to the rendition of medical services.

In the cases cited by both parties, the factor determining whether the case falls under the MMA is whether the plaintiffs injury was related to the rendition of medical services. In the present case, the defendant failed to show that the plaintiffs treadmill injury occurred during medical treatment. Without such a showing, the matter does not fall under the MMA and the trial court was correct in denying Willis-Knighton’s exception of prematurity.

11, CONCLUSION

For the reasons set forth above, we affirm the trial court judgment denying Willis-Knighton’s exception of prematurity. Costs are taxed to Willis-Knighton.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS, and LOLLEY, JJ.

Rehearing denied.

      . In Williamson v. Hospital Service District No. 1 of Jefferson, 2003-1066 (La.App. 5th Cir. 1/27/04), 866 So.2d 962, , the MMA was found to apply where a plaintiff was injured when a wheel fell off a wheelchair while the plaintiff was being discharged from the hospital. However, we note that this case has not yet been released for publication.


author: | WILLIAMS, J.

text:
    John POULLARD, Plaintiff-Appellant, v. Venetia MICHAEL, Warden, Angie Huff, Assistant Warden, Becky Moss, ARP Screening Officer, Defendant-Appellee.
    No. 38,363-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.
    John Poullard, In Proper Person Appellant.
    Julie M. Lafargue, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   | WILLIAMS, J.

After being stabbed by another inmate, John Poullard (“Poullard”) filed a delictual action against prison authorities for failure to protect him. His case was dismissed pursuant to an exception of prematurity based on Poullard’s alleged failure to exhaust administrative remedies. For the following reasons, we affirm. However, for purposes of the timeliness of Poullard’s request for an administrative remedy, we hold that Poullard’s request was timely and he should be allowed to proceed with the first step of the administrative remedy procedure.

FACTS AND PROCEDURAL HISTORY

In April 2002, John Poullard wrote a letter to the warden of the David Wade Correctional Center (“DWCC”), where Poullard was incarcerated. The letter stated that Poullard’s life had been threatened by another inmate, Haywood Ceasar, asserted that Poullard’s life was in danger and requested the warden to do something about the situation. The letter was referred to Rebecca Moss (“Moss”), a classification officer over the prison’s protection unit, who was the Administrative Remedy Procedure (“ARP”) screening officer. Moss screened the letter, concluded that it was a request for an administrative remedy, but rejected it because it did not specifically state that it was a request for administrative remedy and because it did not have a specific date of the alleged threat. Moss later testified that if Poul-lard had written on the letter that it was a request for administrative remedy, had given a specific date for the alleged incident and had returned the letter, then the letter would have been accepted as an ARP. There is a factual dispute as to whether or not Poullard ever returned the letter.

|?On May 8, 2002, Haywood Ceasar stabbed Poullard, who was then taken to the prison infirmary where he was treated by the nurse on duty. Thereafter, on May 20, 2002, Poullard filed a one-page handwritten document stating at the top of the page that the document was an administrative remedy complaint. Under the caption “Statement of Complaint,” Poullard wrote the following:

Failure To Protect Denial of proper medical treatment. On May 8, 2002 Poullard was stabb [sic ] by another inmate and was never examin [sic ] By a Doctor. He was suppose [sic] to be seen by a Doctor not a nurse alone.

This complaint was accepted as an ARP, and on June 4, 2002, the warden, Venetia Michael, responded to Poullard’s complaint. The response recounted Poullard’s medical treatment from May 8, 2002, when he was first seen in the infirmary after the physical altercation through May 14, 2002, when he was seen for an irregular pulse as a followup to his May 8 visit to the infirmary. The response by the warden concluded with a statement that Poullard was treated properly according to his signs and symptoms.

At the bottom of the warden’s response were instructions to the inmate indicating that if the inmate was not satisfied with the response, he could go to “Step Two” by checking a blank on the response and forwarding the response to the ARP Screening Officer within five days of his receipt of the decision. Underneath the blank where the inmate could check to indicate his dissatisfaction were several lines provided for the inmate to state the reason he was not satisfied. Poullard checked the blank and supplied the following reasons for dissatisfaction:

13Plaintiff file [sic] ARP for failure to protect him and he was stabb [sic ] by another inmate and didn’t see a Doctor.

Poullard also attached a second page to the response further asserting that he had been transferred to DWCC for protection, that he had never signed a waiver of protection form and that he was stabbed by another inmate after having been denied protective status and never having been placed in the protection unit.

On July 12, 2002, Poullard received a response to the second step of his ARP from the Louisiana Department of Public Safety and Corrections headquarters. The response read as follows:

Your request for an Administrative Review of ARP # DWCC-2002-583 has been received. You claim that you had requested protective custody prior to being stabbed by another inmate. You alleged that you never did see a doctor after this altercation. Your allegations have been investigated and considered. Staffs position on this matter has been closely reviewed. There is no documentation in your institutional file that indicates you ever requested protective custody. You were housed in a working cellblock when another inmate attacked. Your medical records indicate that you were seen in the South Infirmary after this incident. The nurse on duty is qualified to treat and administer first aid as is necessary. There was no need for a physician to evaluate you at that time. Therefore, the first step response has been determined to be clear and concise and has adequately addressed your issues.
As such, your request for relief is denied.

On January 22, 2003, Poullard filed suit in the Second Judicial District Court, Parish of Claiborne against Warden Michael, Assistant Warden Angie Huff and ARP Screening Officer Rebecca Moss. Poullard asserted that in April 2002, he had complained to security, requested protection and subsequently wrote the letter to the warden about the matter. He noted that a copy of his letter was returned to him with a notation that a 14date for the incident was needed and the letter was a request for an administrative remedy. Poullard further asserted that he had also written to Assistant Warden Angie Huff, stating that his life was in danger and a sergeant had threatened “to have him hurt in the month of April 2002.” Poullard alleged that after the warden and security refused to take any action to help him, he made a “homemade shield” and wore it under his clothing each day.

The petition then alleged that on May 8, 2002, Poullard was attacked and stabbed by Haywood Ceasar with a nine-inch heavy steel knife that struck Poullard “in the center of his back” and that when Poullard turned around he was stabbed again and received blows to his ribs, head, face and body. Poullard next recounted the filing and denial of his ARP, and asserted that the Department of Corrections never sent anyone to investigate or to see him.

Poullard’s petition did not assert any claims with regard to his medical treatment, but instead asserted that the defendants had breached a duty of care to protect him from harm and “were negligent and intentionally wrong” in failing to take any action upon his complaint of a threat of harm to him by the inmate who later attacked and stabbed him. Poullard also asserted that the defendants had violated his Fourteenth and Eighth Amendment rights.

In April 2003, the defendants filed a dilatory exception of prematurity for failure to exhaust administrative remedies. The exception noted that Poullard had attached the second-step response to his petition as an exhibit Land he had alleged that he pursued his administrative remedy prior to filing the lawsuit. However, the defendants asserted that his claim of failure to protect was never properly filed as an administrative remedy proceeding because his May 20, 2002 ARP simply alleged that he was stabbed by another inmate and was not examined by a doctor.

The memorandum in support of the exception argued that the April 8, 2002 letter to the warden did not institute an administrative remedy proceeding, but was returned to Poullard who took no further action to pursue an administrative remedy until after the altercation with Haywood Ceasar in May 2002.

At the hearing on the exception, Rebecca Moss testified, as previously noted, the April 2002 letter was not accepted as a proper request for an ARP, the letter was returned to Poullard, and Poullard did not take further action on it. Moss also explained the two-step procedure of an ARP through which the initial complaint, if accepted after screening, goes to the unit head for review and is answered within 40 days. She explained that if the inmate is not happy with the response, he can proceed to the second step in which he requests that his complaint be reviewed by headquarters in Baton Rouge. With respect to the ARP received from Poullard, she stated that she wrote the notation “100 Scriber WCC-02-583” on the document to indicate that it fell into the “medical section.” She then explained:

That’s what his ARP is mainly about is medical treatment. It was sent to Debbie Scriber for a response, and then that’s just the Wade ARP number down at the bottom.

pin response to a question from her attorney as to whether the document requested protection from abuse or threats of bodily injury by another inmate, she answered in the negative. She also answered in the negative when asked whether the document mentioned Haywood Cea-sar or any other inmate or any threat of bodily harm by an inmate. She noted that since he has been incarcerated at DWCC, Poullard had filed a total of 28 ARPs. Based on this number, she indicated her belief that Poullard knew how to use and follow the ARP procedures.

On cross-examination, Poullard asked Moss if she was saying that his ARP stated failure to protect and denial of medical treatment. Moss responded: “It just mainly says the failure to deny [sic ] medical treatment.” The following exchange then occurred between Poullard and Moss.

Q: You just read to the judge failure to protect, huh?
A: Failure to protect, denial of medical treatment.
Q: Yeah, that’s two claims in one: Failure to protect and denial of medical treatment. Let me ask you another question.
A: Okay.

Poullard asked Moss whether it was true that at the bottom of his ARP he complained that the first-step response sidestepped his failure to protect claim and notified Baton Rouge that the failure to protect claim was not answered in the first-step response. Moss replied:

I don’t have that because I don’t have access — I don’t get that. I don’t open your envelope and look at that.

Poullard then had Moss read his written reasons for seeking the second-step |7response where he notified headquarters that the first-step response did not address his failure to protect claim. On this point, Moss responded:

Because your first — your ARP in my position was mainly on failure to — failure to protect, denial of proper medical treatment, and then you go on to say that you had been stabbed. You don’t say anything about needing further protection.

At the conclusion of the hearing, defendants’ counsel argued that Poullard had five weeks from the time that Moss returned his April 2002 letter to him in which to make the changes that would have allowed it to have been treated as an ARP, but Poullard did not do anything until after he was stabbed, and:

[H]e knew that he had to have an ARP that covered medical protection and protection from Mr. Ceasar if he was going to get over the judicial review in this court.

Counsel argued that it was incredible that Poullard went into detail in the April 2002 letter, but then did not talk about failure to protect in this May 2002 ARP. Counsel suggested this was because Poullard had raised the medical claim timely and was trying to “bootstrap” back to the prior incident so that his lawsuit would not be premature. Counsel argued that the words “failure to protect” did not give any information and did not adequately give notice of a claim for failure to protect against an attack by Haywood Ceasar.

Poullard then argued that his first-step complaint stated: “Failure to protect, denial of medical treatment, being stabbed by another inmate, seeing a nurse and not a doctor.” Poullard stated that he had no control over the prison’s investigative procedures, and that no one came to talk to him or to investigate anything. He argued that instead, the prison chose to treat his IsARP as only a complaint about medical treatment, and when he went to the second step of the ARP, headquarters clearly recognized and investigated his ARP for both the failure to protect and the denial of medical treatment, which headquarters stated it investigated. Thus, Poullard argued that he had exhausted his administrative remedies. He also acknowledged that he had abandoned his medical claim and was proceeding to court only on the failure to protect claim because he concluded he had received proper medical treatment.

After arguments on the exception, the court stated that it was impressed with Poullard’s intelligence, and thought that Poullard knew the administrative system very well. The court concluded that given the fact the April 2002 letter was sent back to Poullard, and that he took no other action on the letter, the court would grant the exception of prematurity and dismiss the case. Poullard responded that the lawsuit was not based on the letter, to which the court then responded that Poul-lard could appeal if he wished.

DISCUSSION

The administrative remedy procedure provided in LAC 22:1.325 constitutes the administrative remedies available to an offender for the purpose of preserving any cause of action he or she may claim to have against the State of Louisiana, the Department of Public Safety and Corrections, or its employees. LSA-R.S. 15:1172(A). If an offender fails to timely initiate or procure his administrative remedies within the deadlines established in LSA-R.S. 15:1172(B), his claim is abandoned, and any subsequent suit asserting such a claim must be dismissed with prejudice. LSA-R.S. 15:1172(C). Under the provisions of LSA-R.S. 15:1172(B)(1), an offender shall initiate his administrative remedies for a delictual action for injury or damages within 90 days from the date the injury or damage is ^sustained.

In the instant case, all of the parties involved, including Poullard, agree that his April 2002 letter to the warden was not an ARP. On the other hand, the document he filed in May 2002 unquestionably was an ARP. Furthermore, we note that Poullard’s delictual cause of action for the injuries allegedly sustained in the stabbing incident did not arise until the stabbing incident occurred. Although a prison can breach a duty to an inmate to protect him from a threat of harm by another inmate, until such harm occurs, there can neither be the causation nor the damages necessary for a cause of action. Accordingly, although Poullard’s April 2002 letter to the warden may be of significance on issues of breach of duty or comparative fault, our focus concerning the exhaustion of administrative remedies must be on Poullard’s May 2002 filing which he clearly identified as an ARP.

We first observe that the May 2002 filing is timely, having been filed less than two weeks after the stabbing incident. Next, we observe that while the document’s statement of complaint is brief and furnishes few facts, it nevertheless plainly states that Poullard is complaining of failure to protect and denial of proper medical treatment. The document also states that Poullard was stabbed by another inmate on May 8, 2002, and that he was never examined by a doctor, but only by a nurse. The logical conclusion from this brief recitation is that Poullard was complaining of the prison’s failure to protect him from being stabbed, and that he was complaining of |inthe denial of proper medical treatment because he was seen only by a nurse and not by a doctor. Accordingly, we conclude that Poullard’s ARP, timely filed and accepted as an ARP by the screening officer, preserved Poullard’s rights to administrative review of both his failure to provide protection complaint and his medical complaint.

In Muntz v. Lensing, 96-0230 (La.3/8/96), 668 So.2d 1147, an inmate sought judicial review of the Department of Public Safety and Corrections’ alleged failure to provide him with needed medical treatment. At the district court level, the clerk of court had returned the application for judicial review because the application was incomplete. The initial application had been filed within 30 days of the notice of the denial of administrative relief, and, thus, was timely. Later, the refiled application for judicial review was met with an exception of prescription, and the district court dismissed the application. Although the appellate court affirmed the dismissal, the Louisiana Supreme Court held that the district court erred in allowing the clerk of court to return the incomplete application rather than filing the application and requiring supplementation within a specified reasonable period of time. Accordingly, the judgments of the lower courts were set aside, the exception of prescription was overruled and the case was remanded to the district court for consideration of the merits.

By analogy to Muntz, Poullard’s timely filing of his ARP in which he mentions both a failure to protect claim and a medical claim should be sufficient to preserve his right to administrative review, and judicial review, if necessary. Any failure to detail his grievance in the letter to the unit head could be grounds for return of the letter for clarification, but should not be Ingrounds for concluding that Poul-lard failed to adequately initiate an ARP with respect to his claim of failure to protect. Bolstering this conclusion is the statement in LAC 22:I.325(F)(3)(b):

If a request is unclear or the volume of attached material is too great, it may be rejected and returned to the offender with a request for clarity or summarization on one additional page.

If an offender refuses to cooperate with an inquiry into his allegation, his request for an administrative remedy may be denied by noting such lack of cooperation on the appropriate step response form and returning it to the offender. LAC 22:I.325(F)(3)(c).

Having concluded that Poullard preserved his right to administrative review, and to subsequent judicial review if necessary, we next must determine whether to allow his lawsuit to go forward or to return the matter to DWCC for further administrative proceedings. Although one arguably could conclude that the investigation by headquarters pursuant to the second step of the ARP was sufficient to cure the lack of investigation pursuant to the first step, and that to remand the matter for further administrative proceedings would be a waste of time, we reach the opposite conclusion.

First, we note that headquarters’ response indicated there was no documentation in Poullard’s institutional file indicating that he had ever requested protective custody. However, Poullard had sent the April 2002 letter in which he referred to a request for “protection papers” and in which he requested to be moved in light of the other inmate’s threat to kill him. Headquarters’ response perhaps indicates that when Poullard’s letter was returned to him, the prison neither kept a copy nor made any notation of the alleged death threat against him. However, even if this is the case, 1 ^headquarters should have been able to take this fact into account in evaluating the adequacy of the actions of the prison officials.

Furthermore, we observe that the medical information in the record indicates that after the stabbing Poullard was treated for a “superficial puncture type wound” and two “superficial scratch like wounds,” all wounds with minute bleeding. The nurse concluded there was no need for a physician to evaluate Poullard at that time. Furthermore, later medical complaints from Poullard were promptly treated, and, indeed, Poullard dropped his medical claims before filing suit. Because the very purpose of the administrative review procedure with respect to delictual actions is to possibly avoid the necessity of a lawsuit by bringing about an amicable resolution to a complaint, and because the medical record suggests that Poullard’s injuries were not significant, we cannot say that sending the matter back to the prison for a more thorough exercise of the administrative review procedure could not be beneficial in this case.

Finally, we note that Poullard will suffer no prejudice from thorough compliance by all parties with the administrative review procedures. Ultimately, if no satisfactory resolution is achieved, Poullard still will have the opportunity to file a tort action in district court.

For the foregoing reasons, we conclude that the administrative review procedures established by law were not complied with in the instant case. It is not necessary to assign fault for this non-compliance. Instead, it is enough to note that Poullard’s actions herein were sufficient to preserve his 113right to full administrative review and that such review may yet be of benefit herein.

CONCLUSION

For the reasons set forth above, the judgment sustaining the exception of prematurity is hereby affirmed, with the proviso that the appellant, John Poullard, still is entitled to an ARP on his claim of failure to protect, beginning with step one of the process. Accordingly, this lawsuit is hereby dismissed without prejudice. The ARP screening officer at DWCC is hereby ordered to consider the letter Poullard submitted in April 2002, in combination with the document he submitted in May 2002, as Poullard’s first-step request for an ARP.

AFFIRMED WITH INSTRUCTIONS.


author: _JjDREW, J.

text:
    STATE of Louisiana, Appellee, v. Robert Scott HYDE, Appellant.
    No. 38,362-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Louisiana Appellate Project by Mary Constance Hanes, Paula Corley Marx, for Appellant.
    William Robert Coenen, Jr., District Attorney, Penny Wise-Douciere, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   _JjDREW, J.

The state charged defendant, Robert Scott Hyde, with one count of second degree murder arising from the October 2001 homicide of Hugh Bozman. Defendant elected to enter a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to a reduced charge of manslaughter. The court conducted a lengthy sentencing hearing and directed that defendant serve 35 years at hard labor. The court denied an oral motion for reconsideration which did not state any grounds. On appeal, defendant argues only that the sentence is excessive. We affirm the conviction and sentence.

The matters of record show that on October 8, 2001, defendant and Bozman, after drinking at Bozman’s Richland Parish residence, began arguing concerning Bozman’s treatment of Wendy Couch. Couch and Katherine Meloche said that the defendant and Bozman were outside the house, not in their presence, when they heard Bozman scream. There was silence for a short period of time, then defendant drove away in Bozman’s truck. Both Couch and Meloche later reported Bozman missing. Investigators subsequently learned that Couch had complained to defendant about Bozman’s treatment of her and had said she wished him dead. Defendant responded that he could make that happen and make it look like an accident.

According to testimony at a bond reduction hearing, after defendant was advised of his rights, he told investigators that he had hit Bozman on the forehead with a brick after Bozman had thrown a brick at him. 12Pefendant added that he then got on top of Bozman, put his hands on Boz-man’s throat, and applied pressure. Defendant believed that he crushed Bozman’s windpipe; he heard several gurgling sounds until Bozman was dead. Defendant placed Bozman’s body in Bozman’s truck and drove off in the truck to find a location to dispose of the body. We note that it was stated by the prosecution during the factual basis for the guilty plea that defendant threw Bozman to the ground and crushed his skull. Defendant gave information to the authorities to help them locate Bozman’s body, which was discovered in February 2002.

An autopsy revealed that Bozman had multiple facial fractures consistent with more than one blow to the face, and multiple bilateral rib fractures consistent with at least one major blow to each side of the chest. No definitive cause of death could be determined. The investigation took several weeks, as defendant had fled to Baton Bouge and Mexico after the homicide.

The jurisprudence holds that when a defendant’s motion for reconsideration urges merely that the sentence is excessive, or fails to specify any grounds for reconsideration, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

|3A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. This is particularly true in cases where the offense involves violence upon a victim. Id. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

The record shows that, prior to imposing sentence, the court considered testimony from Katherine Meloche, defendant’s girlfriend, who testified that defendant and Couch discussed how defendant could kill someone with his bare hands and that the body would be gone. Defendant, age 28 at the time of the homicide, weighed 200 pounds and was 6'3" tall while Bozman, age 60, was 5'9" tall and weighed 170 pounds. The court noted that defendant had fled to Mexico in Bozman’s truck, which Couch had told defendant he could have, after he had asked her what he could have if he “made it happen,” or words to that effect. The autopsy report confirmed that Bozman suffered from a severe beating prior to his death. The court considered defendant’s social and family history and his employment record. He had felony convictions for carnal knowledge of a juvenile and possession of a controlled dangerous substance. He had been |4granted probation, but it was revoked; he then gained parole, but it was revoked twice. In mitigation, the court found defendant had a troubled youth. His parents had divorced, and his step-father had killed his mother and supplied drugs to defendant.

The court did not believe defendant’s version that Bozman began the fatal altercation by throwing a brick. The autopsy revealed a great deal of violence and viciousness had occurred, including a savage beating which caused Bozman’s death. The dumping of the body showed a presence of mind contrary to defendant’s claim of extreme intoxication, as did the fact that he was not charged with DWI when he was stopped by police for traffic violations on the night of the homicide. Finally, the court stated its opinion that the evidence presented a “very strong case” and, because of that, defendant had received “a great deal of benefit” from the reduced charge.

The sentence of 35 years at hard labor for manslaughter is a legal sentence. Since it is less than the maximum allowable, it can be concluded that the court gave some weight to mitigating factors. Considering the nature of the instant homicide, which was well articulated by the trial court, the sentence is not grossly disproportionate to the severity of the offense nor is it shocking to the sense of justice. Defendant received substantial leniency from his plea agreement. The evidence presented would support a conviction for second degree murder. There is no showing of an abuse of the trial court’s broad sentencing discretion.

The conviction and sentence are AFFIRMED.

      . This is the spelling of the victim’s name on the bill of information. We note that it is spelled "Bozeman” in the autopsy report.


author: LPEATROSS, J.

text:
    Ralph T. BARNES, Plaintiff-Appellant, v. RIVERWOOD APARTMENTS PARTNERSHIP and the City of Monroe, Defendants-Appellees.
    No. 38,331-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Bruscato, Tramontana & Wolleson by Anthony J. Bruscato, Monroe, for Appellant.
    Hudson, Potts & Bernstein, L.L.P., by Mark J. Neal, Charles W. Herold, III, Monroe, for Appellees Riverwood Apartments Partnership and Shelter Mutual Insurance Co.
    Nancy S. Summersgill, Assistant City Attorney, for Appellees City of Monroe and Monroe Regional Airport.
    Before STEWART, PEATROSS & LOLLEY, JJ.
   LPEATROSS, J.

In this personal injury action, Plaintiff, Ralph T. Barnes, appeals a judgment of the trial court granting summary judgment in favor of Riverwood Apartments Partnership (“Riverwood”), its insurer and the City of Monroe. For the reasons stated herein, we reverse and remand the matter to the trial court for further proceedings.

FACTS

At the time of his injury that forms the basis of this lawsuit, Mr. Barnes was a tenant in the Riverwood Apartments in Monroe, Louisiana. While walking across the common area of the apartment complex to a designated drop-off site for canned food donations, Mr. Barnes stepped in a hole and sustained injuries to his legs. The hole was created by a washing away of soil near a drainpipe and, apparently, was not readily visible because of the turf that continued to grow over the top of the hole. As a result of the damages sustained, Mr. Barnes sued Riverwood, its insurer and the City of Monroe. Mr. Barnes filed a motion for summary judgment and a motion to determine applicable law regarding whether the jury should be charged with the option of finding for the plaintiff on the basis of strict liability or whether the only theory of recovery allowed should be negligence. Riverwood responded to the motion to determine applicable law and filed its own motion for summary judgment. Mr. Barnes |Pargued that La. C.C. art. 2695 applies because a landlord is strictly liable for injuries caused to a tenant by defects in the premises. Article 2695 states as follows:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

Riverwood argued that the only theory available to Mr. Barnes was negligence and that it was not on notice of the hole because it was not readily visible due to the grass growing over the cavity. Alternatively, Riverwood contended that, if the hole was visible, it is not liable because Mr. Barnes was at fault for failing to see and avoid the hole. Riverwood also argued that the legislature implicity repealed article 2695 with the enactment of 2317.1 (part of the 1996 tort reform legislation). Articles 2317 and 2317.1 state as follows:

Art. 2317. Acts of others and of things in custody
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
Art. 2317.1. Damage caused by ruin, vice, or defect in things
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, 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.

Mr. Barnes countered that the legislature was aware of article 2695 and did not intend to repeal it, noting that amendments to other tort reform articles have not been held to have affected article 2695 and that landlords have since been held strictly liable for injuries caused by defects in the property.

The trial court went an entirely different route, finding that article 2695 does not apply in this case because of paragraph seven of the lease agreement, which reads as follows:

“Should Lessor permit Lessee, his family, servants, or visitors to use any storeroom, laundry, swimming pool, recreation area, parking lot, or any other facilities in addition to the leased premises, or should Lessee use such facilities without consent of Lessor, such use shall be entirely gratuitous and wholly at the risk of the person involved, and Lessor shall not be liable for any injury to persons or loss or damage to property resulting from such use.” (Emphasis by trial court.)

The trial court concluded that, since the hole in which Mr. Barnes stepped was in the common area of the apartment complex, it was not a part of the “thing” leased for article 2695 purposes. The trial court stated that, for article 2695 to apply, Mr. Barnes would have to have been injured by a defect in the apartment itself, as it was the “thing” leased. Accordingly, Mr. Barnes’ motion for summary judgment was denied. After noting that there was a question of liability in this case under articles 2317 and 2317.1, the trial court concluded that Riverwood had no notice of the hole under those articles and granted its motion for summary judgment. This appeal ensued.

\ «DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Although the initial burden in summary judgment remains with the mover to show that no genuine issue of material fact exists, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Estate of Levitz v. Broadway, 37,246 (La.App.2d Cir.5/14/03), 847 So.2d 170. De spite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049. The court must draw those inferences from undisputed facts that are most favorable to the party | fiopposing the motion for summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226; Estate of Levitz v. Broadway, supra.

Post tort reform viability of La. C.C. art. 2695

The central issue in this case concerns the post-tort reform viability of La. C.C. art. 2695. Specifically, we must decide whether the enactment of La. C.C. art. 2317.1 implicitly repealed article 2695. We find that article 2695 was unaffected by article 2317.1 and that the strict liability theory embodied in article 2695 remains a theory of recovery for plaintiffs in situations such as the one presented in the case sub judice.

Under article 2695, a lessor guarantees his lessee against all vices and defects of the thing leased. This provision is found in the chapter of the civil code entitled Of the Obligations and Rights of the Lessor, and governs specifically the rights between lessors and lessees. In contrast, articles 2317 and 2317.1 are located in the chapter of the civil code entitled Obligations Arising Without Agreement — Of Offenses and Quasi Offenses. Prior to the 1996 tort reform legislation, article 2317 provided for strict liability in a much broader setting, i.e., an owner or custodian of a thing was strictly liable for damages occasioned by that thing. The 1996 enactment of 2317.1 added a notice or knowledge component to 2317, effectively changing liability in this particular area from strict liability to negligence. We believe |fithat article 2317.1 was intended only to affect its immediate predecessor in number, article 2317, and we can find no authority or evidence that would suggest otherwise. As recently as 2001, Chief Justice Caloge-ro expressed his concurrence with this conclusion, stating that article 2317.1 “does not impinge upon the lessee’s cause of action in strict liability against the lessor under La. C.C. art. 2695.” See Driscoll v. Provenzano, 01-1115 (La.6/1/01), 793 So.2d 201, J. Calogero, concurring.

In addition, we find no irreconcilable conflict between article 2695 and articles 2317 and 2317.1 as Riverwood suggests and no indication that the legislature intended to repeal all forms of strict liability with the 1996 tort reform legislation. La. C.C. art. 8 provides, in pertinent part:

Laws are repealed, either entirely or partially, by other laws. A repeal may be express or implied. It is express when it is literally declared by a subsequent law. It is implied when the new law contains provisions that are contrary to, or irreconcilable with, those of the former law.

It is well settled in the jurisprudence, however, that repeals by implication are not favored. Jordan v. Louisiana Gaming Control Board, 98-1122 (La.5/15/98), 712 So.2d 74 citing Thomas v. Highlands Ins. Co., 617 So.2d 877 (La.1993); State v. Piazza, 596 So.2d 817 (La.1992); In re Robin Sapia, 397 So.2d 469 (La.1981); Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576 (La.1974); State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601 (1937). As such, a repeal by implication will be found only where there is an irreconcilable conflict between two statutes and where there exists no possible construction that could give both statutes effect. Id. As previously stated, article 2695 deals specifically with |7landlord/tenant relationships, whereas the more general articles 2317 and 2317.1 govern liability for damages arising out of a thing owned. These provisions can be easily harmonized and present no conflict that would lead us to conclude that the enactment of article 2317.1 implicitly repealed article 2695. Furthermore, there is post-1996 jurisprudence recognizing and applying article 2695. As recently as 2002, the third circuit applied and explained article 2695 and the plaintiffs burden of proof thereunder as follows:

[Article 2695] applies to the lease of both immovables and movables. A defect, for purposes of Art. 2695, has been defined as “a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.” To recover under Art. 2695, it is not necessary to prove the cause of the defect. A lessee must prove only the existence of the defect. In order for a lessee to recover damages from the lessor under this article due to an alleged vice or defect in the leased premises, the lessee must prove by a preponderance of the evidence that a defect existed in the premises and that the defect caused the damages. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance if, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not may be proved by circumstantial evidence, and that evidence need not negate all possible other causes, but it must exclude other reasonable hypotheses with a fair amount of certainty. (Internal citations omitted.)

Marten v. General Insurance Company of America, 02-545 (La.App. 3d Cir.12/11/02), 836 So.2d 239, writ not considered, 03-0578 (La.5/9/03), 843 So.2d 384, writs denied, 03-0474, 843 So.2d 396 (2003), 0513 (La.5/9/03), 843 So.2d 397; see also Martinez v. Coleman, 00-1827 (La.App. 5th Cir.4/24/01), | 786 So.2d 170. We conclude that article 2695 strict liability was unaffected by the 1996 tort reform legislation.

Applicability of La. C.C. art. 2695 to the case sub judice

The trial court concluded that the common area where the hole was located in this case did not fall within the confines of the thing leased for article 2695 strict liability. We disagree. Strict liability under article 2695 has consistently been applied by Louisiana courts to all portions of leased property, including areas not under the control of the lessee such as common accessories which are used by multiple tenants. Thiel v. Kern, 34 So.2d 296 (La.App.1948)(staircase); Ostrander v. Parkland Villa Apartments, 511 So.2d 1293 (La.App. 2d Cir.1987)(stairway); Wexler v. Occhipinti, 378 So.2d 1073 (La.App. 4th Cir.1979)(walkway), writ denied, 381 So.2d 1232 (La.1980); Wilson v. Virgademo, 258 So.2d 572 (La.App. 4th Cir. 1972)(steps); Abbott & Barnes Credit Clothiers, Inc. v. Crane Clothing Company, 141 So.2d 916 (La.App. 4th Cir.1962); Estes v. Aetna Casualty & Surety Co., 157 So. 395 (La.App.Orleans 1934)(pas-sageway). We find no support in the law for the argument that the common area where the hole was located in the case sub judice was an area not contemplated under article 2695 and, therefore, we conclude that the trial court’s finding in that regard was erroneous. Article 2695 strict liability was appropriately pled and argued in this case.

The lessor’s guarantee under article 2695, however, is subject to exception as provided in La. R.S. 9:3221, which states as follows:

3221. Assumption of responsibility by lessee; liability of owner
The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not ha-ble for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

La. R.S. 9:3221, however, does not apply to damages resulting from defects in the property “over which the lessee has no supervision or control.” Ostrander, supra, and cases cited therein. In Ostrander, the plaintiff was injured on a stairway of the apartment complex. Despite a clause of contractual assumption of risk contained in the lease agreement, this court held:

Louisiana jurisprudence has consistently acknowledged the tenant’s right to use and enjoy not only the premises but also the common accessories of the leased premises. When a common accessory is under the control of the lessor, the tenant can maintain an action for damages flowing from an injury caused by a defect in the accessory notwithstanding his contractual assumption under La. R.S. 9:3221.

|1f)See also Dorion v. Eleven Eleven Buildings, 98-3018 (La.App. 4th Cir.5/12/99), 737 So.2d 878; Abbott & Barnes Credit Clothiers, Inc., supra. We find, therefore, that any exculpatory clause in the lease agreement in the case siib judice is irrelevant, as a tenant cannot, under Ostrander, contractually assume liability for the common areas of an apartment complex. For this reason, we need not discuss in detail the trial court’s reasons for application of the exoneration clause contained in paragraph seven of the lease agreement. This court’s review is of the judgment of the trial court, not the reasons for judgment. Longoria v. Brookshire Grocery Co., 37,-975 (La.App.2d Cir.12/19/03), 862 So.2d 1172; Hoskins v. Hoskins, 36,031 (La.App.2d Cir.4/5/02), 814 So.2d 773.

In summary, Mr. Barnes has a viable claim of strict Lability under article 2695, which, since his injury resulted from an alleged defect in a common area of the apartment complex, is unaffected by the exception contained in La. R.S. 9:3221. Accordingly, summary judgment was improperly granted.

Potential liability under La. C.C. arts. 2317 and 2317.1

Having decided that Mr. Barnes has a strict liability claim under article 2695, we also note that plaintiffs like Mr. Barnes are not limited to actions under article 2695, but, in appropriate factual contexts, may be entitled to recovery via the negligence route under articles 2317 and 2317.1. Viewing from a negligence perspective the factual circumstances of the instant case, as contained in the limited record before us, we find genuine issues of fact exist so as to preclude summary judgment on a negligence | ^theory. Briefly, the deposition testimony contained in the record reveals some evidence that Riv-erwood was aware of similar sink holes and/or drainage issues on the apartment complex property. In particular, the apartment manager testified that similar holes had been repaired on the property in the past. The primary lawn maintenance person during the period of time in which Mr. Barnes’ accident occurred testified that he had seen a board placed over such an area and that it had later been filled with concrete. In addition, there was testimony establishing that this area was prone to drainage problems and sink holes because the complex had been erected on “reclaimed swampland.” This testimony raises factual issues that should be decided by the trier of fact, rendering summary judgment in this case improper.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor or Riverwood Apartments Partnership is reversed and the matter is remanded to the trial court for further proceedings. Costs are assessed to Defendant/Appellee Riverwood Apartments Partnership.

REVERSED AND REMANDED.

      . Riverwood argues that Mr. Barnes was not a tenant at the time of his accident. The lease agreement in effect at the time of his accident, however, bears his signature and Mr. Barnes is referred to as a tenant therein. We find no merit to Riverwood's argument in this regard.

      . The hole was located on Riverwood's property adjacent to Deborah Drive, owned and controlled by the City of Monroe. Issues exist regarding potential liability of the City of Monroe, which was not dismissed via the instant ruling on summary judgment and remains a defendant in the court below.

      . To recover in strict liability or negligence, the plaintiff must prove that the thing under the defendant's control had a defect that posed an unreasonable risk of harm to others and that this defect caused plaintiff's injuries. Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir. 12/6/00), 774 So.2d 1076; Dorion v. Eleven Eleven Building, 98-3018 (La.App. 4th Cir.5/12/99), 737 So.2d 878, and cases cited therein. In negligence actions under article 2317, the addition of article 2317.1 added the additional requirement of proof that the owner of the thing knew or should have known of the defect.

      . In support of its argument that article 2317.1 implicitly repealed article 2695, River-wood cites the prior decision of this court in Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647, which involved an injury from a defective stovetop in an apartment. Riverwood correctly points out that this court did not discuss article 2695 in that case. While the phrase "strict liability” does appear in Moody, it is clear that the case was pled and tried to the jury as a negligence case under articles 2317 and 2317.1. In fact, on appeal, one of the findings reviewed by this court was whether, under article 2317.1, the apartment complex knew or should have known of the stove’s defective condition. Riverwood also cites the fourth circuit's opinion in Griffin v. Weingarden, 99-1394 (La.App. 4th Cir.1/26/00), 752 So.2d 308, writ denied, 00-0632 (La.4/20/00), 760 So.2d 351. Griffin, like Moody, involved a negligence claim under 2317.1, not a strict liability claim under article 2695. Neither of these cases indicate in any way that the theory of article 2695 strict liability was not available to the plaintiffs in those cases. Finally, Riverwood cites the fifth circuit opinion in Cochran v. Safeguard SelfStorage, Inc., 02-1272 (La.App. 5th Cir.4/29/03), 845 So.2d 1128. After a thorough and cogent discussion and application of article 2695 and its relationship with La. R.S. 9:3221, infra, the court in Cochran apparently comingles the elements of strict liability and negligence, imposing a notice/knowledge component onto the plaintiff's burden of proof in his article 2695 strict liability claim. Strict liability and negligence claims are separate and distinct theories of recovery; in the former, notice/knowledge of the lessor is irrelevant, while, in the latter, it is an element proof of which is required for recovery. To the extent that the elements of these two theories are commingled in Cochran, we respectfully disagree with that opinion.