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NOT DESIGNATED FOR PUBLICATION RUTH M. CONSTANCE AND J . L. CONSTANCE, SR. VERSUS * CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS AND/OR THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS * ******* FOURTH CIRCUIT STATE OF LOUISIANA * * NO. 2008-CA-0095 COURT OF APPEAL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 91-12256, DIVISION "B-15" Honorable Rosemary Ledet, Judge ****** Judge David S. Gorbaty ****** (Court composed of Judge Charles R. Jones, Judge James F. McKay, III, Judge David S. Gorbaty)

Scott H. Fruge' deGRAVELLES, PALMINTIER HOLTHAUS & FRUGE' 618 Main Street Baton Rouge, LA 70801 COUNSEL FOR PLAINTIFFS/APPELLEES James D. "Buddy" Caldwell Attorney General Pauline G. Feist Assistant Attorney General LA DEPT. OF JUSTICE, LIT. DIVISION 400 Poydras Street, Suite 1600 New Orleans, LA 70130 COUNSEL FOR STATE OF LOUISIANA THROUGH CHARITY HOSPITAL

AFFIRMED

In this appeal, defendant avers that the trial court erred in finding that an unreasonably dangerous situation existed and awarding excessive damages to plaintiff. For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY On July 30, 1990, plaintiff Ruth Constance was visiting her son who was hospitalized at Charity Hospital. While leaving her son's room, plaintiff slipped and fell in the hallway, allegedly on a piece of dirty gauze. As a result of the fall, she alleges that she injured both knees, her shoulder, and her back. Plaintiff was assisted by the nurse on duty, Cynthia Edmond. She was taken to the Emergency Room, where she was treated for a broken kneecap. Her leg was placed in a cast, and she was given pain medication. She and her husband were lodged in the Warwick Hotel. Charity Hospital paid for the cost of the hotel stay, meals, and medications. After a trial, Judge Ledet ruled in favor of the plaintiff, and awarded $150,000.00 for general damages for past, present, and future pain and suffering. She further awarded $23,075.12 for medical expenses. The State of Louisiana through Charity Hospital subsequently filed this appeal.

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DISCUSSION Defendant contends that the trial court erred in finding that the floor was defective and unreasonably dangerous. Further, defendant argues that the trial court erred in shifting the burden of proof from plaintiff to defendant, when plaintiff's prima facie case had not been established. A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La. 1989). In Mart v. Hill, 505 So.2d 1120 (La. 1987), the Louisiana Supreme Court posited a two-part test for the reversal of a factfinder's determinations: 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. at 1127 (quoting Arceneaux v. Domingue, 365 So.2d at 1333 (La. 1978)). This test dictates that the appellate court must do more than simply review the record for some evidence that supports or controverts the trial court's finding. Id. The appellate court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Id. Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973, 976 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the
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factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this court has emphasized that "the

reviewing court must always keep in mind that 'if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' " Housley v. Cerise, 579 So.2d 973, 976 (La. 1991), (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)). Courts have recognized that "[t]he reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts." Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. Sterling Constance, plaintiff's son, testified that he removed a piece of gauze from plaintiff's shoe while she was on the floor, immediately after she fell. It is unknown where the gauze came from, how how long it was on the floor prior to her fall. He also stated that the trash bins in the bathroom in Ward 808 were full,
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and there were paper towels, toilet paper, and band-aids on the floor. Plaintiff fell near the bathrooms on Ward 808. Alice Kearney, a night nurse supervisor at Charity Hospital, testified that on the day of plaintiiff's accident, she worked from 11:00 p.m. to 7:30 a.m. According to Ms. Kearny, patients were admitted early Monday through Friday. The unit was closed on Saturday and Sunday. Plaintiff's accident happened on a Tuesday. Any dressing changes to surgical patients occur twenty-four to fortyeight hours following surgery. Ms. Kearny testified that the first dressing change for the week would have occurred on Tuesday, the day of plaintiff's accident. Ms. Kearney testified that the ward is kept clean, and dressing changes occur at the patient's bedside. It was the staff's responsibility to keep the unit clean, she testified, but did not establish that Charity Hospital had a scheduled maintenance policy. La. R.S. 9:2800.61 sets forth the burden of proof in a claim for injuries caused by a condition on a merchant's premises. La. R.S. 9:2800.6 expressly applies to "merchants" as defined therein, and hospitals are not covered by that statute. Reynolds v. St. Francis Medical Center, 597 So.2d 1121 (La. App. 2 Cir. 1992). The trial court, applying the law in effect at the time of the accident, concluded that liability in this case was based upon La. C.C. art. 2315. Under a negligence standard, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involved. Holden v. Louisiana Medical Center- Shreveport, 29,268, p.5 (La. App. 2 Cir. 2/28/97), 690 So.2d 958, 962.
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All citations in this opinion to LSA-R.S. 9:2800.6 refer to the original version of the statute enacted by Louisiana Acts 1988, No. 714. The current version of the statute, as amended by Louisiana Acts 1990, No. 1025, had an effective date of September 1, 1990, and is applicable to causes of action arising after that date.

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As in any slip and fall lawsuit, to establish a prima facie case against a hospital, the plaintiff must show that she slipped, fell, and was injured because of a foreign substance on the defendant's premises. LeBlanc v. Alton Ochsner Medical Foundation, 563 So.2d 312 (La.App. 5th Cir.1990); Bordelon v. Southern Louisiana Health Care Corp., 467 So.2d 167 (La.App. 3rd Cir.1985), writ denied, 469 So.2d 989 (La.1985). The burden then shifts to the defendant to exculpate itself from the presumption of negligence. LeBlanc v. Alton Ochsner Medical Foundation, supra. A hospital owes a duty to its visitors to exercise reasonable care commensurate with the particular circumstances. Bordelon v. Southern Louisiana Health Care Corp., supra. The trial court concluded that the evidence supported a reasonable inference that defendant was negligent in failing to keep its premises in a safe condition, creating a risk of harm to plaintiff, causing her to slip and fall and sustain injury. The testimony of Sterling Constance and Alice Kearney support this conclusion. The trial court's finding was not manifestly erroneous or clearly wrong, and as such must be affirmed. Next, defendant avers that the trial court erred in awarding $150,000.00 for general damages, when the plaintiff failed to produce any evidence to support such an award. Defendant also argues that the trial court erred in awarding $23,075.12 for medical expenses, when the plaintiff failed to produce any evidence to support such a large award. Defendant does not brief these arguments, other than to opine that the testimony of Dorothy Deeson, a co-worker of plaintiff, established that plaintiff had no limitations to prevent her from being a server. The trial court found that as a result of this accident, plaintiff fractured her left knee, which was casted without surgery; suffered a cervical herniated disc at
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C5-6, which was caused or aggravated by her fall; and sustained a soft tissue injury to her lumbar spine, right knee and shoulder. The court also found that plaintiff experienced chronic neck and back pain as a result of the accident. In reviewing an award of damages, the initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974). The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) is that the discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Bailey v. Nunez, 2004-1603, p.11 (La.App. 4 Cir. 3/2/05), 898 So.2d 589, 596. Plaintiff testified that since the accident, she has had ongoing problems with her knees, neck, and back, and will be willing to have surgery when the pain becomes too great to tolerate. Dr. Bernauer, plaintiff's physician, testified that
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plaintiff suffered a twenty-two percent whole body permanent disability, and Dr. Morin, defendant's expert, confirmed at least a fifteen percent permanent partial disability of each knee. In light of this testimony and the injuries sustained by plaintiff, we cannot say that the trial court abused its discretion in the award of general damages, and affirm this portion of the judgment. Likewise, we affirm the award for medical expenses. Defendant stipulated to the total medical costs of $23,075.12, subject to the credit of Charity's payment of bills in the amount of $2,208.50. Through the various medical records and testimony, the record clearly establishes the causal relationship between plaintiff's fall and the subsequent injuries sustained. CONCLUSION Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. AFFIRMED

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