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Vinccinelli v. Musso2/27/2002
This is a suit for damages in tort, pursuant to La. Civ. Code arts. 2315 and 2317.1, brought by a sitter/companion against her elderly Alzheimer's patient and the patient's homeowner's insurer. Defendants answered denying liability and, alternatively, averring that plaintiff was guilty of substantial comparative fault. After a bench trial, judgment was rendered in favor of plaintiff in the amount of $67,500, which represented a reduction of 50% as a consequence of plaintiff's comparative negligence. Defendants filed a suspensive appeal.
FACTS
On March 15, 1999, Lucille Vinccinelli was injured when she slipped and fell on a small amount of ice cream on the kitchen floor of Mrs. Joseph Musso's home. Mrs. Vinccinelli was working at the time as a sitter/companion to Mrs. Musso, who suffered from Alzheimer's disease. Her services were contracted for by the patient's son through an agency that keeps a registry of sitters for hire. Vinccinelli had been taking care of Mrs. Musso for four years. She admitted that she considered it part of her job to clean up after Mrs. Musso as needed.
On the day of the accident, Mrs. Musso went into the kitchen and got herself a bowl of ice cream. This was not unusual, as Mrs. Musso was ambulatory and could do some things on her own. An hour or so later, plaintiff slipped on a small amount of ice cream that Mrs. Musso evidently spilled on the kitchen floor. Plaintiff was aware of Mrs. Musso's diminished mental capacity. When asked if she knew if Mrs. Musso had seen the ice cream on the floor before the fall she replied:
"No. She didn't pay any attention. She wouldn't have paid any attention to it, I don't believe, if she had seen it."
LIABILITY
Defendant contends the trial judge erred in finding that Mrs. Musso owed a duty to protect plaintiff against the particular risk encountered, in finding that there was a dangerous condition on the premises, and in finding Mrs. Vinccinelli only 50% at fault.
In any tort case, the proper methodology for analysis begins with answering the following questions:
1. Was the conduct in question a cause-in-fact of the resulting harm?
2. What, if any, duties were owed by the respective parties?
3. Were the requisite duties breached?
4. Was the risk, and the harm caused, within the scope of protection afforded by the duty breached? Smith v. State through Dept. of Public Safety, 620 So.2d 1172, 1182 (La.App. 1 Cir. 1992).
In this case, it is undisputed that plaintiff slipped on a small amount of ice cream spilled by Mrs. Musso. Thus, the conduct in question was a cause-in-fact of the injury. The primary issue presented for our review is whether, under the particular facts and circumstances of this case, the patient owed a duty to her caregiver to protect against such an accident.
The general rule is that the owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141, 1143 (La.App. 1 Cir.), writ denied, 435 So.2d 429 (La. 1983). This duty is the same under the strict liability theory of LSA-C.C. art. 2317 and the negligence liability theory of LSA-C.C. art. 2315. Williams v. Leonard Chabert Medical Center, 98-1029, p. 5 (La.App. 1 Cir. 9/26/99), 744 So.2d 206, 209, writ denied, 2000-0011 (La. 2/18/00), 754 So.2d 974. Under either theory, the plaintiff has the burden of proving that: (1) the property which caused the damage wa
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