Opinion
NO. 2012 CA 2039
07-29-2013
ORINDA ROBERTSON, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF DARRON ROBERTSON v. EAST BATON ROUGE PARISH SCHOOL BOARD D/B/A EAST BATON ROUGE PARISH SCHOOL SYSTEM
Vincent J. DeSalvo Baton Rouge, Louisiana and Frank J. Ferrara, Jr. Walker, Louisiana Attorneys for Appellee, Orinda Robertson Harold J. Adkins Baton Rouge, Louisiana Attorney for Appellant, East Baton Rouge Parish School Board Nancy C. Grush Weldon J. Hill, II Baton Rouge, Louisiana Attorney for Intervenor, State of Louisiana, Department of Health and Hospitals
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 542,151
The Honorable Todd Hernandez, Judge Presiding
Vincent J. DeSalvo
Baton Rouge, Louisiana
and
Frank J. Ferrara, Jr.
Walker, Louisiana
Attorneys for Appellee,
Orinda Robertson
Harold J. Adkins
Baton Rouge, Louisiana
Attorney for Appellant,
East Baton Rouge Parish School
Board
Nancy C. Grush
Weldon J. Hill, II
Baton Rouge, Louisiana
Attorney for Intervenor,
State of Louisiana, Department of
Health and Hospitals
BEFORE: PARRO, WELCH, AND DRAKE, JJ.
DRAKE , J.
This is an appeal by the East Baton Rouge Parish School Board ("EBR School Board") that seeks to overturn a judgment in favor of plaintiff, Orinda Robertson, individually and on behalf of the estate of Darron Robertson. Ms. Robertson filed suit following the death of her son, Darron. Ms. Robertson has answered the appeal, requesting an increase in damages.
Orinda Robertson is currently married and uses her married name, Orinda Robertson Maten. (R. 189). For purposes of this appeal, the court will refer to the plaintiff as Ms. Robertson, as the parties do in their briefs.
FACTS AND PROCEDURAL HISTORY
Darron was a special needs child who was hearing-impaired, non-verbal, and visually impaired. Darron was born with an 18th ring chromosome disorder, a heart murmur, and a hole in his heart. Darron was attending Arlington Preparatory Academy ("Arlington") on October 27, 2005, and was fifteen years old at the time. That morning he was eating a breakfast of pancakes and syrup when he experienced an apparent seizure. Two adults were in the room with Darron at the time of the incident: Rev. Frederic Stewart, a substitute teacher, and Tony Wells, a child-specific aide for another child. Rev. Stewart was standing on Darron's left side, and Mr. Wells was on his right side at the time of the incident. Although there was conflicting testimony as to who first noticed Darron had a problem, eventually both adults attempted to aid Darron. Rev. Stewart and Mr. Wells laid Darron on the floor. Tracy Johnson, an adaptive physical education teacher at Arlington, was summoned, and began giving CPR to Darron. Upon visual examination, Ms. Johnson saw nothing in Darron's mouth. After starting CPR, Ms. Johnson noticed small particles of food in his mouth.
Paramedics with the East Baton Rouge Parish Emergency Medical Services ("EMS") arrived a few minutes after being summoned. Mike Misenheimer, one of the EMS paramedics, testified that upon arrival, he was told that Darron was eating breakfast, choked, and became unresponsive. Mr. Misenheimer attempted to ventilate Darron and noticed partially chewed pancakes and syrup in his airway. Mr. Misenheimer testified that there was a large amount of food in Darron's airway, some of which was chewed and some of which was not. The food blocking Darron's airway was enough that the suction attempted by Mr. Misenheimer was ineffective. He used his fingers to "shovel out" the food from Darron's airway.
Hiram Shilling, the second EMS paramedic, also observed chunks of food entering the suction tube. He saw that Mr. Misenheimer had difficulty getting the food through the tube because the food was too big. The EMS paramedics were unable to intubate Darron while at the school because too much food was in his mouth. Darron was transported to the hospital where he remained until he died on December 1, 2005.
A bench trial was held in this matter, and the trial court rendered a judgment in favor of Ms. Robertson and against the EBR School Board in the amount of $330,196.80. It is from this judgment that the EBR School Board appeals. Ms. Robertson answered the appeal, requesting an increase in the damages awarded by the trial court.
ASSIGNMENTS OF ERROR
The EBR School Board, which runs the East Baton Rouge School System, assigns two errors that are summarized as follows:
(1) The trial court erred in ignoring the Individualized Education Plan of Darron and finding that the EBR School Board failed to supervise Darron;
(2) The trial court erred in finding that the plaintiff met her burden of proof as to medical causation.
STANDARD OF REVIEW
It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989); Boyd v. Boyd, 10-1369 (La. App. 1 Cir. 2/11/11), 57 So. 3d 1169. In order to reverse a fact finder's determination of fact, an appellate court must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993); Denton v. Vidrine, 06-0141 (La. App. 1 Cir. 12/28/06), 951 So. 2d 274, 287, writ denied, 07-0172 (La. 5/18/07), 957 So. 2d 152. Based on our review of the record before us, and mindful of the great deference we must afford the trier of fact, we find no manifest error in the trial court's judgment.
LAW AND ANALYSIS
Failure to Supervise
The supreme court, approving the standard set out in the appellate court, has articulated the correct standard for liability of a school board for the actions of its students under Louisiana Civil Code article 2320 in Wallmuth v. Rapides Parish Sch Bd., 01-1779 (La. 4/3/02), 813 So. 2d 341, 346, as follows:
A school board, through its agents and teachers, owes a duty of reasonable supervision over students. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision.See also, Coleman v. St. Tammany Parish Sch. Bd., 08-1979 (La. App. 1 Cir. 5/8/09), 13 So. 3d 644, 647.
Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually
known, and preventable if a requisite degree of supervision had been exercised. (Citations omitted).
Darron was a special needs child with an Individualized Education Plan ("IEP"), which is an individualized plan for each special education student, pursuant to the Individuals with Disabilities Education Act. An IEP is prepared by several individuals, such as a child's parents and teachers, and is intended to make sure the needs of each child are being met in a school environment. The EBR School Board claims that because it met the IEP in this case, which was developed on April 21, 2005, it cannot be liable for the injury to Darron.
20 U.S.C. § 1400, et seq.; 34 C.F.R. § 300.
20 U.S.C. § 1414(d); 34 C.F.R. § 300.1.
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The IEP of Darron provided with regard to his eating requirements:
Darron feeds himself finger foods independently and spoon/fork foods with assistance. Darron does need to be monitored while eating to prevent him from eating too fast and swallowing without chewing. Food should be cut into bite-size pieces. It is helpful to put "spoon foods" into a separate bowl so that Darron does not get his finger in them while searching for bites of finger foods.
* * *
During the summer of 2003, Darron began regurgitating his food. ... At this time Darron regurgitates less frequently but any incidents should be reported to the parent for monitoring.
Applying the factors of Wallmuth, we agree with the trial court that the EBR School Board was negligent in its supervision of Darron. We agree with the written reasons of the trial court, which state, in pertinent part:
The Court recognizes that the supervision of all students at all times or constantly from the time they arrive on campus to the time of their departure is not required by law because it is not possible. However, the level of supervision of students that is required is supervision that is reasonable and competent and that which is appropriate considering the age of the children as well as any and all other attending circumstances. A school board shall provide its employees adequate
resources to insure that the supervision that is deemed appropriate under the circumstances is in fact provided.
The facts at trial clearly showed that Darron, a fifteen-year-old with many special needs, choked while eating breakfast, which led to cardiac arrest and his death. The EBR School Board was aware of the special needs of Darron and had developed an IEP to address any accommodations Darron required as a result of those special needs, including his eating requirements. The IEP required that Darron be closely and carefully supervised while eating to prevent him from eating too fast and swallowing without chewing and also required that his food had to be in bite-size pieces. The IEP also recognized that lack of close supervision and monitoring of Darron while eating presented a serious risk of choking.
The EBR School Board claims that it was not liable to Ms. Robertson because Darron was being supervised while he ate by Rev. Stewart, a substitute teacher who worked with Darron for approximately two months in the fall of 2005, and by Mr, Wells, an aide assigned to another student in the room. Rev. Stewart claimed that he was supervising Darron while he was eating and that he even held one of Darron's hands so he did not eat too fast. However, the trial court found that Rev. Stewart gave conflicting testimony with regards to material issues of fact. Furthermore, the testimony of Mr. Wells and the EMS paramedics conflicted with Rev. Stewart's testimony. For instance, Mr. Wells denied that he was actually supervising Darron at the time of the incident. Although Rev. Stewart testified that he had cut the food into bite-size pieces, roughly the size of a penny, the testimony of Mr. Misenheimer, the EMS paramedic, was that a large amount of food, some of which consisted of big chunks and was unchewed, was suctioned from Darron's airway. Mr. Shilling, the second EMS paramedic, testified that chunks of food entered the suction tube, but some of the food was too big to come up the tube. The EMS paramedics were unable to intubate Darron while at the school because too much food was in his mouth.
In response to the EBR School Board questioning, Mr. Misenheimer testified that CPR would not cause food to come up the body. Instead, Mr. Misenheimer stated that once the body begins to relax, it will begin to eliminate what is already there. However, by the time the body pushes the food up, the patient is essentially dead.
There was further conflicting testimony between Rev. Stewart and Mr. Wells as to how Darron reacted when he began choking and who first noticed Darron was in distress. There was also conflicting testimony between Rev. Stewart and Mr. Wells as to whether Darron was eating fast at the time of the incident. Additionally, Rev. Stewart and Mr. Wells disagreed as to how either realized Darron had a problem. Rev. Stewart testified that Darron just laid his head back. Mr. Wells testified that Darron's whole body was shaking, and he thought that Darron was having a seizure.
The trier of fact must assess the testimony and credibility of all the witnesses and make factual determinations regarding these evaluations. Bradbury v. Thomas, 98-1678 (La. App. 1 Cir. 9/24/99), 757 So. 2d 666, 673. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, particularly where conflict exists in the testimony, as in the instant case. See Rosell v. ESCO, 549 So. 2d at 844. Considering this credibility determination, we cannot say the trial court's finding was manifestly erroneous. See Landry v. Leonard J. Chabert Medical Center, 02-1559 (La. App. 1 Cir. 5/14/03), 858 So. 2d 454, 465, writs denied, 03-1748, 03-1752 (La. 10/17/03), 855 So. 2d 761. The risk to Darron was foreseeable, actually known, and preventable if a requisite degree of supervision had been exercised. See Coleman, 13 So. 3d at 647.
Based on the evidence in the record, what led to Darron's death was exactly what the IEP sought to prevent: Darron' eating too fast, swallowing his food without chewing, and his food not being cut into bite-sized pieces. With regard to the factual findings, the trial court's written reasons state, in pertinent part:
The EMS employees that appeared at the school pursuant to the 911 call have absolutely no interest in the outcome of this matter and their testimony corroborates the plaintiff's theory of how the events unfolded, and their testimony also corroborates the testimony of Dr. Theonia Kammon Boyd. Mr. Misenheimer and Mr. Schilling, both [of] whom are very experienced EMS paramedics [,] testified that they witnessed chewed and partially chewed pancakes and syrup in Darron's airways. The airway was so full of food that they were unable to ventilate him, experienced trouble suctioning the food and had to resort to scooping food from his airway with their fingers. Some of the food they removed from the plaintiff's airway was large enough for them to identify the substance as pancakes and syrup.
We agree with the trial court's conclusion that the EBR School Board did not adequately supervise and monitor Darron according to the IEP. Medical Causation
The EBR School Board maintains that the record fails to establish that the injuries from which Darron died were medically caused by any lack of supervision. The EBR School Board agrees that Darron aspirated as a result of food in his airways, but disputes how the food became lodged therein.
Whether an accident caused a person's injuries is a question of fact, which should not be reversed absent manifest error. Housley v. Cerise, 579 So. 2d 973, 979 (La. 1991). Plaintiff must prove, by a preponderance of the evidence, the existence of the injuries and a causal connection between the injuries and the accident. See John v. Brandon, 01-1896 (La. App. 1 Cir. 9/27/02), 835 So. 2d 580, 584, writ denied, 02-2592 (La. 12/13/02), 831 So. 2d 989. The test to determine if that burden has been met is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Yohn, 835 So. 2d at 584. Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the fact finder. John, 835 So. 2d at 584. The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mutual Automobile Ins. Co., 10-1609 (La. App. 1 Cir. 5/6/11), 65 So. 3d 213, 220, writ denied, 11-1084 (La. 9/2/11), 68 So. 3d 522.
Dr. Theonia Kammon Boyd, a pediatric pathologist, testified that Darron died as a result of choking on impacted food lodged in his airways. Dr. Boyd also testified that, more likely than not, Darron put too much food into his mouth in a rapid fashion, some of which was chewed and some of which was not, and that the food then travelled into his airway instead of his esophagus and stomach. Because the food (pancakes and syrup) was sticky, some of it became stuck in his airway, and Darron was unable to get air into his lungs, and he suffocated.
Dr. John Alberty, a pediatric gastroenterologist, who testified on behalf of the EBR School Board, stated that Darron had what appeared to be rumination syndrome, which is when a person brings the contents of the stomach back to the esophagus and throat. Dr. Alberty also testified that rumination syndrome is a mostly voluntary act that children with developmental delays, such as Darron, sometimes use to self-soothe. Dr. Alberty believed that Darron ate his food, which went into his esophagus or stomach, but then came back up into the back of his throat.
In addition to the medical testimony at trial, Mr. Wells testified that Darron was not regurgitating food at the time this incident occurred. Mr. Misenheimer also testified that when a body is essentially dead and pulseless, it may relax and push food and other substances out of it. There is sufficient testimony in the record for the trial court to have concluded that Darron aspirated due to the fact that he ate too much food at a rapid pace, rather than as a result of rumination syndrome.
On review of the record, we conclude that the trial court's finding of causation is supported by the record and is not manifestly erroneous. The EBR School Board attempted to show that Darron died as a result of rumination of his food, which caused him to aspirate. The trial court noted that although the experts agreed Darron aspirated, the cause of that aspiration, rumination or eating too much too fast, was in dispute. After hearing experts for both parties, the trial court held, "[t]he weight and credibility of the evidence [did] not support the contention that [Darron's] rumination syndrome/reflux disease caused him to choke on his food." Although the trial court noted there was evidence that Darron had, in the past, brought food back up after having swallowed it, "there was no evidence that this had ever caused him to choke or even get choked up as food was being brought back up."
A trier of fact is free to believe in whole or in part the testimony of any witness. See Scroggins v. Frederick 98-1814 (La. App. 1 Cir. 9/24/99), 744 So. 2d 676, 687, writ denied, 99-3557 (La. 3/17/00), 756 So. 2d 1141. The fact finder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Unless documents or objective evidence so contradict a witness's story, or that the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder must discredit it, this court may not reverse. See Stobart, 617 So. 2d at 882-83.
We find that the trial court's evaluations of credibility and inferences of fact were reasonable based on the record. We conclude the trial court was not manifestly erroneous in finding a causal relationship between the EBR School Board's lack of supervision and Darron's death. See Stobart, 617 So. 2d at 882. Answer to Appeal
Plaintiff answered the appeal, claiming that the trial court's award of $175,000 in general damages should be increased. Much discretion is left to the judge or jury in the assessment of general damages. La. C.C. art. 2324.1. In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993), cert. denied, 114 S.Ct. 1059 (1994).
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 that the appellate court should increase or reduce the award. Short v. Terminix Pest Control, Inc., 11-2293 (La. App. 1 Cir. 9/21/12), 104 So. 3d 119, 123. This court does not find that the award is less than what a reasonable trier of fact could assess for the effects of the particular injury to the plaintiff. Therefore, we deny plaintiff's answer to appeal.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal in the amount of $ 437.50 are assessed to defendant, the East Baton Rouge School Board.
AFFIRMED; ANSWER TO APPEAL DENIED.