author: JjDREW, J.

text:
    Geraldine J. DOUGLAS and Emili Jackson Individually and as the Natural Tutrix of her Minor Child, Travion Jackson, Plaintiffs-Appellants v. SHABUBA, INC. d/b/a Queen Mama Food, Frito-Lay, Inc., and Moak Petroleum Products, Inc., Defendants-Appellees.
    No. 38,260-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Raymond Lee Cannon, Tallulah, for Appellants.
    Davenport, Files & Kelly, L.L.P. by Carey B. Underwood, Monroe, for Appel-lee Shabuba, Inc., d/b/a Queen Mama Food.
    Plauché, Maselli, Landry & Parkerson, L.L.P. by Joseph Maselli, Jr., New Orleans, for Appellee Frito-Lay, Inc.
    Cotton, Bolton, Hoychick & Doughty, L.L.P. by Terry A. Doughty, Rayville, for Appellee Moak Petroleum Products, Inc.
    Boles, Boles & Ryan by Patrick Scott Wolleson, Michael Lee DuBos, Monroe, for Appellee State of Louisiana DOTD.
    Before PEATROSS, DREW and LOLLEY, JJ.
   JjDREW, J.

From summary judgments dismissing three defendants, the plaintiffs, Geraldine Douglas and Emili Jackson, on behalf of herself and her minor child, Travian Jackson, appealed and complained that the trial court erred in refusing plaintiffs’ request for a continuance of the hearing on the Motions for Summary Judgment (MSJ). Plaintiffs also urged that the trial court erred in granting summary judgments in favor of the defendants, Shabuba, Inc. d/b/a Queen Mama Food; Frito-Lay, Inc.; and Moak Petroleum Products, Inc. For the following reasons, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs sued for injuries sustained when the Douglas vehicle was struck by another car as Ms. Douglas attempted to drive across U.S. Hwy 65 in Tallulah. On April 4, 2001, Ms. Douglas drove west on East Levee Street and stopped at the intersection of East Levee and South Cedar (U.S.Hwy.65). The Queen Mama store was located at the northeast corner of the intersection to Ms. Douglas’ right. Plaintiffs alleged:

• Ms. Douglas’ view was blocked by parked Frito-Lay and Budweiser trucks.
• She eased her vehicle back and forth to make sure she could cross the intersection safely.
• Ms. Douglas was accompanied by her minor grandson, Travian Jackson.
• A southbound vehicle driven by James Holden collided with Ms. Douglas’ vehicle as she crossed the intersection.

Plaintiffs sued Queen Mama, the store operator, based upon Queen Mama’s failure to keep its premises free of obstruction for westbound drivers. Plaintiffs’ claim against Frito-Lay was that its delivery vehicle was 12parked in a way that created an unreasonable risk of harm to plaintiffs. In an amended petition, plaintiffs named DOTD as a defendant for failure to install appropriate traffic control.

In a second amended petition, plaintiffs added as a defendant, Moak, the owner of the premises on which Queen Mama operated its store. Plaintiffs contended that Moak failed to provide appropriate parking and striping in the parking lot, which had no parking places delineated. Further, plaintiffs asserted that Moak failed to keep the premises free of obstructing signs and an unused gas island.

In its MSJ, Moak, the property owner, urged it had no liability for the accident, since plaintiffs averred the collision was caused by the Frito-Lay truck which obstructed her vision. Queen Mama, the store operator, based its MSJ on its claim that plaintiffs could not produce any factual support sufficient to show negligence or fault on the part of Queen Mama.

Frito-Lay’s MSJ was accompanied by a memorandum (as were the other two defendants’ motions) with attachments which, according to Frito-Lay, showed there were no genuine issues of material fact and it was entitled to summary judgment as a matter of law. DOTD did not file a MSJ.

At the March 18, 2003, hearing, the trial court first denied plaintiffs’ motion to continue the hearing. Finding that the three defendants had not breached a legal duty to plaintiffs, the trial court granted the summary | ¡¿judgments and dismissed plaintiffs’ claims with prejudice against the three defendants.

DISCUSSION

Continuance

Plaintiffs filed this action on January 4, 2002. On November 13, 2002, the trial court set a March 18, 2003, hearing date on the MSJ. Citing the press of other business and lack of time, the plaintiffs complained that DOTD had responded to discovery requests on February 23, 2003, and that depositions taken on March 6 and March 12 had not been transcribed before the March 18 hearing. In brief, the plaintiffs urged that discovery was attainable in a short time frame and would establish the existence of a legal duty owed by defendants. Specifically, the, plaintiffs wanted training materials for the Frito-Lay driver, a deposition of. the Queen Mama store clerk, and an affidavit from DOTD that the parking lot was within the DOTD right of way.

The defendants argued that the denial of the continuance was proper and within the trial court’s discretion. In their view, plaintiffs made no showing of probable injustice and had ample time to complete their discovery.

A continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1601. While parties must be given fair opportunity to carry out discovery, there is no absolute right to delay action on a motion for summary judgment until discovery is completed. Absent peremptory causes, the decision to grant or deny a continuance is within the sound ^discretion of the trial judge whose ruling will not be disturbed on appeal absent a clear showing of .abuse of that discretion. Coleman v. Acromed Corp., 34,354 (La.App.2d Cir.2/7/01), 779 So.2d 1060, writ denied, 2001-0625 (La.4/27/01), 791 So.2d 636.

When a MSJ is pending, the only requirement is that the parties be given a fair opportunity to present their claims. Unless plaintiffs show a probable injustice, a suit should not be delayed for discovery when it appears at an early stage that there is no genuine issue of material fact. Berzas v. OXY USA, Inc., 29,835 (La.App.2d Cir.9/24/97), 699 So.2d 1149.

The trial court heard arguments including the chronology of discovery and efforts made by the defendants to accommodate plaintiffs’ discovery requests made shortly before the hearing on the MSJ. Queen Mama argued it was willing to stipulate that the truck was legally parked on the parking lot and that plaintiffs’ affidavits or potential depositions from a clerk, police, and customers concerning parking problems and prior accidents at the location were true.

The plaintiffs could have sought immediate supervisory review of the denial of the continuance but did not do so. The trial court specifically found that the plaintiffs had adequate time to prepare and made no showing of probable injustice. The action had been pending over 18 months and plaintiffs had four months from the time the court set the hearing on the MSJ to gather additional information. This continuance was properly denied and was within the trial court's discretion.

| sMotions for Summary Judgment

In Tommie’s Novelty v. Velasco, 37,924 (La.App.2d Cir.2/26/04), 868 So.2d 962, this court explained that summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Under La. C.C.P. art. 966(B), a 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 of material fact, and the mover is entitled to judgment as a matter of law. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.

Although the initial burden on a MSJ remains with the mover to show there is no genuine issue of material fact, 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. An adverse party may not rest on the mere allegations or denials of her pleading, but her response, by affidavits or as otherwise provided above, must set forth specific facts showing a genuine issue of material fact. If she does not so respond, summary judgment, if appropriate, shall be rendered against her. La. C.C.P. art. 967. Despite 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. |fiThe court must draw those inferences from undisputed facts that are most favorable to the party opposing the MSJ. Tommie’s Novelty, supra.

In Goins v. WaV-Mart Stores, Inc., 2001-1136 (La.11/28/01), 800 So.2d 783, the supreme court explained that for defendants to prevail on their MSJ and to carry its burden, the defendants must show that there is an absence of factual support for any of the elements of the negligence cause of action. The analyses employ the duty-risk analysis, which involves five elements: (1) that the defendants’ conduct was a cause-in-fact of the plaintiffs’ injuries; (2) that the defendants’ conduct failed to conform to the appropriate standard; (3) that the defendants had a duty to conform their conduct to a specific standard; (4) that the defendants’ conduct was a legal cause of the plaintiffs’ injuries; and (5) that the plaintiffs suffered actual damages. Goins, supra.

Queen Mama

As to Queen Mama, the store operator, plaintiffs urged:

• Defendants had a duty to protect passing motorists from hazards of congested traffic.
• The parking lot had no parking spaces delineated.
• There was a history of accidents at this intersection.
• The store does not sit far enough back from the road and that the lot is extremely narrow to provide adequate parking for the business.
• Signs cemented to the ground at the corner obstructed motorists’ vision.

Queen Mama’s attorney argued, for purposes of the MSJ, the store operator would stipulate that the truck was parked anywhere the plaintiffs |7placed it within the parking lot and that the Frito-Lay truck obstructed vision. At her deposition, the Frito-Lay driver stated that she initially pulled the truck to the store’s front door and, on the store clerk’s direction, moved the vehicle to the location at which it was parked at the time of the accident. The operator of the vehicle which collided with Ms. Douglas’ car stated the truck was parked five to ten feet off the roadway. Queen Mama urged that the store did not violate a duty to protect plaintiffs.

On appeal Queen Mama denies that the signs and gas island blocked Ms. Douglas’ view and cites Ms. Douglas’ own deposition statements that her vision was obscured only by the Frito-Lay truck. Queen Mama also states the MSJ was properly granted in its favor, since the convenience store was not at fault. The truck was parked within the parking lot, and no one testified the truck was illegally parked.

Moak

Plaintiffs also used the same foregoing five grounds against Moak, the property owner. Moak pointed out plaintiffs made no allegations that the store directed where the Frito-Lay truck was to park; plaintiffs limited their complaints against the property owner to inadequate parking area and signs blocking the view. The property owner supported its MSJ with portions of Ms. Douglas’ deposition in which she stated that no signs blocked her view, which was obstructed only by the Frito-Lay truck. In addition, there was no evidence that the signs or gas island obscured Ms. Douglas’ vision. Moak relied upon the plat submitted by plaintiffs showing the parking lot had 150 feet of frontage on Hwy. 65 and 56.63 feet of [sfrontage on East Levee. Ms. Douglas’ own testimony that only the Frito-Lay truck blocked her vision disposed of plaintiffs’ claims against Moak, according to the property owner.

Frito-Lay

Plaintiffs state that Frito-Lay violated statutes [La. R.S. 32:143(A)(15) and 32:143(A)(7) ] and improperly parked. Plaintiffs describe the Frito-Lay truck as being “billboard sized.”

For purposes of the MSJ, Frito-Lay conceded its truck was parked at Queen Mama at the time of the accident. Arguing that plaintiffs could not meet their burden of proof at trial and had not raised any genuine issue of material fact, Frito-Lay seeks to have the summary judgment in its favor affirmed by this court. Frito-Lay relied on the investigating officer’s deposition stating he did not ticket the Frito-Lay truck which was parked on the parking lot, not blocking either street. Citing plaintiffs’ failure to present any evidence to support liability, Frito-Lay maintained its truck was parked legally and breached no duty to the plaintiffs. Frito-Lay also noted that the statutes cited by plaintiffs are inapplicable to this situation, since La. R.S. 32:143(A)(7) deals with parking within 20 feet of a flashing beacon stop sign or traffic control signal located at the side of a roadway; La. R.S. 32:143(A)(15) deals with obstruction of a traffic control signal. Neither is applicable here. Moreover, Frito-Lay charged that the accident was caused by Ms. Douglas who stated she couldn’t see traffic and drove into the intersection.

| ¡¡Contending that Queen Mama and Moak had a duty to protect persons adjacent to their property, plaintiffs relied on Hakim v. Albritton, 552 So.2d 548 (La.App. 2d Cir.1989) which we distinguish. Decided under the former law on MSJ, Hakim involved an accident which occurred when motorists parked legally and illegally to attend a extraordinary, gigantic sale. The motorist contended that vehicles parked along both streets prevented her from observing the traffic when she stopped at the stop sign. The court found genuine issues of material fact and denied summary judgment in Hakim, since questions remained as to whether the store caused the congestion and whether the congestion was a cause-in-fact of the accident. In contrast, there is no evidence in this record that the Frito Lay truck was illegally parked.

In Carter v. Dr. Pepper Bottling Co. of Baton Rouge, Inc., 470 So.2d 496, 499-500 (La.App. 1st Cir.1985), the court stated:

We know of no statute or jurisprudence which imposes liability on the owner or operator of a vehicle lawfully parked on private property, which obstructs the view of other motorists.... Not every act of negligence gives rise to a cause of action against the negligent party.
Negligence is only actionable where it is both a cause-in-fact of the injury and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character.

In Carter, supra, summary judgment was granted to Dr. Pepper, whose truck was parked off the roadway and the location of which was not a cause-in-fact of the accident.

ItnIn Washington v. DOTD, 95-14 (La.App. 3d Cir.7/5/95, 663 So.2d 47), writ denied, 95-2012 (La.11/13/95), 664 So.2d 405, a fatal crash occurred when the driver pulled out at a T-intersection after stopping three or four times and stating she could not see. As the decedent tried to turn left, she was struck by a speeding motorist and killed. The Washington court found that the property owner of the convenience store at the intersection of the fatal collision was entitled to summary judgment because it was not responsible for the Budweiser truck parked on the shoulder or in the parking lot and was not responsible for the placement of a cigarette sign which allegedly obscured the decedent’s vision.

The difficulty in resolving this dispute is that the record clearly demonstrates that this was a very congested area through which motorists had to traverse. Notwithstanding questions about which duty did or did not apply in these circumstances, we find that the trial court properly granted the defendants’ MSJ and dismissed plaintiffs’ case with prejudice.

The bottom line is that Ms. Douglas’ own deposition testimony reveals the cause-in-fact of the accident was her decision to drive into the intersection when she did not have a clear view of any approaching traffic. She stated that her vision was not blocked by signs or other vehicles, only by the Frito-Lay truck, which the investigating policeman determined was parked within the confines of the parking lot.

Ms. Douglas described stopping at the stop sign and backing up to get a better view. “So I couldn’t see but I — it was a little peephole in between where they had a lottery sign and I peeped and I didn’t see nothing, so I |ncame to the stop sign again because it was another car behind me, so I went on. That’s when I got hit.” Later, Ms. Douglas said: “I didn’t back — I just backed a little because I was trying to look through a little spot that was in between that sign and another truck was there, but wasn’t nothing coming at the time I looked. So I got back, to the stop sign. I stopped and tried to see again and I went on out.” Ms. Douglas was precise that the only thing blocking her vision was the Frito-Lay truck. By her own admission, Ms. Douglas drove into the intersection without having a clear view of oncoming traffic. ■ As a result of her actions, this crash occurred.

CONCLUSION

After a de novo review of this record, we find that the trial court did not err in granting summary judgments in favor of Shabuba, Inc. d/b/a Queen Mama Food; Frito-Lay, Inc.; and Moak Petroleum Products, Inc. Therefore, the judgment dismissing the plaintiffs’ action as to these three defendants is affirmed. Costs are assessed to plaintiffs.

AFFIRMED.

      . In a third amended petition, plaintiffs added Marsala Beverage, LP, as a defendant, since its beer truck was parked there. Plaintiffs later dismissed Marsala without prejudice from the suit.


source: Caselaw Access Project

author: 11 MOORE, J. 1, CARAWAY, J.,

license: Public Domain

text:
    Larry STACY, Plaintiff-Appellant v. MINIT OIL CHANGE, INC., et al., Defendant-Appellees.
    No. 38,439-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      David R. Cook and Associates, by David R. Cook, Kent Gill, Shreveport, for Appellant.
    Crawford & Anzelmo, by Donald J. An-zelmo, Monroe, for Appellees.
    Before GASKINS, CARAWAY and MOORE, JJ.
   11 MOORE, J.

Larry Stacy appeals a summary judgment dismissing his personal injury suit against his former employer, Minit Oil Change, arising from an aggravated assault by a co-worker during business hours. For the reasons expressed, we affirm.

Factual Background

Because the matter was decided by summary judgment, the facts are extracted from Stacy’s two depositions, given in December 1996 and December 2002, and from the transcript of his workers’ compensation trial, held in November 1997.

The incident occurred at Minit’s former carwash near the corner of Southfield and Youree Drive in Shreveport. Stacy had been employed for a month or two as a car washer; James Stevenson was also a car washer there. Stacy arrived at work a few minutes before opening on the morning of October 10, 1996. Stevenson had brought some homemade cookies. He offered some to Stacy, who took two; Stevenson complained that he took too many. Stacy offered to return one, but Stevenson declined. In his first deposition, Stacy referred to this as a “little confrontation”; in the second, he agreed the “bad blood started over the cookies.”

Moments later, the carwash opened. An employee would drive the vehicles through the tunnel for machine washing; at the rear of the tunnel, Stacy (or other employees) would do “finish work.” After Stacy finished the day’s first vehicle, a Jeep, and returned it to the front, the customer asked him to get more bugs off the grille. Trying to please the customer, Stacy moved the Jeep to the side of the building.

12Stacy’s accounts of what touched off the altercation with Stevenson varied. At the trial of his compensation claim, Stacy testified that as soon as he stepped out of the Jeep, Stevenson came over, grabbed him and demanded, “Who do you think you are? You the boss?” In his first deposition, Stacy stated that Stevenson laid hands on him when he asked for the hose; in his second deposition, he indicated that the affray started after he finished retouching the Jeep and returned it to the front of the carwash. In all three versions, the physical contact started behind the building when Stevenson grabbed Stacy by the shoulder and tried to wrestle him down. They tussled over to the car-wash rack, where Stacy slipped down and Stevenson reached for a paint bucket, as if to strike Stacy with it. The handle came off the bucket, however, and Stacy darted out the rear of the building. Stevenson picked up a 1/é-foot piece of pipe and headed to the front to speak to the manager, Mr. Fawcett. 'Not wishing to be unarmed, Stacy grabbed a slightly shorter piece of pipe and ran up to where Stevenson and Fawcett were standing.

When Stacy reached the front, Mr. Faw-cett stood between the two scufflers and demanded to know what was the matter. He then instructed them both to hand over their pieces of pipe. Stacy complied. Stevenson, however, made a gesture and struck Stacy in the head with his pipe. The only thing Stacy could recall was being helped onto a stretcher some time after the assault. In the second deposition, Stacy admitted he did not actually see Stevenson hit him, and added, “Within my heart, I think he grabbed me behind [sic] the cookies. That’s the only thing I can see, | ..because me and James never had no confrontation.”

Shortly after the incident, Stacy filed a disputed claim for workers’ compensation benefits in the OWC. The case proceeded to trial after which the WCJ found the injury work-related for purposes of compensation and awarded benefits. This court affirmed the judgment in Stacy v. Minit Oil Change, 31,985 (La.App. 2 Cir. 6/16/99), 742 So.2d 929.

In October 1997, Stacy filed the instant tort suit seeking general and special damages. In May 2003, Minit filed this motion for summary judgment. . Minit contended that an employer is vicariously liable for the intentional torts of its employee only if those acts were in the course and scope of his employment. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994. Minit conceded that the assault occurred in the course of Stevenson’s employment, in that it happened during working hours and on the premises, but urged Stacy could not prove it was in the scope of employment, or that it served Minit’s interest. In support, Minit offered Stacy’s first deposition, taken in conjunction with the conap claim.

Stacy opposed the motion, claiming he could produce “substantial evidence, both circumstantial and testimonial,” that the intentional tort was employment-rooted. In support, he offered his second deposition as well as the workers’ compensation trial transcript.

After a hearing in September 2003, the district court held that from the “two depositions of the plaintiff, this was a matter that dealt with the cookies and then just re-erupted into a more violent form.” The court granted summary judgment and Stacy appeals.

| ¿Applicable Law

An employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of his employment. La. C.C. art. 2320; Bamneister v. Plunkett, supra; Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224. The course of employment refers to time and place. Benoit v. Capitol Mfg. Co., 617 So.2d 477 (La.1998). The scope of employment test examines the employment-related risk of injury. Id. For the employer to be vicariously liable, the tortious conduct of the employee must be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Barto v. Franchise Enterprises Inc., 588 So.2d 1353 (La.App. 2 Cir.1991), writ denied, 591 So.2d 708 (1992), quoting from LeBrane v. Lewis, 292 So.2d 216 (La.1974). An employer is not vicariously liable merely because its employee commits an intentional tort on the business premises during working hours. Scott v. Commercial Union Ins. Co., 415 So.2d 327 (La.App. 2 Cir.1982).

In LeBrane v. Lewis, supra, the court articulated four factors in holding an employer liable for its supervisor’s actions in stabbing a fellow employee:

(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.

Is LeBrane v. Lewis, 292 So.2d at 218.

The supreme court has subsequently held that not all four of these factors need be met to impose liability. Miller v. Keating, 349 So.2d 265 (La.1977). On the other hand, the employer is not vicariously liable merely because the employee commits an intentional tort on the employer’s premises during working hours. Baumeister v. Plunkett, supra. A finding of course of employment, factors (3) and (4), without more, is insufficient to impose vicarious liability. Eichelberger v. Sidney, 34,040 (La.App. 2 Cir. 11/3/00), 771 So.2d 863, writ denied, 2000-3476 (La.2/9/01), 785 So.2d 827. A finding of scope of employment hinges on the predominant motive of the tortfeasing employee, whether the purpose of serving the employer’s business actuated the employee to any appreciable extent. Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990); Dickerson v. Piccadilly Restaurants Inc., 99-2633 (La.App. 1 Cir. 12/22/00), 785 So.2d 842.

A motion for summary judgment shall be granted “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. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that | (¿he mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1).

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730; Oaks v. Dupuy, 32,070 (La.App. 2 Cir. 8/18/99), 740 So.2d 263, writ not cons., 99-2729 (La.11/24/99), 750 So.2d 993. Nevertheless, summary judgment may be granted on subjective intent issues when no issue of material facts exists concerning the pertinent intent. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002, and citations therein.

On such a showing, summary judgment procedure may resolve a claim of vicarious liability arising from the intentional tort of an employee, allegedly acting within the course and scope of employment. Wearrien v. Viverette, 35,446 (La.App. 2 Cir. 12/5/01), 803 So.2d 297; Eichelberger v. Sidney, supra; Dickerson v. Piccadilly Restaurants, supra; Pye v. Insulation Technologies Inc., 97-237 (La.App. 5 Cir. 9/17/97), 700 So.2d 892, writ denied, 97-2571 (La.12/19/97), 706 So.2d 461.

Discussion

By one assignment of error, Stacy urges the district court erred in granting summary judgment. He recites the well-known standards under La. C.C.P. art. 966, stressing that subjective facts such as motive or intent are not usually suitable for summary judgment. Oaks v. Dupuy, supra. He agues that genuine issues of material fact remain as to whether the assault arose from the cookie dispute or an argument over how Stacy was doing his | job. Despite the cookie incident, he urges the fight would not have occurred but for the fact that Stevenson challenged him for moving the Jeep. He submits that for this reason, the tortious act was “primarily employment rooted,” thus satisfying the first factor of LeBrane v. Lewis, supra; together with his uncontested showing as to the third and fourth factors, he contends the evidence does not show, as a matter of law, that Minit is entitled to judgment dismissing his tort claim. Finally, he cites cases in which workplace brawls were found to be employment-rooted and to result in vicarious liability.

Minit urges that the scope of employment requires a finding that the tortious act was (1) primarily employment rooted, and/or (2) reasonably incidental to the performance of the employee’s duties. LeBrane v. Lewis, supra. Minit argues that hitting Stacy with a pipe cannot possibly be primarily employment rooted or reasonably incidental to the performance of Stevenson’s job as a ear washer. Minit cites cases in which workplace disputes escalated into physical violence and yet the injuries were not found to be employment rooted. Minit strongly emphasizes Stacy’s testimony, at the end of his second deposition, that “within his heart” he thought it all happened because of the cookies. Finally, Minit asserts that the 1996 and 1997 amendments to Art. 966 abolished the former jurisprudential Ispresumption against summary judgments. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

At the outset we note that the judgment in the compensation trial, which found that Stacy’s injury was work-related, is not res judicata or law of the case with respect to his tort claim. Compensation benefits are activated by an accident “arising out of and in the course of’ the claimant’s employment. La. R.S. 23:1031 A. By contrast, the employer’s vicarious liability is premised on a tort committed by an employee in the course and scope of his employment. Baumeister v. Plunkett, supra. The compensation standard is different from, and broader than, the vicarious liability test. Mitchell v. AT & T, 27,290 (La.App. 2 Cir. 8/28/95), 660 So.2d 204, writ denied, 95-2474 (La.12/15/95), 664 So.2d 456; Malone & Johnson, Workers’ Compensation (13 La. Civil Law Treatise), § 144, fn. 1. In other words, the prior finding that Stacy’s injury arose out of and in the course of Stacy’s employment does not prove that Stevenson’s assaultive conduct occurred in the course and scope of Stevenson’s employment.

We have closely examined the record and find, contrary to Stacy’s position, that Stevenson’s motive or intent is not a genuine issue of material fact. In all three versions, Stacy testified that after they scuffled near the carwash rack, they separated. In the moments that intervened, Stevenson grabbed a piece of pipe and ran to speak to the manager; Stacy also found a pipe and went to meet his assailant. Mr. Fawcett ordered both men to hand over their pipes. This was a clear and immediate instruction to stop Infighting. While Stacy complied, Stevenson hesitated, made a gesture and then planted the pipe on Stacy’s head. After the initial, employment-related struggle, Stevenson blatantly disregarded Mr. Fawcett’s intervention and direct order to stop the fighting. This conduct was clearly outside of Stevenson’s assigned duties and antagonistic to Minit’s objectives. Wearrien v. Viverette, supra; Barto v. Franchise Enterprises, supra; Dickerson v. Piccadilly Restaurants, supra. On the summary judgment evidence presented, striking Stacy with a pipe can be ascribed only to purely personal considerations entirely extraneous to Minit’s interests. Baumeister v. Plunkett, supra; Wearrien v. Viverette, supra. For this reason, we find no genuine issue of material fact regarding Stevenson’s motive or intent that would preclude summary judgment.

Stevenson’s conduct also fails to satisfy the first two elements of the LeBrane v. Lewis test of vicarious liability. As noted above, the act of hitting Stacy in the head was not reasonably incidental to the performance of Stevenson’s employment duties.

As for the second factor, Stacy’s injuries resulted in part from Stevenson’s displeasure at Stacy’s job performance. The catalyst, however, is not enough to make the injury primarily employment-rooted. In cases such as LeBrane v. Lewis, supra, and Menson v. Taylor, supra, the courts found that legitimate employment interests continued to actuate the employees and thus served the employers’ interests. The same is not true here, as Stevenson flouted the manager’s direct and immediate order to cease hostilities.

| mStevenson’s conduct is more akin to the jurisprudence analyzed in Wearrien v. Viverette, supra, in which tortfeasors deviated from their employers’ interests despite an employment catalyst. For example, in Watkins v. International Service Syst., supra, an employee was supervising a janitorial crew at a manufacturing plant. He questioned another employee about property missing from the area cleaned by that employee. The supervisor found the missing items in a storage closet used by the employee. When the supervisor told him he would be suspended for theft, the employee attacked him. The employer was not responsible for the attack, as the employee’s duties did not include theft and attacks on his supervisor, and such conduct did not further the employer’s objectives. In Barto v. Franchise Enterprises Inc., supra, a supervisor discovered that an employee had taken money from the restaurant where they worked. The employee attacked the supervisor, but this conduct was outside the ambit of his assigned duties and did not further the employer’s objectives.

Stevenson’s act of hitting Stacy in the head after being told to hand over the piece of pipe was explicitly outside the ambit of his employment and diametrically opposed to Minit’s objectives. There is no genuine issue of material fact as to whether this conduct was primarily employment-rooted and reasonably incidental to his employment duties. With no evidence as to the first two LeBrane factors, Stacy cannot prove scope of employment. This is fatal to his claim. Eichelberger v. Sidney, supra; Dickerson v. Piccadilly Restaurants, supra. Minit is therefore entitled to judgment as a matter of law.

| nConclusion

For the reasons expressed, the summary judgment is affirmed at Stacy’s costs.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

1, CARAWAY, J.,

dissenting.

I respectfully dissent since I continue to hold to my dissenting view expressed in Eichelberger v. Sidney, 34,040 (La.App.2d Cir.11/3/00), 771 So.2d 863, writ denied, 2000-3476 (La.2/9/01), 785 So.2d 827. The LeBrane test has led in my opinion to arbitrary and inconsistent results and needs re-examination. Compare, for example, Benoit v. Capitol Mfg. Co., 617 So.2d 477 (La.1993), to the ruling in this case. The employer, which may be responsible for injuries to both of the combatant employees under the separate workers’ compensation test, should not, in my opinion, also be responsible in tort unless it knew or should have known of the employee’s propensity for violence. To the contrary, however, the slippery slope of LeBrane remains, requiring the employee’s motives to be measured under the “primarily employment-rooted” and “reasonably incidental” to duty tests. Motives and reasonableness are usually not matters to be decided on summary judgment. Therefore, I would find that material issues of fact remain in this case.

      . LeBrane v. Lewis, supra; Benoit v. Capitol Mfg. Co., supra; Quebedeaux v. Dow Chemical Co., 2000-0465 (La.App. 1 Cir. 5/11/01), 809 So.2d 983, rev’d in part, 2001-2297 (La.6/21/02), 820 So.2d 542; Menson v. Taylor, 2002-1457 (La.App. 1 Cir. 6/27/03), 849 So.2d 836.

      . Baumeister v. Plunkett, supra; Eichelberger v. Sidney, supra; Wearrien v. Viverette, supra; Pye v. Insulation Technologies, supra; Watkins v. International Service Syst., 32,022 (La.App. 2 Cir. 6/16/99), 741 So.2d 171, writ denied, 99-2129 (La.10/29/99), 749 So.2d 640; Barto v. Franchise Enterprises, supra.


author: |T CARAWAY, J.

text:
    Ernest CAMPBELL, Plaintiff-Appellee, v. SELECT CAR COMPANY, INC., Defendant-Appellant.
    No. 38,443-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Rehearing Denied June 17, 2004.
    . Bodenheimer, Jones, Szwak & Winchell, LLP, by David A. Szwak, Shreveport, for Appellant.
    Legal Services of North Louisiana, by Henry Allyn Sale, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   |T CARAWAY, J.

This appeal results from a default proceeding in city court. The defendant filed a motion for new trial arguing that his answers to discovery requests filed prior to the default, his receipt of formal notice of trial before the default, and his communications with plaintiffs counsel concerning the trial setting tainted the process leading to the default judgment requiring its nullification. After hearing evidence, the trial court rejected defendant’s request to nullify the default judgment. We now reverse because of the ruling of the Louisiana Supreme Court in Russell v. Illinois Central Gulf R.R., 96-2649 (La.1/10/97), 686 So.2d 817, and the notice requirement of La. C.C.P. art. 1702(A) which resulted from that ruling.

Facts

On April 28, 2003, Ernest Campbell (“Campbell”) purchased a 1993 Cadillac DeVille with 83,738 miles from the Select Car Company, Inc. (“Select”) dealership for $6,050 cash. Within three weeks of buying the car, Campbell called James San Angelo (“San Angelo”), who owned the dealership, and described problems with the car’s transmission. San Angelo referred him to the provisions of the vehicle service contract which he purchased when he bought the car. Shortly thereafter, a transmission repair shop fixed the transmission for about $2,400. The vehicle service contract reimbursed Campbell $1,500 of this amount, leaving him to shoulder the $900 difference.

Dissatisfied with this result, Campbell had his attorney send Select a demand letter requesting rescission of the sale and return of the purchase | ¡.price. Upon receipt of the demand letter in early July, San Angelo telephoned the attorney and told him “he wasn’t paying anything.”

Thereafter, suit was filed in Shreveport City Court, claiming that Select sold Campbell a defective vehicle in violation of the Magnuson-Moss Warranty Act, constituting unfair and deceptive trade practices. The petition, along with citation, interrogatories, and requests for production, was personally served on San Angelo, Select’s registered agent for service of process, on July 18, 2003. The record reflects that San Angelo filed a response, consisting of San Angelo’s cover letter to Campbell’s counsel and answers to 24 interrogatories and 17 requests for production of documents. The clerk’s minute entry concerning these discovery responses, confusingly reads as follows: “Answer filed by Defendant on 07/29/03.”

Following Select’s actions, Campbell’s counsel initially requested a trial setting for August 14; but after realizing he was unavailable that day, he requested a resetting for August 28. The clerk’s office mailed San Angelo the following notice of trial dated August 6, 2003:

To: Select Car Company, Inc.
This is to notify you that the above numbered and entitled suit has been set on the docket on the date of August 28, 2003, at 2:00 PM in Court Room ‘5’ for TRIAL.
Please be present at the above stated time and date.
S/Deputy Clerk of Court

In his testimony at the later hearing on the motion for new trial, San Angelo described the sequence of events leading up to the trial date:

Q. Well did you come to court on August the 28th, 2003?
A. No. Because at about noon on August 27th Mr. Sale called me and said you know that this has been postponed or canceled for |3a new hearing and I asked him why and he said because you didn’t answer all the questions to the suit.
Q. And what did you say back to him?
A. I said well I need to know what’s done wrong so I can correct this. And I waited I presume that I would get a new hearing at a later date.
Q. Did you ever receive another notice?
A. No. The next thing I know that on August I mean on the September the 3rd the uh City Marshal’s brought me a statement of judgment. And I was really shocked because I was expecting to go to a hearing at some time or another....

San Angelo’s testimony was corroborated by the following minute entries of August 27:

CORRECT MINUTES: DEFENDANT FILED ANSWERS TO THE SET OF INTERROGATORIES ON JULY 29, 2003.

CASE PASSED TO BE RE-SET, AS PER ATTORNEY SALE, TRIAL SET IN ERROR, ATTORNEY REQUEST CASE TO BE SET FOR CONFIRMATION HEARING (COPY OF CASES CITED), PER FAX COPIES.

The very next day’s minute entry states, “default scheduled for 9/02/2003 at 9:00 a.m.” Thereafter, on September 2, the case was called up for confirmation of default. The defendant failed to appear and a default judgment was entered in Campbell’s favor.

After San Angelo was served with the notice of judgment, he wrote the following letter to the trial court:

The answers to the interrogatories were done in all honesty and sincerity but was unaware there was a right way and wrong way to answer the questions and this would cause us to end up in default. Attorney Al Sale called me to advise me the court date had been postponed and a new court date would be set. I called the Clerk’s office and was advised the court date had been postponed. I was not aware there was going to be a hearing neither was I contacted by anyone to let me know of a date or time. If I had known I would have been present.
|4I was also informed by Attorney Sale I would have to have an attorney to represent me since I was a corporation.
I would like to have this judgment set aside and request a new hearing and/or trial date.

The trial court denied this request on September 5, 2003. The same day, Select’s newly enrolled counsel filed a motion for new trial. The evidence and testimony at the hearing on the motion revealed San Angelo’s belief that no trial would take place without further notice, Sale’s warning to San Angelo to obtain counsel, and that Select received no further written or formal notice of the September 2 proceeding which resulted in the default judgment from either Sale or the clerk of court.

Discussion

A new trial may be granted in any case if there is good ground therefor. La. C.C.P. art.1973; Bates v. Legion Indem. Co., 01-552 (La.App. 1st Cir.2/27/02), 818 So.2d 176; Meshell v. Russell, 589 So.2d 86 (La.App. 2d Cir.1991). In cases involving a motion for new trial after rendition of a default judgment, public policy considerations weighing in the defendant’s favor dictate that every litigant should be allowed his day in court. Bates, supra; Me-shell, supra. Nevertheless, the burden is on the defendant to prove that the default judgment should be set aside because of an improper practice justifying his failure not to timely plead.

A final judgment obtained by fraud or ill practices may be annulled. La. C.C.P. art.2004. This article is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or | ^procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Russell, supra. In Russell, the defendant was defaulted after filing a motion for extension of time and a dilatory exception. The granting of the exception resulted in the amendment of the petition which the defendant then failed to answer. The court found that the default judgment should be nullified for an ill practice pursuant to La. C.C.P. art.2004. The court stated that under the circumstances, the default judgment was improper “without attempting to notify the opposing attorney when the opposing attorney had participated in the litigation proceedings ....” Id. at 819.

In view of the ruling in Russell, the provisions of La. C.C.P. art. 1702(A) regarding confirmation of a default judgment were amended to provide for notice of an impending default judgment to defendants who made an appearance in the case. As amended, the Article now provides:

When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

Clearly, the express language of Article 1702(A) would apply if this case proceeded in district court instead of city court. There is no evidence in the record showing such notification to Select by certified letter. As a trial court of limited jurisdiction, city courts are governed by the special rules of procedure found in Book VIII of the Code of Civil Procedure and | fi“as far as practicable” by the other provisions of the Code, including Article 1702. Nevertheless, the special rule for city court contained in Article 4904(A) provides that “no prior default is necessary” for the rendition of default judgments. Therefore, the so-called “preliminary default” entered under La. C.C.P. art. 1701(A) applying to default judgments in district courts is not operable in city court.

Thus, in a technical sense, notice of the entry of a preliminary default specified in the language of Article 1702(A) and resulting from the ruling in Russell, does not fit the actual procedure for obtaining defaults in city court. Nevertheless, while Select was not entitled to the precise notice of Article 1702(A) in city court, the absence of notice after his appearance in the proceeding remains an ill practice under the Russell ruling, requiring the nullity of the default judgment. Additionally, we note that Select was given actual notice of trial in this case which implied the issue was joined in the suit and that the threshold warning of initial citation pursuant to La. C.C.P. art. 1202(5) — answer the suit or be defaulted — no longer applied.

Accordingly, for the foregoing reasons, the trial court abused its discretion in failing to grant the motion for new trial and failing to nullify the default judgment for lack of proper notice to the defendant. The judgment is reversed with costs assessed to appellee.

REVERSED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY, and MOORE, JJ.

Rehearing denied.


author:
JjBROWN, C.J.
      _JjDREW, J.,

text:
    Glenda Poole SMITH, Plaintiff-Appellant, v. KAYE’S FOOD MARKET, et al, Defendants-Appellees.
    No. 38,518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2004.

      Hudson, Potts & Bernstein, by Brian P. Bowes, D. Brian Allen, for Appellant.
    McKeithen, McKeithen & Bohman, by Martin S. Bohman, Davenport, Files & Kelly, by W. David Hammett, for Appel-lees.
    Before BROWN, PEATROSS, and DREW, JJ.
   JjBROWN, C.J.

On March 17, 2002, petitioner, Glenda Poole Smith, was driving through the parking lot of Kaye’s Food Market in Columbia, Louisiana, when she struck a pothole. Ms. Smith claimed personal injuries as a result of the accident.

On March 6, 2003, Ms. Smith filed a petition, alleging negligence on the part of the lessee, Kaye’s Food Market, and its insurer, United Fire & Casualty Company, and the alleged owner/lessor, the Estate of John J. McKeithen, and as the legal representative of the McKeithen estate, Marjorie Ann McKeithen. The Estate of John J. McKeithen and Marjorie Ann McKeithen responded with a motion for summary judgment, alleging that the estate did not own the property in question on the date of loss. They claimed that the property was owned by Edna Tingle and Marjorie Funderburk McKeithen, the surviving wife of the deceased John J. McKeithen. Edna Tingle was the longtime secretary for Governor McKeithen, who left her his one-half interest in this particular piece of community property.

On May 27, 2003, Kaye’s Food Market filed an answer to the petition denying liability, as well as a third party demand against Edna Tingle, Marjorie Funderburk McKeithen, and Marjorie Ann McKeithen and Walter Fox McKeithen as testamentary co-executors of the Estate of John J. McKeithen. On June 24, 2003, plaintiff filed a supplemental petition, naming as additional defendants Edna Tingle, Marjorie Funderburk McKeithen and Walter Fox McKeithen as co-executors of the Estate of John J. McKeithen.

L.On August 29, 2003, Edna Tingle and Marjorie Funderburk McKeithen filed exceptions of prescription as they were not named as defendants until more than one year after the alleged accident, and Walter Fox McKeithen filed a motion for summary judgment, averring that the Estate of John J. McKeithen did not own the property in question at the time of the alleged loss. On September 17, 2003, Marjorie Ann McKeithen filed a motion to quash a subpoena duces tecum and a motion for protective order, as plaintiff attempted to Obtain banking records of the Estate of John J. McKeithen. We note that this case clearly demonstrates the hazards of waiting until the last moment to file a legal action.

On September 29, 2003, Kaye’s Retail Group, LLC, and its insurer, United Fire & Casualty Company, filed a motion for summary judgment, alleging that Kaye’s was leasing the property and that the owner/lessor of the property was responsible for the maintenance of the parking lot. This motion, along with all of the other motions and exceptions filed, was set for hearing on October 15, 2003. On October 14, 2003, plaintiff filed oppositions to the several motions and exceptions. The plaintiff also filed a motion to compel, alleging that several of the defendants failed to comply with discovery. At the hearing, the trial judge granted the exceptions of prescription, the motions for summary judgment, and the motions to quash and for protective order. Plaintiff appeals that judgment. For the following reasons, we affirm in part and reverse in part.

13Discussion

Kaye’s Retail Group’s Motion for Summary Judgment

Summary judgment is appropriate when there are no material facts at issue and no legal duty exists. Mixon v. Davis, 31,725 (La.App.2d Cir.03/31/99), 732 So.2d 628.

La. R.S. 9:3221 states:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable 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.

In order for a lessor/owner to shift liability to the lessee for property defects, the parties must agree to the transfer in liability.

A1983 written lease executed by John J. McKeithen and McLemore’s Wholesale and Retail Stores contained a provision placing responsibility on the owner/lessor for the maintenance of the parking lot. After this lease term had expired, Kaye’s Grocery took over the lease through McLemore’s bankruptcy proceedings. A written lease was never executed between Kaye’s and McKeithen. Therefore, there is no evidence that Kaye’s, the lessee, ever assumed responsibility for the parking lot. Plaintiff failed to produce any evidence showing that Kaye’s was responsible for the parking lot. The motion for summary judgment by Kaye’s and United Fire & Casualty Company was appropriately granted.

\4Estate’s Motions

The other motions for summary judgment in this case concern the Estate of John J. McKeithen and its succession representatives, Marjorie Ann McKeithen and Walter Fox McKeithen. In filing their motions, defendants attached a Judgment of Possession of Particular Legacies, which was issued prior to the date of the accident, wherein Edna Tingle was placed in possession of the decedent’s undivided one-half interest in the property in question. Marjorie Funderburk McKeithen, the surviving spouse of John J. McKeithen, was recognized as the owner of an undivided one-half interest as this was community property. Faced with the Judgment of Possession, plaintiff was unable to provide any evidence that the estate had any ownership interest.

Plaintiff attempted to imply that the estate maintained an interest in the property by continuing to accept rents and by paying for insurance on the property after the Judgment of Possession. Plaintiff also complains that her discovery requests to the estate defendants went unán-swered. After the estate filed for summary judgment, Interrogatories and Requests for Production of Documents were propounded to Edna Tingle and Marjorie Funderburk McKeithen. Also, a Notice of Records Deposition served on Citizens Progressive Bank requesting bank records of the estate was filed.

We agree with the trial judge that these discovery requests were late, having been filed only after the motions for summary judgment and exceptions of prescription were lodged. Their purpose, however, was to | ¡^explore questions that would impact on the issue of prescription, and it was within the trial court’s discretion to require that they be answered before the hearing on the summary judgment motions. Even so, it is not seriously disputed that the property was not owned by the estate, but by Edna Tingle and the widow, Marjorie Fun-derburk McKeithen. Thus, the summary judgment motion was properly granted as to the estate of John J. McKeithen and the co-executors.

Exceptions of Prescription

Defendants Edna Tingle and Marjorie Funderburk McKeithen filed exceptions of prescription, based on the fact that plaintiff did not name them as defendants until after one .year had passed from the date of the accident. In opposition to these exceptions, plaintiff claims that the suit against Edna Tingle and Marjorie Funderburk McKeithen relates back to the original suit against the estate. Plaintiff cites Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), Sutton v. Short Stop Hamburger, 31,841 (La.App.2d Cir.05/05/99), 737 So.2d 157, and Cohen v. Brookshire Bros., Inc., 01-1159 (La.App. 3d Cir.06/05/02), 819 So.2d 429, and argues that as she intended to sue the responsible party or parties, her petition should relate back.

In this case, neither Edna Tingle nor Marjorie Funderburk McKeithen was named as a third-party defendant or defendant until two and three months after the one-year prescriptive period for torts had run. Plaintiff, however, named the estate from which Edna Tingle derived her ownership. The widow McKeithen was an undivided one-half owner with the estate at the time of death, as this was community property. There exist questions of | ¿material fact as to whether the estate paid the insurance on behalf of these owners as well as managed the property for them. We further note that the original defendant, Majorie Ann McKeithen, is an attorney whose law firm represented the estate, its executors, Edna Tingle, and the widow McKeithen.

New plaintiffs and defendants may be added by amended pleadings if the applicable criteria are met. Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985); Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983); In re Gaines v. Bruscato, 30,340 (La.App.2d Cir.04/08/98), 712 So.2d 552, writ denied, 98-1272 (La.06/26/98), 719 So.2d 1059.

An amendment adding or substituting a party relates back to a timely filed petition if: (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original petition; (2) the substitute defendant received notice of the institution of the action such that he will not be prejudiced in preparing and conducting his defense; (3) the substitute defendant knows or should know that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; and (4) the substitute defendant is not a wholly new or unrelated defendant. La. C.C.P. art. 1153; Giroir, supra; Ray, supra; Thomas v. Connolly, 31,447 (La.App.2d Cir.01/20/99), 726 So.2d 1052.

The doctrine of relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice. (Emphasis added). Giron v. Housing Authority of Opelousas, 393 So.2d 1267 (La.1981); Gaines, supra. Where there is some factual connexity between the lyoriginal and amended assertions, together with some identity of interest between the original and the additional or supplemental parties, amendment should be allowed. Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980); Russland Enterprises, Inc. v. City of Gretna, 98-676 (La.App. 5th Cir.01/26/99), 727 So.2d 1223.

This court in Strouse v. M & M Properties, 32,792 (La.App.2d Cir.03/03/00) 753 So.2d 434, 441-442 'wrote the following:

Applying the four-part test set forth in Ray, supra, we find no merit to defendants’ argument. First, plaintiffs amended claim against Lamayo arose out of the October 23, 1994, accident for which she sought redress in the original, timely filed petition. Second, the amended petition merely sought to name the party who owned and operated the trailer park; this party clearly received timely notice through Mr. Martin. Third, Lamayo should have known that, but for the misnaming of Alpha Mobile Home Park as a defendant in the original petition, the initial claim would have been brought against it. Finally, La-mayo is not a wholly new or unrelated defendant. As noted above, suit was initially filed against Alpha Mobile Home Park. In discovery, Mr. Martin indicated that Alpha Mobile Home Park was not a legal entity without further disclosing the entity or person(s) which actually owned the property. At trial, Mr. Martin confirmed that the only property owned by Lamayo is Alpha Mobile Home Park and a number of trailers located thereon. This situation is analogous to Ray, supra, wherein the first named defendant was Alexandria Mall, also a non-existent legal entity, and the proper named defendant was a partnership which did business as Alexandria Mall.

In the instant case, defendants did not answer discovery. The original petition alleged that the premises were owned by the Estate of John J. McKeithen, from which Edna Tingle had derived her ownership. As noted previously, the widow McKeithen’s ownership represented her one-half interest in community property. Another of the original defendants was the executor of the estate and the granddaughter of the McKeithens. She is an ^attorney, and her firm represents all of the McKeithen parties as well as Edna Tingle. Her firm placed Ms. Tingle in possession of the undivided one-half interest of John J. McKeithen and recognized the widow as the owner of the other one-half undivided interest. Further, the unanswered discovery may have disclosed that the estate continues to manage the property.

The claim against the new defendants is factually the same. Both Edna Tingle and Mrs. McKeithen were represented by an attorney, who, as an executor of the McKeithen estate, was named as a defendant in the initial action. There was notice, and no prejudice existed in preparing and conducting a defense. The owner’s attorney knew immediately that the wrong entity or parties were sued. Both Edna Tingle and the widow were closely related to John J. McKeithen and his estate, as they both derived their property interest through the estate. The particular factual circumstances of this case, including the actions and inaction of the parties, satisfy the fourth criterion of Ray which requires that the substituted defendant not be a wholly new or unrelated defendant. See Montminy v. Jobe, 600 So.2d 121 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992), and cases cited therein. Therefore, we reverse the trial court’s granting of the exception of prescription.

Conclusion

We affirm in part and reverse in part. Cost to be divided equally between plaintiff and the owners/lessors.

DREW, J., concurring with written reasons.

_JjDREW, J.,

concurring.

Our ruling is correct. I write to emphasize the twin follies of:

• waiting until the last moment to file a suit; and
• failing to give the public records at least a cursory glance.

In overruling the exception, we are following the Ray, supra, checklist, and we are being consistent with the methodology of our recent rulings, some of which have reached different results in following the Ray guidelines. I respectfully concur, with these comments.

      . We note, however, that on the date of the accident the liability insurance had lapsed.

      . Jackson v. Medical Transportation, Inc., 38, 032 (La.App.2d Cir.3/3/04), 867 So.2d 895; Huffman v. Goodman, 34,361 (La.App.2d Cir.4/4/01), 784 So.2d 718, writ denied, 2001-1331 (La.6/22/01), 794 So.2d 791; and Hunsucker v. Global Business Furniture, 33,972 (La.App.2d Cir. 1/15/00), 768 So.2d 698, writ denied, 2000-3013 (La.12/15/00), 777 So.2d 1235. See also, Reese v. State, Department of Public Safety and Corrections, 2003-1615 (La.2/20/04), 866 So.2d 244.


author: | WILLIAMS, Judge.

text:
    Tommy FOSTER, Plaintiff-Appellee, v. UNOPENED SUCCESSION OF Lester Glenn SMITH, et al., Defendant-Appellant.
    No. 38,386-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2004.

      Louisiana Department of Justice, By: James E. Calhoun, Assistant Attorney General, for Appellant.
    Herman A. Castete, for Appellee, Tommy Foster.
    Michael J. Fontenot, Monroe, for Appel-lee, Kwik Check of Winnfield, Inc. d/b/a Best Western Motel of Winnfield and the Unopened Succession of Lester Glenn Smith.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   | WILLIAMS, Judge.

The defendant, State of Louisiana, Department of Transportation and Development (DOTD), appeals a judgment in favor of the plaintiff, Tommy Foster. The trial court assessed 70% fault to DOTD for causing the accident, 15% fault to the defendant, Unopened Succession of Lester Glenn Smith (“Succession of Smith”) and 15% fault to plaintiff. The court awarded plaintiff damages of $19,970.37, an amount reflecting the parties’ proportional fault. For the following reasons, we reverse in part, affirm in part and render.

FACTS

On August 22, 1997, Tommy Foster drove to the parking lot of the Best Western Motel in Winnfield, Louisiana, to mail a letter. While walking toward the mailbox in front of the motel, Foster briefly looked around when he heard a voice. As he turned forward and took another step, Foster tripped on a pipe protruding from the ground and fell, injuring his nose, face, hands and knees.

During the period from 1982 to 1984, DOTD had expanded a state highway and constructed a concrete curb along the roadway. At the time of the accident, the pipe extended from under the curb marking the edge of DOTD’s right of way and out over the property owned by the Succession of Smith and used by Kwik Cheek of Winnfield, Inc. d/b/a Best Western Motel of Winnfield (“Best Western”).

Following the accident, Foster was transported to the Winn Parish Medical Center complaining of injuries to his nose, face, hands and knees. The x-rays of Foster’s nose were read by a radiologist, who did not find any | ^evidence of a nasal fracture. On September 2, 1997, Foster saw his family physician, Dr. Randolph Williams, with a complaint of pain and tenderness in his nose. Dr. Williams reviewed the x-rays and opined that Foster had sustained a non-displaced fracture of the nasal septum. When Dr. Williams saw Foster on September 27, 1997, the appearance of his nose had improved. However, Foster continued to feel tenderness around the bridge of his nose for approximately three months.

Almost two years later, in May 1999, Foster sought treatment with Dr. James Pate, an ear, nose and throat specialist, complaining of nasal congestion, sinusitis, facial swelling and pain. After an examination, Dr. Pate diagnosed Foster with a deviated nasal septum and hypertrophic turbinates and recommended surgery. Dr. Pate performed nasal septal surgery with partial removal of Foster’s turbinate tissue. Dr. Pate last saw Foster on May 19,1999.

Subsequently, the plaintiff, Tommy Foster, filed a petition for damages against the defendants, Succession of Smith, Best Western and DOTD. After a trial, the court issued written reasons for judgment finding that the pipe protruding from the ground presented a hazardous condition resulting from DOTD’s highway construction. The trial court found that DOTD knew or should have known about the dangerous condition and was negligent in failing to remove the pipe. The court further found that the negligence of the property owner and the plaintiff also contributed to the accident. The trial court allocated 70% fault to DOTD in causing the accident, 15% fault to the Succession of Smith and 15% fault to plaintiff.

|aThe trial court found that as a result of the accident, the plaintiff had sustained a fractured nose that aggravated his existing sinus condition and required nasal surgery by Dr. Pate. The court awarded plaintiff medical expenses of $7,499.22 and general damages of $9,000 for past and future pain and suffering, $3,500 for mental anguish, $2,000 for loss of intellectual or physical enjoyment and $1,500 for permanent disability.

The trial court rendered judgment in favor of plaintiff against DOTD in the amount of $16,445.49 and against the Succession of Smith in the amount of $3,524.88, reducing the damage award by the percentages of fault. The court assessed the defendants “with all costs herein, including expert witness fees.” DOTD appeals the judgment. Answers to the appeal have been filed by plaintiff and by Succession of Smith and Best Western.

DISCUSSION

DOTD contends the trial court erred in assessing 70% fault to the state in causing the accident. DOTD argues that it is not liable because the evidence failed to show that the state knew of the alleged hazard.

In order to recover against a public entity for damages due to a defective condition, the plaintiff must prove by a preponderance of evidence: (1) the thing that caused the damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of the plaintiffs harm. LSA-R.S. 9:2800; Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216; Long v. State DOTD, 37,422 (La.App.2d Cir.11/24/03), 862 So.2d 149. Proof by a preponderance of evidence means that, when taken as a whole, the evidence shows that the fact or cause sought to be proven is more probable than not. Whatley v. City of Winnfield, 35,132 (La.App.2d Cir.12/5/01), 802 So.2d 983.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

Prior to trial in the present case, the parties stipulated that DOTD’s “right of way line” was the edge of the concrete curb and that the pipe protruded “from under the right of way over the property of Glenn. Smith.” A former DOTD employee, Carlton Bennett, estimated that the state had built the concrete curb marking the edge of the highway right of way sometime between the years of 1982 and 1984. Bennett testified that he took photographs of the accident scene in April 2002 and that the pipe appeared to extend “underneath ... the concrete curb toward the highway.” Bennett stated that he had not visited the accident scene prior to that time. He did not say that the pipe was placed there by the state or indicate how long the pipe may have been present in that location.

The plaintiff testified that while he was walking toward the mailbox | Bon the day of the accident, he heard someone yelling and turned his head to look. As he, was turning back around, he tripped on the, pipe and fell. The plaintiff stated that the pipe was sticking out from under the curb and that the next day he took photographs at the scene from inside his vehicle. He testified that when he returned to the area at a later date, the pipe had been cut back closer to the curb and that he observed what appeared to be electrical wires inside the pipe. Plaintiff stated that he placed a 12-inch long piece of metal all the way into the pipe, which extended underneath the curb toward the highway. Plaintiff testified that although he had previously used the same mailbox several times, he had not walked along the particular path where the pipe was protruding until the day of the accident.

Our review of this record demonstrates an utter lack of evidence regarding the duration of time in which the pipe had protruded from the ground before the accident, the identity of the party who placed the pipe at that location or whether there was any connection between construction of the curb and placement of the pipe. There was no testimony describing the condition of the pipe, such as whether it appeared worn, weathered or rusted or seemed new.

The evidence does not indicate that the pipe was embedded in the curb, as the plaintiff asserts in his brief. To the contrary, the plaintiff testified himself that the pipe was under the curb and appeared to have “electrical wire” inside. Nor was there any testimony or documentation presented to indicate that the pipe would have been visible, or had even been installed, at the time of the highway project’s completion.

| fiBased upon the lack of evidence in this record, the trial court was clearly wrong in finding that the pipe was present when the highway project was completed and could have been discovered through a routine inspection by DOTD. Thus, the record does not provide a reasonable factual basis to support a finding that the plaintiff proved by a preponderance of evidence that DOTD possessed actual or constructive notice of the dangerous condition. Consequently, we must conclude that the trial court erred in imposing liability upon DOTD for the plaintiffs injuries. In reaching this conclusion, we pretermit a discussion of DOTD’s remaining assignment of error regarding damages and of plaintiffs answer alleging a frivolous appeal and requesting that DOTD be assessed with all court costs.

Property Owner’s Answer on Issue of Liability

In their answer to DOTD’s appeal, Best Western and Succession of Smith contend the trial court erred in finding them liable for causing the accident and in awarding excessive damages. The defendants argue that they are not liable because plaintiff failed to satisfy his burden of proving their knowledge of the defect and that the surgical expenses were not related to the plaintiffs accident.

Appeal ? is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside or reversed by an appellate court. LSA-C.C.P. art.2082. When a devolutive appeal has been filed timely, an appellee who seeks to have the appealed judgment modified, revised or reversed as to any party may take a devolutive appeal within 60 days of the expiration of the delay for applying for a new trial, or within ten days of the 17clerk’s mailing of the notice of the first devolutive appeal in the case, whichever is later. LSA-C.C.P. art.2087. The term “appel-lee” includes any non-appellant party to a suit, whether involved in the appeal or not. Waguespack v. Prosperie, 592 So.2d 460 (La.App. 5th Cir.1991).

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised or reversed in part or unless he demands damages against the appellant. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in the answer. LSA-C.C.P. art. 2133. Thus, under Article 2133 an answer to an appeal is in the nature of a cross appeal in which the appellee takes advantage of an appeal entered by an appellant, in the hope of procuring a beneficial alteration or amendment of the judgment rendered. An answer to an appeal does not have the effect of an appeal with respect to any portion of the judgment rendered in favor of a party who is not an appellant. Francois v. Ybarzabal, 483 So.2d 602 (La.1986).

In the present case, only DOTD appealed the judgment. Best Western and Succession of Smith answered DOTD’s appeal seeking reversal of the court’s imposition of liability against them or, alternatively, reduction of the damage award. By answering the appeal, Best Western and Succession of Smith may seek alteration of the judgment vis-a-vis the appellant, DOTD. However, their answer does not have the effect of an appeal as to any portion of the judgment rendered either in favor of or against a party who has not appealed. Francois v. Ybarzabal, supra.

| ^Inasmuch as the plaintiff is not an appellant herein, the answer filed by Best Western and Succession of Smith does not permit a review of the judgment against them and in favor of the plaintiff as to the imposition of fault and the award of damages. Under Articles 2087 and 2133, absent an appeal by plaintiff, Best Western and Succession of Smith were required to separately appeal and request that the judgment be reversed or modified. Neither the plaintiff nor Best Western and Succession of Smith appealed the judgment awarding plaintiff damages in the amount of $3,524.88 (15% of the total damages assessed) against Succession of Smith. Consequently, that part of the judgment is final and shall not be disturbed.

Court Costs

In their answer, Best Western and Succession of Smith contend the trial court erred in failing to assess court costs in proportion to the defendants’ percentages of fault. They argue that their share of the costs should not exceed 30% of the total amount since the court allocated 70% fault to DOTD.

In any suit against the state, the trial or appellate court, after taking into account any equitable considerations applicable under LSA-C.C.P. arts.1920 or 2164, may grant in favor of the successful party after judgment against the state, an award of such party’s court costs as the court deems proper, but if awarded, shall express such costs in a dollar amount in a judgment of the court. LSA-R.S. 13:5112. The appellate court shall render any judgment which is just, legal and proper upon the record on appeal and may tax the costs of the lower or appellate court against any party to the suit 19as may be considered equitable. LSA-C.C.P. art. 2164.

In light of this court’s reversal of the allocation of fault against DOTD, the assessment of court costs against DOTD in the judgment is also reversed. We note that court costs were not properly assessed against the state in the present case, because the trial court did not express such costs in a specific dollar amount in the judgment as required by Section 5112. Pursuant to Article 2164, we shall assess costs at the district court and on appeal equally between plaintiff and Best Western and Succession of Smith.

CONCLUSION

For the foregoing reasons, that part of the trial court’s judgment awarding damages against the defendant, State of Louisiana DOTD, and assessing court costs is reversed. Costs, including expert witness fees, at the district court and on appeal are hereby assessed one-half to the plaintiff, Tommy Foster, and one-half to the defendants, Unopened Succession of Lester Glenn Smith and Kwik Check of Winnfield, Inc. d/b/a Best Western Motel of Winn-field, Inc. The judgment is otherwise affirmed.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: LEDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Charles L. BERNARD, Jr. v. PARISH OF JEFFERSON.
    No. 04-CA-19.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Applications Denied June 16, 2004.
    Joseph N. Marcal, III, New Orleans, LA, for Plaintiff/Appellant.
    Timothy D. Valenti, Assistant Parish Attorney, Harahan, LA, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   LEDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Charles L. Bernard, plaintiff-appellant, from a judgment sustaining an exception of prescription urged by the Parish of Jefferson, defendant-ap-pellee, in this zoning case. For the following reasons, we affirm the judgment.

There are no factual disputes. Plaintiff is the owner of a lot and building in Jefferson Parish. When he acquired the property in 1983 it was zoned C-2, general commercial. In late 1990, the Parish began the process of re-zoning nine contiguous parcels, including plaintiffs tract, to GO-2, general office. The process began with a Planning Advisory Board area study. In accordance with the Jefferson Parish Comprehensive Zoning Ordinance, this study and a hearing date were advertised in the official journal in three successive weeks, and a sign was placed on the area in question providing similar information. A hearing was held on January 22, 1991, and the zoning change was recommended. Subsequently, on March 27, 1991, the Parish Council adopted the recommendation of the Planning Advisory Board, and an ordinance changing the zoning was enacted. There is no |3dispute that the Parish complied with all notice requirements of the Comprehensive Zoning Ordinance.

In December of 1994 plaintiff filed a petition with the Council requesting that it restore the prior C-2 zoning, asserting that the GO-2 category destroyed any viable economic use for his building. That petition was denied by the Council on April 5, 1995. A week later plaintiff filed the present suit seeking two grounds for relief. First, he seeks to have the denial of his re-zoning petition on April 5 reversed on grounds that the Council was arbitrary and capricious in its ruling. Second, he seeks damages due to the original 1991 rezoning of the property to GO-2. The Parish responded to the second demand by asserting an exception of prescription. That exception was sustained. The trial judge certified this partial judgment as appealable, and plaintiff has now done so. The remainder of the suit challenging the 1995 Council action is still pending.

The pertinent statute is Art. XLVIII, Sec 40-882 of the Jefferson Parish Comprehensive Zoning Ordinance. That section provides that a party aggrieved by a zoning ordinance must bring suit within “a maximum time period of thirty (30) days after the decision of the Council.” Here, the present action challenging the Council’s decision of March 27, 1991, was not brought until over three years after that action. It was thus too late, and the action was properly dismissed by the trial judge.

Plaintiff argues to the contrary that because he did not receive actual notice of the proposed zoning change from the Zoning Advisory Board or similar notice of the Council’s action, the time period for filing suit did not commence against him. A similar argument was made and rejected in Palermo Land Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482 (La.1990). There the court noted that typically only constructive notice, usually by publication in the local newspaper, is required by zoning ordinances, and that the courts have 14uniformly held this method of notice to be sufficient. We therefore reject this argument as well.

For the foregoing reasons the judgment of the district court dismissing plaintiffs attack on the 1991 zoning change is hereby affirmed.

AFFIRMED.