author: J^MCCLENDON, J. | PETTIGREW, J.,

text:
    Carrie HALL v. J.E. MERIT CONSTRUCTORS, INC.
    No. 2002 CA 2648.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Rehearing Denied Jan. 5, 2004.

      Anthony Salario, Marksville, Counsel for Defendant/Appellant Carrie Hall.
    Daniel S. Wanko, Jr., Covington, Counsel for Plaintiff/Appellee J.E. Merit Constructors, Inc.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^MCCLENDON, J.

By this appeal, an employee contests a judgment of the Office of Workers’ Compensation Administration, granting her former employer’s motion for summary judgment based on a finding that the employee failed to present evidence showing that she could meet her burden of proving a compensable accident at trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 19, 1999, Carrie Hall, a boilermaker employed by J.E. Merit Constructors, Inc. allegedly injured her right shoulder while in the course and scope of her employment. Shortly thereafter, J.E. Merit began paying weekly workers’ compensation benefits to Ms. Hall and paying all medical expenses associated with the alleged accident.

On January 2, 2002, J.E. Merit filed a disputed claim for compensation, asserting Ms. Hall did not sustain a compensable accident while in the course and scope of her employment. J.E. Merit terminated Ms. Hall’s workers’ compensation benefits on or about March 13, 2002. On May 10, 2002, Ms. Hall filed an answer and a re-conventional demand, seeking the reinstatement of her benefits.

Subsequently, J.E. Merit filed a motion for summary judgment asserting that Ms. Hall could not meet her burden of proving a compensable accident or injury during her employment with J.E. Merit and, therefore, no benefit is owed to the employee. After hearing the matter, the workers’ compensation judge granted summary judgment in favor of J.E. Merit. Ms. Hall appeals, asserting that summary judgment was improper as genuine issues of material fact remain as to whether an accident occurred.

| .SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1 Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538, p. 5 (La.App. 1 Cir. 11/7/97), 704 So.2d 30, 32. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). When appropriate under articles 966 and 967, summary judgment is available in workers’ compensation cases. LSA-R.S. 23:1317(A); Pope v. Younger Bros., Inc., 96-1604, p. 4 (La.App. 1 Cir. 5/9/97), 693 So.2d 1287, 1289.

An appellate court reviews a trial court’s decision to grant a motion for summary judgment in workers’ compensation cases de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. LeJeune v. Brewster, 97-2342, p. 4 (La.App. 1 Cir. 11/6/98), 722 So.2d 74, 76. The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue [4of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802, p. 10 (La.App. 1 Cir. 9/24/99), 745 So.2d 666, 673. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis v. Specialty Diving, Inc., 98-0458, 98-0459, p. 5 (La.App. 1 Cir. 4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

WORK-RELATED ACCIDENT

The appellant contends that the workers’ compensation judge erred in concluding that she could not meet her burden of proving a work-related “accident.” The term “accident” is defined in LSA-R.S. 23:1021(1) as “an unexpected unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” The employee bears the burden of establishing an accident by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

The record reflects that, on the day of the alleged accident, J.E. Merit was a contractor working at the Exxon Chemical Facility in Baton Rouge, Louisiana. J.E. Merit assigned Ms. Hall, Terry Elders and Newnan Hall the job of constructing or installing a pipe trapeze, using a rotary drill, weighing approximately fifteen to twenty pounds, and a magnetic drill, weighing approximately seventy-five pounds. The magnet on the magnetic drill was not operational; therefore, the crew had to manually lift that drill. Ms. Hall and Terry Elders worked on a scaffold, while Newnan Hall worked on the ground.

| sMs. Hall testified by deposition that, before lunch on August 19,1999, she began to experience problems, including pain across her shoulders, but continued to work. At lunch, she told her co-workers that she expected to be sore that evening. She noticed pain in her shoulders after lunch, but thought it was caused by overuse. Over the course of the day, the pain was pronounced in her right shoulder, and she experienced stiffness in both shoulders. However, she first noticed the pain “strongly” across her shoulders and back as she climbed down the scaffolding ladder upon completion of her the shift. The pain increased as she attempted, unsuccessfully, to remove her fire resistant coveralls. At that point, Ms. Hall told Barry Jones, J.E. Merit’s general foreman, that something was wrong with her shoulders.

Ms. Hall testified specifically that no immediate, precipitous event caused her problem. She testified further that no particular incident such as knocking her shoulders or body into something occurred that day, and no incident such as something knocking her body occurred that day. Rather, she stated that she injured herself on the scaffold, but was unaware of the injury while she worked on the scaffold. She testified that she did not know she was injured until she climbed down from the scaffold at the end of the day.

The appellant concedes that the pertinent statutes and jurisprudence require that she prove the occurrence of a work-related accident and that she cannot point to one event that caused her injury. However, she asserts that she is “entitled to a presumption that the shoulder injury was the result of a work-related accident,” because she experienced an unexpected change in her physical condition on August 19, 1999 that precluded her from subsequently working as a boilermaker. She cites the cases of Champagne v. State of Louisiana, et al, 01-0242 (La.App. 1 Cir. 3/28/02), 819 So.2d 1059 and Leblanc v. Cajun Painting, Inc., 94-1609 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, writ denied, 95-1706 (La.10/27/95), 661 So.2d 1349 and 95-1655 (La.10/27/95), 661 So.2d 1350, in support of this contention. However, in each of those cases, the claimant alleged a particular event that resulted in his injury, and the issue before the court involved the credibility of the claimant and the quality of the other evidence of an accident that was filed into the record. As discussed fully below, Ms. Hall has failed to oppose the motion for summary judgment with facts that constitute an accident; therefore, issues of credibility and the weight of the evidence are not present herein. Hence, her reliance on this jurisprudence is misplaced.

It is well-settled that an accident exists when heavy lifting or strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition. The jurisprudence consistently construes liberally the requirement of a work-related accident to be eligible for workers’ compensation benefits. However, despite the liberal construction afforded the employee in a workers’ compensation action, the employee’s burden of proof is not relaxed. Bruno v. Harbert International, Inc., 593 So.2d 357, 360-361 (La.1992). The employee is still required to “identify the event marking the time when one can identify an injury.” Dyson v. State Employees Group Benefits Program, 610 So.2d 953, 955 (La.App. 1 Cir.1992); see also Tate v. Cabot Corp., 01-1652 p. 5 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044.

Even accepting Ms. Hall’s testimony as true, she cannot prove an accident. Ms. Hall is unable to identify a single, precipitous event that 17directly and proximately caused her alleged right shoulder injury. Ms. Hall’s testimony of the mere onset of pain and her description of her work the day of the alleged accident are insufficient to carry her burden at trial of establishing that she was injured by a specific event while in the course and scope of her employment as defined by LSA-R.S. 23:1021. Therefore, she failed to adequately oppose her employer’s motion for summary judgment with material facts that would allow a trier of fact to conclude that an accident had occurred, and summary judgment was proper.

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs are assessed to Carrie Hall.

AFFIRMED.

PETTIGREW, J., dissents and assigns reasons.

| PETTIGREW, J.,

Dissents, and Assigns Reasons.

I am of the opinion that there are material issues of fact as to whether appellant had a work-related accident as defined by La. R.S. 23:1021(1) and interpreted by the courts of Louisiana.

I further am of the humble opinion that the medical records filed by appellee to support its motion for summary judgment did not meet all of the formal requirements of La.Code Civ. P. arts. 966 and 967 and that appellee failed to carry its initial burden on this motion for summary judgment.

Therefore, I respectfully dissent and would reverse the judgment below.


source: Caselaw Access Project

author: J^FITZSIMMONS, J.

license: Public Domain

text:
    AMERICAN CENTRAL INSURANCE COMPANY and Central Erectors, Inc. v. TEREX CRANE and Koehring Company. Louisiana Workers’ Compensation Corporation v. Terex Crane, Inc., et al.
    No. 2003 CA 0279.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Rehearing Denied Jan. 5, 2004.

      Daniel R. Atkinson, Jr., Baton Rouge, Counsel for Plaintiff American Central Insurance Company.
    Edwin L. Hightower, Baton Rouge, Counsel for Plaintiff Central Erectors, Inc.
    Musa Rahman, Baton Rouge, Counsel for Plaintiff-Appellee-Cross-Appellant Louisiana Workers’ Compensation Corporation.
    Robert E. Couhig, Jr., Leslie A. La-nusse, Raymond P. Ward, New Orleans, Counsel for Defendant-Appellant Koehr-ing Cranes, Inc.
    Kevin Patrick Monahan, Denise Ann Vi-net, Baton Rouge, Counsel for Intervenor-Appellee-Cross-Appellant Louis Chapman, Jr.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Appellant/defendant, Koehring Cranes, Inc. (Koehring), appeals the jury’s allocation of fault to Koehring for an accident involving a crane it had manufactured. Louis Chapman, Jr. (Chapman), appel-lee/cross-appellant, contests the jury’s verdict for future lost wages; past, present and future pain and suffering; mental pain and suffering; disability; and loss of enjoyment of life. Following a review of the facts and law surrounding the issues in this case, we affirm.

BACKGROUND

On May 16, 1996, Central Erectors, Inc. (Central Erectors), a contracting company, was erecting a steel structure for a bus station in Baton Rouge, Louisiana. A second-hand, 1970 model Lorain MC 065 crane was being utilized to lift the structural steel components of the roof. The crane, which had been purchased by Central Erectors in 1982, was manufactured by Koehring.

Louis Chapman, Sr., Chapman’s father, employed Chapman as a steel worker. At the time of the incident, Chapman was positioned on the roof of the building with another steel worker, Brent Carpenter. Donnie Lee (Lee), a Central Erector employee who operated the crane, was in the process of lowering the boom of the crane so that the steelworkers could bolt a purlin to the roof, when a loud popping sound occurred in the back of the crane cab. Thereafter, Lee’s application of the brakes failed to stop the boom from hitting the building. In an effort to escape being hit by the falling boom, Chapman was forced to drop twenty feet from a beam to the ground. He incurred serious injuries to his left foot and ankle, right wrist, right elbow, and thoracic spine.

American Central Insurance Company (American Central), the insurer for Central Erectors, and Central Erectors filed a petition against Koehring and Terex Crane, Inc., in which American Central sought subrogation for the cost to repair |4the damage to the boom of the crane. In a separate petition, Louisiana Workers’ Compensation Corporation (LWCC) filed a lawsuit against Koehring and Central Erectors to recover benefits and medical expenses that it had paid to Chapman. Chapman intervened in the latter suit to recover damages resulting from the collapse of the crane’s boom. Central Erectors filed a cross-claim against Koehring, as well as a third party demand in which it sought statutory employer .status. The two cases were ultimately consolidated.

Following trial on the merits of the consolidated case, Central Erectors was assigned sixty-two percent fault; thirty-eight percent fault was attributed to Koehring. Damages were awarded to Chapman in the following amounts: past medical expenses, $253,204.24; future medical expenses, $304,296.00; past lost wages, $100,000.00; future lost wages, $100,000.00; past and future physical pain and suffering, $100,000.00; past and future mental pain and suffering, $40,000.00; permanent physical impairment and disability of the body, $100,000.00; and loss of enjoyment of life, $100,000.00. .

On appeal, Koehring asserts clear error in the jury’s imposition of fault for failure to warn. Contrarily, Chapman seeks an increase in future lost wages; past, present and future physical and mental pain and suffering; permanent physical impairment; disability; and loss of enjoyment of life.

FAILURE TO WARN

Louisiana law ascribes to a manufacturer a duty to provide warning of any danger inherent in the normal use of its product which is not within the knowledge of an ordinary user. La. R.S. 9:2800.57 C; Bunge Corporation v. GATX Corporation, 557 So.2d 1376, 1384 (La.1990). The manufacturer’s duty to warn is a continuing one. Id.

It was not disputed by the parties that the boom hoist brake failed when an anchor bolt securing the brake fractured. A review of the record presented on appeal presents disparate expert analyses of the etiology of the anchor bolt’s fatigue failure. Norman C. Hargreaves (Hargreaves), the director of product safety for Terex Corporation, of which Koehring is a wholly owned subsidiary, opined that the bolt failure resulted because it “seized” due to a lack of lubrication of the adjacent pin. This opinion was echoed by Dr. Gerald Whitehouse, an engineer testifying on behalf of Koehring. Dr. WTiitehouse stated that corrosion evidenced on the pin demonstrated the lack of a Teflon-based lubricant that resists water and heat, called “nevr-seize,” in the area.

Contrarily, Michael Hames, the employee of Central Erectors responsible for maintaining the crane, testified that he had, in fact, put “nevr-seize” on three pins in the subject bracket; therefore, the bolt should have been lubricated. He also disputed the proposition that the pin was corroded or frozen to the bracket. Instead, Andrew J. McPhate, a mechanical engineer and retired professor testifying on behalf of Central Erectors, attributed the breakage of the anchor bolt to fatigue failure as a result of misalignment. In this regard, Dr. John H. Tabony, Jr., an expert in the field of mechanical and metallurgical engineering, pointed out that fatigue failure is usually a design defect. Mr. Hames noted that the problem of misalignment of the bolt was not addressed in any standard; therefore, fatigue failure could have occurred even if the machinery had been maintained in strict conformance with American National Standards Institute (ANSI) and Occupational Safety Hazard Administration (OSHA). It was additionally stated by J.D. Roberts, a board certified safety professional and safety management consultant, that conformity with the safety plan was not proximately related to the cause of the | ^accident at issue. Finally, Professor McPhate stated that the placement of an inexpensive half-inch spherical washer would have easily corrected the misalignment and prevented the bolt failure.

All parties focused on the Koehring’s Lorain Operator’s Manual for the MC 665 crane to buttress their case. Koehring established that Central Erectors had not complied with the OSHA and ANSI standards in its maintenance procedures. Nor had Central Erectors adhered to the inspection regimen dictated in Koehring’s Lorain Operator’s Manual.

Stephen A. Killingsworth, a mechanical engineer, rebutted Koehring’s assertion that the accident occurred due to Central Erector’s failure to properly lubricate the pins surrounding the bolt with “nevr-seize.” He opined on behalf of Central Erectors that the Operator’s Manual failed to address the need for application of “nevr-seize” to the boom hoist braking mechanism. Michael Hames, the employee of Central Erectors responsible for maintaining the crane, also stated that the Operator’s manual had not advised the owners to put oil in the pin area.

David C. Peabody (Peabody), who had retired as an employee servicing cranes for Koehring, testified that the same type of anchor eye bolt that was used in the Lo-rain MC 665 crane models had broken on another crane in 1985. Peabody stated that he had expressly advised Hargreaves, the crane manufacturer’s product safety director, about the broken anchor bolt approximately one week after it had occurred.

|7In its consideration of a jury’s determination, a court of appeal may not invalidate findings of fact unless manifest error exists. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the jury’s conclusion was a reasonable one in light of the record viewed in its entirety. Housley v. Cerise, 579 So.2d 973, 976 (La.1991).

The jury evidently embraced the testimony presented by Peabody that Koehring had been warned about the failure of an anchor bolt in the past and breached a duty to attempt to notify Lorain crane owners. Our scrutiny of the Operator’s Manual confirms that it did not contain specific instructions for anchor bolt maintenance or replacement. Instead, the manual states: “Certain oil can points are not specifically designated in the lubrication guides which follow. In such cases the following general instructions apply: Use oil can on all operating levers .... ” Although Peabody testified that there is a soft oil hole for lubricating the anchor bolt area, he admitted that there is no reference in the Operator’s Manual that addresses maintenance of the eye bolt; nor was there a part of the manual directing the owner/operator to inspect the eye bolt.

The jury could have reasonably found that the manufacturer had notice of a prior break in the same type of eye bolt on another crane. This knowledge notified the manufacturer that the anchor bolt required maintenance critical for safety. Specific attention to this integral part had not been delineated in the Operator’s Manual. A manufacturer with knowledge that a machine it built could malfunction acquires a duty to warn a product user of said danger. Bunge Corporation, 557 So.2d at 1384 (quoting Winterrowd v. Travelers Indemnity Company, 462 So.2d 639, 642 (La.1985)). Thus, neglect by Koehring to advise the product user to properly examine and maintain the bolt could have resulted in the ultimate failure of the structural integrity of the anchor bolt. The jury’s conclusion that IsKoehring failed to use reasonable care to provide adequate warning can be inferentially supported either on the basis that the Operator’s Manual lacked adequate specificity relative to the necessity of lubrication of the anchor bolt area and/or prevention or warnings to prevent or correct misalignment. The establishment of a duty by Koehring to warn owners that the anchor bolt might be subject to fatigue failure is not unreasonable.

Accordingly, we do not ascribe manifest error to the jury’s finding that Koehring failed to use reasonable care to warn Central Erectors of the possibility that the anchor bolt might fail and/or to prescribe specific maintenance directives in the maintenance manual. La. R.S. 9:2800.57 C; Winterrowd, 462 So.2d at 642-643 (La.1985). The jury did not err in ascribing a percentage of fault to Koehr-ing.

DAMAGES

Chapman challenges the jury award of future lost wages; past, present and future pain and suffering; mental pain and suffering; disability; and loss of enjoyment of life.

Lost Future Income

Awards for lost future income are intrinsically insusceptible of mathematical exactitude. As such, the trier of fact must exhibit sound discretion in rendering awards that are consistent with the record and do not impose a hardship upon either party. Steadman v. Georgia-Pacific Corporation, 95-1463, p. 11 (LaApp. 1 Cir. 4/6/96), 672 So.2d 420, 426-427, writ denied, 96-1494 (La.9/20/96), 679 So.2d 440. It is only upon an abuse of the jury’s discretion that a reviewing court should disturb an award for loss of future income. See Lasyone v. Kansas City Southern Railroad, 99-0735, pp. 9-10, (La.App. 1 Cir. 9/28/01), 809 So.2d 344, 350-351. Moreover, loss of future income is not predicated on the difference between a plaintiffs earnings before and after a disabling occurrence. Instead, it is ^determined by the difference between the plaintiffs earning capacity before and after the injury. Dennis v. The Finish Line, 99-1413, 99-1414, p. 36 (La.App. 1 Cir. 12/22/00), 781 So.2d 12, 40.

Following trial, the jury awarded the sum of $100,000.00 as the discounted amount of future lost wages. Dr. G. Randolph Rice, an economist, opined that the discounted value for future wages ranged from $296.636.00 to $527,352.00. Koehr-ing countered that Dr. Rice’s computations did not consider that Chapman had been seriously injured beforehand, nor the possibility of training in another field. In order for the jury to reject both of Dr. Rice’s discounted future lost wages sums, it can be inferred that the jury relied on the testimony by Dr. Thomas Whitecloud, an orthopedic surgeon, and Michael Frenzel, a vocational rehabilitator.

Dr. Whitecloud, who treated Chapman for a spine fracture in 1991, stated that he would not have recommended Chapman’s return to work as an ironworker thereafter. Dr. Whitecloud would have restricted Chapman from lifting in excess of twenty to thirty pounds, any prolonged stooping, any bending, or any climbing. Although he attributed a fifteen percent increase in the back deformity, Dr. Whitecloud did not ascribe any change in Chapman’s restrictions from light work as a result of the 1996 incident.

Mr. Frenzel stated that there were available alternate sedentary jobs that Chapman could perform, with or without training. Although Dr. W. Joseph Laugh-lin, another orthopedic surgeon, testified that there was a good possibility that Chapman might ultimately lose his foot, and Mr. Frenzel admitted that he had been unaware of this possibility, Mr. Fren-zel stated that he had found work in the | ippast for an amputee. Mr. Frenzel also indicated that in the past he had placed employees, such as Chapman, who possessed a chronic need for constant narcotic pain medicine. Given Chapman’s medical history and the conflicting testimony presented at trial, we cannot say that the jury’s award of future loss of wages was an abuse of discretion.

General Damages

General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Oliver v. Cal Dive International, Inc., 2002-1122, p. 6 (La.App. 1 Cir. 4/2/03), 844 So.2d 942, 947, writ denied, 2003-1230 and 2003-1796 (La.9/19/03), 853 So.2d 638, 648. Factors to be considered are the severity and dura-tion of the loss or pain and suffering. Fleniken v. Entergy Corporation, 2000-1824, 2000-1825, p. 29 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175, 1194. .As such, the standard of review on appeal of general damage awards is difficult to clarify and inherently nonspecific. Oliver, 2002-1122 at p. 7, 844 So.2d at 947. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury, to the particular plaintiff, under the particular circumstances, that the appellate court should increase or decrease the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), certiorari denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The jury awarded Chapman a total of $340,000.00 in general damages.

Chapman’s injury and medical treatment were extensive. He incurred a crushed fracture of his left foot; a fractured wrist; a fractured elbow, and a fractured thoracic disc in his spine. Between 1996 and the trial, Chapman underwent at least seven operations associated with his foot and toes, including a subtalar joint fusion that necessitated bone from a bone bank. There were five L separate painful procedures of irrigation and debridement associated with the foot. Several separate bone spur removals and operations for postoperative infections were necessary. Dr. Laughlin described Mr. Chapman’s foot as exhibiting one of the worst os calsis fractures he had seen, noting that the bone was absolutely crushed. He also testified that with each infection and operation he had explained to Chapman the recurrent possibility of losing all his toes or his entire foot, which had not had normal blood flow since the accident. Additionally, Chapman’s thoracic spine was fused from T4 to L4, and rods were inserted. Finally, Chapman’s elbow was operated on twice to repair ligaments, transpose the nerve, and fix pins and plates.

$140,000.00 of the general damages award was given for pain and suffering, which the jury divided into $100,000.00 for past and future physical pain and suffering and $40,000.00 for past and future mental pain and suffering. Given the multiple surgeries, the extensive medical treatment that Chapman required, and the medical prognosis for his foot and back, the sum of $140,000.00 for pain and suffering appears low. However, when compared with other awards in the first circuit, we cannot conclude that the award distorts awards for comparable multiple injuries to the extent that a reasonable trier of fact could not assess such damages for the effects of Chapman’s particular injury. Nor does our review of the jury awards of $100,000.00 each for permanent physical impairment and disability of body and loss of enjoyment of life reveal that these sums were unreasonable to the extent that they should be altered.

Accordingly, the judgment of the trial court is hereby affirmed in all respects. Costs associated with this appeal are to be assessed equally to Koehring Cranes, Inc.

AFFIRMED.

      . LWCC's statutory workers' compensation lien was recognized. Koehring’s motion for judgment notwithstanding the verdict on the issue of failure to warn, Chapman's motion for judgment notwithstanding the verdict on the issue of percentages of liability, and Chapman's motion for new trial and motion for additur as alternative to motion for new trial were denied by the trial court. Following trial, American Central and Central Erectors dismissed the property claim against Koehr-ing.

      . Additionally, Mr. Hargreaves testified that the accident could have been avoided by proper maintenance of the clutch on the crane. He stated that the clutch, which acts as an emergency brake, could have been successfully engaged to stop the boom when the bolt failed. Although Andrew J. McPhate agreed that the clutch could stop the boom from falling, he pointed out that it will only slow down the fall, not stop it, if the clutch were not applied immediately. The eye witness testimony indicated that the boom began to fall slowly.

      . Following retirement from Koehring, Peabody became a crane consultant.

      . Chapman also introduced the deposition testimony of Roy Cronon to demonstrate additional problems with an anchor bolt. Cro-non attested to a breakdown of another anchor bolt on March 8, 1995 due to a “priority one breakdownf;]” however, without further evidence, the details surrounding the “breakdown” are unknown.

      .In its denial of a motion for new trial, the court acknowledged the presentation of evidence supporting Koehring's awareness of at least one prior failure of a bolt, which would elicit a duty to warn.

      . The low figure was reached employing an inflationary increase in the $7.50 per hour figure Chapman was earning at the time of the accident to $9.00 per hour at the time of trial. Alternately, the high sum was premised on a different inflationary rate that brought Chapman's wages to $16.00 per hour at the time of the trial.

      . Frenzel identified auto or motorcycle mechanic work or becoming a dispatcher as a possible employment position. Although it was pointed out that Chapman’s chronic need for narcotic pain medicine might inhibit his chances of obtaining alternate work if a potential employer was aware of it, the jury was free to choose to believe Frenzel's testimony that this would not necessarily prevent alternate employment.


author: J^FOIL, J.

text:
    Myles GOLDSBY v. STATE of Louisiana, DEPARTMENT OF CORRECTIONS, James LeBlanc, Richard Stalder, Morris Easley, James Alton Daniels and Joann Miller.
    No. 2003 CA 0343.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Rehearing Denied Jan. 5, 2004.

      Kenneth L. Richie, Baton Rouge, for Appellee Plaintiff Myles Goldsby.
    Patricia Nalley Bowers, New Orleans, Alvin R. Washington, Baton Rouge, for Appellants Defendants State of Louisiana.
    Panel composed of Judges FRANK FOIL, BRADY FITZSIMMONS and ' EDWARD J. GAIDRY.
   J^FOIL, J.

Plaintiff, Myles Goldsby, was terminated from his employment as a Probation and Parole Officer II with the State of Louisiana, Department of Corrections (DOC), in its Amite District Office. He filed this suit for damages against defendants DOC, Richard Stalder, JoAnn Miller, James Le-Blanc, Morris Easley, and James Alton Daniels, alleging that he was harassed, discriminated against, and ultimately discharged in retaliation for his reporting various departmental violations to the State Inspector General’s Office. Defendant, DOC, challenges a trial court judgment rendered in plaintiffs favor under Louisiana’s “whistleblower” statutes, wherein the court ordered plaintiffs reinstatement with back pay less a mitigation penalty, and awarded him damages for mental anguish, plus attorney’s fees, costs, and interest from date of judicial demand. Plaintiff answered the appeal and seeks an additional award of attorney’s fees for costs incurred in defending this appeal.

FACTS AND PROCEDURAL BACKGROUND

Mr. Goldsby was a classified state civil service employee serving with permanent status,as a probation/parole officer in the Amite District Office of the DOC’s Department of Probation and Parole. He filed this civil lawsuit under La. R.S. 23:967, Louisiana’s “whistleblower” statute. Mr. Goldsby. claims he is entitled to relief under the statute based on his reporting certain information regarding alleged violations of various laws and DOC’s policies and procedures to the State Inspector General’s Office. He alleged that following those reports, he became the subject of severe, ongoing, and continual retaliation, harassment, and discrimination that culminated in disciplinary action against him and his ultimate termination. Mr. Goldsby 1 ^asserted claims under La. R.S. 23:967, as well as under state tort law, for intentional infliction of emotional distress.

Prior to trial, defendants filed a number of exceptions, including prematurity, and vagueness. Defendants also filed a decli-natory exception of lack of subject matter jurisdiction based on La. Const, art. X, § 12, contending that all of Mr. Goldsby’s claims dealing with discipline and removal fall within the exclusive jurisdiction of the Civil Service Commission. Following a hearing, the trial court denied the exceptions.

The matter was tried on April 10 and 11, 2002. Before trial, the trial court granted defendants’ exception of no cause of action under La. R.S. 23:967 against defendants in their individual capacities. In written reasons for judgment, the trial court found by a preponderance of the evidence that Mr. Goldsby made a prima facie case as a “whistleblower” within the purview of La. R.S. 28:967 and La. R.S. 42:1169. The court found that Mr. Goldsby did not prove his claims for intentional infliction of emotional distress and dismissed those claims. The court did find that retaliatory action took place against Mr. Goldsby for his whistleblowing activities, including requiring him to take forced leave, threatening termination, demoting him, transferring him to Dixon Correctional Institute, denying his annual merit pay raises, and terminating him from his job. The trial court found, however, that Mr. Goldsby failed to mitigate his damages by obtaining alternative employment. Accordingly, the court awarded Mr. Goldsby $20,000.00 in damages for mental anguish, ordered him reinstated at full pay and benefits, awarded attorney fees in the amount of $48,443.75, and awarded him back pay in the amount of $97,758.00 less a mitigation penalty of $30,338.00. DOC filed a motion for new trial on the issue of attorney fees, which was denied. This appeal followed.

DISCUSSION

On appeal, DOC argues that the trial court erred in finding that Mr. Golds-by has a cause of action under La. R.S. 42:1169. We agree. This Rwhistleblower statute pertains to violations, or alleged violations, of the Code of Governmental Ethics. Here, plaintiff did not report the matter to the Ethics Commission. Thus, he cannot sue under this statute.

DOC further asserts that the trial court erred in not sustaining its declina-tory exception raising the objection of prematurity and lack of subject matter jurisdiction, and its peremptory exception raising the objection of no cause of action. Defendant urges that the exceptions should have been granted because all of Mr. Goldsby’s claims with respect to discipline and removal fall within the exclusive jurisdiction of the Louisiana Civil Service Commission. Again, we agree.

The other whistleblower statute applied by the trial court, La. R.S. 23:967, is available to all employees. Under that statute, an employer may not take reprisals against an employee for reporting, or refusing to participate in, a violation of state law. If the court finds that a violation occurred, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs. La. R.S. 23:967 B.

Mr. Goldsby, however, was a classified state civil service employee. Article X, § 12(A) of the Louisiana Constitution grants to the Louisiana Civil Service Commission “the exclusive power and authority to hear and decide all removal and disciplinary cases, .... ” The entire thrust of the exclusive jurisdiction grant is to preclude district courts from having concurrent jurisdiction with the Civil Service Commission over classified civil service employer-employee disputes that are employment related. Foreman v. Falgout, 503 So.2d 517, 518-519 (La.App. 1st Cir.1986). Because of La. Const, art. X, § 12(A)’s grant of exclusive jurisdiction, La. R.S. 23:967 does not apply to employment-related disputes of classified state civil service employees.

The district court had no jurisdiction in this case to address those issues that would have been addressed by the Civil Service Commission. Thus, the court could not order Mr. Goldsby’s reinstatement or award him |sback pay, merit increases, etc. Here, because Mr. Goldsby dismissed his case before the Civil Service Commission, he will not be able to pursue these remedies. We must reverse that portion of the trial court judgment making such awards.

We find that the district court did have jurisdiction under La. R.S. 23:967, however, to award compensatory damages and reasonable attorney fees. Accordingly, after a thorough review, we affirm the award of $20,000.00 for mental anguish, finding no manifest error in the same. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 n. 2 (La.1993). Further, we hereby reduce the attorney fees to a total of $15,000.00, which includes an amount for handling the case on appeal. Costs in the amount of $4,011.50 are assessed to defendant, the State of Louisiana, Department of Corrections.

REVERSED IN PART; AFFIRMED IN PART AND AMENDED; ADDITIONAL ATTORNEY FEES AWARDED.

      . The trial court dismissed the individual claims brought against defendants Richard Stalder, JoAnn Miler, James LeBlanc, James Alton Daniels, and Morris Easley.


author: JjDENNIS R. BAGNERIS, SR., Judge. I íMURRAY, J.,

text:
    Darrell CAGER, Sr. v. John Patrick WILLIAMS and Loomis, Fargo & Co.
    No. 2003-CA-0212.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.

      Stephen C. Juan, Robert J. Caluda, The Caluda and Rebennack Law Firm, Metair-ie, LA, for Plaintiff/Appellant.
    Clare W. Trinchard, David P. Curlin, Trinchard & Trinchard, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).
   (ON REHEARING GRANTED)

JjDENNIS R. BAGNERIS, SR., Judge.

The Plaintiff-Appellant, Darrell Cager, Sr. (“Cager”) brought this suit alleging that he is entitled to personal injury damages for an on-the-job injury pursuant to the intentional tort exception to the Louisiana Workers’ Compensation Act. The trial court dismissed his suit pursuant to a motion for summary judgment brought by defendant, Loomis-Fargo & Company (“Loomis”). For the following reasons, we affirm.

FACTS

This appeal arises from an altercation between Cager and the defendant, John Patrick Williams, in which the defendant shot Cager’s left hand. For purposes of the summary judgment motion and this appeal, Loomis adopts the testimony of Cager as follows.

The incident started at the Regions Bank in New Roads, Louisiana. At the time, Cager was driving an armored truck for transportation of currency to various banks and other entities in central Louisiana. The standard crew of the armored vehicle consisted of three individuals, a guard, a driver, and a messenger. At the time of this incident, co-employee John Williams was acting as the messenger and Raymond Newton was the guard. Cager was the driver. Williams was seated in |2the back of the armored vehicle, a self-enclosed area separate from the cab area containing Cager and Newton. By being stationed in the back of the truck, Williams could not enter or physically access in any way the cab area of the vehicle containing Cager.

The first sign of trouble between Cager and Williams occurred when they got to the Regions Bank in New Roads. Cager drove over speed bumps and Williams remarked that if Cager drove over any more speed bumps, he would “f ... ing” kill him. Cager laughed off the comment and did not pay it any attention. Williams and Newton, as per their job responsibilities, proceeded into the Regions Bank and returned to the armored truck. Cager then drove to the next bank, the Guaranty Bank, and in doing so hit more speed bumps. Williams did not say a word. After performing his duties inside the Guaranty Bank, Williams reentered the back portion of the truck and as Cager began to pull off, Williams made the statement again.

At that point, Cager pulled his vehicle to the side of the road allegedly intending to exit the truck to go back to the bank to report the threat made by Williams. He exited the truck despite the fact that there was a phone located in the truck and Williams could not physically access the cab area containing Cager. Cager exited the cab area and walked a couple of feet to clear the door, then closed the door. At that point, Williams allegedly came around from the front of the vehicle and swung at Cager striking him on the side of the head. Williams then allegedly took a couple of steps back and drew his gun and shot Cager in the left hand as Cager was stepping back.

^PROCEDURAL HISTORY

On December 15, 1999, Cager filed a lawsuit in district court against Loomis alleging that the sole and proximate cause of the incident was due to the “negligence of defendant John Patrick Williams.” On August 7, 2000, Cager filed a supplemental petition, which alleged that the injuries were the result of an intentional act by defendant Williams. On February 12, 2001, Loomis filed an exception of no cause of action and motion for summary judgment alleging that: (1) Cager’s claims are barred by the exclusive remedy provisions of the Louisiana Workers’ Compensation Act, and (2) it' can not be held vicariously liable for Williams’s intentional acts. On April 5, 2001, although the trial court ordered that the claims based in negligence be dismissed as the exclusive remedy provisions of the Louisiana Workers’ Compensation Act barred them, it denied Loomis’s motion for summary judgment. On August 13, 2002, Loomis filed another exception of no cause of action and motion for summary judgment alleging that it would not be vicariously liable for an intentional tort, as the alleged assault was neither employment rooted nor incidental to the performance of either employee’s duties. On October 30, 2002, the trial court granted Loomis’s motion for summary judgment and dismissed Cager’s petition. Cager now appeals this final judgment.

STANDARD OF REVIEW

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. 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 as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, his burden does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he or she will be able to satisfy his or her evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

DISCUSSION

Cager’s sole issue on appeal is whether Loomis is vicariously liable for the alleged intentional acts of John Williams against his co-employee Darrel Cager. Specifically, Cager argues that Loomis is vicariously liable because Loom-is |Rrequired Williams to carry a weapon, Loomis trained Williams to use the weapon, Williams was required to display his loaded pistol at all times as part of his job as an armed guard, and that Williams was required to shoot people should the need arise. We find no merit to Cager’s argument.

As stated previously, a motion for summary judgment is a procedural device used to avoid a full-scale trial on the merits when there is no genuine issue of material fact. Pierre v. Bank, 2000-2729, p. 3 (La.App. 4 Cir. 11/21/01), 801 So.2d 1213, 1215. Louisiana jurisprudence prior to 1996 held that summary judgments were not favored and were to be used cautiously and sparingly. Farr v. Riscorp, 1997-2164, pgs. 2-3 (La.App. 4 Cir. 4/8/98), 714 So.2d 20, 22. Any doubt was to be resolved against granting the motion and in favor of a trial on the merits. However, in 1996 the legislature amended La. C.C.P. art. 966 and overruled the presumption in favor of trial on the merits. As such, summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized. La. C.C.P. art. 966.

In Baumeister v. Plunkett, the Louisiana Supreme Court has set out the standards for determining whether an employer will be liable for intentional torts of an employee. 95-2270 (La.5/21/96), 673 So.2d 994. As stated in Baumeister:

“An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours.” Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2d Cir.1982) (citing Bradley v. Humble Oil & Refining Co., 163 So.2d 180 (La.App. 4th Cir.1964)). “Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective.” Id.
More specifically, our LeBrane v. Lewis decision considered the following factors in holding an employer liable for a supervisor’s actions in stabbing his fellow employee:
(1) whether the tortious act was primarily employment rooted;
[ r,(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.
292 So.2d 216 at 218 (La.1974). This does not mean that all four of these factors must be met before liability may be found. Miller v. Keating, 349 So.2d 265, 268 (La.1977). But as we noted above in Scott, an employer is not vicariously liable merely because his employee commits an intentional tort on the employer’s premises during working hours. 415 So.2d at 329. See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La.App. 4th Cir.), writ denied, 491 So.2d 24 (La.1986); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1321 (La.1985). The particular facts of each ease must be analyzed to determine whether the employee’s tortious conduct was within the course and scope of his employment. Scott, 415 So.2d at 329.

95-2270, pp. 3-4, 673 So.2d 994, 996-997.

Recently, courts have granted summary judgments in favor of employers in cases factually similar to this one. In Eichel- berger v. Sidney, a receptionist at a hair salon physically attacked a hairdresser after the receptionist refused the hairdresser’s request to play a videotape to entertain a chent’s child. 34,040, p. 1-2 (La.App. 2 Cir. 11/3/00), 771 So.2d 863, 864 writ denied, 2000-3476 (La.2/9/01), 785 So.2d 827. The hairdresser attempted to play the videotape herself and was physically assaulted by the receptionist. Id. Thereafter, the hairdresser filed suit against her employer, the National Hair Care Center, Inc. (“National”). National filed a motion for summary judgment alleging that, based on the facts as stated in plaintiffs petition, it was not vicariously liable for plaintiffs intentional tort as a matter of law. The trial court granted National’s motion for summary judgment, |7and dismissed the suit. On appeal, the Second Circuit affirmed the judgment of the trial court and found that the receptionist’s attack on the hairdresser was entirely extraneous to National’s interests. In finding that the receptionist’s attack on the hairdresser was entirely extraneous to the employer’s interest, the Court stated as follows:

Clearly, Ms. Sidney refused to perform the task that Ms. Eichelberger requested of her and Ms. Eichelberger assumed the task. Although it may have been within the scope of Ms. Sidney’s duties to put a videotape in the VCR to entertain a client’s children, it was not a reasonably foreseeable event that Ms. Sidney would violently attack Ms. Eichelberger because she chose to put in the videotape herself after Ms. Sidney refused to do so. The likelihood that Ms. Sidney would become enraged when her co-employee attempted to place a videotape in the VCR, especially after she had refused to do so herself, is not a “risk fairly attributable to the performance” of her duties. Baumeis-ter, supra.

Eichelberger, 771 So.2d at 867.

In Watkins v. International Service Systems, a supervisor questioned a janitorial employee about missing radios. 32,022, p. 1 (La.App. 2 Cir. 6/16/99), 741 So.2d 171, 173-174 writ denied, 99-2129 (La.10/29/99), 749 So.2d 640. The supervisor suspended the employee pending an investigation of the matter and the employee attacked the supervisor by punching and kicking him until someone stopped him. Id. Thereafter, the supervisor filed suit against his employer, International Service Systems, Inc. (“ISS”). ISS filed a motion for summary judgment, which alleged that it was not vicariously liable for the employee’s intentional tort because it was not performed within the ambit of his assigned duties or in furtherance of ISS’s objectives. The trial court agreed and granted summary judgment, which dismissed plaintiffs claims against his employer. On appeal, the Second Circuit affirmed the judgment of the trial court and found that lathe employee struck the supervisor “for purely personal considerations entirely extraneous to his employer’s interest.” Specifically, the Second Circuit stated:

... Henderson’s job entailed cleaning bathrooms and offices. His duties did not include stealing radios and kicking his supervisor in the head and chest. While Watkins was plainly functioning within his duties in suspending Henderson pending an investigation of the alleged theft, Henderson’s response had no root in an employment endeavor. In committing the battery, Henderson clearly acted on personal motivations. Not only was Henderson’s theft of the radios a purely personal matter, but, in his deposition, he also indicated that his violent reaction was partly provoked by his long-term problem with the way Watkins treated him.
Nor can we say the battery furthered any ISS objectives. Rather, it deprived the company of two of its employees. We find that it was not a risk of harm fairly attributable to ISS’s business as a janitorial service. Henderson struck Watkins for purely personal considerations entirely extraneous to his employer’s- interest. Therefore, the trial court correctly determined that ISS is not vicariously liable for Henderson’s intentional tort.

Watkins, 741 So.2d at 174-175.

In Pye v. Insulation Technologies, Inc., 97-237 (La.App. 5th Cir.9/17/97), 700 So.2d 892, an employee filed suit against his employer, Insulation Technologies, Inc., after he was struck with a piece of wood by a subordinate employee at work. The plaintiff contended that the employer was responsible for the tortious act of the employee. Id. at 893. The employer filed a motion for summary judgment, which alleged that it was not vicariously liable merely because its employee committed an intentional tort on work premises during work hours. The trial court agreed with the employer and granted its motion for summary judgment. On appeal, the Fifth Circuit agreed with the trial court and affirmed the judgment. Specifically, the Fifth Circuit stated:

The likelihood that an employee would come up behind a supervisor and strike him in the face with a piece of driftwood is simply not a risk fairly attributable to the performance of the employee’s duties. An asbestos worker’s duties do not include battery on a co-employee. |9 Nor should the employer have foreseen such conduct on the job-site during working hours. Viledo’s [the tortfea-sor’s] actions were therefore not reasonably incidental to the performance of his employment.
This Court finds, as did the trial court, that the plaintiff failed to establish that the worker’s tortious act was employment rooted. The employer derived no benefit from the act, and the act, hitting one’s supervisor, was ‘entirely extraneous to his employer’s interest [.]’ ”

Pye, 700 So.2d at 894.

In Barto v. Franchise Enterprises, Inc., a supervisor at a restaurant was stabbed by an employee of the restaurant when the supervisor questioned him about a theft from the restaurant. 23,205 (La.App. 2 Cir. 10/30/91), 588 So.2d 1353, writ denied, 91-2742 (La.1/17/92), 591 So.2d 708. The supervisor filed suit against the employer, Franchise Enterprises, Inc., on the theory of vicarious liability. The trial court granted a summary judgment in favor of the supervisor, and against the employer, finding the employer liable for the tortious act of the employee. On appeal, the Second Circuit reversed the trial court’s summary judgment in favor of the employee, and granted summary judgment in favor of the employer. The Second Circuit found that “Fletcher’s act of stealing money and assaulting his supervisor during an investigation is clearly beyond the course and scope of his employment.” Id. at 1357. Further, the Second Circuit found that “Fletcher’s conduct of stabbing his supervisor did not benefit his employer and was entirely extraneous to his employer’s interests. Thus, Fletcher’s conduct cannot be regarded as a ‘risk of harm fairly attributable to the employer’s business.’ ” Barto, 588 So.2d at 1357.

In lieu of the recent case law cited above, we agree with Loomis that the altercation between Williams and Cager was not primarily employment rooted and was entirely extraneous to Loomis’s interests. We find that Williams duties did Imuot include assaulting a co-employee with a firearm simply because that employee made driving conditions uncomfortable, and that the assault and battery was adverse to Loomis’s interest of safeguarding the currency.

For these reasons, we find no error in the trial court’s conclusion that no question of material fact remains but that Loomis is not liable in tort for the injury incurred by Darrell Cager.

AFFIRMED.

MURRAY, J., dissents with reasons.

I íMURRAY, J.,

DISSENTS WITH REASONS.

A genuine issue of material fact exists as to whether Mr. Cager’s injuries arose out of an employment-rooted dispute. This case is similar to Benoit v. Capitol Manufacturing Co., 617 So.2d 477 (La.1993). In Benoit, the Louisiana Supreme Court held that a fight between two employees over whether the door to their place of employment should be left open or closed was employment rooted. The Court reasoned that the temperature of the workplace was an employment issue.

By analogy, the instant dispute between two Loomis employees over driving conditions can be classified as employment rooted. Given that the Loomis employees were required to ride together in the armored truck to conduct their job duties, this could be an employment issue. It follows then that Mr. Cager may be able to establish at trial that the intentional tort was committed by his co-worker within the course and scope of employment. For this reason, I respectfully dissent.

      . See 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; Watkins v. International Service Systems, 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;
        Pye v. Insulation Technologies, Inc., 97-237 (La.App. 5th Cir.9/17/97), 700 So.2d 892, writ denied, 97-2571 (La.12/19/97), 706 So.2d 461; Barto v. Franchise Enterprises, Inc., 23,205 (La.App. 2nd Cir. 10/30/91), 588 So.2d 1353, writ denied, 91-2742 (La.1/17/92), 591 So.2d 708.


author: hTERRI F. LOVE, Judge. I,ARMSTRONG, C.J., JjGORBATY, J.,

text:
    PROFESSIONAL DIVERS OF NEW ORLEANS, INC. v. THE WILLIAM G. HELIS COMPANY, L.L.C.
    No. 2003-CA-0332.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.

      Eric A. Bopp, Walter R. Woodruff, Jr., Edward S. Bopp — A Law Corporation, Ar-abi, LA, for Plaintiff/Appellant.
    Mark A. Johnson, William W. Pugh, III, Liskow & Lewis, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   hTERRI F. LOVE, Judge.

The plaintiff, Professional Divers of New Orleans, Inc. (“PDNO”), seeks review of a judgment in which the trial court granted the defendant, Helis Company, L.L.C. (“Helis”) a set off for the cost of remediat-ing PDNO’s allegedly defective performance of contract work. For reasons assigned below, we affirm the trial court’s ruling.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 1998, Helis contracted with PDNO to bury 20,280 feet of flow lines in addition to performing other related general underwater diving services. The flow lines were to be buried at the requisite depth of three feet below the mud line. The two parties agreed that the divers would be paid for all services rendered according to a day rate. Upon receiving work invoices, which indicated that the flow lines had been buried at the required depth, Helis conducted a survey of the area to insure the work had been done properly. The survey revealed that none of the flow lines were buried at the required depth. Helis maintains that, upon finding the defect in workmanship, it contacted PDNO to request remediation of the flow pines. Helis argues that PDNO refused to remediate the defective performance. Helis withheld payment of the work invoices submitted by PDNO. PDNO filed this suit seeking payment of the total amount of the work invoices based on the day rate in the amount of $140,480.95. Helis filed a recon-ventional demand in the amount of $77,028.00, which was the cost of hiring of another company to perform remediation services. The trial court awarded PDNO $65,480.95, which was the approximate difference between the total amount of day rate invoices submitted for payment by PDNO and Helis’s cost to remediate PDNO’s defective workmanship.

ASSIGNMENT OF ERROR

PDNO contends that the trial judge erred in not awarding $140,480.95, which was the total amount of work performed by its divers based on the day rate. Specifically, PDNO alleges that the trial court erred when it rendered a judgment in the total sum of $65,480.95, which is the approximate difference between the $140,480.95 total listed on the work invoices and $77,028.00 that Helis paid for another company to re-bury the flow lines at the three-foot depth level.

The role of the appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact, and the adequacy of the award should be determined by facts or circumstances particular to the case under consideration. Youn v. Maritime Overseas Corp., et al, p. 4 (La.1993), 623 So.2d 1257, 1260.

This Court in Certain Underwriters at Lloyd’s, London v. Sea Lar Management, Inc., 2000-1512 (La.App. 4 Cir.5/9/01), 787 So.2d 1069, based its holding on La.C.C. arts. 2762 and 2769, because the appellant’s cause of action |shinged upon the contractor’s duty to perform construction in a workmanlike manner. La. C.C. art. 2762 governs the workmanship of stone, brick, or wooden buildings, and therefore is inapplicable to the facts of this case. La. C.C. art. 2769 governs the contractor’s liability for non-compliance with contract and it provides:

If an undertaker fails to do the work he had contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

In the Certain Underwriters case (citing Gagliano v. Narnias, 479 So.2d 23, 25 (La. App. 4 Cir.1985)), this Court held that:

A contract for work or service carries an implied obligation on the contractor to perform in a workmanlike manner in default of which he must respond in damages for the losses that may ensue.

Certain Underwriters, 787 So.2d at 1077.

This Court stated further that “Defective performance is just as much a breach of contract as is nonperformance. La. C.C. art.1904.” Id.

In the instant case, the trial court stated the following in its written reasons:

The real explanation for this litigation is offered by Tomlinson during his cross-examination. Shortly after this job was finished he sold his company and, as he explained to Helis, “It[’]s not my problem.”
As discussed, only the divers were in the water. They were instructed to bury the line three feet and both divers who offered testimony at this trial were clear that they knew they were supposed to do so and did, indeed, attempt to do so. No reasonable explanation is offered for their failure to complete their job as required. Professional Divers seeks compensation for work not done as required. Thus, judgment is granted in this matter in favor of Professional Divers in a sum representing the difference in what they invoiced for the duration of this work and what Helis had to pay to get the job completed properly.

|4We agree. The record reveals that PDNO failed to bury the flow lines according to known industry standards. PDNO’s divers testified that they knew the flow lines were to be buried at three feet below the mud line. Yet, PDNO submitted invoices stating that the work was completed. However, the work could not have been completed, because the survey revealed that PDNO’s divers failed to bury the flow lines in accordance with industry standards. PDNO’s failure to perform in a workmanlike manner constituted a defective performance, which effectively breached the Master Service Agreement.

PDNO alleges that it never claimed to be finished with the work. PDNO asserts that the Master Service Agreement between the parties provides payment of services rendered on a day rate pay scale for actual work done, not based on completion of the work. Contrary to PDNO’s contention, we find, as did the trial court, that the lynehpin of this case is the failure of PDNO to perform the work in a workmanlike manner consistent with good oilfield standards. It is not whether Helis should have paid PDNO the day rate for actual work done. The Master Service Agreement contains provisions, which govern in this type of situation.

The master service agreement provided the following language:

“Contractor warrants that all of the Work will be performed in a good and workmanlike manner consistent with good oilfield standards, that all of its employees will be competent and adequately trained to perform the Work competently and safely and that Contractor will provide to Company, upon request, any documentation requested by Company concerning contractor’s training and/or safety programs or history, and any other documentation requested by Company as set forth in Exhibit “C” or in order to comply with any applicable reporting requirements.”

With regards to payment of services rendered by PDNO, the Master Service Agreement provides, in pertinent part:

| BWork, §1.3

This Agreement, or any particular Work Request, may be canceled by Company at any time upon notice to Contractor and by the payment to Contractor for the Work theretofore properly completed but never in excess of the full compensation for the completed Work.

Payment, §8.1

Contractor shall invoice Company at Company’s post office address prior to the end of each calendar month for all due for the preceding month. Company, subject to Section 8.2 below, shall remit payment as to such invoice within thirty (8) days after receipt thereof; provided however, that payment by Company of any invoice shall not constitute a waiver of Company’s right subsequently to question or contest the amount or correctness of said invoice and to seek reimbursement. In the event of any dispute, Company may withhold payment of the disputed amount or Company may pay the disputed amount without waiver of any of its rights, including the right to seek reimbursement. Emphasis added.

§ 8.2

Company may withhold at any time such amounts as may be necessary to protect Company from loss on account of defective or deficient work, liens, or potential liens, or damage or loss to Company for which Contractor is or may be liable and on account of potential claims by Company or claims by Company for indemnity from Contractor under this Agreement.

The Master Service Agreement also provides for termination of the contract in the event of a breach of the terms of the agreement in the following manner:

§ 20

In the event of the failure of Contractor properly to perform or provide the work contemplated hereunder, or Contractor’s breach of any of the obligations set forth in this Agreement, Contractor shall be considered in default and Company may immediately terminate this Agreement or any particular Work Request. Otherwise, Company may, in its sole discretion, terminate this Agreement, or any particular Work Request, at any time, with ten (10) days written notice, (emphasis added)

| (¡Under the terms of the Master Service Agreement between PDNO and Helis, PDNO was responsible for the burial of flow lines three feet below the mud line in addition to furnishing general diving services along with providing the equipment and personnel required to perform these services. Helis supervised the work and paid for the work done provided that the work conformed to industry standards.

According to § 1.3 of the provision entitled “Work”, PDNO is entitled to payment for work properly completed if the agreement is canceled. However, PDNO’s argument that Helis should have paid the day rate for work actually done is without merit, because the work done was not properly completed in accordance with good oilfield standards. The agreement also explicitly states that Helis may withhold payment for services rendered by PDNO in the event of a dispute or Helis could pay the disputed amount without waiver of any of its rights. Helis chose to withhold payment of the disputed amount. In this particular case, the dispute concerned PDNO seeking payment for work that was not properly performed at the required depth. The Master Service Agreement further specifies that Helis is entitled to immediately terminate the contract based on the defective performance. The survey revealed that the flow lines were not buried at the requisite depth level, which meant that the work was defective. Based on the clear, unambiguous language of the contract, Helis was reasonable when it withheld payment to PDNO for work not properly performed in accordance the law.

Accordingly, we find that the trial court did not err in ruling that PDNO did not perform the work in accordance with the master service agreement and industry standards. Furthermore, we are of the opinion that the court correctly awarded PDNO $65,480.95, which is the approximate difference between |7$140,480.95, the amount of full compensation sought by PDNO, and $77,028.00, which is the amount Helis paid to remediate PDNO’s defective performance.

AFFIRMED.

ARMSTRONG, C.J., concurs.

GORBATY, J., dissents, with reasons.

I,ARMSTRONG, C.J.,

CONCURS.

I respectfully concur in the result reached by the majority.

JjGORBATY, J.,

DISSENTS, WITH REASONS.

My basic disagreement with the majority opinion is rooted in the term “workmanlike manner.” There is no evidence in the record to suggest that the work actually performed by PDNO was not professionally done. What is in evidence is the fact that PDNO submitted work invoices for the actual worked performed, i.e., laying the pipe to whatever depth they were able on that particular day. As noted by the trial court, the divers knew to what depth they should lay the flow lines, and they attempted to do so. Additionally, there was testimony that on past jobs after surveys were conducted it was discovered that flow pipe was not laid to a minimum depth on the first go round, and that Helis paid PDNO to re-jet the trenches to the proper depth. PDNO did not perform the remediation work for free, but rather was paid additional monies at the day rate.

To that end, because there is no evidence that the actual work performed by PDNO was done in an unworkmanlike manner, I find that PDNO should be paid the day rate negotiated in the contract for the work actually performed.


author: JjDENNIS R. BAGNERIS, SR., Judge.

text:
    Marilyn Haynes CADOGAN, as Curatrix of the Estate of James A. Haynes, and James A. Haynes v. Jan McCLANAHAN, M.D. and Louisiana Medical Mutual Insurance Company.
    No. 2003-CA-0603.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.

      H. Muldrow Etheredge, Covington, LA, for Plaintiff/Appellant.
    Mary Fuchs Gaudin, Robert D. Ford, Mang, Batiza, Gaudin, Godofsky & Penza-to, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).
   JjDENNIS R. BAGNERIS, SR., Judge.

Plaintiff, Marilyn Haynes Cadogan, as curatix of the estate of James Haynes appeals the dismissal of her medical malpractice action on exceptions of prescription asserted by the defendants Dr. Jan McClanahan and Louisiana Medical Mutual Insurance Company (“LMMICO”) health care providers. We reverse and remand for the following reasons.

STATEMENT OF THE CASE

On March 23, 1991, James Haynes, a 66 year old gentleman was admitted to the Emergency Room of Humana Hospital in New Orleans, Louisiana. Mr. Haynes was presented to the emergency room with signs and symptoms of acute cholecystitis. He was treated and scheduled for gallbladder surgery.

On March 26, 1991, Mr. Haynes underwent a colonoscopy procedure because he had a positive occult stool. The colonosco-py revealed two benign polyps, which were removed.

On March 27, 1991, he underwent a retrograde cholangiogram endoscopieally, which demonstrated two small stones in his common duct. Dr. 12Kedia was consulted and performed a sphicterotomy to remove the two small stones in Mr. Haynes’ common duct.

On March 28, 1991, Mr. Haynes, underwent a cholectomy to remove his gallbladder. Mr. Haynes was found to have an acute cholecystitis with multiple stones. In the operative report, Dr. McClanahan dictated the following;

“The cystic duct was divided and litigated under laparoscopic visualization. However, we were unable to successfully complete the cholecytec-tomy in a closed fashion and a small laparotomy incision was made to remove the gallbladder and a complete dissection of the posterior gallbladder wall. With the patient open, the cystic duct stump was identified and visualized as being clipped with no evidence of bleeding or bile leakage.” (emphasis ours).

On March 29, 1991, Mr. Haynes developed a temperature of 100. He complained of shortness of breath and mycar-diomegaly. On April 1, 1991, Mr. Haynes, 72 hours postoperative, developed marked abdominal distention that was thought to be associated cardiovascular distress, which was initially interpreted to be cardiovascular in nature. However, it was later determined that the increased intra-abdominal swelling was the evidence of sepsis as indicated by his high temperature and increasing white count. Mr. Haynes developed profound pulmonary failure, which required him to be placed on ventilator support. He became hypovo-lemic and required fluid resuscitation. Also, he was found to be hypotensive, which indicated his medical condition was not cardiac related.

On April 1, 1991, Dr. McClanahan discussed Mr. Haynes’ condition with his family and the need for him to be returned to surgery to determine if there was a correctable problem that was the cause of his septic shock. The family was also informed of the high probability that Mr. Haynes may not survive the surgery. On |sthe same day, Mr. Haynes was returned to surgery in order to perform the abdominal exploration. Dr. McClanahan obtained a consent form that was signed by Mrs. Cadogan for the surgery. Mr. Haynes’ blood pressure was 55 systolic and he had no urine output but was taken to surgery.

In surgery, Mr. Haynes was found to have diffuse bilateral peritonitis with the source being a small leakage proximal to the clamps on the cystic duct stump. Cultures on the cystic duct grew out E. Coli.

Mr. Haynes then experienced multiple organ failure, which required him to stay in the ICU/CCU for 21 days. He had to be maintained on ventilator support. Further, he developed acute tubular necrosis with renal failure. He also developed hy-poxic encephalopathy.

Dr. McClanahan consulted multiple physicians in order to manage Mr. Haynes’ multiple medical problems and needs. Dr.’s Hill and Coco treated and managed Mr. Haynes infectious disease with antibiotics. Dr. Colcolough assisted with his Cardiology related needs during this period of time. Dr. Holt assisted with Mr. Haynes’ acute tubular necrosis. Dr. Lar-imer managed the respirator and he treated his pulmonary failure.

Dr. Trahant was consulted because Mr. Haynes was not showing evidence of awareness or appropriate response. Dr. Trahant obtained an EEG and opined that Mr. Haynes had sustained permanent neurological damage. Dr. McClanahan disagreed with Dr. Trahant’s opinion that the neurological damage was permanent and irreversible. Dr. McClanahan was hopeful that Mr. Haynes would respond to rehab therapy.

|4On April 7, 1991, Mr. Haynes was returned to surgery for another abdominal exploration for generalized peritonitis, wound closure and for the placement of a gastrostomy tube for his nutritional support feedings.

On April 24, 1991, Mr. Haynes was weaned off of the ventilator support that was surgically replaced with tracheotomy tube. Drs. Ellis and Voche performed the tracheotomy. Also, Mr. Haynes was provided nutritional support through a gastrointestinal feeding tube (G-Tube). Mr. Haynes remained in ICU/CCU during this time.

Dr. McClanahan noted in the progress note that Mr. Haynes’ condition was guarded but showed signs of improving clinical presentation. Later, Mr. Haynes was transferred to F. Edward Hebert Hospital in New Orleans, Louisiana for extensive rehabilitation and continued treatment for the hypoxic encephalopathy, which he had developed. On July 4, 1991, he went home to live with Cadogan.

DISCUSSSION

The initial issue is whether the medical malpractice claim has prescribed on its face because it was filed after one year from the date of discovery, but not before the three year prescriptive period pursuant to La. R.S. 9:5628(A). The second issue is whether the alleged malpractice victim was reasonable in not discovering within a year that his medical condition was related to his surgical treatment.

La. R.S. 9:5628(A) provides in pertinent part:

No action for damages for injury or death ... arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; provided, however, that ... in all events such claims must be filed at the latest Lwithin a period of three years from the date of the alleged act, omission or neglect.

Commenting on this revised statute in Hebert v. Doctors Memorial Hosp., 486 So.2d 717, 723 (La.1986), the Supreme Court stated:

La. R.S. 9:5628 sets forth more than one time period. Initially, it coincides with La.C.C. art. 3492’s basic one year prescriptive period for delictual actions, coupled with the “discovery” exception of our jurisprudential doctrine of contra non valentem (“within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect”). A separate and independent feature, or provision, of La. R.S. 9:5628 is contained in the following clause:

.... provided, however, that even as to claims filed within one year from the date of discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
... [W] e conclude that La.Rev.Stat. § 9:5628 is in both of its features noted above a prescription statute, with only the single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.

In summation, the Supreme Court effectively held that La. R.S. 9:5628 not only corresponds with the basic one-year prescriptive period for delictual actions provided in La. C.C. art. 3492, it embodies the discovery rule delineated as the fourth category of contra non valentem that is with the “single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.” Hebert, 486 So.2d at 724; see also Fontenot v. ABC Ins. Co., 95-1707 p. 5 (La.6/7/96), 674 So.2d 960, 963; White v. West Carroll Hospital, Inc., 613 So.2d 150, 155 (La.1992) (holding that La. R.S. 9:5628 embodies contra non valentem in medical malpractice suits).

La. R.S. 9:5628 shows that the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims. Hebert thoroughly examined the legislative history of La. R.S. 9:5628 and determined that it was clearly a “prescription statute with a qualification, that is, the contra non valen-tem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.” Hebert, supra, 486 So.2d at 724-25. Thus, a petition should not be found prescribed on its face if it is brought within one year from the date of discovery the facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient.

In the instant case, the trial court found in favor of the defendant, Dr. Jan McCla-nahan and the Louisiana Medical Mutual Insurance Company and against the plaintiff, Marilyn Haynes Cadogan. The trial court opined that Mrs. Cadogan had sufficient notice to start the running of prescription. Further, the trial court noted that Mrs. Cadogan’s failure to file suit prior to sixteen months subsequent to surgery was unreasonable.

|7We find that the trial court erred as a matter of law when it found that the Cadogan’s petition was prescribed on its face. Although the Cadogan’s petition was filed more than one year after the date of the last act of Dr. McClanahan’s upon which negligence was alleged, the plaintiffs pleadings made a prima facie showing that it was filed “within one year from the date of discovery” and “within a period of three years from the date of the alleged act, omission or neglect.” La. R.S. 9:5628(A).

Accordingly, the trial court erred as a matter of law in shifting the burden to Cadogan to prove prescription was interrupted. Therefore, we find that the burden of proof at the trial of the peremptory exception rested upon Dr. McClanahan, and LMMICO the exceptors.

DE NOVA REVIEW

We find that the trial court erred as a matter of law when it found that the Cado-gan’s petition was prescribed on its face. Therefore, we will conduct a de nova review because of the error of law and determine whether the date of discovery was reasonable.

An appellate court may review a question of law to decide whether the trial court’s decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 p. 5 (La.App. 3 Cir.3/31/99), 732 So.2d 699, 702.

If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, its decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071,1072 (La.1983). |s When the court finds that a reversible error of law was made in the lower court, we must redetermine the facts, de novo, from the entire record and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993); Scales v. Rapides Regional Medical Center, 2001-1147 (La.App. 3 Cir. 2/6/02), 815 So.2d 925.

Where one or more trial court legal errors interdict the fact-finding .process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 746^47; Gonzales v. Xerox Corp., 320 So.2d 163, 166 (La.1975). More specifically, when reviewing courts have found that the lower courts of this state utilized an improper burden of proof, the jurisprudence has recognized that such an error may have interdicted the fact-finding process and calls for a de novo review of the evidence. Ferrell, 650 So.2d at 746-47; Duncan v. Safeway Ins. Co. of La., 35,240 p. 3 (La.App. 2 Cir.10/31/01), 799 So.2d 1161, 1163; Valley v. Specialty Restaurant Corp., 98-0438 p. 6 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1032; Campo v. Correa, 2001-2707 p. 10 (La.6/21/02), 828 So.2d 502, 510.

REASONABLENESS OF DATE OF DISCOVERY

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, Through E.A. Conway Memorial Hosp., 478 So.2d 570, 572 (La.App. 192 Cir.1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of the same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of the prescriptive period. Ledet v. Miller, 459 So.2d 202, 204 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051, 1052 (La.App. 2 Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550, 552 (La.App. 3 Cir.1983). Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable' diligence that his problem may have been caused by acts of malpractice. Gunter v. Blanche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. Griffin v. Kinberger, 507 So.2d 821 (La.1987). The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Id.

| inOur review of the record in the instant case of Cadogan’s original and supplemental petitions shows that the allegations against Dr. McClanahan was based on his performance of Mr. Haynes’ gallbladder surgery, the failure to recognize bile leakage prior to closure of Mr. Haynes’ abdomen, the failure to recognize the signs and symptoms of peritonitis, the failure to act timely to return Mr. Haynes to surgery and correct the leakage, the failure to provide post-operative care and treatment, the failure to consult other medical specialists prior to Mr. Haynes’ medical condition reaching a severe physiological state, the failure to disclose that their was a bile leakage which caused Mr. Haynes to suffer peritonitis and for him to go into septic shock, experience multiple systems failure and to become blind in one of his eyes due to a lack of oxygen and blood pressure problems during the received surgical treatments. Further, Cadogan contends that they did not discover that Mr. Haynes’ blindness and the cause of his medical condition were related to the surgical treatment performed by Dr. McCla-nahan.

Dr. McClanahan entered a general denial in his answer. He further, argues that he received a favorable finding from the Medical Review Panel that found he complied with the standard of care and was free of negligence, malpractice and his treatment of Mr. Haynes. Dr. McClana-han made two alternative arguments in his answer; his first argument was that a third party who was not under his control caused the harm Mr. Haynes suffered. Secondly, he contends that the medical condition, complication and /or damages suffered by Mr. Haynes were the result of Innatural causes and or/illness and/or other factors unrelated to the treatment and care rendered by him.

Cadogan in her petition contends that she was unaware of the extensive medical problems suffered by Mr. Haynes immediately after his gallbladder surgery on March 28, 1991. Cadogan contends that she did not recognize a direct relationship between her father’s March 28, 1991 surgery and his postoperative condition until another physician who informed them that it was related to his previous gallbladder surgery.

Dr. MeClanahan argues that the burden of proof was on Cadogan to provide evidence at the time of the hearing on prescription that Dr. MeClanahan concealed information or mislead them in some way so as to effectually prevent them from availing themselves of a cause of action. We disagree. It was incumbent upon Dr. MeClanahan and his insurer to show that the alleged misconduct was either apparent or discoverable before August 1992 and Cadogan failed to file suit within one year of that knowledge. However, Dr. MeClanahan argues that Cado-gan had knowledge of a potential claim against him before August 1992. Also, Cadogan at least had sufficient information to make her inquiry as to whether Mr. Haynes had been wronged. Dr. MeClana-han contends that the critical nature of Mr. Haynes’ medical condition and need for another surgery was clearly evident to Cadogan. We disagree.

119The jurisprudence is well established that the mere fact there is an injury during or following medical care or treatment is not an indication that the physician provided substandard care. See La.R.S. 9:2794(C). In Smith v. Lincoln General Hospital, 27,133 p. 11 (La.App. 2 Cir. 6/21/95), 658 So.2d 256, writ denied, 95-1808 (La.10/27/95), 662 So.2d 3., the Second Circuit Court of Appeal held that the mere fact an injury occurred does not raise the presumption that the physician was negligent. Moreover, the simple knowledge that an undesirable condition has developed at sometime after medical treatment does not equate to knowledge of everything to which inquiry might lead. Kavanaugh v. Long 29,380 (La.App. 2 Cir. 8/20/97), 698 So.2d 730, writ denied, 97-2554 (La.5/15/98), 719 So.2d 67.

In the instant case, the record indicates Dr. MeClanahan informed Mr. Haynes family of their Father’s medical condition after, the gallbladder surgery, but there is no indication that the family was told specifically that their father had diffuse bilateral peritonitis with the source being a small leakage proximal to the clamps on the cystic duct stump that had occurred during the gallbladder surgery. Also, the consent form signed by Cadogan, outlined the potential risks associated with surgery, such as Death, Brain Damage, Quadriplegic, Paraplegic, Loss of Organ, Loss of Arm or Leg Loss of Function of organ, Loss of Function of an Arm or Leg and Disfiguring Scars. Further, it is noted in the record that Dr. MeClanahan discussed Mr. Haynes prognosis with his family after the second surgery performed on their Father. We do not find that Cadogan was unreasonable in viewing that Mr. Haynes’ medical condition was one of the common risks of hasurgery, and that these conditions alone were sufficient to raise any suspicion that Dr. MeClanahan had committed medical malpractice.

Dr. MeClanahan, also stressed that Cadogan should have known something was amiss because of the drastic decline of Mr. Haynes’ medical condition and his dim prognosis. The jurisprudence is well established that unsuccessful surgery is not per se an indication of medical malpractice. Gunter v. Planche, 439 So.2d 437, 439 (La.1983). Therefore, we do not find it unreasonable for Cadogan to have failed to recognize that her father’s medical condition may have been related to the .gallbladder surgery performed by Dr. MeClanahan. To find otherwise would place an undue burden on Cadogan and her siblings to have diagnosed the cause of Mr. Haynes injury. Further, no members of Mr. Haynes family were physicians, and only Mrs. Randall, Cadogan’s sister who worked as a nurse’s aide, had any remote background in the medical field.

Dr. MeClanahan suggests that nothing prevented the family from discussing their Father’s condition with him or any of the physicians that were consulted to assist his treatment. This argument is of no moment. Accordingly, we find that Dr. MeClanahan and his insurer failed to prove that Cadogan’s medical malpractice claims against them were prescribed.

J^CONCLUSION

Accordingly, we find that the trial court erred as a matter of law in holding that Cadogan’s medical malpractice action was prescribed on its face, thereby shifting the burden of proof to the plaintiffs at the hearing on the defendants’ peremptory exception of prescription. After this Court conducted a de nova review of the record, we further find that Dr. MeClanahan and his insurer failed to prove that the Cado-gan petition had prescribed. The date of discovery was not reasonably know able to Cadogan until August 1992 when she and her siblings were informed of Mr. Haynes’ blindness and that this was possibly related to his gallbladder surgery performed by Dr. MeClanahan.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, vacated and set aside. This matter is remanded to the trial court for further proceeding consistent with this opinion.

REVERSED AND REMANDED.