text:
    Annette TOSTON, as Curatrix of Syvella Toston and Tutrix of Tyra Toston, Plaintiff-Appellee, v. James D. PARDON, Nelson R. Carr, Progressive Security Insurance Company, Illinois National Insurance Company, State of Louisiana, through Department of Transportation and Development, Defendants-Appellant.
    No. 36,880-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      The Boles Law Firm, by Michael L. DuBos, Deutsch, Kerrigan & Stiles by Robert E. Kerrigan, Jr. Joseph L. McRey-nolds for Appellant, State of Louisiana, DOTD.
    Philip T. Deal, Lewis 0. Unglesby, for Plaintiff-Appellee.
    Before BROWN, GASKINS, CARAWAY, MOORE and KOSTELKA (Pro Tempore), JJ.
   I,CARAWAY, J.

This intersectional auto collision presents issues concerning the state’s duty to maintain the intersection free of sight obstructions and the duty of the driver to stop in response to the posted stop sign. The driver made a stop immediately before the tragic nighttime accident. However, the driver’s blood alcohol level was approximately three times the legal limit. The jury, nevertheless, determined that the driver was not at fault due to the sight obstruction within the immediate approach to the intersection. The state appeals. We reverse, finding that the sight obstruction was not a cause-in-fact of the accident.

Facts

The accident occurred at the “T” intersection of Lanes Ferry Road at State Hwy. 2 near the Bayou Macon Bridge in East Carroll Parish. The State of Louisiana, through the Department of Transportation and Development (“DOTD”), is the owner of east-west Hwy. 2 and is responsible for the signing of the intersection, which requires the Lanes Ferry Road traffic to stop. The dimensions for the accident scene reveal that the Bayou Macon Bridge is located approximately 160 feet to the west of the intersection. The bridge is 207 feet long. The south railing of the bridge rises to a height of 36 inches above the deck of the bridge. The Lanes Ferry Road rises up at a slope as it extends onto the right of way for Hwy. 2 to the intersection. The stop sign on Lanes Ferry Road was placed down the slope approximately 27 feet from the fog line of the highway.

I a At 8:40 p.m. on April 9, 1997, James Pardon (“Pardon”), the driver of a Ford 350 one ton dually pick-up truck, was approaching the intersection traveling north on Lanes Ferry Road. He testified that he observed the stop sign and stopped. Pardon then proceeded to make a left turn onto Hwy. 2 and collided with a 1987 Mercury Cougar being driven by Nelson Carr (“Carr”). The guest passenger in Carr’s vehicle, Syvella Toston (“Syvella”), was severely and catastrophically injured.

Carr’s vehicle was traveling east on Hwy. 2 and had just crossed the Bayou Macon Bridge. Carr was not asked at trial how fast he was going, but the evidence indicates that he was not exceeding the 55 mph speed limit. Carr testified that he saw Pardon’s truck stop at the intersection, then “it came on out.” The left front corner of Pardon’s truck collided with the right front quarter panel on the passenger side of Carr’s vehicle.

Pardon was traveling north on Lanes Ferry Road, which parallels the east side of Bayou Macon. He was on his way home from Sweet Pea’s Bar. He spent the afternoon and evening there, playing video poker, drinking beer and at one point, eating some pizza. Pardon knew the Lanes Ferry Road vicinity well because of a nearby garbage dump, and he hunted in the area often.

Although he allegedly sustained some minor injuries as a result of the accident, Pardon did not lose consciousness. Officer Harwell, the state trooper investigating the accident, testified that he smelled a strong odor of alcohol about Pardon. He was taken first to the hospital in Lake Providence and then to the North Monroe Hospital, where a blood sample obtained at [311:55 p.m. revealed a blood alcohol level (“BAL”) of 0.15g% alcohol. At trial, DOTD’s expert toxicologist testified that another blood sample drawn earlier (at 10:10 p.m.) was 0.227g% alcohol. Using the two BAL figures, the toxicologist extrapolated the range of Pardon’s BAL at the time of the accident to have been between 0.215g% and 0.293g% alcohol, which he characterized as “grossly intoxicated.” The deputy sheriffs report indicated that Pardon was ticketed, for failure to yield, DWI, and negligent injuring. Pardon subsequently pled guilty to DWI Second Offense and negligent injuring. Officer Harwell testified at trial that in his opinion, the cause of the accident was “the truck’s failure to yield.”

After the accident, Pardon consistently maintained that in spite of his intoxication, he remembered stopping at the intersection and looking both ways on Hwy. 2 before attempting the left hand turn. Pardon actually described stopping twice in his testimony. The first time was back from the intersection at the stop sign. He then indicated that he eased forward and stopped a second time. To show where he last stopped, during a pre-trial deposition, Pardon marked a red “X” on a photograph (Exh. DOTD-58, see appendix) to show the location of his truck’s front bumper about three feet from the fog line of Hwy. 2. He identified the photo at trial and again indicated that location as an approximation of his final stopping point.

Pardon testified at trial that the only headlights he saw as he made his stop at the intersection were on the far west side of the bridge. On that opposite side of the bayou, there is another parish road that traverses Hwy. 2 north and south and apparently a store or other place of business. Pardon | testified that he thought the car headlights turned off at the other parish road or the store. As to what he remembered seeing during the actual moments before the collision, Pardon admitted that he had thought “at one time that [Carr] did not have his lights on.” Describing his final entry into the intersection, he answered as follows:

Q Mr. Pardon, as you looked out, as-you started easing out as you alleged, where were you looking?
AI told you. I looked back toward East Carroll. And, then I looked back toward West Carroll.
Q But as you are easing out, as you are ■ actually driving into the travel lane, easing out as you alleged—
AI was looking toward West Carroll.
Q You were looking toward West Carroll Parish, down to your left?
A Yeah.
Q And you never saw—
A Never saw—
Q Nelson Carr’s headlights?
A Never saw them.
Q Never saw his car until the impact, is that right?
A — never saw him, no.

Plaintiff’s highway safety design expert, Dr. John Glennon, testified that the proximity of the bridge to Lanes Ferry Road, the opaqueness of the bridge railing, the overall geographical terrain, and relatively low elevation of Lanes Ferry Road, all coalesced to effectively “hide” an eastbound car proceeding down Hwy. 2 from the view of a driver proceeding on Lanes Ferry Road. He stated that the sight problem, primarily caused by the bridge railing, exists when the driver’s point of vision is from 15 to 30 feet away from the intersection. Dr. Glennon discussed the safety standards for the design and regulation of the highway intersection established by the American Association of State Highway and Transportation Officials (“AASH-TO”). He stated that the AASHTO standard for the driver’s [ ^observation point while stopping at an intersection is 20 feet from the edge of the pavement of the intersecting roadway (hereinafter the “AASHTO Location”). That standard takes into account the fact that a motorist may not always stop at the nearest location to the intersection where his field of vision would be best. From that point on Lanes Ferry Road, he determined the in-tersectional sight distance for an object approaching the intersection at the height of the headlights of the Carr vehicle. The average driver sitting at an eye level of 3/é feet above the ground at the AASHTO Location could only see easterly a distance of 820 feet to a point on the west end of the bridge. Beyond that point, the bridge raffing would block the driver’s vision of the headlights. According to Dr. Glennon, the amount of sight distance needed under AASHTO for the intersection was 550 feet.

In the DOTD’s cross-examination of Dr. Glennon and the plaintiffs other expert, Dr. Morris Bronstadt, an issue was raised regarding the utilization of two AASHTO factors. First, while AASHTO utilized a standard driver eye height of 3 feet 6 inches, Pardon’s eye height in his large truck was 5 feet 3$ inches. Second, AASHTO allows for a 51-inch object height for the oncoming vehicle and makes no distinction for determining the sight distance in daylight or darkness. This object height roughly corresponds with the top of the Cougar in this case, which is 53 inches high. Nevertheless, Dr. Glennon’s 320-foot sight distance calculation was based upon a 3^-foot driver eye height and an object height of only 26 inches, which corresponded to the headlight height of the | fjCougar. At the AASHTO Location twenty feet from the fog line, Dr. Bron-stadt’s distance calculation for seeing the top of the Cougar was 530 feet from the 5-foot 3^-inch vantage point of Pardon’s truck. He also admitted on cross examination that one section of the AASHTO standards handbook contains a statement indicating that the beams of a headlight can be seen farther at night than the top of the car can be seen during daylight.

DOTD’s expert in accident reconstruction, Dr. Mike James, testified that based on his SMACK reconstruction, Carr’s vehicle was going 45-55 mph and Pardon’s truck was going 18-22 mph at the time of impact. He testified that the vehicles were turned at an angle when they collided, and that the damage in the side of the Cougar was caused by the forward momentum of Pardon’s pick-up truck. Pardon’s track “rode up on” Carr’s vehicle, crashing the “A pillar,” which attaches the roof to the hood of the car, eighteen inches. A cap or lug nut from the track’s front tire was imbedded in the door of the Cougar. The track’s right front tire flattened on impact, leaving gouge marks visible near the centerline of the road. According to Dr. James, the impact occurred very close to the centerline of Hwy. 2. The force of Pardon’s track, which weighed 5,700 pounds empty and was also carrying an arc welding machine in the cargo bed that day, moved the Cougar sideways, bringing it to rest in a ditch. Pardon’s track spun around and ultimately came to rest farther down Lanes Ferry Road. 17Pr. James estimated the track’s post-impact speed at 5 to 10 miles per hour as it rolled back down Lanes Ferry Road.

Dr. Glennon testified that in his opinion, the physical evidence of the collision indicated that Pardon’s track was traveling at approximately 5 to 8 mph as he pulled out onto Hwy. 2. Dr. Glennon disputed the SMACK’s results and testified that based on his calculations, if the track was traveling at 22 mph, the car and the track would have ended up in a different position, farther to the north. He characterized the collision between the pick-up truck and the Cougar as “ha[ving] all of the characteristics of a vehicle that has pulled out from a side road at a very slow speed ...” and that the slow speed of Pardon’s truck tended to suggest that Pardon had stopped before entering the intersection. On the other hand, when Dr. James employed Dr. Glennon’s estimate of 6.7 mph for Pardon’s track into the SMACK program, the resulting collision produced a maximum crash of six inches on the Cougar door, compared to eighteen inches of actual crash produced by the accident.

Dr. James also conducted two tests which were presented on a video tape showing vehicles moving along Hwy. 2 at night. The camera was located in two positions on Lanes Ferry Road, one at the stop sign where the sight distance would be approximately 27 feet from the fog line of Hwy. 2 (hereinafter the “Stop Sign Location”). The other sight location was 10/é feet from the fog line of Hwy. 2 which would have been the nearest stopping point to the intersection (hereinafter the “Nearest Location”). At that point, which would place the front of the track three feet from the fog | «line, the video showed that the oncoming vehicle lights would have been constantly within view well beyond the western end of the bridge and visible for over twelve seconds.

Plaintiff presented evidence that DOTD had notice of problems with the Bayou Macon Bridge as early as 1972, when the East Carroll Parish Police Jury requested “a study of the inability to view eastbound traffic” on the bridge. The DOTD also conducted a second traffic study in December, 1990, and concluded that because of the low traffic volume at the intersection, the installation of a traffic signal or flashing beacon (like the one at the intersection on the opposite side of the bayou) was not justified. A DOTD letter describing the intersection study noted that only one accident occurred at the intersection in question during the previous three years, and that this accident involved a right-angle collision.

Former state representative, Jess Smith, and James McDaniel, formerly the parish highway superintendent, testified at trial concerning the above problems with the intersection. Additionally, the pastor and a deacon from the nearby Lanes Ferry Baptist Church testified about their concern over the possibility of accidents caused by the alleged “blind spot” on the bridge. Finally, Ronald Pippen and Greg Johnson, both local farmers who lived nearby, testified about a “near miss” accident that they had one night as they pulled onto the highway from the parish road.

Syvella’s mother, Annette Toston, in both her capacity as curatrix of her daughter, and as tutrix of her granddaughter, sued the drivers of both vehicles and their respective insurers, East Carroll Parish Police Jury and 19the DOTD. Each driver had the minimal $10,000 liability coverage. Carr and his insurer, Illinois National Insurance Company, were dismissed early from the proceedings. Pardon, his insurer, and the police jury were dismissed from the proceedings before trial.

After a five-day jury trial and two hours of deliberations, the jury returned a split verdict allocating 100% of the fault for the accident to DOTD. Pardon and the parish were found to be without fault by the jury.

The jury awarded damages, including loss of consortium to Syvella’s family, totaling $11,097,935.31. Thereafter, because of adjustments by the trial court to the past medical damage award and to the general damage awards pursuant to the statutory cap set forth in La. R.S. 13:5106, the total judgment was reduced to $7,127,964.99.

DOTD suspensively appeals the judgment.

Discussion

I.

DOTD asserts that the jury erred in its finding that Pardon was not negligent. Negligence is determined in Louisiana under the duty-risk analysis. The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs 11 ninjuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, 1230, rehearing denied, 4/24/98.

This case concerns the parties’ opposing assertions of negligence. They insist, respectively, that either DOTD or Pardon was the sole cause of the accident. Plaintiff argues that any negligence on the part of Pardon must be relieved by the substandard conduct of DOTD in maintaining a blind intersection for Lanes Ferry Road motorists. This argument suggests that DOTD’s actions were the overriding cause-in-fact of this accident. To address this argument, we will first explore the duty, breach, and scope of liability issues comprising the negligence of which Pardon was allegedly relieved.

The duties of Pardon are legislatively detailed in traffic regulations applicable to drivers of motor vehicles. La. R.S. 32:123(B) defines the duty of the motorist approaching an intersection regulated by a stop sign as follows:

Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop ... at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having 11t stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway ...

(Emphasis supplied.) From this statute, the driver’s duty is two-fold. He must first maneuver his vehicle to the point nearest the intersection and stop at that point. Second, he must determine by his view at that stopping point that he may safely enter the intersection.

Addressing a case of multiple tortfea-sors, one of which caused the obscurement of a stop sign, the court in Westchester Fire Ins. Co. v. Dardar, 158 So.2d 239, 242 (La.App. 4th Cir.1963), defined the driver’s duty as follows:

Where an automobile driver approaches a blind intersection, even where the two streets are of equal dignity, he must exercise a greater degree of care than is ordinarily required, must enter the intersection at a reasonable speed and must make certain before entering that there is no other vehicle about to enter.

Finally, various criminal and civil statutes proscribe the act of driving a motor vehicle while under the influence of alcohol. La. R.S. 14, Sections 32.1, 39.1, 39.2, and 98; La. C.C. art. 2315.4. These statutes demonstrate the high duty placed upon Pardon in this case.

The breach element in this case is clear. Pardon drove his truck into the intersection in a manner indicating that he did not yield the right of way to the Carr vehicle which constituted an immediate hazard in the intersection. Additionally, as admitted by plaintiff, Pardon was driving while intoxicated with his BAL approximately three times the legal limit. This indicates that Pardon breached the duty not to drive after consumption of alcohol.

| ^Regarding the scope of the duty analysis, Louisiana has no negligence per se doctrine. Galloway v. State Through Dept. of Transp. and Development, 94-2747 (La.5/22/95), 654 So.2d 1345; Boyer v. Johnson, 360 So.2d 1164 (La.1978); Weber v. Phoenix Assur.. Co. of New York, 273 So.2d 30 (La.1973). Therefore, a statutory violation must be determined as a legal cause of the accident. Id. at 33. A violation of a criminal statute does not automatically create liability in a particular civil ease, because the statute may have been designed to protect someone other than the plaintiff, or to protect the plaintiff from some evil other than the injury for which recovery is sought. Boyer, supra at 1168-1169. “Yet, where a criminal statute imposes a duty designed to protect a particular person from a particular type of injury, one who has so injured such a person by a breach of the prescribed duty cannot evade civil liability by persuading the, court to disregard the clear legislative prohibition as if it were a mere discretionary ‘guideline.’ ” Id. at 1169.

The scope of the duty inquiry is ultimately a.question of policy as to whether the particular risk falls within the scope of the duty. Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 293 (La.1993). The scope of protection inquiry asks whether the enunciated rule extends to or-is intended to protect this plaintiff from this type of harm arising in this manner. Id. at 294.

The statutory duties imposed upon Pardon were intended to avoid the tragic intersectional collision that occurred. More specifically, the risk presented to the passengers of the Carr vehicle which could not be seen | ^constantly during Pardon’s immediate approach to the intersection was within the ambit of the duty imposed upon Pardon to stop at the “point nearest” to Hwy. 2. Likewise, an intersectional collision caused by the inability to react to the approaching vehicle, to precisely stop the vehicle in relation to the intersection, and to survey and negotiate all of the dangerous circumstances present at a highway intersection is the risk of harm which is within the scope of protection of our rules prohibiting drunk driving.

From these initial inquiries under the duty-risk analysis, the facts of this case indicate that Pardon was at fault. Nevertheless, the plaintiff does not attempt to defend the jury’s verdict regarding Pardon on the above factors. The plaintiff asserts that because of Pardon’s inability to see oncoming traffic, attributable to the sight obstruction created by the bridge rail, his actions were not the cause-in-fact of the accident.

The two DOTD video tapes demonstrated the driver’s field of vision for the movement of a car proceeding easterly along Hwy. 2 at night. Dr. James conducted the first test at two camera locations — the Stop Sign Location approximately 27 feet from the fog fine of Hwy. 2, and the Nearest Location approximately 10jé feet from the fog line. The moving vehicles utilized in both videos had headlights 26 to 27 inches above the ground which compared to the height of the headlights for the Cougar. The cars were traveling at 50 mph. The camera was mounted at a height of 62 inches which was approximately the eye level of Pardon in the large truck he was driving.

| ^Although the quality of the first video presented the two headlights of the oncoming car in a blurred manner, the video adequately depicts the lights as they first come into view west of the bridge beyond the other intersection on the west side of the bayou. This other intersection was regulated by a blinking yellow and red fight for Hwy. 2 and the parish road, respectively. The blinking fight provided another vantage point for the nighttime video showing the car appearing first to the west of the blinking fight and then passing the fight and entering the bridge. Because of the quality of the video, Dr. James later made a second video which filmed the car only from the Nearest Location. In both videos, a party in the moving car is heard speaking to Dr. James over a two-way radio counting down the number of seconds as the car moved from the west side of the bridge to the intersection where the accident occurred.

The two locations of the DOTD’s videos depicted significantly contrasting views of the oncoming car. At the Stop Sign Location, the car’s fights disappeared from view before the time the car first entered the bridge. Other evidence showed that on the west side of the bridge, Hwy. 2 sloped down a hill so that the roadway’s elevation dipped below that of the surface of the bridge. The fights began to reemerge approximately three to four seconds later as the car neared the center of the bridge. This, blind spot for observing the car’s path along Hwy. 2 is due in part to the fact that the stop sign observation point is down the slope of Lanes Ferry Road and the side railing of the bridge is seen in its entirety. Looking down the railing at an angle acts to block the view of the car along with the dip in the highway on |1Bthe west side of the bridge. Dr. James admitted in his testimony that “back at the stop sign the visibility is not as good.”

At the Nearest Location, both videos reveal that the lights of the oncoming vehicle are never lost from view. The car appears from a curve beyond the blinking lights of the other intersection, passes that intersection, and proceeds across the bridge while a count of twelve seconds was given on the audio. The car was constantly in view for over twelve seconds in both videos taken from the Nearest Location. Discussing a driver’s stopping point, Dr. Glennon conceded in his testimony, “[i]f you drive close enough to the intersection, you can see down Hwy. 2.” This was also borne out by Dr. Bronstadt’s calculation which confirmed that the Cougar would remain entirely in view with a driver eye height of 5 feet 3]é inches at ten feet from the fog line.

Cause-in-fact is generally a “but for” inquiry; if the plaintiff probably would not have sustained the injuries but for the defendant’s substandard conduct, such conduct is a cause-in-fact. Fau-cheaux, supra at 292. To the extent that the defendant’s actions had something to do with the injury the plaintiff sustained, the test of a factual, causal relationship is met. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972).

The cause-in-fact issue is usually a jury question unless reasonable minds could not differ. Cay v. State, Dept. of Transp. and Development, 631 So.2d 393 (La.1994). A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d|16l305; Sto-bart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Plaintiffs brief asserts that “from the stop sign, along Lanes Ferry, the intersecting car (Pardon’s) can’t see a car on Hwy. 2.” (Emphasis supplied.) This argument that Pardon was not a cause-in-fact is therefore baséd on the assertion that Pardon, despite his testimony, did not make his final stop at the Nearest Location, but instead stopped ten to fifteen feet further back from the intersection where his vision was impaired. Under the manifest error standard, we agree that the trier-of-fact could conclude that Pardon may have been mistaken concerning his final stopping point. Nevertheless, there are implications from that factual conclusion and other undisputed facts which bear on the cause-in-fact inquiry.

First, at the 20-foot AASHTO Location, the line of sight which Pardon had available extended back to the west, almost to the end of the bridge, 320 feet and more. That indicates that the sight problem existing at the intersection was only a partial factor in Pardon’s ability to recognize the movement of traffic and in his negotiation of the intersection after stopping at that point. He was not totally blinded, and as his truck would have begun its movement forward to the intersection from that point, he would be able to see the Carr vehicle. It is unreasonable to view the evidence as establishing that Pardon had no opportunity to see the approaching vehicle [17as he stopped or moved slowly within the final 20 feet before reaching the intersection. Second, Pardon was familiar with the intersection. Therefore, as his testimony indicates, he knew that he could not reach a safe point for viewing the traffic on Hwy. 2 until he stopped at the nearest point to the intersection. Third, a stopping point so that Pardon’s vision was at the 20-foot mark or further back near the stop sign establishes the more significant fact that he did not stop at the point nearest the intersection where his vision upon stopping would be completely unimpaired. Fourth, Pardon’s vision, his attentiveness, and his response time, more probable than not, were impaired by the effect of his intoxication.

From the evidence revealing these four facts, it would be manifestly erroneous for the trier-of-fact to conclude that Pardon was not a cause-in-fact of the accident. The accident probably would not have occurred if Pardon had stopped at the point nearest the intersection and not been intoxicated. The materiality of these facts springs from the significant statutory duties regarding the observance of stop signs and driving without the influence of alcohol. Accordingly, we find that the jury’s verdict was clearly wrong and manifestly erroneous. The clear field of vision available to Pardon at the point nearest the intersection, his familiarity with the intersection, and the strong inference of Pardon’s impairment from his intoxication are facts for which the jury’s verdict does not account. Pardon |iswas at fault, and his actions and inaction were a cause-in-fact of the accident.

II.

We reviewed Pardon’s negligence first due to the significance of the specific statutory duties imposed on him regarding the regulation of safety at the intersection. The DOTD argues that because of those duties and Pardon’s reckless disregard for safety caused by his intoxication, the DOTD may not be found negligent in this case. Nevertheless, despite the substandard conduct of one tortfeasor, another party’s alleged fault must be measured by consideration of the particular duty owed by that party. We must therefore apply the duty-risk' analysis to determine whether the jury’s verdict of negligence on the part of the DOTD may be affirmed.

The DOTD’s duty is a question of law. Faucheaux, supra. The DOTD’s duties arise from its ownership of Hwy. 2 and its duty for signing the intersection. La. R.S. 48:21(A); Forest v. State, Dept. of Trans. & Dev., 493 So.2d 563 (La.1986). In similar settings, the Louisiana Supreme Court has stated that the DOTD’s duty is to design and provide a controlled intersection that did not present an unreasonable risk of harm to motorists. Boykin, supra, at 1231; Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682.

The specific breach of DOTD’s duty asserted in this case is that the slope of the parish road as it lies within DOTD’s right-of-way and the bridge railing of Hwy. 2 combined to create a blind spot which is an unreasonable risk of harm. The driver on the parish road in his immediate liSapproach to the intersection is blinded in his view of oncoming traffic on Hwy. 2.

The law concerning the cause-in-fact determination is stated above. Additionally, we have reviewed the jurisprudence where sight obstruction is asserted as contributing to the cause of an intersec-tional traffic accident. In Harrison v. State, Dept. of Highways, 375 So.2d 169 (La.App. 2d Cir.1979), this court affirmed a trial court ruling that a five-foot high bridge raffing extending to a point very near an intersection was a contributing cause of the accident because drivers at the nearest stopping point could not see approaching vehicles. Nevertheless, in a recent case decided on summary judgment in favor of the defendant, the inter-sectional sight obstruction was found not to be the cause-in-fact of the accident. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952. In Row, this court determined that although an obstruction posed a sight hazard at the intersection, the driver’s negligent turn into the superior lane of traffic occurred after she had stopped and moved forward beyond the hazard. The obstruction thus became immaterial as a causal factor of the accident.

The cause-in-fact inquiry asks whether this accident would probably not have occurred but for the slope of the parish road and the bridge railing which combined to cause the sight obstruction. From the testimony of the two drivers, there is no dispute that Pardon was appropriately warned and stopped his truck in response to the DOTD’s signing of the intersection. If he stopped so that the front of the vehicle was within eight feet or less of the | anfog line for Hwy. 2, the evidence indicates that he could have seen the Cougar for a sufficiently long distance to properly negotiate a turn into the intersection. Nevertheless, the trier-of-fact could also reasonably conclude, as indicated above, that Pardon stopped his vehicle further back from the intersection where the travel route of the Carr vehicle could not be constantly seen.

When we accept the fact that Pardon’s vehicle stopped short of the safest and nearest point to the intersection, the evidence presents a range of possible viewing points where his vision was impaired. Nevertheless, using the 20-foot AASHTO Location upon which Dr. Glennon expressed his opinion, the driver could see over 320 feet to his left down Hwy. 2 to approximately the end of the bridge. At the AASHTO Location, the front of the truck would be 12/6 feet from the fog line and approximately 22 feet from the point of the collision. The plaintiffs 320-foot calculation of the intersectional sight distance did not employ Pardon’s 5-foot 3)6-inch observation height and only considered the view of the 26-ineh headlights of the Carr vehicle. Therefore, the nighttime glow of the headlights would be observable from the higher driver position in Pardon’s truck as the Cougar entered the bridge (367 feet) or before. Despite the blind spot associated with the AASHTO Location, as the Cougar approached at up to 55 mph or 80 feet per second, it would have been in Pardon’s view for approximately five seconds before impact.

The next consideration concerns the movement of Pardon’s truck and the time which elapsed for the final 22 feet after the truck left the stopping L, point and accelerated across the fog line into Carr’s lane to the collision point. The plaintiffs expert determined the truck’s speed at the moment of impact at 5 to 8 mph. Therefore, using an average speed of 3 mph (4.4 feet per second) as the truck slowly accelerated through the final 22 or more feet to almost the center of Hwy. 2, it would have taken Pardon approximately five seconds to reach the point of collision. The Cougar, therefore, would have been entirely within Pardon’s field of vision for the final four to five seconds during his movement toward the intersection. Yet, Pardon testified that he saw nothing and believed the Cougar’s headlights were off at the time of the accident. He never saw the lights of the Carr vehicle even though he remained conscious throughout the accident.

Pardon’s insistence that he saw no headlights immediately before the accident contradicts what would be reasonably expected to be seen by a driver slowly starting forward after stopping short of the intersection. Such driver would see that he could not make the turn to his immediate left after stopping at the AASHTO Location. He has to drive forward and be looking to his left to identify the point to begin his left turn maneuver onto Hwy. 2. During such maneuver, the driver would at least see the approaching vehicle, whether or not he could successfully respond with evasive action. Pardon’s commencement of the slow forward motion took an amount of time coinciding with the four to five second time period in which the Carr vehicle became visible. Yet, Pardon never saw the vehicle.

This undisputed fact of Pardon’s failure to see the vehicle leads us to conclude that his impairment from alcohol was the sole cause of the | ^accident. The AASHTO Location urged by the plaintiff already takes into account that Pardon, out of disorientation or driver error, stopped at a location in violation of Louisiana’s rule for stopping at the nearest point to the intersection. Nevertheless, even allowing for this driver error at the AASHTO Location, Pardon was in a position to see the other vehicle as he began moving forward and should have at least reported an attempt at evasive action. The fact that he missed the nearest stopping point and saw nothing thereafter as he began moving to the intersection must be attributable to his intoxication. With such impairment the accident probably would have occurred irrespective of the sight problem caused by the slope of the parish road and the bridge railing.

Conclusion

Accordingly, we reverse the ruling of the trial court from our determination that the jury verdict was manifestly erroneous and clearly wrong in not finding the driver’s intoxication and his failure to stop at the point nearest the intersection as the sole cause-in-fact of the accident. Costs are assessed to appellee.

REVERSED.

APPENDIX

Toston Exhibit #31

DOTD Exhibit #58

      . See attached copies of photographs (Toston Exh. #31 and DOTD Exh. #58) depicting bridge and intersection.

      . Dr. Bronstadt actually made the measurements for the intersectional sight distance for the plaintiff.

      . SMACK is a computer program developed by the federal government for use by engineers, physicists and accident reconstructors which replicates the mechanics of an accident based on inputting certain variables such as vehicle size and weight, physical damage, and speed; in this case, the program generated a model consistent with the damage pattern on both vehicles and the physical evidence found at the accident scene.

      . The cause-in-fact inquiry is usually the first inquiry in the duty-risk analysis. For judicial economy, if the defendant's action is not a cause-in-fact, there is no need to explore the more involved inquires of duty and scope of duty. However, in the case of concurrent or successive causes of harm by multiple tortfea-sors, the traditional but-for test of cause-in-fact becomes more difficult because each actor’s substantial conduct which led to the harm can be argued as exonerating the conduct of the other. We will work through such finger pointing in this case by initially examining the duty, breach and scope of duty elements.

      . Dr. Glennon admitted that Pardon’s additional height advantage in his large truck, 21 inches above the 3’/4-foot level utilized by AASHTO, caused his line of sight to extend further than the 320-foot calculation he determined using the 3)4-foot standard.

      . The two conflicting views of the speed of Pardon's vehicle at the time of impact are discussed above. With the deference which is given under the manifest error standard, we will accept the plaintiff's expert's view that Pardon's truck moved slowly into the intersection.


source: Caselaw Access Project

author: |-i STEWART, J.

license: Public Domain

text:
    Tammy DEMPSEY on Behalf of Kimberly DEMPSEY, Plaintiffs-Appellants, v. Charles C. CLARK and State Farm Insurance Company, Defendants-Appellees.
    No. 37,191-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Johnson & Placke, Attorneys, by Don H. Johnson, West Monroe, for Appellants.
    Hudson, Potts & Bernstein, by Charles W. Herold, III, Monroe, for Appellees State Farm Fire & Casualty Co. and Charles S. Clark.
    Deal & Cook, by Philip T. Deal, Monroe, for Appellee Charles C. Clark.
    Before STEWART, GASKINS and KOSTELKA, JJ.
   |-i STEWART, J.

The trial court rendered summary judgment in favor of defendants, Charles S. Clark and State Farm Fire & Casualty Insurance Co., on a coverage question arising under a State Farm rental dwelling policy. The incident triggering the coverage dispute occurred in May 2001, when six-year-old Kimberly Dempsey was bitten by a dog believed to have been owned by Charles C. Clark, the son of Charles S. Clark. At the time of the incident, the son was living in a house owned by the father and insured under the State Farm rental dwelling policy. For the reasons that follow, we affirm the trial court’s grant of summary judgment.

FACTS

On May 31, 2001, Kimberly Dempsey was playing in her front yard with her brother and another child when a dog allegedly belonging to Charles C. Clark bit her and caused her to suffer facial injuries. On September 4, 2001, Kimberly’s mother, Tammy Dempsey, filed suit on Kimberly’s behalf against Charles C. Clark as the alleged owner of the dog, and against Charles S. Clark as the owner of the property occupied by Charles C. Clark and the dog. Tammy Dempsey also named State Farm as a defendant because State Farm issued a rental dwelling insurance policy to Charles S. Clark covering the property occupied by his son, Charles C. Clark.

The father and State Farm filed a motion for summary judgment in January 2002, asserting that the father had no care, custody, or control over the dog, and had no knowledge of any vicious propensities of the dog. The motion for summary judgment also argued that the rental dwelling insurance Impolicy issued by State Farm did not cover any acts or property of the son, and provided no liability coverage.

In support of the motion for summary judgment, movants attached the affidavit of the father in which he acknowledged that he owned the rental property and that his son and family had been renting it from him for over a year and a half. He also stated that before May 31, 2001, although he had been around the dog at issue on several occasions, he had never seen the dog exhibit any vicious or aggressive actions, and had no knowledge that the dog had any vicious propensities. He concluded his affidavit by stating that he never had care, custody, or control of the dog.

The movants also included a copy of the State Farm rental dwelling policy in support of the motion for summary judgment. Under the definitions in the policy, the word “insured” was defined to include not only the named insured, but also any employee of the named insured while acting within the scope of that employment, and any person or organization while acting “as real estate manager” for the named insured. Charles S. Clark and his wife, Sandra E. Clark, were both listed as the named insured on the policy. The son was not a named insured nor was he alleged to have been an employee of the named insured. Instead, the only issue concerning the definition of an “insured” for purposes of summary judgment was Dempsey’s argument against summary judgment that the son was acting as a “real estate manager” for the father so as to invoke coverage under the rental dwelling policy.

| oUnder the liability coverage section of the policy for “Coverage L-Business Liability,” the policy stated:

If a claim is made or suit is brought against any insured for damages because of bodily injury, personal injury, or property damage to which this coverage applies, caused by an occurrence, and which arises from the ownership, maintenance, or use of the insured premises, we will:
i. Pay up to our limit of liability for the damages for which the insured is legally liable....

As an alternative to the “real estate manager” argument, Dempsey argued that the son was not actually renting the residence from his father, but had free use of the residence so as to constitute constructive use of the house by the father, thereby triggering coverage under the above quoted language.

After the son’s and father’s depositions had been taken, the father and State Farm supplemented their memorandum in support of summary judgment and included copies of their depositions. The son’s deposition revealed that he and his wife first lived in the residence at issue as early as 1995 or 1996. The son stated that his father was “just buying the house and I was living in it — renting it from him.” The son and his wife then moved to Shreveport where they stayed approximately a year and a half. The couple separated and the wife moved back into the house where she lived for several months before the couple reconciled. After their reconciliation, they stayed in the house until October 2001. The son acknowledged that from about January 2001 to October 2001 no rent was paid, but he stated that he or his wife had paid rent prior to that period of time. Three can-celled checks identified at the son’s depositions showed that payments of $450 each had been made to the father in September, October and |4Pecember 2001. The son indicated that he had not saved any bank statements other than the ones showing the three cancelled checks.

The son acknowledged that while he lived in the house he mowed the lawn and took care of “just minor stuff’ including baseboard work, putting new linoleum in the bathroom, and painting. He indicated that if there was a plumbing problem or electrical problem his father “would fix something like that.” The son also indicated that his father had never made any demand on him to pay back due rent, and that the son did not think that the father expected him to pay the back rent.

In the father’s deposition, he indicated that he purchased the property at issue in the summer of 1997 and began renting it shortly thereafter. He first rented the property to his son, although there was no written rental agreement. The son began paying $450 a month when he moved into the property. When asked if the son had made monthly payments to him each month since 1997, the father replied that the son did not live at the property “that whole time.” The father indicated that another renter by the name of David Long had rented the property for approximately one year, and then the son’s wife had rented the property from the father before the son and his wife reconciled. The father recalled the son moving back into the house in the first quarter of 2000. The couple later separated again, but the wife was still living in the house and had been since sometime in 1999. When asked if he had received $450 a month in rent from 1999 to the present date, the father stated that he had except for the period of time from January 2001 ^through August 2001 when the wife had lost her job and the son had changed jobs and was unable to make payments.

Finally, the father and State Farm attached another affidavit by the father to the motion for summary judgment. The affidavit stated in pertinent part that the son rented and lived in the property at issue from April 2000 through October 2001. During that time the son mowed and raked the yard, painted some rooms, replaced some vinyl flooring with tile in a bathroom, and performed some minor routine maintenance on the premises. However, at no time did the father consider him to be the “property manager,” nor did the father ever compensate him for being his “property manager.” The affidavit stated that the rent was never waived or reduced in exchange for work on the property, and that the father never intended for the son and his family to be protected by liability insurance under the State Farm rental dwelling policy.

On July 31, 2002, the motion for summary judgment was taken up, argued, and granted by the trial court. This appeal followed.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). 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 | fithat the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Although the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial on the matter that is before the court on a motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but to point out the absence of factual support for one or more elements essential to the claim, action, or defense. If the adverse party then fails to produce factual support sufficient to show that he can satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

Appellate courts review summary judgment de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Hamdan v. State Farm Mutual Automobile Insurance Co., 36,883-CA (La.App.2d Cir.3/5/03), 839 So.2d 1017.

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Merlin B. Smith, Inc. v. Travelers Property Cas., 36,695 (La.App.2d Cir.2/27/02), 811 So.2d 1097.

17Pempsey asserts two errors on appeal. First, she argues that the trial court erred in finding no genuine issue of material fact as to whether Charles C. Clark was a real estate manager of the property under the provisions of the policy. In the alternative, Dempsey argues the trial court erred in finding no genuine issue of material fact as to whether allowing the son to live at the rental property and keep a dog at the property constituted constructive use of the house by the father, Charles S. Clark, so as to provide coverage under the policy.

An “insured” as defined by the State Farm rental dwelling policy includes “any person or organization while acting as real estate manager for the named insured.” Although the term “real estate manager” is not defined in the policy, the jurisprudence in this area indicates that a real estate manager “is simply one who manages real estate for another.” Savoy v. Action Products Company, Inc., 324 So.2d 921 (La.App. 3d Cir.1975), writ denied, 329 So.2d 463 (La.1976); Simmons v. State Farm Fire & Casualty Insurance Co., 607 So.2d 1080 (La.App. 3d Cir.1992).

The court in Savoy, supra, also made the following observations with respect to whether one acts as a lessee or a real estate manager:

While a real estate manager may also be a lessee, not all lessees are real estate managers. It is true that a lessee possesses for his lessor and not for himself. LSA-C.C. Article 3441; State, through Department of Highways v. Moity, 276 So.2d 770 (La.App. 3rd Cir.1973). It is likewise true that the lessee must act as a good administrator of his lessor’s property, LSA-C.C. Articles 2710 and 2719. And the Louisiana Civil Code provides that certain repairs must be made by the lessee, and that the lessee may call upon the lessor to make certain others. LSA-C.C. Articles 2693, 2694 and 2695. But though a person who performs these acts may be said to have the ‘conduct or direction of a thing’, he does not as a result of that performance | ^become a real estate manager, for these acts are merely affirmative duties required of every lessee.

Dempsey asserts that the son maintained the property for the father, and that the type of maintenance performed, such as painting the house, baseboard work, and replacing the bathroom linoleum, advanced the interest of the father. Dempsey also relies on the case of Armand v. Rapides Bank and Trust Co., 98-1664 (La.App. 3d Cir.4/7/99), 732 So.2d 719, writ denied, 99-1318 (La.6/25/99), 746 So.2d 604, where, under the peculiar facts, the court found no manifest error in a trial court’s factual determination that a party was a real estate manager. Dempsey also argues that, at the very least, the court’s analysis in Armand, supra, creates an issue of fact that should not be resolved in a motion for summary judgment. Predictably, the defendants attempt to distinguish Armand, supra, on its facts, and assert that the facts of the instant case are more similar to those in Simmons, supra, and McDermott v. Smith, 364 So.2d 149 (La.App. 1st Cir.1978).

When analyzing this issue, framed within the context of the grant of summary judgment, we decline to place the weight of our conclusion either upon an assessment of the type of repair and maintenance work performed by the son at the residence, or the amount of “benefit” derived by the father from that work. If we were to undertake such an analysis, then suffice it to say that the facts of this case are much more in line with the Simmons and McDermott cases. See also Parr v. Head, 442 So.2d 1234 (La.App. 5th Cir. 1983). However, there is a more fundamental problem with Dempsey’s argument.

|sThe previously quoted policy provisions defining an insured to include a real estate manager do not simply apply to any person or organization who acts as a real estate manager for the named insured; the definition applies to any person or organization while acting as real estate manager for the named insured. In Bewig v. State Farm Fire & Casualty Insurance Co., 848 S.W.2d 521 (Mo.App. E.D.1993), a mail carrier brought an action against the insurer of a rental dwelling to recover for injuries sustained when he was bitten by a tenant’s dog. As in the instant case, the policy defined an insured to include any person or organization while acting as real estate manager for the named insured. The rental dwelling unit was owned by the tenant’s father who was the named insured under the policy, and the plaintiff, as in the instant case, contended that the daughter was a real estate manager of the property and therefore an insured. Although the court was not inclined to view the daughter as a real estate manager under the facts of that case, the court went on to observe that the record did not indicate the daughter was acting in the capacity of a real estate manager at the time of the occurrence which caused the plaintiffs injury. In this regard the court stated:

The insurance is intended to protect the landlord and those acting in his behalf in regard to the property. It obviously does not protect employees or agents in their individual capacities unrelated to the landlord’s interests. The record is totally silent on when the bite occurred, whether [the daughter] was home, or the circumstances of the bite. It is the plaintiffs burden to establish that coverage existed. That burden requires that plaintiff establish that [the daughter] was a real estate manager of the property, and that the injury occurred while she was acting in that capacity. The record is silent about [the daughter’s] activities at the time of the occurrence.

| Accordingly, the court found no coverage for the plaintiffs injuries.

We agree with the court in Bewig, supra, that the unambiguous language of the policy, as well as logic based on the purpose of a rental dwelling policy, require that the plaintiffs injuries for which insurance coverage is sought must occur while the alleged insured was acting in the capacity of real estate manager for the named insured. The record herein shows that is not the ease. In fact, it would be difficult to conceive of circumstances in which the actions of the tenant’s family dog in biting a child could result in coverage. Because the facts surrounding the dog bite are not in dispute, and for the foregoing reasons, the policy language will not support a finding of coverage under those facts; therefore we must reject Dempsey’s “real estate manager” argument.

The alternative issue presented by Dempsey is whether a genuine issue of material fact exists as to whether the son’s use of the house constituted “constructive use” by the father. Dempsey points out that the son was not paying rent at the time of the incident, but was living at the residence with the permission of the father. Accordingly, she asserts that there is a material issue of fact as to whether or not the son was a renter, and whether the incident was covered under the “use of the insured premises” language in the previously quoted business liability coverage provisions of the policy.

Initially, we observe that, even though the language of insurance policies typically is construed in favor of a finding of coverage, Dempsey’s argument, that the rent-free use of a parent’s rental unit by a child is a “use” Inby the parent for purposes of business liability coverage, is very problematic. The policy at issue is a rental dwelling policy, thus indicating, even before the specific provisions are examined, that the policy is designed to protect the owner of rental property in connection with the rental of the property. Furthermore, the specific liability provisions at issue are found under the “Coverage L-Business Liability” policy language, thereby indicating that the “use of the insured premises” under that section is the owner’s use of the insured premises as rental property — a business use as opposed to personal use. Furthermore, we observe that in the exclusions portion of the policy language concerning liability coverage, business liability coverage does not apply to liability:

(2) Assumed under any unwritten contract or agreement, or by contract or agreement in connection with any business of the insured other than the rental of the insured premises.”

This exclusionary language also shows that coverage for business liability is focused solely on the business of the rental of the insured premises. Thus, if the father was simply allowing rent-free use by the son of property owned by the father, the logical conclusion is that this was a use “other than the rental of the insured premises,” and was not a business use of the property at all. Accordingly, such a personal use of the property would not seem to qualify for coverage protecting against business liability.

Nevertheless, accepting arguendo Dempsey’s assertion that there could be coverage under the business liability provisions of the policy if the son were not a “renter,” we still conclude that no genuine issue of material fact exists on the coverage issue. Unquestionably, the property at issue was housed as rental property by the son, the wife, and another renter prior to the period spanning January 1, 2001 through October 2001. Thus, the real question is whether the fact that no rent was paid from January through October due to the son and his wife’s financial difficulties, and the fact that the father apparently had no intention of attempting to collect back-due rent for this period, require the conclusion that the son and his wife were not “renters” during that period. We find this argument untenable. It is hardly uncommon for rent not to be paid during times when a renter is having financial difficulties, and this is the case regardless of a familial relationship between the lessor and lessee. Similarly, regardless of any familial relationship, the lessor is free to begin the eviction process under such circumstances, to attempt to subsequently collect the back-due rent, or to simply forgive the indebtedness. However, in none of these instances is the relationship between the parties anything other than lessor and lessee. Nor does the lessor’s motivation in choosing among these options change the nature of the relationship.

This point is further illustrated by considering the situation in which a father leasing a residence to his son wants to evict the son for non-payment of rent. In such circumstances, the father could hardly avoid the necessity of following the strictly applied legal procedures for eviction by asserting that the son’s non-payment of rent and the father’s allowing him to continue to reside in the home for several months means that the son simply was not a lessee, and thus not entitled to the benefit of the notice requirements and other procedural protections provided by law for evictions.

There is no reasonable interpretation of the rental dwelling policy, in light of the undisputed facts of the incident at issue, which provides coverage in this instance. The trial court’s granting of the summary judgment motion was appropriate.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed at appellant’s costs.

AFFIRMED.


author: JjMOORE, J.

text:
    STATE of Louisiana, Appellee, v. Steve King EDISON, Appellant.
    No. 37,012-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Louisiana Appellate Project by Wilson Rambo, Paula Corley Marx, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Edward M. Brossette, Tommy J. Johnson, William J. Edwards, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   JjMOORE, J.

Steve King Edison was charged by bill of information with two counts of vehicular homicide and two counts of first degree vehicular negligent injuring, La. R.S. 14:32.1, 39.2. Pursuant to a plea bargain, the state agreed to dismiss the latter charges, as well as a charge of DWI-first offense, in exchange for Edison’s guilty plea to the two counts of vehicular homicide. The district court accepted the plea bargain and sentenced Edison to concurrent terms of 14 years at hard labor, with the first year to be without benefits. The court denied a timely motion to reconsider sentence. Edison now appeals, urging only that the sentence is excessive. We affirm.

Shortly after 2:00 a.m. on February 24, 2001, Edison was driving his Chrysler Fifth Avenue east on Bert Kouns when he ran a red light and struck an Oldsmobile Cutlass going south on Walker Road. The impact was great, as the Cutlass spun around twice before coming to rest 400 feet away. Twelve-year-old Anthony Du-vall, who was riding in the rear seat of the Cutlass, was pronounced dead at the scene. His mother, Lisa Duvall, who was in the middle of the back seat, was taken to LSU Medical Center, where she died the next day. Two other occupants of the Cutlass, Nicole Duvall and Carol Hawkins, were sent to the hospital with injuries from which they recovered. Edison admitted to witnesses and police officers at the scene that he had drunk several beers and some scotch in the two hours before the accident. Based on a blood sample taken two hours after the accident, his blood alcohol content was .11%.

Appellate review for excessiveness is two-pronged. First, the record must show that the district court took cognizance of the criteria set forth in | j>La.C.Cr.P. art. 894.1. The court is not required to list every aggravating or mitigating circumstance as long as the record reflects an adequate consideration of the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Loyd, 35,637 (La.App. 2 Cir. 2/27/02), 810 So.2d 1214. The goal of Art. 894.1 is the articulation of a factual basis for sentence, not a rigid or mechanical recitation of factors. When the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Johnson, 35,-908 (La.App. 2 Cir. 4/3/02), 813 So.2d 1180. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385; State v. Loyd, supra.

Edison concedes in brief that the district court found about an equal number of aggravating and mitigating factors but urges that the court’s findings were wrong as to three items. First he challenges the court’s remark that he lacked remorse for his actions. The court acknowledged Edison’s words of apology (a handwritten letter is included in the record), but also noted that he asserted to probation and parole officers that the accident was unavoidable as he had to make a sudden lane change to avoid a left-turning car. The court was certainly entitled to treat this denial of responsibility as a lack of remorse. Edison next contests the court’s statement that he is not married, and thus a term of imprisonment would not entail excessive hardship on his dependents. Edison raised this point in his | ¡¡motion to reconsider, which the court denied without a hearing. According to the PSI, Edison is indeed married. The court’s misstatement of this fact is unfortunate but, on this record, does not alter the finding of no excessive hardship. The district court was justified in dismissing this claim on the motion to reconsider. Finally, Edison disputes the court’s statement that he must be “punished as an example to all that this type of conduct cannot be tolerated and will not go unanswered.” However, deterrence, both as to the defendant and to other persons, is a legitimate sentencing object. State v. Howard, 262 La. 270, 263 So.2d 32 (1972); State v. Green, 34,676 (La.App. 2 Cir. 5/9/01), 787 So.2d 505. On this record, we find adequate compliance with Art. 894.1 to support the sentence imposed.

The second prong of review is constitutional excessiveness. Whether a sentence is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864. The district court has broad discretion to sentence within the statutory limits; absent a showing of manifest abuse of that discretion the appellate court will not set aside a sentence as excessive. State v. Guzman, supra.

Before imposing sentence, the court held a sentencing hearing and considered the admissible portions of the PSI. It stated that the sentence was based on the totality of the circumstances, including the deaths of two innocent people, conduct that exposed more than one person to a risk of danger, and significant and permanent economic loss to the victims’ families. In mitigation, the court stressed Edison’s clean prior record.

The penalty range for each count of vehicular homicide is two to 20 years at hard labor, with at least one year to be served without benefits. La. R.S. 14:32.1 B. The concurrent sentences imposed, 14 years, are within the statutory range and include the shortest possible time without benefits. Considering the gravity of the offenses and the benefit of the plea bargain, we cannot say that these sentences shock our sense of justice. We find no constitutional error.

We have reviewed the entire record and find nothing else we consider to be error patent. The convictions and sentences are affirmed.

AFFIRMED.


author: | STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Mark Anthony ALSAY, Appellant.
    No. 37,013-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Louisiana Appellate Project By Paula C. Marx, Lafayette, for Appellant.
    Indigent Defender Board By Alan J. Golden, Mark Anthony, Alsay, In Proper Person.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Eugene W. Bryson, III, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and KOSTELKA (Pro Tempore), JJ.
   | STEWART, J.

After the trial court denied a motion to suppress evidence obtained pursuant to a search and seizure conducted by sheriff’s deputies at a Greyhound bus station in Shreveport, Louisiana, the defendant, Mark Anthony Alsay, entered a Crosby plea to possession of over 28 grams but less than 200 grams of cocaine, a Schedule II controlled dangerous substance, in violation of La. R.S. 40:967(F)(l)(a). He now appeals his conviction by arguing that the trial court erred in denying the motion to suppress. For the following reasons, we affirm.

FACTS

On April 4, 2001, the defendant was traveling as a passenger on a Greyhound bus en route from Dallas to Baton Rouge when the bus made a regularly scheduled stop at the Greyhound bus terminal in Shreveport, Louisiana. With the permission of Greyhound’s management, two Caddo Parish sheriffs deputies assisted by a specially trained “drug dog” were at the bus terminal to conduct “narcotics interdiction” activities for drug trafficking. According to Deputy James McLamb, he obtained permission from the bus driver to allow the drug dog to check the bus. McLamb then led the drug dog to the cargo compartment underneath the bus. The dog responded aggressively to a large cardboard box bearing a baggage ticket with the defendant’s name.

In the meantime, the defendant had gone to the restroom inside the bus terminal. After the defendant got back to the bus, a deputy boarded and asked to see the passengers’ tickets. After examining the defendant’s ticket and verifying that it matched the baggage claim ticket on the box, the | ^deputy asked him to exit the bus. When questioned about the box, the defendant first denied that it belonged to him and refused to produce identification. The deputy asked for permission to search the box. In response, the defendant stated that it was his uncle’s box which he was delivering for him. Between five to ten minutes later, after being advised that the deputies could either hold the box or detain the defendant in order to obtain a search warrant, the defendant consented to a search of the box. The defendant contends that he consented after being told by the deputies that they would delay the bus while procuring a search warrant. Once consent was given, Deputy McLamb opened the box and found taped packages containing marijuana and cocaine hidden beneath stereo speakers. The defendant was placed under arrest and given the Miranda warnings. He later admitted that the drugs were his and that he was planning to break them into smaller amounts to sell.

He was charged by a bill of information on May 20, 2002, with possession of over 200 grams of a Schedule II controlled dangerous substance, a violation of La. R.S. 40:967(F)(l)(b), and with possession with intent to distribute a Schedule I controlled dangerous substance in violation of La. R.S. 40:966(A)(1). A motion to suppress the evidence seized during the search of the bus and the cardboard box was denied by the trial court. Thereafter, the defendant entered a Crosby plea to a reduced charge of possession of more than 28 grams but less than 200 grams of cocaine in violation of La. R.S. 40:967(F)(l)(a). He received an agreed upon sentence of thirteen years at hard labor to be served concurrent with any other |asentence and to be served without benefit of probation, parole, or suspension of sentence for the first ten years. In addition, he was fined $50,000 plus court costs or 500 days in parish jail with credit for time served and concurrent with the hard labor sentence. This appeal of the denial of the motion to suppress followed.

DISCUSSION

At trial on a motion to suppress, the defendant bears the burden of proving the ground of his motion, but the state has the burden of proving the admissibility of any evidence seized without a warrant. La. C.Cr.P. art. 703(D). The defendant’s claim that the evidence against him was illegally obtained is based on the protections against unreasonable searches and seizures provided in the Fourth Amendment of the U.S. Constitution and in La. Const, art. I, § 5 (1974), which also affords protection against “invasions of privacy.”

The defendant argues that the trial court erred in denying the motion to suppress because the evidence was obtained through an unconstitutional search and seizure. It is the defendant’s position that he was seized in violation of his constitutional rights when the deputies took control of the bus to conduct a search without either a warrant or any reasonable suspicion of illegal activity. Defendant likens the seizure or search by the deputies to an illegal police checkpoint and relies on State v. Vikesdal, 29,043 (La.App.2d Cir.1/31/97), 688 So.2d 685 to support his argument. The defendant also argues that he was not informed that he had a right to refuse consent to search.

|4In support of the conviction, the state argues that there was no illegal seizure or detainment of the bus passengers, that the canine sniff does not constitute an illegal search, and that the defendant consented to the search of the box which led to the discovery of the illegal drugs.

There are four identifiable actions by the deputies which must be examined to determine whether the drug evidence should have been suppressed. These actions include the manner in which the deputies gained access to the cargo area of the bus, the conduct of the canine sniff search, the detainment of the defendant after his bus ticket was found to match the baggage claim ticket on the suspect box, and the opening of the box to search its contents. We must determine whether the deputies’ actions in these four respects constituted either an unreasonable search or seizure.

Gaining Access to the Cargo Area of the Bus

The defendant relies on Vikesdal, supra, to support his argument that he was illegally seized when the deputies acted to gain access to the cargo area of the bus. In Vikesdal, supra, the court determined that the defendant had been seized in contravention of constitutional protections when the bus on which he was a passenger was stopped in front of a police station, surrounded by uniformed and armed officers, and boarded by the police chief, a drug dog, and its handler. The passengers were then ordered to remove their luggage from the upper rack and place it in the aisle, told to remain in their seats, and warned not to move or frighten the dog while it “worked” the aisle with its handler. The dog alerted on Vikesdal’s luggage. IsAfter Vikesdal refused consent to search, the police opened his luggage and found marijuana without having obtained a warrant.

Under these circumstances, the court had no trouble finding that Vikesdal was seized in the constitutional sense when the police took control of the bus and that his right to be free from unreasonable seizure of his person could not be waived by the bus company granting permission for random stops at the police station. The Vik-esdal decision was also based on the fact that the defendant was in possession of his luggage when the stop and subsequent drug sniff occurred and that this detainment of the defendant was without any “reasonable suspicion” that he was committing, had committed, or was about to commit an offense. See La.C.Cr.P. art. 215.1, which codifies the standard of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The court distinguished the situation wherein a person is detained for the purpose of subjecting property in his possession to a canine sniff test when there is no reasonable suspicion to support the stop from a situation wherein property not in a person’s possession is exposed to a canine sniff test even in the absence of any articulable suspicion of criminal wrongdoing.

| (¡Comparison of the circumstances in Vikesdal, supra, to the instant situation reveals that the two cases are more dissimilar than similar. In the instant case, the bus made its regularly scheduled stop at the bus terminal. It was not stopped by law enforcement authorities for the purpose of conducting a drug search as in Vikesdal, supra. While the bus was stopped at the terminal, Deputy McLamb obtained the permission of the bus driver to let the drug dog sniff the cargo compartment. This was done pursuant to a normal practice of the Caddo Parish Sheriffs office in conjunction with the bus terminal management. Deputy McLamb testified that buses usually remain at the terminal for thirty to forty-five minutes, that they are not detained, and that bus drivers will usually deny permission to search if the bus is running late. It is clear from the record that the drivers of the individual buses, not the deputies, decided whether to allow sniff searches. In addition, the passengers were not ordered to remain on the bus under police guard while the sniff search was conducted as was the case in Vikesdal, supra. In the instant case, there was no indication that the passenger compartment was searched or that the passengers were required to make luggage in their possession available for the sniff search. Moreover, the passengers were able to leave the bus while the sniff search of the cargo area was conducted. The defendant testified that he went inside the terminal to use the restroom at the time of the search.

A seizure, in the constitutional sense, occurs when the totality of the circumstances surrounding a person’s encounter with law enforcement authorities indicates that a reasonable person would not feel free to decline |7the officers’ requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); State v. Vikesdal, supra. An individual is “seized” under La. Const, art. I, § 5 when the individual is either actually stopped or when an actual stop of the individual is imminent. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Tucker, 626 So.2d 707 (La.1993).

We do not find that the defendant was seized when the deputies acted to gain access to the cargo area of the bus. The bus was not stopped by law enforcement for the purpose of conducting a search. Rather, the deputies obtained permission of the bus driver for the limited purpose of conducting a sniff search of the cargo area beneath the bus while the bus was at its regularly scheduled stop. The defendant was free to leave the bus and did so. He was not “seized” or detained as shown by these facts. The permission granted by the terminal management and the bus driver authorizing the search of the cargo area did not infringe the defendant’s expectation of privacy. In fact, the defendant had no encounter with law enforcement at this point and was not subject to any actual or imminent stop.

Canine Sniff Search

Also at issue is whether the canine sniff search conducted in the cargo area of the bus was an unconstitutional search. A person has a privacy interest in the contents of his luggage that is protected by the Fourth Amendment of the U.S. Constitution. U.S. v. Chadwick, 433 U.S. 1, 97 SjCt.g 2476, 53 L.Ed.2d 538 (1977). However, the U.S. Supreme Court has also held that a “canine sniff’ by a narcotics detection dog which does not require the opening of luggage and which discloses only the presence or absence of narcotics is not a “search” within the meaning of the Fourth Amendment. U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The drug detection dog sniffs the air space on the exterior of the luggage. There is no expectation of privacy in the air space outside of luggage. This reasoning has been followed in State v. Fikes, 616 So.2d 789 (La.App. 2d Cir.1993); State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990); and State v. Thompson, 543 So.2d 1077 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1335 (La.1989).

More recently, State v. Lee, 97-1470 (La.App. 3d Cir.6/17/98), 715 So.2d 582, writ denied, 98-1944 (La.11/20/98), 728 So.2d 1285, upheld the denial of a motion to suppress under similar circumstances to those in the instant case. A canine sniff of luggage in the cargo area of a bus while on its regular stop in Alexandria and with permission of the bus driver was not found to have been a search in the constitutional sense. The court found the defendant had no reasonable expectation of privacy in luggage stored in the cargo compartment and no expectation that such luggage could not be exposed to a narcotics dog with permission of the bus line management.

In the instant case, the bus was at its designated stop, the defendant’s box was under the control of the bus company, and the bus driver allowed the items in the cargo compartment to be sniffed by the drug dog. Applying the rationale of U.S. v. Place, supra, and State v. Lee, supra, to the instant |amatter, we do not find that the exposure of the luggage in the cargo compartment of the bus to the drug dog was a search within the constitutional context.

Post-Sniff Detainment

The initial contact between the defendant and the deputies did not occur until after the canine alerted to the presence of drugs in the cardboard box. The deputies then sought to identify the holder of the ticket matching the name on the baggage claim ticket from the box. This contact was in the nature of an investigatory stop under Terry v. Ohio, supra, which requires reasonable suspicion for detainment.

A law enforcement officer is permitted to stop a person whom he reasonably suspects is committing, has committed, or is about to commit an offense for the purpose of demanding his name, address, and an explanation of his actions. La.C.Cr.P. art. 215.1(A). The validity of an investigatory stop depends on whether the officer has knowledge of particular facts sufficient to warrant infringement upon the individual’s constitutional right to be left alone. State v. Allen, 95-1754 (La.9/5/96), 682 So.2d 713; State v. Neyrey, 383 So.2d 1222 (La.1979). In determining whether adequate articulable knowledge exists, courts must consider the totality of the circumstances and whether the detaining officer has a particularized and objective basis for suspecting that the individual has engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Allen, supra; State v. Matthews, 366 So.2d 1348 (La.1978).

|inOnce the dog’s response alerted the deputies to the presence of drugs in the box, they had reasonable suspicion to suspect that the passenger to whom the box bélonged was engaged in the commission of an offense. Therefore, the deputies were permitted to make an investigatory stop of the defendant. Deputy McLamb testified that the baggage claim ticket on the box had the name of passenger Mark Alsay, so he asked his partner to locate that passenger. The defendant testified that after he boarded the bus, he was approached by a deputy who asked to see his ticket and then asked him to exit the bus. The defendant complied. In response to questioning, the defendant claimed that he was delivering the box for his uncle. The defendant refused to produce identification, but after his arrest he was found to have had identification hidden in his shoe.

The facts show that the actions of the deputies in detaining the defendant after the canine sniff alerted them to the presence of drugs in the box bearing his name and matching his ticket were at all times proper and within the ambit of constitutionally permissible conduct. The deputies had the requisite reasonable suspicion to conduct the investigatory stop.

Opening the Box

Although the record shows that the defendant gave his oral consent to allow the deputies to open the box that contained the illegal drugs, he now argues that his consent was not freely given. He claims he was forced to consent when the deputies told him they would delay the bus from leaving while they obtained a search warrant. The defendant testified that he was an “ordinary citizen” who did not know or understand his right to be free from 11 unreasonable searches and seizures and that he mistakenly consented to the search.

It is well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and United States constitutions. State v. Raheem, 464 So.2d 293 (La.1985); State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. Oral consent to a search is valid. State v. Crews, supra.

While a valid consent search is a recognized exception to the warrant requirement, the burden is on the state to prove that the consent was given freely and voluntarily. State v. Kendrick, 35,233 (La.App.2d Cir.12/5/01), 804 So.2d 719, writ denied, 2002-0562 (La.11/1/02), 828 So.2d 563. Voluntariness is question of fact to be determined by the trial court under the facts and circumstances of each case; this determination is to be given great weight on appeal due to the trial court’s opportunity to observe witnesses and assess credibility. State v. Edwards, 434 So.2d 395 (La.1983); State v. Paggett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072.

The trial court heard the testimony of Deputy McLamb and the defendant. Their accounts of what transpired were essentially the same, with the only difference being that the defendant claimed he was told the deputies would delay the bus while they obtained a warrant, and Deputy McLamb denied this. Only less than ten minutes elapsed from the time the deputies identified the defendant until he consented to the search. The | ^defendant admitted that the deputies did not threaten him or use physical force.

On cross examination, the defendant admitted that he had been reading cases on searches and seizures and that he had a number of prior convictions. Therefore, the trial court in evaluating the defendant’s testimony knew that he was not the “ordinary” citizen he claimed to be, but rather at the time of detainment, he was a convicted felon who had been previously detained, interrogated, and arrested. The defendant gave his consent to open the box knowing that the drug dog had given a positive response to it.

After reviewing the record, we find no error in the trial court’s determination that the defendant’s consent to the search of the box was knowingly and voluntarily given. It is obvious that the defendant regretted giving consent once the drugs were found hidden beneath the stereo speakers, but the facts do not point to any actions by the deputies that should have caused even an ordinary citizen to feel threatened or forced to consent to the search.

Post-Conviction Relief

Review of the record indicates that the trial court did not advise the defendant at sentencing of the time period for applying for post-conviction relief. The Louisiana Supreme Court has held that La.C.Cr.P. art. 930.8(C), which requires the trial court to inform the defendant of the time period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. \uState ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, abrogated on other grounds in State ex rel Olivieri v. State, 2000-0172 (La.2/21/01), 779 So.2d 735. The trial court should have advised the defendant of this time period, and by way of this opinion, this court now advises the defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922.1.

CONCLUSION

Finding no error in the trial court’s denial of the motion to suppress, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The court also based the Vikesdal decision on the expanded protection to be free from unreasonable "invasions of privacy” afforded under Louisiana’s Constitution. This expanded protection was the basis in State v. Church, 538 So.2d 993 (La.1989), for finding sobriety checkpoints unreasonable under the state constitution. However, Church was subsequently overruled by State v. Jackson, 2000-0015 (La.7/6/00), 764 So.2d 64, which found no discernable difference between the protections afforded under the United States Constitution and the Louisiana Constitution as such provisions apply to automobile checkpoints.