author: J^KUHN, J.

text:
    Patrick R. CHERON v. LCS CORRECTIONS SERVICES, INC. and The State of Louisiana Through the Department of Public Safety and Corrections and Warden Gary Copes.
    No. 2002 CW 1049 R2.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Granted May 14, 2004.

      Ferdinand J. Kleppner, Metairie, Counsel for Plaintiff/Respondent Patrick R. Cheron.
    Christopher A. Edwards, Lafayette, Counsel for Defendant LCS Corrections Services, Inc.
    Annette R. Seng, Wendell Woods, Baton Rouge, Counsel for Defendant/Relator State of Louisiana, Department of Public Safety and Corrections.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   J^KUHN, J.

This writ application filed by defendant-relator, the State of Louisiana, through the Department of Public Safety and Corrections (“the Department”), is before us on remand from the Louisiana Supreme Court. In determining whether the trial court properly denied the Department’s exceptions, we address whether pertinent provisions of the Louisiana Corrections Administrative Remedy Procedure (“CARP”), as amended by Acts 2002, 1st Extraordinary Session, No. 89 (“Act 89”), are retroactive. Because we find that retroactive application of Act 89 would operate to divest respondent, Patrick R. Cher-on, of a vested right, i.e., the right to litigate his tort claim, we conclude the trial court properly denied the Department’s exceptions, and we deny the Department’s writ application.

I. FACTUAL AND PROCEDURAL HISTORY

On July 20, 2001, Cheron filed a personal injury suit against the Department for injuries he allegedly sustained during the late summer of 2000, during his incarceration at the Pine Prairie Correctional Facility (“the Facility”). Cheron alleges that while incarcerated, he experienced severe symptoms of fever, blurred vision, vomiting, sore throat, and constant headaches. He contends that he contracted a potentially fatal kidney disease known as “F.S.G.S.,” which was allegedly caused by inadequate cleanliness and improper food preparation utilized by the Facility. He maintains that Facility authorities, personnel, and employees ignored his repeated requests for medicalj^attention. He asserts that if they had timely responded to his requests for medical attention, his illness could have been arrested or cured. He claims that the Department’s negligence has caused severe physical pain and emotional damage and has substantially reduced his life expectancy.

Responding to the petition, the Department filed a dilatory exception raising the objection of prematurity, asserting that Cheron failed to exhaust administrative remedies as required by Louisiana Revised Statutes 15:1172 and 15:1184. The Department also later filed another dilatory exception, which raised the objection of vagueness or ambiguity, urging that the petition failed to specify the applicable procedure number assigned to Cheron’s request for an administrative remedy. After trial of the exceptions, the trial court signed a judgment denying- both exceptions on April 15, 2002.

Thereafter, the Department filed a writ application. On March 10, 2003, this court addressed the merits of the application and denied the writ. The Department then filed a writ application with the supreme court that was granted. The supreme court later remanded the matter to this court for “briefing, argument and opinion.” Cheron v. LCS Corrections Services., Inc., 2003-1029 (La.6/20/03), 847 So.2d 1246.

In its brief, the Department urges that the district court erred in finding that Pope v. State, 1999-2559 (La.6/29/01), 792 So.2d 713, eliminated the mandatory-exhaustion requirement of Louisiana Revised Statutes 15:1184. The 14Pepartment posits that even under the language of the Pope decision, an inmate must continue to exhaust administrative remedies pursuant to Louisiana Revised Statutes 15:1184 prior to filing a tort suit against prison authorities. The basis for the Department’s claim is that Pope did not address a challenge to Louisiana Revised Statutes 15:1184 and did not declare it unconstitutional as applied to inmate tort claims. In making these arguments, the Department does not address the applicability of Act 89, recent legislation addressing a variety of matters pertinent to prisoner litigation. The Department merely states that Cheron’s cause of action arose prior to its April 18, 2002 effective date.

II. ANALYSIS

The provisions of CARP, Louisiana Revised Statutes 15:1171-1179, were enacted in 1985 in response to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997-1997j (1980), which provided standards for the voluntary development and implementation by states of a system for resolution of disputes and grievances raised by prisoners. Pope v. State, 1999-2559, p. 4, 792 So.2d at 715. Pursuant to the provisions of CARP, the Department adopted an administrative remedy procedure for receiving, hearing, and disposing of any and all complaints and grievances by offenders against the state, the department, or its employees that arise while an offender is within the custody or under the supervision of the department. La. R.S. 15:1171(B). As originally enacted, no state court could entertain an offender’s grievance or complaint that fell under the purview of the administrative remedy procedure unless and until the offender had exhausted the remedies provided by the procedure. La. R.S. 15:1172(B). The purpose of requiring exhaustion of administrative remedies is to reduce the |squantity and improve the quality of prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524-525 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (addressing the federal Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e (“FPLRA”)). Also, corrective action taken in response to an inmate’s grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Another benefit is that the internal review process may filter out frivolous claims. Porter v. Nussle, 534 U.S. at 525, 122 S.Ct. at 988. Operating in conjunction with CARP, the Louisiana Prison Litigation Reform Act (“LPLRA”) curtails baseless or nuisance suits by prisoners.

As originally enacted, Section 1171 of the CARP provisions encompassed “complaints and grievances” without any reference to tort actions. Pope v. State, 1999-2559, pp. 4-5, 792 So.2d at 716. However, in 1989, the Legislature amended Section 1171 to expressly include personal injury and medical malpractice within the type of claims encompassed by CARP and to add a provision authorizing monetary damage awards. Pope v. State, 1999-2559, p. 5, 792 So.2d at 716. The procedures authorized by Louisiana Revised Statutes R.S. 15:1171(B) and 15:1172(A) constituted the administrative remedies available to offenders for the purpose of preserving any cause of action claimed against the state, the department, or its employees. Prior to its amendment by Act 89, Section 1172(B) further provided in pertinent part:

No state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative remedy procedure unless and until the offender shall have exhausted the remedies as provided in said procedure. If the offender has failed timely to pursue administrative remedies through this procedure, any petition he files shall be dismissed.

Pursuant to Section 1177 A (before its amendment by Act 89), an offender who was aggrieved by a decision in favor of the Department in an administrative remedy procedure was entitled to seek judicial review in the Nineteenth Judicial District Court within thirty days of receipt of the decision. The review was confined to the record made during the administrative remedy proceeding, although the court could order that additional evidence be taken. Section 1177(A)(5). The review was further limited to “the issues presented in the petition for review and the administrative remedy request filed at the agency level.” Id. Section 1177 further provided that the court may reverse or modify the decision only for the limited reasons enumerated in the statute, including arbitrary or capricious behavior, abuse of discretion and manifest error. Section 1177(A)(8).

In Pope v. State, our supreme court addressed whether CARP (prior to its amendment by Act 89), violated La. Const, art. V, § 16(A), which vests the district courts with original jurisdiction over “all civil and criminal matters.” Michael W. Pope, a former inmate, brought a personal injury action against the Department in 17district court, alleging he was seriously injured while incarcerated. Pope, who had not first presented his claim to the warden via CARP, claimed the procedure was unconstitutional as applied to his personal injury action because it divested the district courts of original jurisdiction over a tort action. After the tort action was dismissed with prejudice by the court of .appeal, the supreme court granted certiorari to consider Pope’s claim.

Recognizing tort actions as being clearly civil matters, the court found that the CARP legislation violated the Constitution by allowing the Department to exercise original jurisdiction in tort actions and was “an invalid attempt to alter the original jurisdiction of the district courts by legislative act.” Pope v. State, 1999-2559, p. 11, 792 So.2d at 719. Although the court broadly held that the statutory provisions of CARP were unconstitutional “to the extent that the statutes are applied to tort actions,” the court explained that the existence of the administrative remedy procedure was not by itself prohibited by the constitution:

[T]he problem with La,Rev.Stat. 15:1171-1179 is not that the statutes completely eliminate the district courts ... from taking part in any manner in a certain category of civil cases ... or that the statutes add an administrative remedy procedure as a prerequisite to the district court’s exercise of original jurisdiction (as in medical malpractice actions); the problem is that the statutes divest the district courts of the original jurisdiction granted by the Constitution in all civil matters and vest original jurisdiction in certain tort actions in the [Department] officials who administer the administrative remedy procedure.

Pope v. State, 1999-2559, pp. 8-9, 792 So.2d at 718 (Emphasis added).

Thus, the court explained that CARP’s unconstitutionally resulted from the manner in which the district court was limited to performing a deferential judicial review of the administrative decision rather than independently deciding the tort |,.¡action. The Pope court concluded, “[T]he Legislature cannot by legislative act, divest the district courts of the original jurisdiction fixed by the Constitution in those civil matters, such as tort actions, in which the Constitution does not otherwise provide for original jurisdiction in other tribunals.” Pope v. State, 1999-2559, p. 12, 792 So.2d at 720 (Footnote omitted). Nevertheless, the Pope court acknowledged that the legislature could enact procedures requiring administrative review of inmates’ tort claims. The court stated, “The Legislature, of course, is free to enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, for example, of frivolous -claims, as long as the action of the administrative agency does not constitute the exercise of original jurisdiction.” Id.

Pursuant to Act -89, effective April 18, 2002, the legislature promptly amended Louisiana Revised Statutes 15:1172 and 15:1177 to cure the constitutionality problems identified in the Pope decision. As amended, Louisiana Revised Statutes 15:1172 now provides in pertinent part:

B. (1) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.
* * *
C. If an offender fails to timely initiate or pursue his administrative remedies within the deadlines established in Subsection B of this ^Section, his. claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.
* * *
E. Liberative prescription for any del-ictual action for injury or damages arising out of the claims asserted by a prisoner in any complaint or grievance in the administrative remedy procedure shall be suspended upon the filing of such complaint or grievance and shall continue to be suspended until the final agency decision is delivered. Act 89 also revised Louisiana Revised Statutes 15:1177 (addressing judicial

review of administrative actions), which now provides, in pertinent part:

A. Any offender who is aggrieved by an adverse decision, excluding decisions relative to delictual actions for injury or damages, by the [Department] ... may, within thirty days after receipt of the decisions, seek judicial review of the decision ....
■ # * *
C. This Section shall not apply to delic-tual actions for injury or damages, however styled or captioned. Delictual actions for injury or 'damages shall be filed separately as original civil actions....

(Emphasis added.)

Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies even though it requires reversal of a trial court judgment that may have been correct under the law in effect when it was rendered. Segura v. Frank, 93-1271, 93-1401, p. 16 (La.1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994).

Since Act 89 was enacted, this court has applied the Pope holding that an inmate was entitled to have a district court adjudicate his tort claim under its |inoriginal jurisdiction without first exhausting administrative remedies available under CARP, without referencing Act 89 or determining whether it had retroactive effect. See Creppel v. Dixon Correctional Institute, 2001-2068 (La.App. 1st Cir.6/21/02), 822 So.2d 760, unit denied, 2002-2289 (La.11/15/02), 829 So.2d 432; Florida v. La. Dep’t of Public Safety and Corrections, 2001-1145 (La.App. 1st Cir.6/21/02), 822 So.2d 712. Additionally, in Spooner v. East Baton Rouge Parish Sheriff Dep’t, 2001-2663, pp. 6-7 (La.App. 1st Cir.11/8/02), 835 So.2d 709, 712-713, this court reversed the dismissal of an inmate’s tort suit based on failure to exhaust administrative remedies without addressing whether the provisions of Act 89 (particularly the amended provisions of Louisiana Revised Statutes 15:1172 B requiring an offender to initiate his administrative remedies for a delictual action within 90 days) should be applied retroactively. Because the provisions of Act 89 would require Cheron and other offenders to exhaust available administrative remedies prior to litigating a tort claim in district court, we must determine whether the Act has retroactive effect and can be applied to Cheron’s suit, although his claim arose pri- or to the effective date of Act 89.

Louisiana Civil Code Article 6 entitled, “Retroactivity of laws,” provides, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to-the contrary.” Although Louisiana Revised Statutes 1:2 does not distinguish between substantive, procedural and interpretative laws in its directive that “[n]o section of the Revised Statutes is retroactive unless it is expressly so stated,” .this statute has Inbeen limited to apply only to substantive legislation. Bourgeois v. A.P. Green Industries, Inc., 2000-1528, p. 6 n. 6 (La.4/3/01), 783 So.2d 1251, 1257 n. 6.

Article 6 requires a two-fold inquiry. First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature expressed its intent, our inquiry is ended. If not, we must classify the enactment as substantive, procedural or interpretive. Morial v. Smith & Wesson Corp., 2000-1132, p. 9 (La.4/3/01), 785 So.2d 1, 10, cert denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001).

Because the legislature made no clear expression regarding its intent concerning the retrqactive on prospective application of Act 89, we must classify the law as substantive, procedural, or interpretive. Substantive laws are laws that impose new duties, obligations, or responsibilities upon parties, or laws that establish new rules, rights, and duties of change existing ones. Interpretative laws are those that clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Jacobs v. City of Bunkie, 1998-2510, p. 8 (La.5/18/99), 737 So.2d 14, 20. Procedural, remedial, or curative statutes relate to the form of the proceeding or operation of the laws. King v. State, ex rel. Louisiana Dept. of Public Safety and Corrections, 1998-2910, p. 4 (La.App. 1st Cir.2/18/00), 754 So.2d 1119, 1122. Procedural laws prescribe a method for | ^enforcing a substantive right and relate to the form of the proceeding or the operation of’the laws. Jacobs v. City of Bunkie, 1998-2510, p. 8, 737 So.2d at 20. Remedial statutes include those that are designed to correct an existing law;. See Blacks Law Dictionary 1296 (7th ed.1999)., “The legislature may cure by subsequent act an irregularity of nonobservance of requirements which it originally might have dispensed with, provided that vested rights hav.e not intervened.” Barnett v. State Mineral Board, 193 La. 1055, 1068, 192 So. 701, 705 (1939), (citing Sanger v. Bridgeport, 124 Conn. 183, 198 A. 746 (1938)).

Act 89 has rectified the unconstitutionality of the previous CARP procedure by providing that an offender’s tort suit is subject to the district court’s original jurisdiction. As such, the district court determines the action de novo rather than being limited by the standard of review set forth in ■■Louisiana Revised Statutes 15:1177. Loth prior to and after the enactment of Act 89, Louisiana Revised Statutes 15:1184 A provided, “No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted.” Considering the provisions of Act 89 in conjunction with Section 1184 A(2), we find that Act 89 establishes a method of “processing, administering, or determining rights,” and is properly classified as a procedural law. However, even procedural laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Lott v. Haley, 370 So.2d 521, 523 (La.1979).

|13“Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” Austin v. Abney Mills, Inc., 2001-1598, p. 11 (La.9/4/02), 824 So.2d 1137, 1145 (quoting Walls v. American Optical Corporation, 1998-0455, p. 8 (La.9/8/99), 740 So.2d 1262, 1269). Thus, “statutes enacted after the acquisition of such a vested property right ..'. cannot be retroactively applied so as to divest the plaintiff of his vested right in his cause of action because such a retroactive application would contravene the due process guaranties.” Cole v. Celotex, 599 So.2d 1058, 1063 (La.1992) (quoting Faucheaux v. Alton Ochsner Med. Found. Hosp. & Clinic, 470 So.2d 878, 879 (La.1985). See also Martinez v. State of California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (holding that a state tort claim is a species of property protected by the due process clause). Under Louisiana law, a cause of action accrues when a party has the right to sue. Falgout v. Dealers Truck Equipment Co., 1998-3150, p. 12 (La.10/19/99), 748 So.2d 399, 407.

As amended by Act 89, Louisiana Revised Statutes 15:1172 B requires an offender to initiate administrative remedies for a delictual action for injury or damages within ninety days from the date the injury or damage was sustained. If he fails to timely initiate or pursue his administrative remedies, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. La. R.S. 15:1172 C. Upon the effective date of Act 89, more than ninety days had lapsed since Cheron had allegedly sustained his injury. During that period of time, Cheron did not initiate any administrative remedy procedures. Thus, retroactive application of Section 1172 B and C would result in the | uabandonment of and the dismissal of Cheron’s claim. As such, Act 89 affects Cheron’s vested substantive rights.

In Poullard v. Hanson, 36,290, p. 9 (La. App.2d Cir.8/14/02), 823 So.2d 1130, 1135, writ denied, 2002-2730 (La.1/24/03), 836 So.2d 45, the second circuit applied Act 89 retroactively without addressing the concept of vested rights. The Poullard court merely afforded the offender a 90-day time period within which to pursue his administrative remedies. We have also considered this approach of supplying a 90-day time period within which Cheron would have the opportunity to comply with the amended provisions of La. R.S 15:1172. We have determined, however, that where the legislature has failed to prescribe a time period for application of the statute to those with existing causes of action, the judiciary has no basis for supplying such a time period. See Maltby v. Gauthier, 506 So.2d 1190, 1193 (La.1987) (wherein the court instructed, “[w]hen the Legislature, in enacting prescriptive statutes potentially affecting existing causes of action, fails to require parties to exercise vested rights within a reasonable time, the courts should refrain from supplying this legislative lapse.”)

Thus, since we have determined that the retroactive application of Act 89 would operate to disturb vested rights in this case, we conclude Act 89 has prospective application only with respect to this case. Accordingly, we address the merits of the exceptions under the applicable law prior to the enactment of Act 89.

11fiAn exception raising the objection of prematurity pursuant to La. C.C.P. art. 926 A(l) raises the issue of whether the judicial cause of action has not yet come into existence because some prerequisite condition has not been fulfilled. Ginn v. Woman’s Hosp. Foundation, Inc., 1999-1691, p. 3 (La.App. 1st Cir.9/22/00), 770 So.2d 428, 430-431, writ denied, 2000-3397 (La.2/2/01), 784 So.2d 647. The objection contemplates that the plaintiff has filed his action prior to some procedure or assigned time, and it is usually utilized in cases wherein the applicable law or contract has provided a procedure for one aggrieved of a decision to seek administrative relief before resorting to judicial action. Girouard v. State Through Dep’t of Educ., 96-1076, p. 4 (La.App. 1st Cir.5/9/97), 694 So.2d 1153, 1155. Generally, the person aggrieved by an action must exhaust all such administrative remedies or specified procedures before he is enti-tied to judicial review. Id., 1996-1076 at p. 5, 694 So.2d at 1155.

The party that raises the objection of prematurity has the burden of showing that an administrative remedy is ' available, by reason of which the judicial action is premature. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 1999-2241, p. 6 (La.App. 1st Cir.3/7/01), 798 So.2d 143, 147, writ denied, 2001-0818 (La.1/4/02), 805 So.2d 1188. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted or that the present situation is one of the exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably inadequate. Ginn v. Woman’s Hosp. Foundation, Inc., 1999-1691, p. 3, 770 So.2d at 431.

[1fiThe Department urges that Louisiana Revised Statutes 15:1184 required Cheron to exhaust administrative remedies before filing his tort suit in state court, and that the district court erred in finding that Pope eliminated this mandatory exhaustion requirement. Section 1184 A(2) provides in pertinent part, “No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted.” (Emphasis added.) Although the Pope decision did not specifically address Section 1184, the Pope decision held that CARP’s statutory provisions as applied to offenders’ tort actions violates our state constitution. As such, we find that the Pope court implicitly held that the administrative regulations that implemented this unconstitutional legislation are invalid. See Dailey v. Travis, 2002-2051 (La.App. 1st Cir.2/23/04), 872 So.2d 1104, 2004 WL 324727 (rendered this date, wherein we concluded that the former regulatory procedure cannot be applied without encountering the judicial review provision that the Pope court found to be unconstitutional). Because the Department has not established available administrative remedies other than those established pursuant to CARP, the Department has not sustained its burden of establishing an available administrative remedy. The trial court did not err in denying the Department’s exception raising the objection of prematurity.

Additionally, we find no merit in the Department’s exception raising the objection of vagueness or ambiguity. In support of this exception, the Department urges only that the petition failed to specify the applicable procedure number assigned to Cheron’s request for an administrative remedy. Since we conclude that Cheron was not required to exhaust any administrative remedies prior to filing his tort action, we find no basis for sustaining this exception.

JjjIII. CONCLUSION

Retroactive application of Act 89 to Cheron’s tort action would unconstitutionally disturb his vested rights. Based on the Pope decision, Cheron is not required to comply with the unconstitutional CARP procedure that existed prior to Act 89. Thus, we find that his tort action was not filed prematurely. Additionally, Cheron’s petition was not vague or ambiguous because it did not provide an administrative procedure number. Accordingly, we find that the trial court properly denied the Department’s exceptions.

WRIT DENIED.

GUIDRY, J., concurs in the result.

      . Cheron also named Warden Gary Copes and LCS Corrections Services, Inc. as defendants.

      . Prior to addressing the merits of the writ application, this court had denied the application on July 1, 2002, because it appeared to be untimely. Thereafter, the Department filed a writ application with the supreme court that was granted. The Supreme Court remanded the matter to this court "to rule on the merits of the application.” Cheron v. LSC Correctional Services, Inc., 2002-2146 (La. 11/8/02), 828 So.2d 1117.

      . The LPLRA, enacted in 1997, requires a district court to dismiss any prisoner suit that is frivolous, malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted. La. R.S. 15:1184 B. Further, Louisiana Revised Statutes 15:1184 A(2) provides "No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted.” "Prisoner suit” is defined as "any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.... La. R.S. 15:1181. (Emphasis added.) A broad interpretation of this statutory language is supported by the analysis set forth in Porter v. Nussle, 534 U.S. at 524-525, 122 S.Ct. at 988 (addressing the FPRLA, which is parallel to the LPLRA). Cheron’s tort action seeks recovery of damages for injuries that allegedly resulted from the effects of actions by government officials, and is subject to the provisions of the LPLRA.

      . Pursuant to Louisiana Revised Statutes 15:1172 B(2) and (3), the department is authorized to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:1.325. Pursuant thereto, the Department has promulgated an administrative remedy procedure that utilizes a two-step system of review to address inmates' formal grievances in lieu of the three-step system that was previously used. LAC 22-.I.325G. If an inmate is not satisfied with the Second Step response, he may file suit in district court. LAC 22:I.325G(2)(b). Upon filing that suit, the inmate must furnish the administrative remedy procedure number on the court forms. The provisions of LAC 22:1.325 apply to administrative procedure requests filed on or after its effective date, April 20, 2002. Also effective September 20, 2002, the Department revised the adult administrative remedy procedure to provide that the offender has 90 days from the date of an alleged event within which to initiate his administrative remedy.

      . Act 89 additionally added subsection F to Louisiana Revised Statutes 15:1184, which provides:
      The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner is assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper.

      . Louisiana Revised Statutes 15:1172 B(2) and (3) authorizes the Department to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:1.325. It can be argued that the legislature intended prospective application since they apparently envisioned that new regulations would have to be implemented to rectify the problems outlined in Pope. However, because the Department previously had authority to promulgate regulations to implement administrative remedy procedures prior to the enactment of Act 89, and since it is not clear what the legislature contemplated regarding existing causes of action, we' consider the appropriate classification of Act 89.

      . Following amendment by Acts 2001, No. 801, § 1, this mandate appears in Louisiana Revised Statutes 15:1184 A(2). During the time period between the Pope decision and Act 89’s enactment, the Pope decision made clear that the then-existing administrative remedy procedure violated our state constitution.

      . Neither party challenges that the Pope decision is to be given retroactive effect. Generally, unless a decision specifies otherwise, it is to be given prospective and retroactive effect. Succession of Clivens, 426 So.2d 585, 594 (La.1982).


source: Caselaw Access Project

author: fyKUHN, J.

license: Public Domain

text:
    Sharon DAILEY v. Helen TRAVIS, et al.
    No. 2002 CW 2051R.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Granted May 14, 2004.

      Clifton Bingham, Jr., Andrew Dreher Benton, Baton Rouge, Counsel for Defendants/Relators Helen Travis, et al.
    Miles Gregory Trapolin, New Orleans, Counsel for Plaintiff/Respondent Sharon Dailey.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   fyKUHN, J.

The Louisiana Supreme Court has remanded this writ application to our court for briefing, argument, and opinion. Defendants-relators, Johnnie Jones, Helen Travis, Inez Robinson, and the Louisiana Department of Public Safety and Corrections (“the Department”), assert that the trial court improperly denied their exception raising the objection of prematurity, which they raised in response to a tort action filed by plaintiff-respondent, Sharon Dailey. At issue is whether Dailey was required to exhaust administrative remedies pursuant to Louisiana Corrections Administrative Remedy Procedure (“CARP”), Louisiana Revised Statutes 15:1171-1179, and the Louisiana Prison Litigation Reform Act (“LPLRA”), Louisiana Revised Statutes 15:1181-1191, before asserting her claims in district court,

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2001, Dailey filed this personal injury suit against the defendants for injuries allegedly sustained during her incarceration at the Louisiana Correctional Institute for Women (“Correctional Institute”). Dailey claims that on October 17, 2000, prison employees ordered her to climb on top of a water buffalo, a trailer-mounted water tank used for irrigation. Dailey asserts the prison employees knew she was not physically fit to be on top of the vehicle, knew the vehicle was not functioning properly, and knew that it was not designed for transportation. Dailey contends she fell off of the water buffalo and was severely injured. Dailey initially received treatment at the prison infirmary and was treated |smonths later at Earl K. Long Hospital. Dailey asserts that the hospital staff referred her to a spine clinic and an orthopaedic surgeon, but that prison officials failed to provide her with the recommended medical appointments. Dai-ley maintains that she requested orthopedic treatment through the prison’s administrative remedy procedures, but it was not provided. . Due to the lack of timely and adequate medical treatment, Dailey complains she continues to suffer from pain in her neck and back.

Claiming that defendants have been negligent, Dailey seeks to recover damages, including medical bills, future medical expenses, and general damages for pain and suffering. Dailey asserts that defendants have violated Louisiana Revised Statutes R.S. 15:760 and 15:831 by failing to provide reasonable medical treatment. Dailey also asserts a claim based on 42 U.S.C. § 1983, claiming that her civil rights have been violated by defendants’ deliberate indifference to her need for medical care.

In response, defendants filed dilatory exceptions raising the objection of prematurity. The defendants urge that Dailey has failed to exhaust her administrative remedies as required by Louisiana Revised Statutes 15:1172 of CARP and Louisiana Revised Statutes 15:1184 and 15:1191 of the LPLRA. Dailey opposed the exception, arguing that she is entitled to proceed with this trial court proceeding based on the holding of Pope v. State, 1999-2559 (La.6/29/01), 792 So.2d 713. Finding merit in this contention, the trial court denied defendantsj^exceptions raising the objection of prematurity in a judgment dated August 21, 2002.

Thereafter, defendants filed a writ application, which was denied by this court on March 10, 2003. Defendants then filed a writ application with the Supreme Court that was granted. The Supreme Court remanded the matter to this court for “briefing, argument and opinion.” Dailey v. Travis, 2003-1027 (La.6/20/03), 847 So.2d 1246.

In their brief, the defendants contend that the trial court erred: 1) in holding that the Pope decision nullified the entirety of CARP legislation as it relates to tort suits; 2) by not applying the LPLRA; and 3) by not retroactively applying the provisions of CARP as amended by Acts 2002, 1st Extraordinary Session, No. 89 (“Act 89”). Dailey urges that Pope governs her case, and she was not required to exhaust administrative remedies prior to filing suit. Additionally, she contends that the amendments to CARP and the LPLRA should not be applied retroactively, because the procedure that existed when she filed her requests cannot be changed.

II. ANALYSIS

In Cheron v. LCS Corrections Services, Inc., 2002-1049R2 (La.App. 1st Cir. 2/23/04), 872 So.2d 1094, 2004 WL 324533, also decided this date, we addressed whether CARP (as amended by Act 89) had retroactive effect, governing whether an inmate’s tort suit filed prior to the effective date of Act 89 was premature. In Cheron, we found that Act 89 was both remedial and procedural legislation that was intended to correct inadvertent error in the prior CARP legislation.' However, we also determined that though Act 89 could be applied retroactively, it could not be applied retroactively to the facts of the Cheron case without affecting substantive frights. We concluded that the administrative regulations that existed prior to the enactment of Act 89, which established deadlines for the procedures effectuating the unconstitutional CARP legislation, could not be enforced. Thus, we found that the Department was unable to establish that there were valid administrative remedies available to Cheron at the time that his cause of action arose. According-lyi we held that the Department’s exceptions raising the objection of prematurity were properly denied.

In the present case, Dailey filed her First Step request for administrative remedy procedure on January 8, 2001, in which she stated that she had been refused medication. She also complained that she had been refused treatment for her orthopedic problems. In response, Travis completed a First Step Response Form dated January 16, 2001. Travis replied that Dai-ley’s request was granted, stating, “You were seen by [Dr. Suryadevara] on 1/12/00 and started on flexaril. You were also placed on restricted duty status and will be seen by an orthopedic doctor.” Thereafter, Dailey filed an unsigned and undated request for a Second Step Review, which stated that she had received a written response to her First Step request but was not satisfied with it. She complained that the First Step response was “only partially granted. No medication have been given ... neither is an orthopedic appointment scheduled (It was only stated there would be. No orders were written.)” Dailey’s request for review was rejected on January 29, 2001 as “not submitted in a timely manner: over 5 days since first step response On July 12, 2001, Dailey filed suit in district court.

hAn exception raising the objection of prematurity pursuant to La. C.C.P. art. 926 A(l) raises the issue of whether the judicial cause of action has not yet come into existence because some prerequisite condition has not been fulfilled. Ginn v. Woman’s Hosp. Foundation, Inc., 1999-1691, p. 3 (La.App. 1st Cir.9/22/00), 770 So.2d 428, 430-431, unit denied, 2000-3397 (La.2/2/01), 784 So.2d 647. The objection contemplates that the plaintiff has filed his action prior to some procedure or assigned time, and it is usually utilized in cases wherein the applicable law or contract has provided a procedure for one aggrieved by a decision to seek administrative relief before resorting, to judicial action. Girouard v. State Through Dep’t of Educ., 96-1076, p. 4 (La.App. 1st Cir.5/9/97), 694 So.2d 1153, 1155. Generally, the person aggrieved by an action must exhaust all such administrative remedies or specified procedures before he is entitled to judicial review. Id., 96-1076 at p. 5, 694 So.2d at 1155.

The party that raises the objection of prematurity has the burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 1999-2241, p. 6 (La.App. 1st Cir.3/7/01), 798 So.2d 143, 147, writ denied, 2001-0818 (La.1/4/02), 805 So.2d 1188. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted or that the present situation is one of the exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably inadequate. Ginn v. Woman’s Hosp. Foundation, Inc., 1999-1691 at p. 4, 770 So.2d at 431.

|7In Cheron, we determined that although Act 89 is properly classified as both procedural and remedial legislation, it did not apply retroactively in that case, because such an application would have affected vested rights. Accordingly, we consider whether Act 89 affects Dailey’s right to pursue her tort action, which accrued prior to the effective date of Act 89.

Louisiana Revised Statutes 15:1172 C (as amended by Act 89, effective April 18, 2002) provides that an offender’s claim is abandoned if not timely initiated within the deadlines established in Subsection B. Subsection B provides that the offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained. Dailey initiated her request for an administrative remedy within 90 days of the alleged incident involving the water buffalo. Subsection B(3) further provides that, “The department is authorized to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:1.325.” Further, Subsection C provides that “If an offender fails to timely ... pursue his administrative remedies within the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice.”

Effective April 20, 2002, the Department promulgated a new adult administrative remedy procedure that utilizes a two-step system of review to address inmates’ formal grievances in lieu of the three-step system that was previously used. LAC 22:I.325G. If an inmate is not satisfied with the Second Step response, he may file suit in district court. LAC 22:I.325G(2)(b). Upon filing that suit, the inmate must furnish the administrative remedy procedure |snumber on the court forms. By its terms, the provisions of LAC 22:1.325 apply to administrative procedure requests filed on or after its effective date, April 20, 2002.

Because the new administrative regulations expressly provide that they apply prospectively only, they are not applicable to Dailey’s claim that arose prior to April 20, 2002. If Louisiana Revised Statutes 15:1172 C is read to reference the administrative regulations that were in place prior to the enactment of Act 89, they are unenforceable because they implemented legislation that was-found unconstitutional in Pope. See Cheron v. LCS Corrections Services, Inc., 2002-1049R2 (La.App. 1st Cir. 2/23/04), 872 So.2d 1094, 2004 WL 324533. Accordingly, we find that retroactive application of Section 1172 is not permissible based on the facts presented here.

Under the law that existed prior to Act 89, the Department urges that Louisiana Revised Statutes 15:1184 required Dailey to timely exhaust administrative remedies before filing her tort suit in state court. The Department further claims that Dailey’s § 1983 claim is also subject to the exhaustion requirement of Louisiana Revised Statutes 15:1184 A(2), pursuant to retroactive application of Louisiana Revised Statutes 15:1191. Arguing that Pope did not 19abrogate the entire CARP procedure, the Department posits that valid administrative remedies remained available that Dailey failed to exhaust prior to filing her suit.

The Pope decision found that the CARP legislation was unconstitutional as applied to tort suits, primarily because former Louisiana Revised Statutes 15:1177 limited the district court to performing a deferential judicial review of an administrative decision. Under the regulatory procedure that existed at the time of the Pope decision, the provisions for judicial review are ultimately triggered if an offender is not satisfied with the responses received during the three-step procedure. In other words, unless the offender is fully satisfied during one of the three steps, the former regulatory procedure cannot be fully applied without encountering the judicial review provision. If we attempt to apply only a portion of these regulations, i.e., the steps that were not expressly found to violate the constitution, the administrative remedy procedure is incomplete and would not establish that the offender is entitled to file suit in district court if he is unsatisfied with the third-step response. Although the Pope court found that “the problem |inwith La.Rev.Stat. 15:1171-1179 is not ... that the statutes add an administrative remedy procedure as a prerequisite to the district court’s exercise of original jurisdiction” (Pope, 1999-2559 at pp. 8-9, 792 So.2d at 718), the Pope court did not find that the then-existing administrative remedy procedure could be enforced in a piecemeal fashion. Therefore, we find that the administrative regulations in place prior to the enactment of Act 89 are unenforceable in this case, because they implement legislation that was found unconstitutional in Pope. Accordingly, we conclude that the Department has not sustained its burden of establishing an available administrative remedy.

Additionally, because we find there were no valid administrative remedies available pursuant to Louisiana Revised Statutes 15:1184, we pretermit the issue of whether Louisiana Revised Statutes 15:1191 (as amended by Acts 2001, No. 801, § 1), which arguably requires exhaustion of administrative remedies, is applicable to Dai-ley’s claim. Thus, the trial court did not err in denying the Department’s exception raising the objection of prematurity.

III. CONCLUSION

For these reasons, we find the trial court properly denied the Department’s exception raising the objection of prematurity.

WRIT DENIED.

GUIDRY, J., concurs in the result.

PETTIGREW, J., concurs.

      . Travis and Jones were sued in their individual capacities and in their capacities as wardens of the Correctional Institute. Robinson was sued in her individual capacity and in her capacity as director of the prison infirmary.

      . Dailey also complains a foot condition was not treated. The allegations of the petition, however, do not clarify whether this foot condition is related to the fall from the water buffalo.

      .Defendants also raised peremptory exceptions urging the objection of no cause of action, which are not at issue in this writ application.

      . A copy of Dailey’s 5/13/01 request for a Third Step Review is attached to Dailey’s original opposition memo filed with this court. This information was not introduced into evidence at the hearing on the exception and cannot be considered by this court.

      . Also effective September 20, 2002, the Department revised the adult administrative remedy procedure to provide that the offender has 90 days from the date of an alleged event within- which to initiate his administrative remedy. Under the previous regulations, the offender had only 30 days from the date of an alleged event to initiate his administrative remedy. The prior LAC 22:1.325, Administrative Remedy Procedure, is now located at LAC 22:1.324.

      . Act 801 enacted Section 1191, which provides as follows, in pertinent part:
      Except as specifically prohibited by federal law, the provisions of this Part shall also apply to all prisoner suits in state courts asserting claims arising under 42 U.S.C. 1983 or other federal laws.

      . In rejecting the State's argument that the administrative remedy procedure authorized by Louisiana Revised Statutes 15:1171 was analogous to the Medical Malpractice Act, the Pope court also commented, "[T]he Medical Malpractice Act does not shorten the prescriptive period for the malpractice victim to file a tort action, while the DOC rules adopted pursuant to La.Rev.Stat. 15:1171 provide that the offender-tort victim has only thirty days to file the tort claim and the failure to do so precludes assertion of the cause of action in court.” Pope, 1999-2559 at p. 13, n. 17, 792 So.2d at 720, n. 17. Thus, although the court did not expressly find the 30-day time period to be unconstitutional, we note that the revised statutory and regulatory procedures now provide that offenders must initiate administrative remedies within a 90-day time period from the time injury or damage is sustained. See La. R.S. 15:1172 B; 22:I.325G(1)(a).

      . LAC 22:I:325G(2)(b) currently provides, in part, “If an inmate is not satisfied with the Second Step response, he may file suit in District Court.”


author: _yPETTIGREW, J. J^MCCLENDON, J.,

text:
    STATE of Louisiana v. Charles BANTA, III.
    No. 2003 CA 0200.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Camille Morvant, District Attorney, Jennifer F. Richard, Joseph S. Soignet, Assistant District Attorneys, Thibodaux, for Plaintiff-Appellee State of Louisiana.
    Edward T. Diaz, Golden Meadow, for Defendant-Appellant Charles Banta, III.
    Before: FOIL, PETTIGREW, DOWNING, GAIDRY, and McClendon, jj.
   _yPETTIGREW, J.

In this action for writ of quo warranto, an elected official contests a judgment decreeing that he holds his office without authority in violation of Article I, Section 10 of the Louisiana Constitution and prohibiting him from holding that office. For the following reasons, we reverse the trial court’s judgment and dismiss the petition for writ of quo warranto.

FACTS AND PROCEDURAL HISTORY

On May 17,1990, Charles Banta, III was convicted of six counts of felony theft. On June 18, 1990, he was sentenced to two years of imprisonment and a period of five years of supervised probation to commence upon his release from the custody of the Department of Public Safety and Corrections. Subsequently, he exhausted all legal remedies of appeal. On July 25, 1997, having fully served his sentence, Mr. Ban-ta received a first offender pardon in accordance with Article IV, Section 5(E)(1) of the Louisiana Constitution.

Subsequently, on October 23, 1999, Mr. Banta. was duly elected to the office of Councilman, Lafourche Parish Council, District No. 2. On January 12, 2000, he took his oath of office and received a commission from the governor. In November 2002, District Attorney Walter Naquin, Jr., on behalf of the Parish of Lafourche, filed a petition for writ of quo warranto, asserting Mr. Banta illegally held the office in violation of Article I, Section 10 of the Louisiana Constitution and seeking his removal. Following a hearing on the matter, the trial court rendered judgment on December 5, 2002, finding that Mr. Banta held the office of Councilman, Lafourche Parish Council, District No. 2, without authority and in violation of Louisiana Constitution Article I, Section 10 and prohibiting Mr. Banta from holding said office.

It is from this judgment that Mr. Banta has appealed. The main thrust of Mr. Banta’s argument on appeal is that the trial court erred in utilizing the quo war-ranto summary proceeding to effectively remove him from office. Mr. Banta also asserts that the trial court erred in its interpretation and application of Article I, Section 10 of the Louisiana Constitution, noting that the first offender pardon he received on July 25, |31997, has the same effect as a governor’s pardon. However, because we agree with Mr. Banta that the appropriate procedure to remove him from public office was not utilized, we need not reach the issue concerning the first offender pardon and pretermit same.

DISCUSSION

There are several different procedures that may be employed to remove individuals from public office. In the instant case, the State chose to file a petition for writ of quo warranto pursuant to La. Code Civ. P. art. 3901, which provides as follows:

Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.

The writ of quo warranto is narrow in scope and is to be given only a limited use. City of Plaquemine v. Medien, 393 So.2d 301, 303 (La.App. 1 Cir.1980). If the court finds that a person is holding an office without authority, the judgment shall forbid him to do so and may declare who is entitled to the office or may direct an election when necessary. La.Code Civ. P. art. 3902. If it is determined that a person holds office by virtue of a valid election, the inquiry ceases, and the writ should be dismissed. Morris Thomason, 28,238, p. 2 (La.App. 2 Cir. 4/8/96), 672 So.2d 433, 434, writ denied, 96-1383 (La.9/13/96), 679 So.2d 105.

Official Revision Comment b to Article 3901 provides as follows: “The provision referring to public office was incorporated on the theory that the Intrusion into Office Act, R.S. 42:76 et seq., does not give an individual the right to file suit except when he is claiming the office.” Pursuant to La. R.S. 42:76, an action to try the right to office is authorized as follows:

An action shall be brought in the name of the state in any of the following cases:
(1) When any person usurps, intrudes into, or unlawfully holds or exercises or attempts to remain in possession of any public office or franchise within this state.

Apparently, the use of the term “usurpation” under both statutes is interrelated. “Usurp” is defined by The New Oxford American Dictionary (2001) as to take a position |4of power or importance illegally or by force. In a legal sense, a usurper is defined by La. R.S. 42:71 (the Intrusion into Office Act) as follows:

Any person who assumes or pretends to be a public officer without the authority of an election, or without the authority of a commission from the governor when a commission is required; or who has been duly addressed out of an office that he held ... or who has been removed from such an office by impeachment or recall, is a usurper.

According to the record below, Mr. Ban-ta proved that he was duly elected by the citizens of Lafourche Parish, that he received a commission from the governor certifying same, and that he took his oath of office on January 12, 2000. Applying the above cited statutes concerning quo warranto proceedings and usurpation of office, it is clear that once Mr. Banta proved these elements, the quo warranto action was no longer viable against him and should have been dismissed. Mr. Banta was not a usurper as defined by La. R.S. 42:71.

The State further argued that pursuant to Article I, Section 10 of the Louisiana Constitution, Mr. Banta was disqualified from holding the position of Councilman, District No. 2. Article I, Section 10 of the Louisiana Constitution, as amended by 1997 La. Acts No. 1492, § l, provides, in part:

(B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.

Article I, Section 10 operates to prevent certain persons from either qualifying as a candidate for elective office or taking public office. It should be noted that at the time Mr. Banta qualified to run for Councilman, District No. 2, no individual or representative of the State filed any type of action to prevent him from qualifying. | .^Thereafter, Mr. Banta was duly elected as Councilman, District No. 2. On January 12, 2000, he received a commission from the governor certifying his election and took the oath of office. It was not until November 19, 2002, that the State, through the District Attorney’s Office, filed the instant action to remove Mr. Ban-ta from office. Thus, prior to any action being taken against him, Mr. Banta had qualified for the election and taken office as Councilman, District No. 2. Moreover, there is no evidence in the record to suggest that Mr. Banta fraudulently misrepresented himself when qualifying to run for office. His prior conviction was public record. According to the record, verification of his first offender pardon was provided to the Clerk of Court in August 1997. Accordingly, Article I, Section 10 is not applicable herein.

In filing the petition for writ of quo warranto, the State went beyond the initial question of by what authority Mr. Banta was holding his office. Rather, the State raised questions regarding his qualifications to run for office. Such issues are controlled by the statutes we commonly refer to as the “Louisiana Election Code,” in general designated as La. R.S. 18:1 et seq., and in particular, La. R.S. 18:1401 through 18:1413.

There are several other provisions that afford procedures for removing people from public office. Pursuant to La. R.S. 18:492, the grounds for an objection to the candidacy of a person qualifying for public office are set forth as follows:

A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(1) The defendant failed to qualify for the primary election in the manner prescribed by law.
(2) The defendant failed to qualify for the primary election within the time prescribed by law.
(3) The defendant does not meet the qualifications for the office he seeks in the primary election.
(4) The defendant is prohibited by law from becoming a candidate for one or more of the offices for which he qualified.

| fiThere has been no such action filed objecting to Mr. Banta’s candidacy. Moreover, pursuant to La. R.S. 18:1405(A), the time to do so has long since expired.

The Louisiana Constitution provides other methods by which individuals may be removed from public office. Article X, Section 24 provides for impeachment of a state or district official, whether elected or appointed, where during his term of office, the official either commits or is convicted of a felony or commits an act of malfeasance or gross misconduct while in such office. This particular provision does not apply to Mr. Banta as there is no such evidence in this case. Article X, Section 25 provides for removal by suit. However, this section refers to impeachment as grounds for removal by suit, which, as previously indicated, cannot be applied in the instant case. Another provision is set forth in Article X, Section 26, i.e., recall of a public official. The guidelines for recalling an elected official are provided in La. R.S. 18:1300.1 through 18:1300.17. There was no evidence introduced in this proceeding that a recall petition was filed. Therefore, this particular constitutional provision does not apply to Mr. Banta.

Based on our review of the record herein, it is clear that Mr. Banta was duly elected as Councilman, District No. 2. No one timely filed an opposition to Mr. Ban-ta’s qualifying for or taking public office. Nor has anyone filed the appropriate proceeding such as a recall petition to remove him from public office.

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed. Further, judgment is hereby rendered dismissing the State’s petition for writ of quo warranto. Appeal costs in the amount of $1,053.45 are assessed against the State.

REVERSED AND RENDERED.

MCCLENDON, J., dissents and assigns reasons.

J^MCCLENDON, J.,

dissents.

For the following reasons, I respectfully dissent. On appeal, Mr. Banta asserts that, pursuant to Article 1, section 20 of the Louisiana Constitution, he has the right to hold office of Councilman. The District Attorney, on the other hand, asserts that Article 1, section 10 governs herein.

Article 1, section 20 is entitled “Right to Humane Treatment” and provides, in pertinent part, that “[f]ull rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”

Article 1, section 10 provides as follows:
Section 10. (A) Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for a felony.
(B) Disqualification. The following persons shall not be permitted to qualify, as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not after-wards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
|2(2) A person actually under an order of imprisonment for the conviction of a felony.
(C) Exception. Notwithstanding the provisions of Paragraph (B) of this Section, a person who desires to qualify as a candidate for or hold an elective office, who has been convicted of a felony and who has served his sentence, but has not been pardoned for such felony, shall be permitted to qualify as a candidate for or hold office if the date of his qualifying for such office is more than fifteen years after the date of the completion of his original sentence. (Emphasis added.)

While Article 1, section 20 provides that full rights of citizenship shall be restored, Article 1, section 10 provides a limitation on the restoration of rights. Article 1, section 20 is a general provision allowing for restoration of rights of citizenship. State v. Adams, 355 So.2d 917, 922 (La.1978). Article 1, section 10 is a specific provision dealing with the right to vote and hold office. If one constitutional provision addresses a subject in general terms and another addresses the same subject in a more detailed way, and there is a conflict in the two provisions, the more specific provision prevails. Perschall v. State, 96-0322, p. 22 (La.7/1/97), 697 So.2d 240, 255. Therefore, Article 1, section 10 prevails over the more general provision and is applicable herein. Cook v. Skipper, 99-1448, p. 6 (La.App. 3 Cir. 9/27/99), 749 So.2d 6, 10, writ denied, 99-2827 (La.9/30/99), 745 So.2d 601.

Alternatively, Mr. Banta asserts that he properly holds office under Article 1, section 10, by virtue of his first offender pardon. The District Attorney contends that the constitution specifically requires a pardon by the governor of this state, and a first offender pardon is insufficient as it is granted without any action by the governor.

UArticle 1, section 10 was amended during the 1998 legislative session; that amendment became effective on November 5, 1998. The pertinent language of that constitutional provision is section 10(B), which provides that a person who has been convicted in this state of a felony, has exhausted all legal remedies, and “has not afterwards been pardoned by the governor of this state” shall not be permitted to take elective office. Article 4, section 5(E) provides that “a first offender ... never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”

When a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be applied as written without further interpretation in search of its intent. Succession of Lauga, 624 So.2d 1156, 1165 (La.1993). Article 1, Section 10 is clear and unambiguous; therefore, it must be applied as written. On its face, Section 10 requires a pardon by the governor, which Mr. Banta has not received as Article 4, section 5(E) grants certain felons a pardon “automatically” and “without action by the governor.” However, Article 4 of the Louisiana Constitution governs the Executive Branch, as opposed to Article 1, which is entitled “Declaration of Rights” and sets forth the rights of individuals such as the rights to privacy, vote, bear arms,. fair trial, and humane treatment. Therefore, Mr. Banta’s first offender pardon did not restore his right to hold a public office under Article 1, section 10. Malone v. Tubbs, 36,816, 36,817, pp. 11-12 (La.App. 2 Cir. 9/6/02), 825 So.2d 585, 592, writs denied, 02-2322 (La.9/11/02), 824 So.2d 1164 and 02-2448 (La.10/1/02), 826 So.2d 1110. Cf. State v. Adams, 355 So.2d 917, 922 (La.1978); Gordon v. Louisiana State Board of Nursing, 2000-0164, p. 7 (La. App. 1 Cir. 6/22/01), 804 So.2d 34, 38, writ denied, 01-2130 (La.11/16/01), 802 So.2d 607; Cook v. Skipper, 99-1448, p. 6 (La. App. 3 Cir. 9/27/99), 749 So.2d 6, 10, writ denied, 99-2827 (La.9/30/99), 745 So.2d 601.

The trial court did not err in concluding that Mr. Banta, whose date of qualifying for the office he holds was not more than fifteen years after the completion of his original sentence and who did not have a governor’s pardon, holds the office of Councilman without authority.

Finally, Mr. Banta contends that a quo warranto proceeding is not the proper procedural vehicle to seek removal of an elected official. Quo warranto is a writ directing an individual to show by what authority he holds public office. LSA-C.C.P. art. 3901. When the court finds that a person is holding office without authority, the judgment shall forbid him to do so. LSA-C.C.P. art. 3902.

Under Article 1, section 10 of the Louisiana Constitution, a convicted felon is holding office without authority unless he can show that he received a pardon from the governor or fifteen years have elapsed since the completion of his sentence. Mr. Banta, a convicted felon, pled neither circumstance in his answer. The trial court, then, conducted a hearing at which the District Attorney attempted to show that Mr. Banta had no authority to hold the office of Councilman, and Mr. Banta argued his first offender pardon was the same as a governor’s pardon. After considering the evidence and argument, the trial court rendered judgment finding that Mr. Banta held the office of Councilman without authority and in violation of | ..¡Louisiana Constitution Article 1, section 10, and rendered judgment prohibiting him from holding that office.

Admittedly, the writ of quo warranto has been used less frequently to try title to public office since the adoption of LSA-R.S. 42:76, which provides for actions to try the right to hold a public office. However, unlike the majority, I find no impediment to its use for that purpose. See Slater v. Blaize, 204 La. 21, 14 So.2d 872 (1943). Several Louisiana Attorney General Opinions, issued during the period of 1980 through 2002, confirm that the quo warranto procedure is an available procedural vehicle to remove from office an official whose qualifications do not comport with Article 1, Section 10 of the Louisiana Constitution. La. Atty. Gen. Op. Nos. 02-392 (11/6/02), 96-110 (4/8/96), and 80-257 (3/20/80). Furthermore, in the Attorney General’s opinion there is a mandatory requirement on the part of the district attorney to bring a quo warranto proceeding to remove an elected official where his right to hold office is questionable. La. Atty. Gen. Op. Nos. 02-392 (11/6/02), and 96-110 (4/8/96). Therefore, I reject Mr. Banta’s assertions that the trial court erred in deciding this issue on a petition for writ of quo warranto. For the foregoing reasons, I would affirm the judgment of the trial court.

      . The amendments to Article I, Section 10 were approved October 3, 1998, and became effective on November 5, 1998, which was prior to Mr. Banta's qualifying.

      . Louisiana Revised Statutes 18:1405(A) provides as follows:
      A. An action objecting to candidacy shall be instituted within seven days after the close of qualifications for candidates in the primary election. After the expiration of the time period set forth in this Section, no further action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492.

      . This constitutional amendment became effective before Mr. Banta qualified for and was elected to the office he holds; therefore, it applies herein. Malone v. Tubbs, 36,816, 36,817, p. 11 (La.App. 2 Cir. 9/6/02), 825 So.2d 585, 592, writs denied, 02-2322 (La.9/11/02), 824 So.2d 1164 and 02-2448 (La.10/1/02), 826 So.2d 1110; Cook v. Skipper, 99-1448, p. 8 (La.App. 3 Cir. 9/27/99), 749 So.2d 6, 11, writ denied, 99-2827 (La.9/30/99), 745 So.2d 601.


author: | .PARRO, J.

text:
    Pamela Ann RACCA v. ST. MARY SUGAR COOPERATIVE, INC., Sterling Sugars, Inc. Raphael Rodriguez, Jr., Shirley Rodriguez, Ronald James Rodriguez, State of Louisiana, Through the Department of Transportation and Development, State of Louisiana Through the Department of Public Safety and Corrections, Parish of St. Mary, Louisiana, Town of Baldwin, Louisiana, Blair J. Hebert, and State Farm Mutual Automobile Insurance Company
    No. 2002 CA 1766.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Denied May 7, 2004.

      Lawrence N. Curtis, Curtis & Lambert, Lafayette, for Plaintiff-Appellant Pamela Ann Racca.
    L. Albert Forrest, Forrest & Lopresto, New Iberia, for Defendants-Appellees Shirley and Ronald James Rodriguez, d/b/a Rodriguez Brothers Farms.
    Michael W. Campbell, Caffery, Oubre, Campbell & Garrison, L.L.P., Lafayette, for Defendant-Appellee Raphael Rodriguez, Jr.
    Robert T. Myers, Young Richaud & Myers, New Orleans, for Defendant-Ap-pellee St. Mary Sugar Cooperative, Inc.
    Richard P. Ieyoub, Marjorie G. O’Con-nor, Attorney General’s Office, Baton Rouge, for Defendant-Appellee State of Louisiana, through the Department of Public Safety and Corrections.
    James R. McClelland, Aycock, Horne & Coleman, Franklin, for Defendant-Appel-lee Parish of St. Mary.
    T. Allen Usry, John F. Weeks, II, Freeman R. Matthews, Usry, Weeks, & Matthews, New Orleans, for Defendant-Appel-lee David A. Naquin, Sheriff of St. Mary Parish.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .PARRO, J.

Pamela A. Racca (Racca) appeals from multiple judgments of the trial court, which ultimately dismissed all her personal injury claims against various defendants on summary judgments. For the following reasons, we affirm.

Facts and Procedural History

Racca was a passenger in a small pickup truck that was involved in a single-vehicle accident on Cypremort Road in the Town of Baldwin, Parish of St. Mary, Louisiana. The accident occurred about 10 p.m. on a wet and rainy night on November 24, 1996, during sugarcane harvesting time. The truck in which she was riding encountered mud on the road, went out of control, ran across the opposing lane, and crashed into a bridge crossing Kelly Canal. Racca filed suit against Blair J. Hebert (Hebert), the owner and driver of the truck; State Farm Mutual Automobile Insurance Company (State Farm), Hebert’s liability insurer; Raphael Rodriquez, Jr. (Rodriguez), a sugarcane farmer; Shirley Rodriguez and Ronald James Rodriguez (Rodriquez Brothers), sugarcane farmers who sometimes did business as Rodriguez Brothers Farm; Sterling Sugars, Inc. (Sterling), a sugar mill; St. Mary Sugar Cooperative, Inc. (St. Mary Coop), a sugarcane cooperative to which the farmers allegedly belonged; Louisiana Department of Transportation and Development (DOTD); Louisiana Department of Public Safety and Corrections (DPSC); St. Mary Parish; David Naquin, the sheriff of St. Mary Parish (the sheriff); and the Town of Baldwin.

Racca alleged that mud and debris had been tracked onto the highway by area farmers hauling their harvested sugarcane to local processors, and that the presence of these substances on the road was a causative factor in the accident. She accused the farmers, the cooperative, and the sugar mill of failing to properly train their members and employees about sugarcane farming operations, so as to either eliminate or significantly reduce the possibility of mud and other debris being tracked onto the road surface. She further asserted that the governmental entities failed (1) to warn the public of the dangerous and otherwise defective condition of the traveled portion of the road in the vicinity of the bridge, (2) to inspect the road in the vicinity of the bridge |4with sufficient regularity to discover the dangerous and otherwise defective condition of the roadway surface, and (3) to train those charged with the responsibility to inspect and maintain the traveled portion of the roadway surface in question. Racca also alleged that Hebert failed to operate his motor vehicle in a careful and prudent manner and failed to apply or timely apply his brakes to avoid hitting the bridge. She claimed the accident caused injuries to her head, neck, back, and extremities, and sought damages from all the defendants.

Subsequently, Racca voluntarily dismissed the Town of Baldwin, Hebert, and State Farm. All of the remaining defendants were eventually dismissed from the suit pursuant to the trial court’s granting of various motions for summary judgment. Following the trial court’s granting of the motions for summary judgment filed by DPSC, St. Mary Parish, and the sheriff, which dismissed the last of Racca’s claims, Racca appealed the trial court’s rulings with respect to all the summary judgments granted in favor of the defendants.

Summary Judgment

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. 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. 1st 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 (La.App. 1st 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).

|fiThe initial burden of proof is on the moving party. 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 nonmov-ing 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 of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st 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., 98-0459 (La.App. 1st Cir.4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972. The trial court cannot make credibility determinations ón a motion for summary judgment. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 236.

Liability of the Farmers

In her petition, Racca alleged that Rodriguez and Rodriguez Brothers had harvested sugarcane near the accident site and had used Cypremort Road to haul their sugarcane to two local processors. She charged that they did not take precautions to prevent or reduce the accumulation of mud and sugarcane debris on the highway.

The farmers claimed that their harvesting operations were too remote in time and/or location for the mud and debris on the road at the time of the accident to have been a product of their actions. . In support of their motions, they produced affidavits and other documents showing that when the accident occurred, it had been fourteen days since Rodriguez had hauled sugarcane on Cypremort Road in the area of the accident, and seven days since Rodriguez Brothers had hauled sugarcane on that route. Furthermore, Rodriguez averred by affidavit that the accident occurred in the vicinity of several sugar mills and adjacent to rural land used by various other farmers for growing | ^sugarcane. In opposing their motions, Racca argued that this evidence did not establish that the mud could not have remained on the road for seven to fourteen days, but offered no opposing evidence.

Racca claims the trial court improperly took judicial notice of the fact that mud does not stay on Louisiana highways for more than a day or two at a time. She also contends that because there was insufficient evidence to support the granting of the farmers’ motions, the judge had visited the accident site. She argues that the judge’s visit to the scene resulted in a supplementation of the record and/or allowed the judge to assess the credibility of the evidence offered in favor of these motions.

Concerning the judge’s visit to the accident site, we note that this visit occurred in the summer of .1998 after a.hearing on motions for summary judgment filed by several of the defendants. At that hearing, the judge stated, “I just want to see exactly where you are saying this took place,” and asked the attorneys to accompany him and point out the accident site. This visit in the summer of 1998 could not have added anything to the judge’s understanding of whether or not the farmers named in the lawsuit had deposited mud and debris on the road at that site in November 1996. More significantly, because this court conducts a de novo review of the evidence when evaluating the propriety of a summary judgment, any inferences that might have been drawn by the trial judge as a result of a site visit or from taking judicial notice of certain facts do not impact this court’s conclusions on appeal.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the |7damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76.

Racca had the burden of proof at trial on the liability issue. Therefore, the farmers, as movers, were not required to negate all essential elements of Racca’s claims, but merely to point out an absence of support for one or more of those elements. The farmers’ motions for summary judgment were supported by evidence establishing the remoteness in time of their work in this area and the presence of other farming operations near the site. Their evidence showed Racca would not be able to prove that either of their farming operations caused or contributed to the mud on Cypremort Road on the day of the accident, thus demonstrating an absence of factual support for the cause-in-fact element.

The burden of proof then shifted to Rac-ca to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial on this element. Racca produced no evidence to indicate that, contrary to their assertions, Rodriguez and/or Rodriguez Brothers actually were hauling sugarcane on Cypremort Road during the week immediately preceding the accident or that any of their harvesting activities actually tracked mud onto that road at that site at that time. Additionally, Racca did not offer factual support to establish that mud from their operations could have remained on the road for a period of seven/fourteen days. Instead, she faulted the farmers for not offering evidence to show the weather conditions in the seven/fourteen days preceding the accident, the construction and characteristics of the road, or other activity that had taken place on this road seven/fourteen days prior to the accident. However, the burden was on Racca to produce such evidence to establish that she would be able to satisfy her evidentiary burden of proof at trial that the farming operations of either of these farmers caused or contributed to the condition of the road on the date of the accident. In light of her failure to do so, we conclude that summary judgment in favor of the farmers was appropriate.

\ ¿Liability of the Sugarcane Cooperative and the Sugar Mill

Racca’s claims against St. Mary Coop and Sterling are based on their failure to properly train, regulate, or manage their members and employees about sugarcane farming operations, so as to either eliminate or significantly reduce the possibility of mud and other debris being tracked onto the road surface. Based on these allegations, the liability of St. Mary Coop and/or Sterling is contingent on their members, employees, or someone else subject to their authority having caused or contributed to the condition of the roadway. See LSA-C.C. art. 2320.

In affidavits supporting their motions, managing employees of these defendants averred that these entities did not own, lease, or control the farms; that they did not participate in sugarcane farming operations; that they merely purchased and took possession of the sugarcane when it was delivered; and that none of their vehicles were involved in hauling anything at or near the accident site during the time immediately preceding the accident. These affidavits established that neither St. Mary Coop nor Sterling conducted any activities through their own employees that might have deposited mud on the roadway. Racca presented no evidence to the contrary to show she could establish the cause-in-fact element essential to her claim. Therefore, there could not be liability based on the activities of these entities through their own employees.

Furthermore, Racca could not demonstrate that Rodriquez and/or Rodriguez Brothers, the only sugarcane farmers named in the lawsuit, were the source of the mud on the road at the time of the accident. With the dismissal of her claims against them on summary judgment, any alleged vicarious liability of St. Mary Coop and/or Sterling could not be based on the actions or inactions of these farmers.

Racca submitted an affidavit from James David Whidden, an official with the State of Florida whose experience included three years as the harvesting foreman for a sugar growers cooperative in Florida. Relying on this affidavit, Racca asserts that St. Mary Coop and/or Sterling owed her an independent duty to regulate aspects of the sugarcane harvest by setting standards and refusing to accept produce from members |9and farmers who did not meet those standards. Even accepting for the sake of argument the opinion of Racca’s expert that these entities had a duty to attempt such regulation, any such standards could only be addressed to the activities of farmers who are members of the cooperative or who bring their produce to this mill. Racca produced no evidence that the mud on the roadway was deposited there by anyone who might have been subject to regulation by either St. Mary Coop or Sterling. Therefore, she did not establish that any amount of attempted regulation by the cooperative or the mill would have made any difference in this case.

Finally, although Racca’s expert also opined that St. Mary Coop and Sterling had a duty to erect warning signs to advise motorists that certain areas of the highway might have mud and sugarcane debris during the harvest season, that contention has already been dealt with and rejected in a similar context in Bijeaux v. State, Dep’t of Transp, and Dev., 97-224 (La.App. 3rd Cir.10/29/97), 702 So.2d 1088, 1092. In that case, the court found that even though a statute specifically authorized DOTD to install temporary warning signs of hazards in areas where sugarcane is harvested, it did not impose a legal duty on DOTD to provide such signs. See LSA-R.S. 48:346.1. The court noted that such a requirement “would necessitate hundreds of signs along Louisiana highways” during sugarcane harvesting seasons, which would be excessive and ultimately ineffective. Bijeaux, 702 So.2d at 1092. If there was no such duty on DOTD, which has primary responsibility for highway maintenance and a specific authorizing statute, there certainly could not be a duty on the sugar cooperative and/or sugar mill, whose responsibilities have nothing to do with highway maintenance and whose authority to regulate in this area was non-specific.

Racca failed to demonstrate that she would be able to establish at trial that St. Mary Coop or Sterling had any vicarious or independent liability under the facts of this |incase. Accordingly, we find no error in the granting of the motions for summary judgment and dismissal of her claims against St. Mary Coop and Sterling.

Liability of the Governmental Defendants

Racca claimed DPSC, St. Mary Parish, and the sheriff were negligent in failing to adequately and properly patrol Cypremort Road where the accident occurred, in failing to discover and warn of the regularly occurring hazard on this road, and in failing to take steps to remedy the hazard. In their motions for summary judgment, the governmental defendants essentially contended that (1) there was no defect, i.e., the condition of the road did not present an unreasonable risk of harm, (2) they owed no duty to warn because the condition was open and obvious, and (3) they did not have actual or constructive notice of the condition of the road at the time of the accident, and therefore did not breach any duty to warn or remove the condition.

St. Mary Parish supported its motion with the affidavit of its superintendent of public works, Jackie P. Hebert. The superintendent averred that he had checked with everyone who should or would have received any calls concerning problems on Cypremort Road on or before November 24, 1996, and had determined that neither he nor anyone else responsible for road maintenance for the parish received any notice of mud or debris on the road at that time. He also stated that no parish records reflected any such notice. Additionally, although parish maintenance crews regularly conducted roadside maintenance, none had been performed on the 23rd or 24th, which were a Saturday and Sunday. The work schedule showed that grass cutting had been done somewhere along Cypremort Road during the week preceding (and the week following) the accident, but there was no notice of a hazardous condition on the road during the regular maintenance activities. He further noted that the area where the accident occurred is a very lightly traveled and lightly populated, “extremely rural” area.

Henry C. LaGrange, the chief administrative officer for St. Mary Parish, averred in his affidavit that any calls “complaining of and/or providing notice of mud and/or debris on any Parish Road” would be made to him or to one of three other people, whom he named. He stated he did not have or receive any such notice. Each of the three Inpossible persons to whom such calls would be referred declared via separate affidavits that he or she received no telephone call of this nature relative to Cypremort Road on or before November 24, 1996, and that nothing in the parish records reflected any such notice.

The sheriff submitted his own affidavit, which also stated that before the accident on November 24, 1996, no documented calls or requests were made to him or his office concerning debris or mud on Cypre-mort Road. He further stated that neither he nor any person associated with his office was aware of the specific conditions at the accident site that day.

DPSC supported its motion with a lieutenant’s affidavit and its radio and desk logs for November 23 and 24; these established that there were no reported complaints or information regarding the condition of Cypremort Road on either day. It also submitted the deposition of the driver of the small pickup truck involved in the accident. Hebert said that he traveled Cypremort Road on his way to band practice about 6 p.m. and observed “chunks” of dirt in the opposing lane of travel, but “not really mud like all the way across the lane.” He saw no other sugarcane debris on the road. He noticed there was more dirt in that lane than in the lane he was driving. Having grown up in the area, Hebert was aware that mud and debris was often tracked onto the roads during the harvesting season. He did not notify anyone of the condition. Hebert said rain continued “pretty hard” the whole time he was at band practice, which “must have made [the road] a little bit slicker.” When he left band practice, he returned by the same route. The heavy rain had stopped, but it was still misting. Hebert said he saw the mud in his lane as he approached and knew he was getting ready to drive through it, but did nothing to slow or alter his driving until he felt his truck “fishtail” or hydroplane. At that point, he could 'not steer the vehicle. Hebert also said that several other band members had driven the same route after band practice about ten minutes before he traveled it; none of them experienced any difficulty at the site.

Racca opposed the motions with affidavits from several people who lived along Cypremort Road. Robert Dumesnll, the owner of,the home where the band practiced, Instated that on the day of the accident, the area where it occurred was covered with a substantial amount of mud and debris, making the road very slippery and difficult for vehicular traffic to safely traverse. He also said that before November 24, 1996, he had observed sugarcane harvesting operations being conducted in the nearby fields, resulting in mud and debris being tracked and dropped from the tractors and carts onto the roadway near the accident site. He said this was a common occurrence during sugarcane harvesting •season and had caused accidents in that area in previous years. Finally, he stated that in previous years, the accumulation of mud and debris on the road sometimes “reached such proportions that the fire department has been called to wash said road with high-pressure hoses.” An affidavit from another resident, Frances Wagner, said she encountered slippery conditions due to mud and debris on Cypremort Road when driving near the accident site earlier on the day it occurred. In addition to noting that this was a regular occurrence during sugarcane harvest, she stated that in previous years, the mud and debris on the road sometimes forced her to “take evasive actions such as driving in the opposing lane of travel” to avoid it.

Racca also noted that Sterling’s president and CEO, Craig P. Callier, confirmed in his deposition that deposits of mud and debris on the roads were a common condition during sugarcane harvest. State Police Lieutenant John Medlin also acknowledged that these substances are tracked onto the roadways and presented a driving hazard when extreme amounts were present. Racca argues this evidence showed the governmental defendants had actual or constructive knowledge that mud and debris created a hazardous condition on the Cypremort Road at the time of the accident, and breached their duty to warn drivers or correct the condition.

Law enforcement officers of the state or its political subdivisions have authority vested in them by law to direct, control, or regulate traffic and enforce the provisions of the Traffic Code and regulations of the Department of Public Safety. LSA-R.S. 32:5; Blair v. Tynes, 621 So.2d 591, 596 (La.1993). See also LSA-R.S. 32:3(A), LSA-R.S. 36:401(B)(1), and LSA-R.S. 30:2531.3. When a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that motorists h<¡are not subjected to unreasonable risks of harm. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1177. The imposition of liability under general negligence principles requires proof that the defendant had actual or constructive knowledge of the risks and failed to take corrective action within a reasonable time. Hardenstein v. Cook Constr., Inc., 96-0829 (La.App. 1st Cir.2/14/97), 691 So.2d 177, 183, writ denied, 97-0686 (La.4/25/97), 692 So.2d 1093; Burdis v. Lafourche Parish Police Jury, 618 So.2d 971, 976 (La.App. 1st Cir.), writ denied, 620 So.2d 843 (La.1993).

The evidence submitted by the governmental defendants in support of their motions established that they had no actual knowledge that mud and debris along Cypremort Road had accumulated to a dangerous level on the day the accident occurred. It is only when those responsible become aware of a hazardous condition that they are required to take corrective action within a reasonable time.

Racca contends that her evidence shows the governmental defendants had constructive knowledge, since this was a widely-known, recurring condition, citing Hennigan v. Vernon Parish Police Jury, 415 So.2d 584 (La.App. 3rd Cir.1982) and Lognion v. Calcasieu Parish Police Jury, 503 So.2d 1092 (La.App. 3rd Cir.), writ denied, 507 So.2d 227 (La.1987). Constructive notice exists when the defect or condition has existed for such a period of time that it would have been discovered and remedied had the public body exercised reasonable care. Lutz v. City of Shreveport, 25,802 (La.App. 2nd Cir.5/4/94), 637 So.2d 636, 639, writ denied, 94-1487 (La.9/23/94), 642 So.2d 1294. However, in Lognion, the defendant had actual knowledge of the defective condition of a particular section of gravel road for at least five months, knew that it required grading twice a week to be properly maintained, but did not do what was necessary to keep it in safe driving condition. Lognion, 503 So.2d at 1097. Similarly, in Hen-nigan, the defendant knew there was a large hole in a wooden bridge, had “patched” the hole on several occasions, knew the repairs only sufficed for several days, but did nothing‘to warn of its existence or make permanent repairs. Hennigan, 415 So.2d at 585. These cases involve actual knowledge of a serious hazard at a | uParticular location and the responsible governmental agency’s conscious failure to take adequate corrective action.

In contrast, the undisputed facts in this case are that mud and debris are tracked onto innumerable roads in many locations for weeks and months during every sugarcane harvest season. Although this is indeed a widely-known, recurring condition, the evidence also shows it is not a hazardous condition at all times and in all places. It is only at certain times, in certain locations, and under certain circumstances that mud and debris accumulates to such an extent that a potential driving hazard is created. The evidence in this case is that at some times in some previous years, such an accumulation had occurred in the accident vicinity. That does not make this a constant or consistently recurring hazardous condition that existed for such a length of time that the governmental authorities can be charged with constructive knowledge of it.

Racca further argues that the governmental entities should have patrolled more often in order to discover such conditions. However, the evidence she offered does not show that on the day of the accident, the condition existed for such a length of time that regular patrols would have discovered it or would have had a reasonable time to correct it. We decline to find that the normal occurrence of mud on a rural road during the sugarcane harvesting season gives a governmental entity with the duty to patrol the roadway constructive knowledge as to an accumulation of mud that presents an unreasonable risk of harm. Moreover, we note that the lack of a plan to conduct periodic inspections of the roadways does not impute constructive notice of a defect to a public body. Jones v. Hawkins, 98-1259, 98-1288 (La.3/19/99), 731 So.2d 216, 220.

The duty to warn of or remedy an unreasonably hazardous condition does not arise until there is actual or constructive knowledge on the part of the defendants that such a condition exists. Even if we assume that the accumulation of mud on the roadway at the time of the accident presented a hazardous situation, Racca’s evidence does not establish that this road condition was actually or constructively known to the governmental defendants. Therefore, under these facts and as a matter of law, there was no duty to act.

|1sBased on the affidavits and other evidence offered by the three governmental defendants in support of their respective motions for summary judgment, the burden shifted to Racca to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial that DPSC, St. Mary Parish, and/or the sheriff had actual or constructive knowledge of a hazardous condition on Cypremort Road at the accident site on November 24, 1996. Because her evidence failed to establish a genuine issue of material fact on this essential element of her cause of action, we conclude the trial court properly entered summary judgment in favor of DPSC, St. Mary Parish, and the sheriff.

Decree

For the foregoing reasons, the judgments of the trial court are affirmed. Costs of this appeal are assessed to Pamela A. Racca.

AFFIRMED.

      . Racca dismissed the portion of the appeal pertaining to DOTD.

      . The rights, powers, liabilities, and duties of agricultural cooperative associations are governed by LSA-R.S. 3:71 et seq. While there is nothing in these provisions specifically authorizing or requiring the warnings, training, or preventative measures suggested by Racca and her expert, the trial court recognized that the broad provisions of the statutory scheme might allow the cooperative to propound such regulations. The authority to do so, however, does not equate to a duty to do so. See Bijeaux v. State, Dep’t of Transp, and Dev., 97-224 (La.App. 3rd Cir. 10/29/97), 702 So.2d 1088, 1092.