author: h SULLIVAN, Judge.

text:
    BATON ROUGE PRESS, INC. v. Donna J. ANDRIES, et al.
    No. 03-808.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Thomas R. Temple, Jr., Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintifi/Appellant, Baton Rouge Press, Inc.
    Stephen D. Wheelis, Wheelis & Rozan-ski, Alexandria, LA, for Defendant/Appel-lee, Want Ads of Alexandria.
    Amanda Wood Barnett, Attorney at Law, Alexandria, LA, for Defendant/Ap-pellee, Donna J. Andries Rapides Parish Sales & Use Tax Department.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ARTHUR J. PLANCHARD , Judges.

       Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   h SULLIVAN, Judge.

Baton Rouge Press, Inc. (Baton Rouge Press) appeals the dismissal of its suit against Want Ads of Alexandria (Want Ads) to recover sales taxes that it paid under protest as the result of its business transactions with Want Ads. For the following reasons, we affirm.

Discussion of the Record

Baton Rouge Press, a printing business located in East Baton Rouge Parish, prints a publication known as the “Thrifty Nickel Want Ads” on behalf of Want Ads, which is located in Rapides Parish. After printing the publication in Baton Rouge, Baton Rouge Press delivers it to Rapides Parish, where it is distributed by Want Ads.

On April 18, 2001, Donna J. Andries, Sales Tax Administrator for the Rapides Parish Sales and Use Tax Department (the Department), issued a final assessment to collect $44,614.48 in sales taxes, interest, and penalties against Baton Rouge Press for its failure to collect sales taxes on its transactions with Want Ads between February 1998 and November 2000. Baton Rouge Press paid the assessment under protest, then filed this suit for a refund against the Department and Want Ads. In its petition, Baton Rouge Press first disputed that it owed any taxes, alleging (1) that Want Ads’ publication is either a newspaper or catalogue exempt from taxation under La.R.S. 47:305(D)(l)(e) and/or La.R.S. 47:305.49 and (2) that Baton Rouge Press had no obligation to collect the taxes because its only contact with Rapides Parish was delivery of goods within the taxing jurisdiction. In the alternative, Baton Rouge Press alleged that, should it owe the taxes, then La.R.S. 47:304(C) allows it to recover them from Want Ads.

| ¡Want Ads filed an exception of no cause of action and failure to state a claim upon which relief can be granted, arguing (1) that it is not liable for any taxes under La.R.S. 47:304(C) because it is a “purchaser or consumer” rather than a “dealer” and, in the alternative, (2) that the statute makes no provision for reimbursement of a tax in favor of a dealer that neglects, fails, or refuses to collect the tax. After taking the matter under advisement, the trial court granted Want Ads’ exception without issuing reasons for judgment.

Opinion

“The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Pittman v. Beebe, 95-1342, p. 4 (La.App. 3 Cir. 3/6/96), 670 So.2d 761, 763, writ denied, 96-0882 (La.5/10/96), 672 So.2d 931. “The court reviews the petition and accepts well-pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Id. An appellate court considers the granting or denial of an exception of no cause of action de novo because the exception presents a question of law. Ewing v. Armstrong World Indus., Inc., 02-918 (La.App. 3 Cir. 2/19/03), 846 So.2d 813.

Baton Rouge Press argues that, as a “dealer” under La.R.S. 47:301(4), it may recover directly from Want Ads, a “purchaser or consumer,” any sales tax that it should have collected and may owe the Department, as provided in the first sentence of La.R.S. 47:304(C):

Dealers shall, as far as practicable, add the amount of the tax-imposed under this chapter in conformity with the schedule or schedules to be prescribed by the collector pursuant to authority conferred herein, to the sale price or charge, which shall be a debt from the purchaser or ^consumer to the dealer, until paid, and shall be recoverable at law in the same manner as other debts. Any dealer who neglects, fails or refuses to collect the tax herein provided, shall be liable for and pay the tax himself.

In support of its position, Baton Rouge Press cites C.J. Richard Lumber Co., v. Melancon, 476 So.2d 1018 (La.App. 3 Cir.), writ denied, 478 So.2d 1236 (La.1985), in which we held that Section 304(C) authorized the recovery of state sales tax by a materialman who sought to enforce a lien under the Private Works Act against a homeowner whose contractor had defaulted on the payment of materials that were used in improving the home. Relying on the first sentence of Section 304(C), we reasoned:

As dealers of merchandise are statutorily required to collect sales taxes, we conclude that plaintiff should not be made to bear the loss attributable to sales taxes on materials sold and used in improving the defendants’ home and on which plaintiff is statutorily required to pay sales tax to the taxing authority. The statute specifically authorizes a dealer to add the tax to the sales price which shall be a debt owed to the dealer from the purchaser or consumer until paid.... We therefore uphold the correctness of the trial court’s inclusion of sales taxes in the amounts which are recoverable under LSA-R.S. 9:4802.

Id. at 1025.

Want Ads, however, distinguishes C.J. Richard Lumber Co. from the present case by pointing out that the “dealer” in that case, the materialman, collected the tax at the time of sale, whereas Baton Rouge Press, the “dealer” here, did not. This distinction, Want Ads argues, triggers the second sentence of Section 304(C): “Any dealer who neglects, fails or refuses to collect the tax herein provided, shall be liable for and pay the tax himself.” (Emphasis added.) Want Ads’ interpretation of the statute is based upon the first circuit case of Southland Oil Co. v. Jenkins Bros. Asphalt Co., Inc., 563 So.2d 1238 (La.App. 1 Cir.), writ denied, 568 So.2d 1054 (La.1990). In Southland, a “dealer” from Mississippi admittedly “under billed” or did 1 ¿not add Louisiana sales tax to the price of asphalt purchased by a Louisiana company. The first circuit held that, under those circumstances, the Mississippi dealer could not recover against the Louisiana purchaser the sales taxes that it had paid pursuant to a state audit after the transaction:

Under the provisions of LSA-R.S. 47:304 C, Southland, a dealer that failed to collect the Louisiana tax, was liable itself for payment of the tax. Regardless of the obligation that the statute imposes upon purchasers, the statute mandates that dealers collect the taxes or pay the taxes themselves. Thus, payment by a dealer who fails to collect from his purchaser is payment of the dealer’s debt, not the purchaser’s debt. Principles of subrogation and/or indemnity do not apply.

Id. at 1239 (emphasis added) (footnote omitted).

In reaching this conclusion, the first circuit discussed both the language of Section 304(C), as well as the policies supporting such an interpretation:

In our opinion the language of subd. C is clear and unambiguous; we must apply the last sentence as it is written. LSA-C.C. art. 9. The interpretation that the trial court made of the first sentence of subd. C, regarding the buyer’s obligation to the dealer, destroys the meaning of the last sentence, regarding the dealer’s obligation to the State. We cannot presume that the legislature inserted meaningless language into the statute. Bunch v. Town of St. Francisville, 446 So.2d 1357 (La.App. 1st Cir.1984).
Nor does our reading of subd. C reveal a legislative intent to allow the dealer to collect from the purchaser after the dealer has paid the tax ivhich he failed to collect contemporaneously with the purchase price. If the legislature had so intended, a provision for indemnification could have been written in. We realize this interpretation of LSA-R.S. 47:304 C differs from the result in American Cast Iron Pipe Co. v. Volentine, 191 So.2d 661 (La.App. 2d Cir.1966), the case followed by the court below. But the opinion in Volentine fails to specify whether or not the dealer was chargeable mth an act or omission sufficient to trigger the second sentence of subd. C. To the extent that our opinion conflicts with Volentine, we decline to follow the decision of our brethren of the second circuit.
Furthermore, when coupled with the rationale of Volentine, the realities of the marketplace provide disparate opportunities for redress 1 ,-for dealers. In the case of some businesses, such as the contractor’s and materialman’s businesses involved in the instant litigation, records are kept of transactions, enabling actions against purchasers long after the completed sales. But in the case of most other businesses, such as retailers, records of transactions usually are unavailable. If we were to interpret LSA-R.S. 47:304 C as the second circuit has done, absurd consequences would flow, with some dealers able to recoup their funds and others relegated to their own pockets. Business cannot function within, and the law cannot sanction, such a lack of uniformity and certainty.

Id. at 1239-40 (emphasis added).

The Rapides Parish sales tax ordinance also has a section that parallels La.R.S. 47:304(C). The ordinance, however, appears consistent with Southland, in that its language more directly links the dealer’s right to recover from the purchaser to the adding of the tax to the purchase price. Rapides Parish Code Sec. 23-28 (4.03) provides:

The dealer shall, as far as practicable, add the exact amount of the tax imposed under this article, or the average equivalent thereof, in conformity with the rules and regulations to be issued by the collector, to the sale price or charge, and when added, such tax shall constitute a part of such price or charge and shall be a debt from the purchaser or consumer to the dealer, until paid, and shall be recoverable at law, in the same manner as other debts. Any dealer who shall neglect, fail or refuse to collect the tax herein provided shall be liable for, and pay the tax himself.

(Emphasis added.)

Baton Rouge Press seeks to distinguish Southland because the first circuit noted in that ease that the taxing authority was not a party to the litigation and that the dealer acquiesced in the assessment rather than paying by protest, two factors that are present here. However, we do not find these distinctions material to the question before us. The presence of the Department and the payment under protest concern Baton Rouge Press’s demand for a refund from the Department, and not whether the statute or ordinance affords Baton Rouge Press a right to proceed against Want Ads. [ (¡Based upon the South-land decision and the language of the parish ordinance, we find that the trial court correctly granted Want Ads’ exception of no cause of action.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Appellant, Baton Rouge Press, Inc.

AFFIRMED.

      . This opinion does not address Baton Rouge Press's claim against Donna J. Andries, Sales Tax Administrator for the Rapides Parish Sales and Use Tax Department.


source: Caselaw Access Project

author: I/THIBODEAUX. Chief Judge.

license: Public Domain

text:
    Dana DESSELLE v. Michael LaFLEUR, et al.
    No. 03-562.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      John Taylor Bennett, Bennett Law Offices, Marksville, LA, for Plaintiff/Appel-lee — Dana Desselle.
    Lawrence Lyle Parker, Bolen, Parker & Brenner, Alexandria, LA, for Defen-danVAppellee — Liberty Mutual Fire Ins. Co.
    John Scott Thomas, Baton Rouge, LA, for Defendants/Appellants — Town of Cot-tonport and Michael LaFleur.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   I/THIBODEAUX. Chief Judge.

In this personal injury case, appellants, Officer Michael LaFleur and the Town of Cottonport (Cottonport) appeal a judgment of the trial court in favor of appellee, Dana Desselle. After denying the defendants’ motion for continuance and at the conclusion of trial, the trial court found the defendants to be one hundred percent at fault for the damages suffered by Ms. Des-selle. She was awarded a total of $450,480.61 for general damages, past medical expenses, future medical expenses and future earnings. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

The issues for review in this case are whether the trial court should have granted the defendants’ motion for continuance, whether the general damage award is excessive and whether the trial court improperly awarded Ms. Desselle $10,944.00 for her loss of future income.

II.

FACTS

On October 6, 2001, Officer LaFleur ac-cidently backed his police unit into the vehicle operated by Ms. Desselle. The evidence reveals that Officer LaFleur’s vehicle was moving at a slow rate of speed. Although Ms. Desselle’s vehicle incurred minimal damage, she claims in her brief that when the two cars collided, she “flew forward, then backward, hitting her head on the headrest.” After | athe collision, Ms. Desselle was taken to the hospital by ambulance. Soon after the accident, Ms. Desselle began conservative treatment with Dr. Bryan McCann, a local family practitioner. She began seeing an ortho-paedist, Dr. Louis Blanda, on June 8, 2002. Ms. Desselle underwent an MRI in June 2002. Dr. Blanda issued a report indicating that Ms. Desselle had herniated discs. The defendants did not receive a copy of Ms. Desselle’s MRI until August 30, 2002, during the deposition of Dr. McCann. The trial date was set for November 26, 2002. Defendants contended that the MRI report indicated degenerative changes of her cervical spine and spurs, but did not mention disc herniations. Although there was no mention of Ms. Desselle’s need for surgery until Ms. Desselle’s counsel faxed a medical report on November 13, 2002, indicating that Dr. Blanda recommended surgery to repair her disc herniation, the trial court refused the defendants’ request for a continuance to allow them to seek a medical examination. Thereafter, a bench trial was held and the trial court found in favor of Ms. Desselle. It is from this judgment that the defendants appeal.

III.

LAW AND DISCUSSION

Continuance

The defendants assert that the trial court erred in denying their motion to continue the trial. They base their assertion on the fact that they did not know that Dr. Blanda was going to recommend surgery to repair her herniated discs until nineteen days before trial. Because the trial date was imminent, they were unable to have a medical examination conducted by a doctor of their choice. They were forced, instead, to use a doctor who no longer performed surgery and who happened to be available. Conversely, Ms. Desselle asserts that the defendants were well aware that 1 Sshe had a herniated disc and that surgery was one option available to repair the problem.

When the trial court denied the defendants’ motion to continue, they filed an application to this court for a supervisory writ to review the trial court’s decision. On November 22, 2002, we denied the defendants’ application finding that the trial court did not abuse its discretion in denying the continuance. Review of an issue previously addressed by an appellate court is generally precluded by the law of the case doctrine. Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95), 649 So.2d 1158. The doctrine operates to avoid relitigation of the same issue. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., (La.App. 3 Cir. 4/2/03), 844 So.2d 380, writs denied, 03-1585, 03-1624 (La.10/31/03), 857 So.2d 476. This doctrine not only applies to those decisions of an appellate court that arise from the full appeal process but to all decisions of an appellate court, including decisions on writ applications. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365. However, the law of the case doctrine does not absolutely bar this court from reconsidering its prior decisions; rather it is discretionary. Ducote v. City of Alexandria, 97-947 (La.App. 3 Cir. 2/4/98), 706 So.2d 673, writs denied, 98-1061 & 98-1070 (La.5/29/98), 720 So.2d 671. “The doctrine is flexible, and [the courts] are allowed to deviate from it in cases where it would cause an obvious injustice or where the earlier appellate decision was clearly erroneous.” Hazelwood, 844 So.2d at 386.

The factual circumstances in this appeal are not much different than the information produced by the parties in the writ application on which we based our earlier ruling. Our earlier ruling was not clearly erroneous. Under these | circumstances we will not revisit our earlier decision. The trial court’s denial of the defendants’ motion to continue was proper.

General Damages

The defendants contend that general damages in the amount of $350,000.00 awarded to Ms. Desselle by the trial court is excessive and that the failure of the trial court to award a lower amount was an abuse of discretion.

The standard for an appellate court’s review of damages was well established in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Suffice it to say, we will not disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). After carefully reviewing the record, we find that the trial court did not abuse its great discretion in awarding Ms. Desselle $350,000.00 for general damages.

As noted above, the accident occurred when Officer LaFleur backed into Ms. Desselle’s vehicle. By deposition testimony, Officer LaFleur stated that Ms. Des-selle’s vehicle was stopped behind his police unit. While stopped, he saw a witness in a parking lot with whom he wanted to talk. He attempted to move his police vehicle by putting it in reverse and taking his foot off the accelerator. However, he did not touch the accelerator. Officer La-Fleur testified that he was' going one to two miles per hour. However, the police report states that he was going five miles per hour. Regardless of the actual miles per hour the car moved, this was a low impact collision. The back of his police unit hit the front bumper of Ms. Desselle’s car.

| ¡Although the police report stated that there was no damage to either car in the collision, Ms. Desselle had her vehicle evaluated and testified that her car’s bumper was damaged. The estimate to repair the damage was $630.18. Ms. Desselle also suffered neck and back injuries as a result of the accident. Immediately after the accident, she went to the hospital where she complained of moderate neck pain. Since the accident, she has been treated for not only her back and neck injuries but also for temporomandibular joint dysfunction (TMJ) which she also claims resulted from the accident. With respect to the TMJ dysfunction, Dr. Robert Johnson, the dentist who first examined Ms. Desselle on September 18, 2002, almost a year after the accident, testified that she complained of the pain coming from her jaw going down both the sides and back of her neck. Dr. Johnson performed the first of possibly three “full mouth equilibration[s].” Ms. Desselle will require annual dental visits for the rest of her life to “touch up” the equilibrations. The trial court found Dr. Johnson and Ms. Desselle to be credible with respect to her complaints of pain, the doctor’s diagnosis of TMJ, and treatment therefore. The trial court also found it believable that Ms. Desselle suffered TMJ as a result of the car accident.

On January 14, 2002, Ms. Desselle sought treatment for her back pain first from Dr. McCann, after her hospital emergency room visit. Her hospital x-rays revealed no fractures, normal disc spaces and normal spine alignment. She was given prescriptions for Vioxx, a medication that alleviates acute pain and Flexeril, a muscle relaxant. In her deposition testimony, Ms. Desselle said that after her first visit, Dr. McCann told her to return to his office as needed. She further testified at trial that she had no reason to see Dr. McCann until March 20, 2002. Ms. Des-selle explained that after attending a seminar on March 14, 2002, where she sat in hard metal and wood chairs all day, she experienced continued back pain.

lnOn June 13, 2002, Ms. Desselle saw Dr. Louis Blanda for the first time. In all, Ms. Desselle saw Dr. Blanda three times. Prior to her last visit on November 7, 2002, Dr. Blanda recommended that her back and neck problems be treated conservatively. Ms. Desselle had been attending physical therapy to alleviate her pain as well as taking prescribed medications. The option of Ms. Desselle undergoing surgery was discussed during her August 8, 2002, visit with Dr. Blanda. However, it was Ms. Desselle who wanted to continue conservative treatment. At her November 7, 2002, appointment with Dr. Blanda, Ms. Desselle told him that her pain had worsened and that she wanted to have the surgery. Dr. Blanda agreed with Ms. Desselle as to the worsening of her condition and her need for surgery to alleviate her continued pain. Dr. Blanda recommended that she have an anterior cervical diskectomy/fusion at the C5-6, C6-7 levels.

Dr. Gidman, hired by the defendants to examine Ms. Desselle and her medical records, concluded that she did not have disc herniation or rupture but instead had degenerative changes in her spine unrelated to her accident. He conceded, however, that the accident may have aggravated her pre-existing condition. Dr. Gidman concluded that Ms. Desselle would not benefit from surgery. It is clear from our review of the record that the trial court found Ms. Desselle and her physicians, Drs. Blanda and McCann, more credible on the issues of causation and the extent of the injuries she suffered in the accident.

The defendants make much of the fact that Ms. Desselle could not have been hurt as badly as she claims because Officer LaFleur’s vehicle did not collide with her vehicle at a high rate of speed and because the damage to her vehicle was minimal. Essentially, the defendants contend that low property damage equates to minimal impact and therefore minimal injuries. We rejected this contention in Davis v. Martel, p. 7 (La.App. 3 Cir. 7/18/01), 790 So.2d 767, 772, writ denied, 01-2399 (La.11/21/01), 801 So.2d 1087 where we stated, quoting the second circuit decision of Seegers v. State Farm Mutual Auto. Ins. Co., 188 So.2d 166, 167 (La.App. 2 Cir.1966):

It is strenuously urged that the force of impact was so slight it could not have caused the injuries of the nature and extent complained of by the plaintiff, Ms. Seegers. This argument, in part is based upon the evidence and the record to reflect that the only damage to the rear of the Seegers’ automobile was the breaking of the tail pipe bracket and a small dent in the rear bumper requiring a cost of repairs of only $448.88. While it is indisputable [sic] true that the impact as [sic] slight, we think it would be dangerous precedent to attempt to measure the degree of injuries in direct proportion to the force of the collision. The testimony of both the medical expert and the lay witnesses established the fact that Ms. Seegers did sustain some injuries and the minimal force of the collision is, therefore, of no material importance.

Like the plaintiff in Davis, there is not even a slight indication by the medical evidence and witness testimony that Ms. Desselle feigned her neck and back injuries following the accident. Both her family physician and orthopaedic surgeon indicate positive findings of cervical problems. Dr. Blanda suggested Ms. Desselle undergo surgery to alleviate her pain. At the time of trial, Ms. Desselle had not yet undergone surgery and was still in pain. Ms. Desselle had over a year of pain since the accident, will have to undergo surgery and will most likely have some pain and suffering subsequent to the surgery during her recuperation. Under these facts, we find that the trial court did not abuse its discretion in its general damage award of $350,000.00.

Future Loss of Income

The trial court awarded Ms. Des-selle $10,944.00 for loss of future earnings. This amount was based on her current rate of pay of $11.40 per hour at pforty hours per week for six months. Dr. Blan-da testified that although some patients can go back to office type work within three weeks after surgery, they would still have to wear a back brace for three months. Further, some patients are unable to get back into physical activity until six months post surgery. Additionally, Ms. Desselle will be required to miss work to attend follow-up visits and have x-rays taken after surgery. Moreover, regardless of her post-surgical back condition, she must still contend with her TMJ injury that will require one to two more full-mouth equilibriums, again causing her to be absent from work. The trial court found from the facts in this case that in Ms. Desselle’s case, she would need longer than three weeks to recover from her inju-nes and to recuperate from her scheduled surgery.

In Fontenot v. Southwestern Offshore Corp., 00-1722, p. 6 (La.App. 3 Cir. 6/6/01), 787 So.2d 588, 593, writ denied, 01-1913 (La.10/12/01), 799 So.2d 504 we stated:

To recover an award for future loss of earnings, the plaintiff must present medical evidence that indicates with reasonable certainty that a residual disability causally related to the accident in question exists, which results in the plaintiffs inability to earn wages to the same extent he could have earned had he not been injured.

We find that the medical evidence was sufficient to support an award of $10,944.00 for future lost earnings damages and was not an abuse of discretion by the trial court.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. All costs are assessed against the defendants.

AFFIRMED.

      . Michael LaFleur is no longer a police officer for the City of Cottonport, Louisiana but will be referred to as "Officer LaFleur” in this opinion.


author: bDECUIR, Judge.

text:
    John B. SIMON v. NATCHITOCHES PARISH SCHOOL BOARD.
    No. 03-0942.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      George Arthur Flournoy, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Appellant, John B. Simon.
    Mark Alan Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Ap-pellee, Natchitoches Parish School Board.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   bDECUIR, Judge.

This appeal of a workers’ compensation claim raises the very narrow and specific question of whether an employer, who voluntarily overpays the claimant a certain amount of sick pay, should be granted an automatic credit against workers’ compensation benefits to which the claimant is later found to be entitled.

John Simon, a longtime teacher with the Natchitoches Parish School Board, was first injured in 1995 while breaking up a fight between two students. His condition required back surgery and, after recovering, he returned to classroom teaching. Simon was again injured, twice, in 1999. In April, he was hurt while restraining a combative student and, in May, he was pushed to the ground and kicked while breaking up a fight. Simon’s injuries prevented him from teaching during the 1999-2000 school year. He received his full salary for that year, in accordance with the provisions of La.R.S. 17:1201, which allow for the payment of full salary to a teacher who has been injured by assault, battery, or physical contact with a student.

For the 2000-2001 school year, Simon was offered an administrative position. The responsibilities of the job did not exceed Simon’s physical limitations, and he remained in that position all year. The following year, however, the same position was not available. Therefore, Simon did not work during the 2001-2002 school year. He again received his full salary, plus an apparent overpayment of $6,000.00. Simon requested an administrative position for 2002-2003, but he was instead offered a position as a special education instructor. He accepted the assignment but resigned on October 1, 2002 because of chronic pain and fear of re-injury. Upon resignation, Simon gave an administrator a note from his treating physician, Dr. John Harris, requesting that Simon be excused from work. Simon’s attorney made a demand for workers’ compensation benefits on October 10, 2002. The records in evidence show | pthat Simon’s last payroll check from the School Board included wages for approximately two weeks in October.

The School Board sent Simon to Dr. Carl Goodman, the orthopedic surgeon who had treated Simon after his 1995 injury. Dr. Goodman issued a report on November 25, 2002, wherein he permanently restricted Simon from classroom teaching and disciplinary responsibilities. The School Board initiated workers’ compensation indemnity benefits on January 3, 2003, retroactive to November 25, 2002.

This appeal concerns the seven week period between October 1, 2002 and November 25, 2002 wherein Simon received no indemnity payments and no § 17:1201 wages, also referred to as a type of sick pay. The trial court found that Simon had been overpaid in the past by approximately $6,000.00, which credit offset the amount owed by the School Board for the period at issue.

Simon argues the School Board is not entitled to a credit because, first, the issue was not properly raised, and second, no evidence was presented showing the School Board paid Simon pursuant to § 17:1201. He urges this court to award benefits for that seven-week period. Simon further argues that the School Board should be penalized for non-payment during that period and further penalized for the delay in initiating payments after receipt of Dr. Goodman’s report. He also asks for attorney fees.

Finding the issue of a credit to have been properly raised in the School Board’s answer to Simon’s initial claim, we turn to the merits of the appeal. First, we find ample evidence to support the conclusion that the wages paid to Simon for the years he was unable to work were paid pursuant to § 17:1201. Second, we find no manifest error in the finding of an overpayment of approximately $6,000.00 during the 2001-g002s school year, a year in which Simon was unable to work and was entitled to only the amount of his salary at the time of his injuries. The trial court’s decision to apply that overpayment as a credit or offset on the amount of workers’ compensation benefits later awarded to Simon was not erroneous.

In a case involving the simultaneous payment of workers’ compensation benefits and § 17:1201 wages, the fourth circuit determined that the school board was entitled to a credit for any amount of § 17:1201 wages that exceeded the amount of the claimant’s wages at the time of her injury. The court reached the following conclusions:

Regarding the coordination of benefits in this matter, we have noted that the claimant is entitled to receive assault pay benefits to supplement her workers’ compensation benefits as long as the total of these benefits does not exceed her pre-injury salary and/or earnings. The amount of workers’ compensation benefits to which claimant is entitled is set by statute. In calculating the assault pay benefits owed to claimant, the School Board should have paid claimant the difference between her pre-injury salary and her workers’ compensation benefits, and no more. The School Board admits that claimant’s assault pay has increased over time to reflect salary increases to which claimant would have been entitled if she were still working as a teacher. Unfortunately for claimant, R.S. 17:1201(D)(1) is clear that the total amount of sick leave (assault pay) and workers’ compensation benefits paid to a claimant cannot exceed the total amount of the regular salary the member of the teaching staff was receiving at the time the injury or disability occurred. (Emphasis ours.) Therefore, the School Board is entitled to a credit for amounts paid to claimant in assault pay that exceeded the amount of assault pay to which she would have received at the time of her injury.

Anderson v. Orleans Parish School Bd., 00-0909, pp. 10-11 (La.App. 4 Cir. 8/1/01), 792 So.2d 943, 949, writ denied, 01-2495 (La.12/7/01), 803 So.2d 37. Accordingly, we find no manifest error in the trial court’s decision to grant a credit to the School Board.

We are troubled, however, by the School Board’s admitted inaction to Simon’s demand for compensation, and its delay in initiating indemnity payments once Dr. ^Goodman’s report was received. The witness who testified on behalf of the School Board had no explanation. It is clear from his testimony that he was unaware of a past overpayment; his decision not to pay Simon had nothing to do with that overpayment. There was merely the suggestion that the .school holidays may have caused some of the delay.

La.R.S. 23:1201(F)(2) provides for the imposition of penalties and attorney fees unless “the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” We find nothing in the record to suggest that the School Board’s failure to pay indemnity benefits for the period from October 1, 2002 through November 25, 2002 resulted from conditions over which the School Board had no control, nor do we find that Simon’s claim was reasonably controverted. While the School Board’s decision to send Simon to Dr. Goodman shows an effort to investigate the claim, it does not explain the failure to consider Dr. Harris’s note or any prior medical evidence that would have supported Simon’s two previous years of disability. Furthermore, even if the School Board had based its decision to withhold indemnity payments on the $6,000.00 overpayment of wages, such a unilateral taking of an offset is generally not allowed. See Clark v. Town of Basile, 98-439 (La.App. 3 Cir. 10/7/98), 719 So.2d 730.

Accordingly, we find error in the trial court decision to deny Simon’s claim for penalties and attorney fees. Based on the evidence in the record, we award $2,000.00 in penalties for the failure to pay indemnity, or apply for an offset in payments, for the period from October 1 through November 24, after receipt of Dr. Harris’ s note. We also award $1,450.00 in penalties for the delay in payment of benefits from November 25 through January 3, after receipt of Dr. Goodman’s report. Pursuant to La.R.S. 23:1201(F), we award $7,500.00 as reasonable attorney fees.

1 sFor the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and rendered. Penalties in the amount of $3,450.00 and attorney fees in the amount of $7,500.00 are hereby awarded to the claimant, John Simon. Costs of this appeal are assessed to the Natchitoches Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: | t SULLIVAN, Judge.

text:
    Terrell G. ISTRE v. INTERNATIONAL MAINTENANCE COMPANY, L.L.C.
    No. 03-1003.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Robert T. Jacques, Jr., Lake Charles, LA, for Plaintiff/Appellee, Terrell G. Istre.
    Gregory E. Bodin, Taylor, Porter, Brooks, & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellant, International Maintenance Company, L.L.C.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   | t SULLIVAN, Judge.

International Maintenance Company (IMC) appeals a workers’ compensation judgment awarding Terrell Istre temporary total disability benefits, medical expenses and treatment, mileage expenses, $2,000.00 in penalties, and $9,000.00 in attorney fees. Finding no error, we affirm and amend to award Mr. Istre additional attorney fees of $1,500.00 for defending this appeal.

Discussion of the Record

On July 24, 2000, Mr. Istre filed a disputed claim for compensation, alleging that he injured his back on June 1, 2000, as he stretched from a scaffold to make a weld on a tank wall. IMC denied the claim, contending that Mr. Istre injured himself while operating a weed-eater at his home during the weekend before the alleged accident. After a trial on April 9, 2001, Workers’ Compensation Judge Constance Abraham-Handy ruled in Mr. Istre’s favor, awarding him temporary total disability benefits, continued medical treatment, mileage expenses, penalties of $1,500.00, and attorney fees of $8,500.00. IMC appealed, but this court remanded for a new trial when the transcript could not be completed due to the untimely deaths of both the workers’ compensation judge and the court reporter. Istre v. Turner Indus., 02-1253 (La.App. 3 Cir. 11/25/02). On January 31, 2003, a second trial was held before Workers’ Compensation Judge Sam Lowery, who also ruled in Mr. Istre’s favor. That judgment, signed on April 7, 2003, is the subject of this appeal.

At the second trial, Mr. Istre, a welder who had been with IMC for eight to ten years, testified that, on Wednesday, May 31, 2000, he worked all day pounding the floor of a tank with an eighteen-pound maul hammer. When he reported to work the next day, on Thursday, June 1, 2000, he was assigned to “clean up” the tank wall, a task that required him to grind and re-weld the wall from a scaffold. He explained |?that, after working for about three hours, a “big shock caught [his] back and shot through his leg,” producing severe pain and numbness as he reached to make a weld from the scaffold. He stated that he was able to climb down from the scaffold, which was about ten feet high, but that he had to ask his co-workers to get his gear down. He also stated that he was limping “real bad” when he told the foreman, Les Coleman, that he had to leave work because he was in pain. He testified that Mr. Coleman asked him if he wanted to file an accident report, but when he declined to do so, Mr. Coleman brought him to punch out. Mr. Istre stated that he was not asked to make a statement at that time and that he did not want to report a work-related accident because he believed that he was not seriously injured and that he would be back on the job on Monday.

The foreman, Mr. Coleman, testified that he saw Mr. Istre limping from the job site, but he admitted that he did not specifically ask Mr. Istre if he had been injured at work. According to Mr. Coleman, Mr. Istre mentioned “something about he had been weed eating” and said he aggravated his back and wanted to go home. When Mr. Coleman told him that he should report to “safety,” Mr. Istre replied that he would rather not go there and that he would be all right in a couple of days. Mr. Coleman acknowledged that Mr. Istre was not limping that morning, testifying that he would not have assigned Mr. Istre to the scaffolding job if he were. Mr. Coleman also testified that he should have insisted that Mr. Istre report to “safety,” even though he did not want to go there.

Jack LaLanne, a welding supervisor, testified that, when Mr. Istre returned to work after the Memorial Day weekend, he said that he developed a “kink” after pulling something while weed-eating. As a result of this conversation, Mr. LaLanne |ssuggested that Mr. Istre work on the floor of the tank that day. When Mr. LaLanne saw Mr. Istre on the morning of the alleged accident, Mr. LaLanne did not notice that he was limping. According to Mr. LaLanne, Mr. Istre told him that morning that he was feeling bad and would probably see his chiropractor.

Mr. Istre testified that, after leaving the job site, his pain became so severe that he called his wife to take him to the emergency room at about 12:30 p.m. that day. West Calcasieu Cameron Hospital (Cal-Cam) records indicate that Mr. Istre “reports injured lifting at work this a[.]m[.],” but elsewhere, the records indicate that back pain started “last night” “possibly” due to a “recent injury” of “lifting.” He was given Demerol and released with instructions to follow up with his family physician, Dr. Jose Gonzales. When an MRI ordered by Dr. Gonzales on June 10, 2000 revealed protrusions at L4-5 and L5-S1, Mr. Istre was referred to Dr. Clark Gun-derson, an orthopedic surgeon.

Mr. Istre first saw Dr. Gunderson on June 13, 2000, complaining of pain, numbness in the leg, muscle spasm, joint stiffness, and muscle weakness. Dr. Gunderson’s records indicate that Mr. Is-tre reported the onset of low back pain twelve days earlier while using a sledgehammer at work. The records also describe how Mr. Istre “crawled to [his] jeep” as he left work due to pain and numbness. By June 23, 2000, Mr. Istre reported to Dr. Gunderson that his left ankle was so weak he could not control it. A myelogram of July 13, 2000 revealed anterior extradural defects at L4-5 and L5-S1, with decreased filling of the L5 and SI nerve roots bilaterally. On July 17, 2000, Mr. Istre underwent a two-level lumbar laminectomy and discec-tomy in which Dr. Gunderson removed an extruded disc fragment that compromised the L4 nerve root. Because Mr. Istre suffered a recurrent herniated disc |4at L4-5, he underwent a repeat lami-nectomy and fusion with pedicle screws from L4 through SI on December 18, 2000. A third surgical procedure, a de-compressive laminectomy at L3-4 with removal of pedicle screws, was performed on December 10, 2001.

Mr. Istre admitted that he did not initially want to report a work-related accident because he feared for his job and because he did not believe he was seriously hurt. He testified, that after seeing Dr. Gunderson, he reported the accident to Jody Sullivan, a quality control supervisor at IMC, and to another IMC employee, Glenn Fisher. Mr. Istre also gave a written statement on June 26, 2000, in which he reported developing back pain, with numbness and shooting pain in his left leg, as he was welding on a scaffold on June 1, 2000. In describing the incident, he noted that he was pushing the scaffold in position while leaning to make welds. He also wrote in the statement that his co-workers saw him limping, that he told his foreman he wanted to go home because the pain was so bad, and that he had to call his wife one hour later to bring him to the hospital because of pain and numbness in his leg. Mr. Coleman and Mr. LaLanne also testified that they gave written statements to their “safety” division, but those statements were not introduced at trial.

In ruling in favor of Mr. Istre, the workers’ compensation judge stated that his decision was based “totally, solely, and completely on the court’s perception of the voracity [sic] of the live testimony and the review of all the medical evidence.”

Work-Related Accident and Causation

In its first assignment of error, IMC argues that the workers’ compensation judge erred in finding that Mr. Istre sustained a work-related accident, given the inconsistencies in the medical records, the delay in reporting the unwitnessed | saccident, and the testimony of others that the claimant stated that he was injured at home. IMC also questions the workers’ compensation judge’s finding of causation, pointing out that no where in his medical records did Dr. Gunderson relate Mr. Is-tre’s need for surgery to the alleged accident at work.

In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted) (alteration in original), the supreme court set forth the standard of review in workers’ compensation cases as follows:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

To recover workers’ compensation benefits, a claimant must establish a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined in La.R.S. 23:1021(1) as “an unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” In Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992) (citations omitted), the supreme court explained the claimant’s burden of establishing an accident as follows:

[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence | (¡discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

Additionally, in Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98), 724 So.2d 853, 855, this court recognized: “When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability.”

In the present case, the claimant’s testimony is corroborated by the circumstances immediately following the alleged accident, by lay testimony, and by medical records. It is undisputed that Mr. Istre left the job site with a limp on June 1, 2000, after he had worked approximately three hours on a scaffold. It is also undisputed that his foreman, Mr. Coleman, did not ask Mr. Istre if he had been injured on the job, even though Mr. Coleman witnessed Mr. Istre limping after he had appeared fit for work that morning. Mr. Istre’s wife, Faye, testified that her husband was in good shape when he left for work that morning, with no back or foot problems, but that he called her later that day because of a back injury; she also stated that he has not been back to work since that time. When Mr. Istre went to the emergency room approximately two hours after leaving the job. site, he reported that he was injured while lifting at work that morning. Significantly, Mr. Istre related his injury to his work that day, even though he did not want to report a work-related accident at that time.

Mr. Istre also reported to Dr. Gunder-son that he was injured at work. When asked why Dr. Gunderson’s records only mention his working with a sledgehammer, which had occurred the day before the alleged accident, Mr. Istre explained that he |7told Dr. Gunderson about working with the sledgehammer as well as about making welds on the wall from the scaffold and that he did not know what Dr. Gun-derson had written down. Although Dr. Gunderson’s records do not mention the scaffolding job, they do reference other events that occurred on June 1, 2000, including Mr. Istre having to leave early that day and having to crawl to his jeep because of the pain.

IMC relies on the testimony of Mr. Coleman and Mr. LaLanne that Mr. Istre reported he had been injured at home while weed-eating as discrediting his claim of a work-related accident. The weed-eating incident, however, is mentioned only in the testimony of these witnesses. Even though Mr. Istre did not intend to report a work-related accident to his employer, he described being injured at work to both the emergency room physician and Dr. Gunderson. The medical records do not contain any references to an off-the-job injury. Additionally, Mr. Coleman’s testimony that Mr. Istre said “he would be alright in a couple of days” as he left work corroborates Mr. Istre’s testimony that he did not believe he was seriously injured at that time.

In Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858 So.2d 830, this court recently affirmed a judgment in favor of a claimant who had sustained an unwitnessed accident, notwithstanding inconsistencies in the medical records and testimony from two co-workers that the claimant had reported being injured at home to them. In Douglas, the workers’ compensation judge stated that he found the claimant believable. In the present case, the workers’ compensation judge also stated that its ruling was based upon its favorable assessment of the claimant’s credibility. On the record before us, we find no basis to disturb the workers’ compensation judge’s findings of fact and subsequent award.

| ^Penalties and Attorney Fees

In its second assignment of error, IMC argues that the workers’ compensation judge erred in imposing penalties and attorney fees and, alternatively, that the amount of attorney fees is excessive.

Under La.R.S. 23:1201(F), the employer is subject to penalties and attorney fees for the failure to pay benefits and expenses as outlined in La.R.S. 23:1201(A) through (E), unless the claim is reasonably controverted or the failure to pay results from circumstances beyond the employer’s control. “Whether a claim is reasonably controverted turns on whether the employer or insurer had sufficient factual information to reasonably counter the factual information presented by the claimant.” Smith v. Ventura Foods, 99-104, p. 9 (La.App. 3 Cir. 6/30/99), 742 So.2d 941, 946 (quoting Granger v. Nelson Logging, 96-223, p. 7 (La.App. 3 Cir. 12/4/96), 685 So.2d 400, 403). Whether an employer should be cast with penalties and attorney fees is a question of fact that will not be reversed on appeal in the absence of manifest error. Id.'

Mr. Istre gave a written statement to his employer on June 26, 2000, relating his injury to his work duties of June 1, 2000. However, he testified that he verbally reported the accident to a supervisor in the company, Mr. Sullivan, before that date. Additionally, Mr. Istre was observed limping from the job site on June 1, 2000 by his foreman, who admittedly did not inquire whether his condition was the result of a work-related accident. Although the adjuster’s file was not introduced into evidence, the record reflects that an adjuster did request medical records from each health care provider. As explained above, the records of Dr. Gunderson and Cal-Cam hospital indicate that Mr. Istre related his injuries to his job duties, even at a time when he did | ¡¡not contemplate filing a workers’ compensation claim. To counter Mr. Istre’s evidence, IMC relied upon the testimony of Mr. Coleman and Mr. La-Lanne, who stated that Mr. Istre told them he was injured while weed-eating at home. Both of these witnesses testified that they gave written statements to the company’s “safety” department on the same date of Mr. Istre’s statement, but those documents were not introduced into evidence. On the record before us, we find no error in the workers’ compensation judge’s conclusion that IMC failed to reasonably controvert this claim.

“As long as an award for attorney fees is supported by the record, the amount of the award is within the discretion of the [workers’ compensation judge].” Burns v. St. Frances Cabrini Hosp., 02-518, p. 5 (La.App. 3 Cir. 10/30/02), 830 So.2d 572, 576 (citing McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694). “Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.” Ardoin v. Kipling Korner Grocery, 02-1372, pp. 2-3 (La.App. 3 Cir. 3/5/03), 839 So.2d 1167, 1168-69 (quoting McCarroll, 773 So.2d at 700). In the present case; the claimant’s attorney recovered a substantial judgment for his client, after prevailing in two trials. Although the amount of past due benefits was based, in part, upon the delay of a second trial, we note that the amount of attorney fees awarded by the second workers’ compensation judge differed little from that of the first. We decline to disturb the amount of attorney fees awarded in this case.

110Answer to Appeal

Mr. Istre has answered IMC’s appeal, seeking an increase in the amount of attorney fees for defending this appeal. We grant this request and award additional attorney fees of $1,500.00.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed and amended to award the claimant, Terrell Istre, additional attorney fees of $1,500.00 for work performed on appeal. Costs of this appeal are assessed to Defendant-Appellant, International Maintenance Company.

AFFIRMED AS AMENDED.


author: hAMY, Judge.

text:
    Cornelia E. YOUNG, et al. v. Kevin FITZPATRICK, et al.
    No. 03-1038.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      F. Steve Landreneau, DeRidder, LA, Asa Allen Skinner, Skinner, Kees & Broyles, Leesville, LA, for Defendants/Ap-pellees: Sandman Motel Paul Vinson.
    Chris Smith, III, The Smith Law Firm, L.L.P., Leesville, LA, Jack L. Simms, Jr., Leesville, LA, for Plaintiffs/Appellants: Cornelia E. Young, Daniel Young.
    Daniel James Stanford, Eunice, LA, for Defendant/Appellee: Kevin Fitzpatrick.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   hAMY, Judge.

The plaintiff accompanied the defendant to a motel room, where he severely beat and stabbed her. The defendant was eventually convicted of armed robbery and attempted murder in connection with the incident. In the interim, the plaintiff brought the instant civil suit against the defendant and against the motel at which the attack occurred. A bench trial was held in the matter, wherein the trial judge assigned all liability for Ms. Young’s injuries to the defendant-perpetrator. The trial judge further determined, inter alia, that the defendant motel was not liable to the plaintiff because this particular attack was not foreseeable; the motel’s night clerk had not acted negligently in failing to prevent the attack; and that the motel did not have a duty to the plaintiff to adopt a security plan and to further train the clerk who was on duty during the attack. From this judgment, the plaintiff appeals. We affirm.

Factual and Procedural Background

The instant appeal arises from a civil proceeding that was filed due to certain criminal acts that took place in Leesville, Louisiana, during the early morning hours of July 2, 1992. The record indicates that at the time of the criminal acts forming the basis for the present suit, Cornelia Young, the plaintiff herein, had been married just a short time to a soldier based out of Fort Polk. Ms. Young testified at trial that on the evening of July 1, 1992, she had arranged to meet some of her friends at an area nightclub. She recalled that upon arriving at the club, she was told that Kevin Fitzpatrick, defendant herein, was looking for her. Ms. Young explained that she and Mr. Fitzpatrick, a soldier stationed at Fort Polk, had met through mutual Mends and had known each other approximately six months at the time. According to Ms. Young, she and Mr. Fitzpatrick talked and had a few cocktails when she indicated that a zipper had broken in her dress, and she wanted to go home. She and Mr. | ^Fitzpatrick left the club together with the understanding that on her way home, she would drop him off at the Sandman Motel, where he had rented a room for the night.

Ms. Young stated that after arriving at the motel, she and Mr. Fitzpatrick remained in her car in the parking lot because Mr. Fitzpatrick “had just gotten out of some trouble with the military and ... was upset about it and wanted to talk.” After a while, the two went to Mr. Fitzpatrick’s room. According to her testimony at trial, Ms. Young was still wearing the dress with the broken zipper, so she went into the bathroom to change into a t-shirt that Mr. Fitzpatrick had given her. She stated that upon exiting the bathroom, Mr. Fitzpatrick began to act strangely, and she began to feel uncomfortable. The record indicates that Ms. Young, still wearing Mr. Fitzpatrick’s t-shirt, stated that she was going to go home and walked towards a table to gather her things when she was pushed from behind. Ms. Young recalled that she turned around, saw Mr. Fitzpatrick coming at her, realized she was being attacked, and attempted to defend herself. Mr. Fitzpatrick then proceeded to stab her four times in the back, stab her in the hand, break her nose and her cheekbone, rupture both disks in her jaw, and fracture part of her skull. Finally, he strangled her with a telephone cord. Ms. Young passed out, and Mr. Fitzpatrick left . Upon regaining consciousness, Ms. Young went to the motel’s front desk and asked the clerk for help. The clerk called 911, and Ms. Young was taken to the emergency room at Byrd Memorial Hospital, where the record indicates that she was treated for facial injuries and stab wounds in her back, and surgery was performed on the hand that sustained the stab wound. She remained in the hospital for a week, and, shortly after her discharge, her husband requested a compassionate reassignment.

laMs. Young brought the instant cause of action against Kevin Fitzpatrick and Paul Vinson d/b/a Sandman Motel, seeking damages. Daniel Young, to whom Ms. Young was married when the cause of action was initiated, sued for loss of consortium. A bench trial was held in the matter on April 19, 2001. On April 17, 2003, the trial judge issued a judgment in the matter, in which he determined that Kevin Fitzpatrick was solely liable for Ms. Young’s injuries and assessed $250,000 in damages against him. Written reasons for judgment and notice of signing were issued on November 12, 2002. Supplemental written reasons, in which court costs were assessed to Kevin Fitzpatrick, were issued on March 14, 2003, and notice of signing of the supplemental reasons for judgment was mailed on March 18, 2003. Ms. Young filed the instant devolutive appeal on May 21, 2003.

Discussion

Ms. Young contests the trial court’s determination that the Sandman Motel was not liable for her injuries. More specifically, Ms. Young asserts that the trial judge erred in reaching this conclusion as follows:

1. The trial judge erred in determining that this incident was not foreseeable due to insufficient evidence of prior criminal activity on the hotel premises.
2. The trial judge erred in determining that the innkeeper did not owe a duty to Ms. Young to implement a security plan and was not required to further train the night desk clerk.
3. The trial judge erred in determining that the night clerk did not act negligently.
4. The trial judge erred in accepting the defendants’ expert witness.
5. The trial judge did not award Ms. Young adequate damages.

We review the trial court’s conclusions in this tort cause of action pursuant to the manifest-error standard. Lasyone v. Kansas City S.R.R., 00-2628 (La.4/3/01), 786 So.2d 682.

.¡¿Trial Judge’s Acceptance of the Sandman Motel’s Expert Witness

We first address Ms. Young’s claim that the trial court erred in accepting the defendant’s expert witness. In support of her claims that the Sandman Motel was liable in part for her injuries, Ms. Young offered Dr. William E. Thornton, Jr., a professor of criminology at Loyola University New Orleans, as an expert in the field of hotel-motel security. The record indicates that Dr. Thornton holds a Ph.D. in sociology, with emphases in criminology and research methods of social psychology, and he teaches courses in such areas as crime prevention, security management, criminology, and forensic criminology. At trial, Dr. Thornton stated that he is a member of many criminological and security associations, particularly the American Industrial Security Association’s hospitality committee, which addresses hotel security. He is also a member of a consulting firm that gives security assessments and performs crime and foreseeability analy-ses. Dr. Thornton has published several articles addressing security and has included materials on hotel-motel security in textbooks that he has written.

In turn, the Sandman Motel offered Mr. Billy Hammons as its expert witness regarding hotel safety. Mr. Hammons owned and operated the Redwood Motel in Leesville from 1982 to mid-1998 and was previously employed by the Department of Justice. Mr. Hammons stated that although he never received any formal training in hotel security, he applied anti-terrorist intrusion techniques learned during his employment with the Department of Justice to the operation of his motel.

The record indicates that after traversal of Mr. Hammons by Ms. Young’s attorney, the trial judge stated as follows:

I’ll accept Mr. Hammons as an expert. He certainly doesn’t have the qualifications [of Dr. Thornton] but I believe he’s an educated man, college degree. He has experience in the security measures and surveillance and so forth and his— more importantly his personal Inexperience of operating a motel in this area for approximately eight or nine years....

Pursuant to the supreme court’s opinion in Lasyone, after the qualification of expert witnesses, the trial judge is free to evaluate each expert witness’s credibility and to weigh their respective testimony accordingly in reaching a decision in the matter:

[ I]t is well accepted that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and then to decide which expert among those testifying that it finds more credible. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073.

Lasyone, 786 So.2d at 692. We find no manifest error in the trial judge’s determination that Mr. Hammons qualified as an expert witness.

Duty-Risk Analysis

The remaining assignments of error require an evaluation of the trial court’s determinations pursuant to the duty-risk analysis traditionally employed in Louisiana tort cases. In its opinion in Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, the Louisiana Supreme Court provided the following overview of the various considerations involved in assessing whether a party is liable pursuant to the duty-risk analysis:

The determination of liability under the duty/risk analysis usually requires proof of five separate elements: (1) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana Transit Co., Inc., 96-1932, pp. 8-9 (La.3/4/98), 707 So.2d 1225, 1230 (citing David W. Robertson et al., Cases and Materials on Torts 83-84 (1989); Fowler v. Roberts, 556 So.2d 1 (La.1989) (on original hearing)). See also Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. See Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326....
Generally, the initial determination in the duty/risk analysis is cause-in-fact. Boykin, 707 So.2d at 1230. Cause-in-fact usually is a “but for” inquiry, which tests whether the accident would or would not have happened but for the defendant’s substandard conduct. Id. Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. Id. at n. 10; Jones v. Hawkins, 98-1259, 98-1288, p. 7 (La.3/19/99), 731 So.2d 216, 220; Rick v. State, Dept. of Transp. and Development, 93-1776, 93-1784, p. 8 (La.1/14/94), 630 So.2d 1271, 1275; Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). To satisfy the substantial factor test, the plaintiff must prove by a preponderance of the evidence that the defendant’s conduct was a substantial factor bringing about the complained of harm. Dabog v. Deris, 625 So.2d 492, 493 (La.1993).
However, while deference must be given to the factfinder’s determinations, this court clarified in Ambrose [v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216] that our purpose in Stobart [v. State, Through DOTD, 617 So.2d 880, 882 (La.1993)] was not “to mandate that the trial court’s factual determinations cannot ever, or harldy [sic] ever, be upset.” Ambrose, 639 So.2d at 221. Recognizing that great deference should be accorded to the factfinder, the court of appeal and this court have a constitutional duty to review facts. Id. To perform its constitutional duty properly, an appellate court must determine whether the trial court’s conclusions were clearly wrong based on the evidence or clearly without evidentiary support. Id.

Perkins, 782 So.2d at 611-13 (footnotes omitted).

In his written reasons for judgment, the trial judge explained the duty-risk analysis as it applies to the instant matter as follows:

[ A]n innkeeper owes a duty of ordinary care to its guests, invitees, and patrons. This duty is defined as that standard of care exercised by an ordinary innkeeper under the circumstances.
The duty-risk analysis requires that the court first find that the defendant’s conduct was a cause-in-fact of the harm suffered. That is, if defendant’s conduct probably caused plaintiffs injury then defendant’s conduct was a cause-in-fact of plaintiffs injury. If, on the other hand, plaintiff probably would have suffered the injury even in the absence of defendant’s conduct, then defendant’s conduct is not a cause-in-fact of the injury.

| tForeseeability

The trial judge then engaged in an application of the duty-risk analysis to the facts of the instant matter in reaching a decision as to whether the Sandman Motel had breached its duty to Ms. Young. In his written reasons for judgment, the trial judge addressed Ms. Young’s claim that the Sandman Motel also had a duty to implement a security plan and to further train the night desk clerk. The trial judge began his analysis by reproducing the following portions of the supreme court’s decision in Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, which read:

We agree that a balancing test is the best method for determining when business owners owe a duty to provide security for their patrons. The economic and social impact of requiring businesses to provide security on their premises is an important factor. Security is a significant monetary expense for any business and further increases the cost of doing business in high crime areas that are already economically depressed. Moreover, businesses are generally not responsible for the endemic crime that plagues our communities, a societal problem that even our law enforcement and other government agencies have been unable to solve. At the same time, business owners are in the best position to appreciate the crime risks that are posed on their premises and to take reasonable precautions to counteract those risks.
With the foregoing considerations in mind, we adopt the following balancing test to be used in deciding whether a business owes a duty of care to protect its customers from the criminal acts of third parties. The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.

Posecai, 752 So.2d at 768.

After considering the evidence presented at trial, the trial judge concluded that:

[ considering the circumstances of this case where the victim was an invitee of a registered guest and was attacked by the guest in the rented room there were not sufficient prior criminal acts on the premises so as to render it foreseeable by the innkeeper that such harm to plaintiff was likely to occur.

Ms. Young challenges the trial judge’s conclusion on appeal, contending that it was error for the trial judge to determine that evidence of criminal activity on motel premises was insufficient for the Sandman’s owners to have foreseen the attack. In essence, Ms. Young argues that the trial judge erred in finding, pursuant to the second prong of the duty-risk analysis as set forth by the supreme court in Perkins, 782 So.2d 606, that the Sandman’s conduct did, in fact, conform to the appropriate standard. — viz., that the Sandman had not committed a breach of the applicable standard of conduct by doing business without a night watchman on duty.

In support of her assertion that the Sandman Motel could have foreseen the attack, Ms. Young underscores the testimony of Dr. William Thornton, Jr., whom she presented as an expert in the field of hotel security at trial. Ms. Young claims that Dr. Thornton’s testimony indicates that the frequency of calls to the police from the motel and the location of the Sandman along a strip containing roughly twenty bars should have put its ownership on notice that it faced a greater risk of attacks on its guests or criminal activity by bar patrons on the motel premises. Ms. Young contends that Dr. Thornton’s testimony at trial substantiates her claim that the Sandman’s ownership could have foreseen the scenario in which Mr. Fitzpatrick attacked her, thereby breaching its duty to her, and that the trial judge erred in determining to the contrary.

According to the record of the proceedings below, Ms. Young offered medical records and the deposition of Carolyn Myers, the night clerk on duty at the time of the 19attack, into evidence. Ms. Young did not offer into evidence any police reports or other statistics regarding criminal activity at or around the Sandman Motel. Instead, the foreseeability issue was developed via the opinion testimony of the respective parties’ expert witnesses.

Dr. Thornton explained at trial that in conjunction with his work in this matter, he received photographs of the Sandman Motel and three nearby bars. He was also given copies of Carolyn Myers’ depositions in the criminal and civil trials and the criminal-trial testimony given by Ms. Young. Furthermore, Dr. Thornton examined local newspaper files and was given information from the Vernon Parish Sheriffs Department, such as the incident report, a copy of the investigative report, and information regarding calls from the district encompassing the Sandman and the surrounding bars for the years 1987-1989 and 1993-1995. Dr. Thornton noted that he also spent a day at the Sandman and the surrounding area.

Dr. Thornton testified at trial, however, that the records of the Vernon Parish Sheriffs Office detailing calls from the Sandman Motel did not involve “real serious offenses.” Dr. Thornton indicated that among the records are “in excess of 25 disturbances of the peace, there was one armed robbery and apparently there was [sic] some unreported crimes too.” Moreover, on cross-examination^ Dr. Thornton stated that no one could have foreseen this particular incident, in which Ms. Young was attacked by Mr. Fitzpatrick.

The Sandman’s expert witness, Mr. Billy Hammons, opined at trial that the Sandman’s ownership could not have foreseen that an attack such as that against Ms. Young would have occurred on the motel premises.

Q [by Mr. Landreneau, attorney for the Sandman Motel]. Do you feel that there’s anything that the Sandman Motel, either through the owners or through Mrs. Myers, could have done to have prevented this initial attack of Mrs. Young in this case?
|inA [by Mr. Hammons]. I could — I am — there was no foreseeability that I know of. There’s none of us that are seers of the future and there was no way in the world that a desk clerk checking this gentlemen [sic] in on July the 1st or any other patron on July the 1st would [know that he would] undertake such a — such a violent crime.

We find no manifest error in the trial judge’s determination that the evidence presented at trial was insufficient to indicate that the Sandman Motel could have foreseen an attack such as that against Ms. Young. This assignment lacks merit.

Failure to Implement a Security Plan and Negligent Actions of the Night Clerk

Ms. Young next argues in interrelated assignments of error that the trial judge incorrectly determined that the Sandman Motel was not negligent in failing to adopt a security plan and that Carolyn Myers, the night clerk on duty at the time of the attack, had not acted negligently-

At trial, Ms. Young introduced into evidence the deposition of Ms. Myers, the night clerk on duty at the Sandman Motel at the time of the attack. In this deposition, Ms. Myers recalled that an alarm went off at the front desk at around one o’clock on the morning of July 2, 1992, signaling that the telephone in Mr. Fitzpatrick’s room had been disconnected from the wall. Ms. Myers equipped herself with a large stick and a can of mace, walked to Mr. Fitzpatrick’s room, and knocked on the door. She attempted to open the door using her master key, but the door slammed shut. According to Ms. Myers’ deposition, she asked through the door if something was wrong with the telephone, and a male voice answered that his friend had knocked it off the desk. She informed the occupant of the room that in order to stop the alarm, the phone needed to be plugged back into the wall. Ms. Myers then returned to the front desk. Approximately thirty minutes later, the alarm went off again. Ms. Myers | ¶1 stated that she returned to Mr. Fitzpatrick’s room, taking the stick and the mace with her. Upon arriving, she shouted through the door that she would call the police if the phone was not taken care of. A male voice responded that there was a problem with the phone but that Ms. Myers was not going to be allowed entrance to the room. When she returned to the front desk, the alarm was still sounding. Ms. Myers’ deposition indicates that she then left the office and walked to the corner of the motel pool, from which Mr. Fitzpatrick’s room was visible. Ms. Myers observed the room for five to ten minutes in an attempt to ascertain what was going on, but she did not see anything. Ms. Myers then returned to the office and disconnected the alarm’s audio feature; however, the alarm’s light still flashed. She did not call the police at this time. Ms. Myers next recalled that at around three or half-past three o’clock in the morning, a man claiming to be Mr. Fitzpatrick entered the office and asked her for an extra key to his room. Ms. Myers asked him for identification and gave him a key but did not ask about the phone. At approximately four thirty in the morning, Ms. Young came into the office, visibly battered, and told Ms. Myers what had happened. Ms. Myers then called for assistance.

At trial, Dr. Thornton, Ms. Young’s expert witness, opined that the Sandman Motel did not have adequate security and that its owner had failed to exercise ordinary and reasonable care, as per industry guidelines, that would protect an invitee such as Ms. Young. Dr. Thornton observed that “[s]ecurity guards obviously can not prevent all things to all people but having a visible security guard — it’s common knowledge that it can be a deterrent to certain types of activities that take place on premises.” He further stated that the night desk clerk was not given adequate formal training and was forced to improvise, such as in investigating the telephone alarm 112herself. The clerk was instructed to call the police only when necessary and was advised of the owners’ preference that she not call the police.

Dr. Thornton stated that a basic premise found in the hotel-motel industry guidelines is that security plans need to be implemented that detail procedures for all personnel and that establish plans of action for emergencies. Dr. Thornton noted that the guidelines also recommend sufficient training for staff. According to the guidelines, Dr. Thornton noted, desk clerks such as Carolyn Myers are not supposed to be patrolling the hotel grounds. Dr. Thornton observed that the desk clerk was performing all duties of the motel and that this practice was not advisable. He explained that the American Association of Hotels and Motels circulates literature which contains guidelines for security, and according to the American Motel Hotel Association, the duties of front-desk employees are:

check-ins, handling complaints in the office, quality service, credit guidelines, key control, handling emergencies. And emergencies basically are being able to refer to a security person on the premises, a late night security guard on duty or picking up the phone and calling 911 immediately when there’s a question. Not going down with a big stick and a can of Mace trying to enter a room. Not investigating.

He indicated that the guidelines recommend that security personnel perform security tasks and that having one employee on duty late at night is not adequate staffing. Dr. Thornton further noted that the motel’s location, among bars and nightclubs, means that the owners should have been monitoring crimes that occur in the surrounding area because bars often attract crime.

The Sandman Motel’s expert witness, however, indicated in the following colloquy that in the Leesville area, it was commonplace for desk clerks to investigate occurrences on motel premises but did so with deference to guests’ expectations of privacy:

|13Q [by Mr. Landreneau]. Is it common in motels of this area to have clerical staff make a preliminary inquiry into incidents?
A [by Mr. Hammons]. To my knowledge it is. All of the owners that I have spoken to in the past and the way that I formulated part of my plan was based on their experience [sic]. Some of them much longer experience than I had and that is that you make a basic inquiry as to what is actually transpiring without being intrusive, without upsetting your guests or if you’re just investigating an incident such as this of a telephone malfunction or something like that, we are of the opinion that motel guests have a reasonable expectation of privacy. So therefore when you undertake to intrude on their privacy you must have just cause to do so so it’s a tenuous situation. And the basic instructions are that you go to the location, that you announce yourself and you ask if there is a problem that can be resolved either in the room or by doing something in the office to solve the issue.
Q. Based upon your review of the documents you saw and your testimony you’ve seen today, do you feel like a security guard should have been hired by the Sandman Motel to attempt to avoid the incident that was described in this case?
A. I’ve looked at that issue at my own motel in the past and could never really reach the threshold of saying that there was enough what I would call aggravated crime such as fist fights, verbal alterations [sic] that were totally out of hand or scuffles that would require a person to intervene that would be a professional. And even if there were an altercation occurring the instructions were that you don’t intervene, you call the police, you let the police take care of the issue. That’s why they are policemen and that’s why they’re employed.
Q. And these types of incidents such as — you know, loud noises, parking lot disturbances, things like that, are most of these incidents resolved without the necessary intervention of the local police force?
A. As a general rule whenever we— whenever we have an incident that requires a police activity such as a fender bender in your parking lot or something like that, as a courtesy we do call the police and have them come and make an inquiry. If it’s disturbance of doing one of those yea-yea acts, well then, you just ask them to quietened [sic] down. If they don’t quietened down that [sic] we’ll take corrective action. Corrective action being is [sic] that we’ll ask them to leave and vacate their room. If they don’t choose to do so and continue the activity, then we’ll call law enforcement to take appropriate action....

Moreover, on the subject of Ms. Myers’ actions with respect to the telephone alarm, Mr. Hammons opined that in checking on the alarm, Ms. Myers would not have had any concrete reason to call the police. Mr. Hammons stated that:

| uHaving had experience as personally [sic] with issues of this nature, I don’t think that this particular inquiry rises to the level that would have caused a reasonable person, especially under instructions and knowing the privacy is a protected issue at motels, would cause it to rise to that level. I think — had the clerk heard a cry or heard an unusual sound, heard a — saw something, smelled something, anything to give rise to something other than just meeting this issue of having a phone disconnected, I don’t see where she acted improperly at all.

After considering the evidence, the trial judge found that “[t]he night clerk received no training whatsoever and she was not instructed to call the police unless it was absolutely necessary.” The trial judge likewise determined that the night clerk’s conduct was reasonable under the circumstances and that she did not hear or see anything that would give rise to a reasonable inference that Ms. Young was being attacked. The trial judge further noted that even if the Sandman had implemented a security plan, it is nevertheless likely that Ms. Young would have been attacked. In his written reasons for judgment, the trial judge noted the evidence presented at trial that influenced his conclusion that the night clerk acted reasonably:

Should the night clerk have known that plaintiff was in danger in room 145? The court considers the following facts: (1) she thought the room was occupied by two men; (2) the alarm had gone off one time and had been fixed by an occupant of the room; (3) the second time, the occupant refused her assistance and said he would take care of it; (4) in the past, alarms had to be manually turned off because of defective wiring or plug-ins and she testified that she thought that is what happened this time; (5) she also suspected the guests might be picking at her. Considering what the evidence established she knew at that time, her conduct leads the court to conclude that had she seen or heard anything that would have led her to believe that a person in the room was in danger, it is more probable than not that she would have called the police.

Based upon our examination of the record, we find that the trial judge did not manifestly err in his determination that the night clerk had not acted negligently and that the Sandman Motel had not breached its duty of ordinary care to Ms. Young. This assignment lacks merit.

\inDamages

Finally, we address Ms. Young’s contention that the trial judge’s award of $250,000 in damages against Mr. Fitzpatrick was not adequate. The standard that an appellate court is to employ in reviewing a lower court’s award of damages is described in the fourth circuit’s decision in Ross v. City of New Orleans, 00-1879 p. 15 (La.App. 4 Cir. 11/21/01), 808 So.2d 751, 761 as follows:

With regard to the award of damages, there must be a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991). Additionally, in deciding whether a trial court award was excessive, reviewing courts must first consider the individual circumstances of the subject case to determine whether the trial court abused its much discretion in setting the award. Only after determining that the award in the subject case was improper may the reviewing court consider awards in similar cases. Brodtmann v. Duke, 96-0257 p. 21 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, 459-460.

Moreover, in Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74, the supreme court stated that:

[ T]he assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993).

Shortly after she was released from Byrd Memorial Hospital in July 1992, Ms. Young and her husband moved to Fort Stewart, Georgia, where Ms. Young received further treatment for the injuries she sustained during the attack. The record indicates that Ms. Young underwent various surgeries to remove the ruptured disks in her jaw, repair her nose, repair her cheekbone, remove the pins from her hand, and to have stitches removed. Ms. Young testified that as of the date of trial, and despite these procedures, she still experienced considerable pain in her jaw. In addition, for six 11fiyears after the events of July 2, 1992, Ms. Young received counseling from a psychologist to treat her anxiety attacks and her fear of being alone. Ms. Young further alleges that as a result of the psychological impact of the attack upon her, the Youngs’ marriage began to deteriorate, culminating in divorce in 1996.

In the case sub judice, we conclude that the trial judge did not abuse his discretion in awarding Ms. Young $250,000 in damages stemming from the attack at the Sandman Motel. The trial judge was in the best position to evaluate all the evidence presented in reaching a determination as to an appropriate amount of quantum, and the award at issue is neither so high nor so low as to “shock the conscience.” This assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the plaintiff-appellant, Cornelia Young.

AFFIRMED.

      . Ms. Young testified at trial that she believed that Mr. Fitzpatrick had attacked her so that he might take her car, her jewelry, and her checkbook. The record indicates that after the attack, Mr. Fitzpatrick took Ms. Young’s car and fled to Wisconsin, where he was located and arrested by authorities.

      . At trial, Dr. Thornton indicated that such alarms were generally used in the past in an effort to keep telephones from being stolen from motel rooms.