author: I t STEWART, J.

text:
    Theresa Traylor COLLINS, Plaintiff-Appellee, v. SHELTER MUTUAL INSURANCE COMPANY, et al, Defendants-Appellants.
    No. 36,528-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Hudson, Potts & Bernstein, by Brady D. King, Monroe, for Appellant, Shelter Mutual Ins. Co.
    Clifford L. Lawrence, Jr., for Appellee, Theresa Traylor Collins.
    Before STEWART, KOSTELKA and DREW, JJ.
   I t STEWART, J.

Shelter Mutual Insurance Company, (“Shelter”), appeals an award of general and special damages to Theresa Traylor Collins for injuries she sustained in an automobile accident in 1991. Theresa seeks an increase in damages for future medical expenses and for lost past and future wages. We amend the trial court’s judgment in part and affirm as amended.

FACTS

On July 3,1991, Theresa was involved in an automobile accident at the intersection of Tower Drive and North 19th Street in Monroe, Louisiana. Theresa’s 1990 Toyota Camry was struck on the right front passenger side by a Lincoln Town Car driven by Kent Breard, Sr., who was insured by Shelter. The impact pushed Theresa’s vehicle slightly across the center line of the roadway. At the time of the accident, Theresa was returning to the Oral Surgery Center where she was employed as a surgical assistant by Dr. Ray Rhymes. Theresa and a group of co-workers were leaving that afternoon for a weekend trip to Florida. Theresa began having a headache and pain in her neck and shoulder area before leaving for the trip. She was given pain medication by a physician with whom she worked. The pain progressed over the weekend, so Theresa returned home a day early.

About two weeks later, Theresa sought medical treatment from Dr. Stephen Braz-zell, a family physician. Dr. Brazzell prescribed muscle relaxers and anti-inflammatory medications and placed Theresa in physical therapy. He ordered x-rays and a CT scan, all of which were normal. When |2Theresa’s condition did not improve, Dr. Brazzell referred her to Dr. Douglas Brown, of the Orthopeadic Clinic of Monroe.

Theresa saw Dr. Brown from October 1991 through March 1992. Dr. Brown continued Theresa on medications for pain and placed her on a new physical therapy regimen. He initially believed that her complaints stemmed from a congenital condition known as thoracic outlet syndrome and referred her to a physician with expertise in that area for surgical evaluation; however, there was no need for surgery. He finally diagnosed Theresa’s condition as a soft tissue injury of the neck and dorsal spine. By March 1992, Dr. Brown believed that Theresa’s condition had stabilized as a result of therapy. He could offer her nothing more than a referral to Psychological Associates for an evaluation and for biofeedback and relaxation techniques to help her cope with the discomfort of her injury. Theresa was also treated in May 1992 by Dr. Donna Donald, an internal medicine specialist, for pain and depression.

In June 1992, Theresa began treatment with Dr. Ferrall Endsley, a doctor of osteopathy with certifications in physical medicine and rehabilitation. Theresa came under Dr. Endsley’s care when she was referred to him by the psychologist to whom Dr. Brown had sent her for pain management techniques. Dr. Endsley placed Theresa in a two-week inpatient program for chronic pain sufferers. Treatment included medications for pain, depression and sleeping, physical and occupational therapy, and counseling. Though Theresa’s condition improved while in the inpatient program, the pain increased during the weeks following her |3discharge. Dr. Endsley’s diagnosis was cervical and trapezius muscle strain with chronic pain. He also believed she would be subject to depression and anxiety because of the pain. His prognosis was that Theresa would continue to have pain off and on for the rest of her life. Theresa saw Dr. Endsley for her condition until September 1993.

Thereafter, Theresa did not seek further professional treatment for some time. She continued working and adjusted her daily schedule to accommodate the ongoing pain. She treated herself with hot baths or whirlpools two or three times a day. She used hot and cold packs to ease the pain in her neck and shoulder. She spent part of her lunch hour resting at the office or the park with a hot or cold pack placed on her neck and shoulder. She had difficulty sleeping. Because of the injury, she could not help care for her grandchild, who had been born with cerebral palsy. She could no longer enjoy bowling as she did before the accident. However, she did participate in line dancing a couple of times a week and began occasionally playing pool with friends. Theresa also continued to take pain medications.

By the time of trial in January 2001, Theresa was still experiencing significant pain and had begun treatment with Dr. Greg Vigna, a physical medicine and rehabilitation specialist. Dr. Vigna believed that Botox injections might alleviate some of Theresa’s pain, and he had completed the first course of injections just prior to the time of trial.

At issue before the trial court was causation, the extent of Theresa’s injury, and damages. Liability was not at issue as Kent Breard, Sr., was Lrecognized to have been at fault in the accident. Shelter sought to show that Theresa’s injures were pre-existing or due to other causes. She had been treated for TMJ in years preceding the accident, and she had twisted her knee in a fall just days before the accident. She had also been involved in another automobile accident in 1994. Shelter sought to attribute Theresa’s depression to a divorce that became final in 1992, and it sought to show that Theresa abused prescription drugs.

After three days of testimony and the presentation of numerous exhibits into evidence, the trial court found the accident at issue to be the cause of the injuries complained of since 1991. The court found it plausible that Theresa gave up on treatment after failing to obtain relief. The court also believed that any intervening incidents merely aggravated Theresa’s condition. The trial court awarded general damages of $150,000 after taking into account the severity, continual nature, and psychological effects of the pain, the inconvenience to Theresa at home and work as a result of the pain, and the probability that she will never completely recover. The trial court awarded past medical expenses of $22,747. The trial court also awarded future medical expenses of $30,000. The trial court rejected Theresa’s claim for lost income, but the trial court did award her $20,000 for future loss of wages upon concluding that her work may be curtailed if she continues to suffer from her injuries.

Shelter appealed the trial court’s judgment, asserting that the trial court abused its discretion in finding the accident was the cause of Theresa’s complaints after 1992, in awarding excessive general damages, in [¡¡awarding past medical expenses for treatment after 1992, in awarding future medical expenses, and in awarding future lost wages. Theresa answered the appeal to seek an award for past lost wages and an increase in the amounts awarded for loss of future wages and future medical expenses.

DISCUSSION

Causation

A trial court’s factual findings are accorded great weight and will not be disturbed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). It is the duty of the trier of fact to weigh credibility and to accept or reject all or part of a witness’s testimony. Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So.2d 309; Marshall v. Caddo Parish School Board, 32,373 (La.App.2d Cir.10/29/99), 743 So.2d 943. Where there is a conflict in the testimony, reasonable evaluations of credibility should not be disturbed on appeal. Rosell, supra. Where there are two permissible views of the evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

In a personal injury suit, the plaintiff bears the burden of proving a causal connection between the accident and the alleged injuries. Hughes v. Scottsdale Ins. Co., 35,043 (La.App.2d Cir.8/22/01), 793 So.2d 537; Harper v. Garcia, 32,142 (La.App.2d Cir.8/18/99), 739 So.2d 996. Furthermore, a plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Board, 553 So.2d 427 (La.1989); Marshall, supra. The burden is met by proving through medical and [ filay testimony that it is more probable than not that the injury was caused by the accident. Hughes, supra. Whether the accident caused the plaintiffs injury is a factual question subject to the manifest error standard of review. Id.

Shelter argues that the trial court abused its discretion in finding a causal connection between the accident of July 3, 1991, and the plaintiffs complaints after 1992. Theresa had a history of TMJ and had fallen days before the accident. She was involved in another vehicular accident in 1994, and she had medical treatment for other conditions. Shelter asserts that any injury Theresa suffered from the accident at issue was minor and limited in time.

From our review of the record, we find no error in the trial court’s finding that the accident caused the soft tissue injuries that Theresa complained of through the time of trial. Neither the history of TMJ nor the fall prior to the accident was shown to have caused the ongoing symptoms of neck and shoulder pain which Theresa began experiencing within hours of the accident. Although Mary Traylor, the plaintiffs sister, testified that Theresa had hurt her back while in school, Traylor admitted that she does not have a close relationship with Theresa. Moreover, there was no other evidence to corroborate Traylor’s claims. There was also no evidence that the subsequent accident in 1994 did anything other than temporarily aggravate Theresa’s condition.

In meeting the burden of proof, Theresa did establish that she began experiencing neck and shoulder pain shortly after the accident. Her 17symptoms remained consistent and continued throughout the ensuing years. These facts were proven by testimony of Theresa, as well as that of her friends, family, co-workers, and healthcare providers. The medical evidence shows that Theresa sought treatment, but obtained little relief. She adjusted to living with the ongoing pain. As will be discussed further in connection with the award of general damages, there was ample evidence that Theresa’s injury may be a lifetime condition.

Both the medical and lay testimony establish more probable than not that the accident caused injury to Theresa’s neck and shoulder and that this injury has persisted since the time of the accident. We find no manifest error in the trial court’s finding of causation.

General Damages

General damages are those which compensate the victim for mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses which cannot be measured in exact monetary terms. Marshall, supra; King v. Illinois National Ins. Co., 34,473 (La.App.2d Cir.2/28/01), 782 So.2d 1104, writ denied, 01-1244 (La.6/22/01), 794 So.2d 788, 01-1245 (La.6/22/01), 794 So.2d 788. Much discretion is left to the trier of fact in assessing general damages. La. C.C. art. 2324.1. In fact, this discretion is great, and even vast, so that an appellate court should rarely disturb an award of general damages. 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); King, supra. It is only when the award is in either direction beyond that which a reasonable trier of fact could assess for the effects of a | particular injury to the particular plaintiff under the particular circumstances that the appellate court should decrease or increase the award. Youn, supra. Whether an award is excessive must be determined by viewing the evidence in the light most favorable to the plaintiff. King, supra; Morris v. United Services Auto. Ass’n, 32,528 (La.App.2d Cir.2/18/00), 756 So.2d 549. Only after an articulated factual analysis discloses an abuse of discretion does resort to prior awards for guidance become necessary. Higginbotham v. Ouachita Parish Police Jury, 513 So.2d 537 (La.App. 2d Cir.1987); Hughes, supra.

Shelter argues that the award of general damages is excessive and that it should be reduced to reflect a non-disabling condition of six to eighteen months’ duration. Shelter points out that the award is based only on Theresa’s subjective complaints and argues that the trial court should not have given much weight to her testimony because she was impeached on the issue of days missed from work due to her injury.

While Theresa’s testimony regarding absences from work was impeached, the majority of her testimony regarding her injury was corroborated by other witnesses and was considered credible by the trial court. Much of Shelter’s argument regarding general damages is based on the issue of causation, which we found to have been properly resolved by the trial court. Thus, an award of damages based on an injury lasting only six to eighteen months is not warranted under this facts of this case.

The testimony established that Theresa began having pain in her neck and shoulder area soon after the accident. The manifestation of pain was ^witnessed by her co-workers with whom she was traveling to Florida. One such witness was Kathleen Crawley, who testified that Theresa had no symptoms of neck pain prior to the accident and that she had been “happy go lucky and full of fun.” According to Crawley, Theresa began having pain after the accident and never seemed free of pain thereafter. Crawley witnessed Theresa in pain at work, sometimes in tears and with dark circles under her eyes due to lack of sleep. Crawley recalled Theresa either placing hot packs on her neck and shoulder at lunch time or going home for a hot bath. She testified that Theresa engaged in less social activity after the accident and that she was heartbroken at being unable to help care for her grandson due to being unable to lift him.

Norma Judy Abbott and Ashley Keever, other co-workers whose depositions were introduced into evidence, gave similar accounts of Theresa’s onset of pain following the accident and how the pain impacted her work routine. Vera Fowler, who was working with Theresa at the time of the accident and had done so since 1997, testified that Theresa’s condition seems to be worsening. The testimony of the co-workers showed that the work of a surgical assistant is demanding in that they are forced to stand in fixed positions over patients for prolonged periods of time. This work causes discomfort to everyone and necessitates the occasional changing of positions or duties with others assisting the doctor. Nevertheless, Theresa continued working and tried to deal with the pain by the application of hot or cold packs, hot baths, medication, and linincorporating additional work duties to alleviate the added discomforts of assisting during surgery.

Theresa testified that she hurts twenty-four hours a day whether she does anything or not. She admitted that she has gone line dancing over the years as exercise, perhaps twice a week at times. She remarried in 1997. She began drinking quite a bit in 1998 as a means of alleviating the pain, but it did not help. Her husband, Jesse Hearold, testified that she hurts every day, with some days being worse than others. He described Theresa as often depressed and having regular crying spells. Although he works away from home much of the time, Jesse does many of the household chores and yard work to help Theresa.

Theresa’s complaints of pain are subjective, and there have been no objective findings of injury on x-rays, CT scans, or MRI’s done over the years. However, none of Theresa’s treating physicians have described her as a malingerer or testified that she is magnifying her symptoms.

Dr. Brown, an orthopaedic surgeon, began treating Theresa in October 1991. He believed she had some postural problems, possibly related to thoracic outlet syndrome, but he also diagnosed her as having a soft tissue injury of the neck and spine, or chronic cervical strain. He believed that such an injury should resolve itself within six to eighteen months depending on its severity. His treatment of Theresa included orders for physical therapy and medication. He referred her to a psychologist for an evaluation and help with pain management. Dr. Brown discontinued active treatment of Theresa in March 1992, because he did not think she had l^an orthopaedic condition that warranted his continued care. He believed that a primary care physician could take care of her prescriptive needs. Dr. Brown did see Theresa again in 1999 for an evaluation. His impression at that time was that she was suffering from chronic cervical disc syndrome and that she had not experienced significant deterioration over the past eight years.

In May 1992, Theresa was also evaluated by Dr. Donna Donald, an internal medicine specialist. This evaluation was primarily for depression, but Dr. Donald also conducted a complete physical exam of Theresa. Theresa reported having been involved in the accident at issue and having been through a divorce. She complained of pain in the neck and shoulder area, problems sleeping, and bouts of crying. Dr. Donald found tenderness in the cervical spine area radiating to both shoulders, but primarily on the right side. She described tenderness to touch as an objective symptom of pain. Although Dr. Donald stated there is no way to determine the exact cause of depression, she believed that Theresa’s continuing pain was a contributing factor to her depression. Dr. Donald described Theresa’s condition as severe musculoskeletal pain with depression. She explained that an injury of that type could resolve itself within a couple of months or last for a protracted period of time. Dr. Donald testified that she had no reason to doubt Theresa’s account of the pain she experienced as a result of the injury. Finally, Dr. Donald believed that Theresa was in need of further treatment, but that she seemed to have simply given up.

lijjDr. Ferral Endsley, a specialist in physical medicine and rehabilitation, began treating Theresa in June 1992, after a referral by the psychologists to whom Dr. Brown had sent her for an evaluation. According to Dr. Endsley, Theresa related her symptoms to the vehicular accident at issue, and he found her complaints to be •consistent with the type of wreck that occurred. He diagnosed Theresa’s condition as cervical and trapezius muscle strain with chronic pain as a secondary ailment. He also noted that continuing pain would subject Theresa to bouts of depression and anxiety. He noted that her work as a surgical assistant was likely aggravating her condition. Dr. Endsley admitted Theresa to an inpatient pain management program for two weeks during the summer of 1992. The inpatient program resulted in a significant decrease in the pain reported by Theresa. However, she began reporting increased pain within weeks of discharge from the program. Because Theresa had been in pain for over a year and the inpatient program had not succeeded in resolving the problem, Dr. Ends-ley did not expect her complaints of pain to go away. Rather, he expected the pain to persist, possibly leading to degenerative changes later in life. His records noted the likelihood that Theresa would continue to have problems on a permanent basis. Dr. Endsley believed an appropriate goal for Theresa’s treatment would be to get the pain down to a tolerable level. He expressed the opinion that chronic pain sufferers should remain active and engage in some type of exercise program. He noted that Theresa had been consistent in continuing to work and that engaging in line dancing h ¡¡would be a good form of exercise if not done too often or aggressively. He did not recommend playing pool as a good activity.

Dr. Endsley last saw Theresa in 1999, six years after he had last treated her in 1993. Theresa was still having neck and shoulder pain consistent with her prior symptoms. Dr. Endsley did not believe that Theresa was either malingering or magnifying her symptoms. He noted in his records that her musculoskeletal pain appeared to be worse, that she was having a more difficult time managing the pain, and that the pain was no longer responding to conservative treatment. Dr. Ends-ley concluded that the pain may last the rest of her life and that she would most likely continue to require medical care.

At the time of trial, Theresa was being treated by Dr. Greg Vigna, a physical medicine and rehabilitation specialist. According to Dr. Vigna, Theresa related her symptoms to the automobile accident of 1991. He explained that persistent pain could result from even a minor whiplash type injury. He found tenderness in the neck area upon palpitation and determined that she was suffering persistent muscular pain. Dr. Vigna first treated Theresa with medications for muscular pain and sleeping. Her symptoms appeared no better on subsequent visits. Because Theresa continued to report consistent symptoms, Dr. Vigna believed that she might benefit from Botox injections in the area of pain. According to Dr. Vigna, the injections are very painful and expensive. Even if the treatment is successful, the effects are temporary, and the patient must undergo repeated injections every three or four months. Dr. Vigna explained that Botox is an | u“end of the line” remedy for chronic pain sufferers and that he uses it on patients to keep them functioning in their jobs and daily lives. Dr. Vigna believed that Theresa should continue working and dancing. He explained that you want chronic pain sufferers to remain functioning. At the time of Dr. Vigna’s deposition, he had only administered the firát round of Botox injections at a reduced dosage to Theresa’s neck and shoulder area. Theresa testified that she felt some relief and that she would undergo the injections again at a higher dosage.

The evidence establishes that Theresa suffered a soft tissue injury of her neck and shoulder area as a result of the accident at issue. This injury has persisted over the years and will likely continue to cause her pain and discomfort indefinitely. Theresa has also suffered from depression and sleeping problems in connection with the persistent pain. She sought medical treatment soon after the accident and continued under regular medical care until 1993, when it appeared that there was nothing more to be done. The trial court found it plausible that she gave up on treatment for a time and tried to incorporate the pain into her life. We agree. She has remained on various pain medications over the years, and she has continued doing what she can to alleviate the pain, such as taking hot baths and using hot or cold packs. Her testimony describing her pain and its effects on her life was corroborated by lay witnesses and physicians. The trial court found the witnesses’ testimony to be credible. In awarding general damages in the amount of $150,000, the trial court considered the severity and long-term nature of Theresa’s symptoms, the psychological effects and inconveniences |1sof the injury, and the probability of the injury never completely resolving itself. Viewing the evidence in the light most favorable to the plaintiff and considering the particular effects of this injury on Theresa, we cannot say that the trial court abused its discretion. Accordingly, we affirm the award of general damages.

Special Damages

The trial court awarded Theresa special damages for past medical expenses, future medical expenses, and future loss of income. Shelter appeals these awards. It argues that Theresa should not have been awarded medical expenses for treatment rendered after 1992 and that the awards for future medical expenses and future loss of income are not supported by the record. Theresa appeals the awards of future medical expenses and future loss of wages, which she contends are inadequate. She also argues that the trial court erred in failing to award her damages for past loss of income.

To recover medical expenses, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by the accident. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App.2d Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La.4/26/02), 814 So.2d 558. The trial court awarded past medical expenses of $22,747. Theresa asserts no error with regard to this award. Having determined that the trial court properly resolved the issue of causation, we find no merit in Shelter’s contention that the trial court erred in awarding medical expenses for treatment incurred by Theresa after 1992. Accordingly, the award of past medical expenses is affirmed.

hfiThe trial court awarded $30,000 for future medical expenses. Both parties appeal this award. Future medical expenses are by their nature insusceptible of precise measurement. As such, much discretion is left to the trier of fact in making a reasonable assessment of such damages. Dugas v. Derouen, 01-1397 (La. App. 3d Cir.7/3/02), 824 So.2d 475. The burden is on the plaintiff to show more probably than not that these expenses will be incurred. Brandao, supra. When the record establishes that future medical expenses will be necessary and inevitable, such an award should not be rejected on the basis that the record does not provide the exact value of the such expenses, if the court can determine from the evidence a minimum amount that reasonable minds could agree would be required. Stiles v. K-Mart Corporation, 597 So.2d 1012 (La.1992).

Dr. Endsley and Dr. Vigna both testified that Theresa’s condition would likely continue indefinitely. Dr. Vigna believed that Botox might provide some relief for Theresa, and her testimony after the initial injections was that there had been some success. However, Dr. Brown, in an affidavit admitted into evidence, disputed the efficacy of Botox for Theresa’s condition. He stated that there is no widespread support for the use of Botox on patients with purely subjective complaints of soft tissue pain. Nevertheless, the record does establish the likelihood of Theresa requiring ongoing medical attention for the persistent pain from the soft tissue injury. Treatment may include Botox for some time if it is found to be effective, or it may simply include the continuing need for prescriptive medications. Theresa’s injury had not resolved itself within ten years of the accident, and |17there were indications that Theresa’s condition seemed to be worsening and not responding to conservative treatment. Having reviewed the record, we do not find an abuse of discretion by the trial court in awarding $30,000 for future medical expenses, nor can we say that the record establishes the need for a greater award. As such, we affirm the award for future medical expenses.

The trial court rejected Theresa’s claim for past lost wages. The plaintiff bears the burden of proving a claim for loss of wages with reasonable certainty. Dugas, supra. Theresa testified repeatedly that all of the time she took off from work since the accident was attributable to her injury from the accident. However, the trial court found that the bulk of time she missed since the accident was for personal reasons unrelated to the accident. This finding is supported by the record. While Theresa claims she should be compensated for days missed in 2000, the record shows that she no longer worked Wednesday afternoons and Fridays because Dr. Rhymes did not work those days and not because of any necessity due to pain. We do not find that Theresa met the burden of proving her claim for lost wages by a reasonable certainty.

After denying the claim for past loss of wages, the trial court awarded Theresa $20,000 for future loss of wages. Shelter asserts that this award is unwarranted. Theresa seeks an increase in the amount awarded. Awards for loss of future income are inherently speculative and insusceptible of calculation with mathematical certainty. Moody v. Blanchard Place Apartments, 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647. Factors to be considered in awarding damages for future loss of income include the plaintiffs physical condition before and after his injury, the plaintiffs work history and consistency thereof, the amount the plaintiff would have earned had the injury not occurred, and the probability of the plaintiff continuing to earn wages over his working life. Moody, supra; Dugas, supra.

While greater deference may be afforded the trial court in assessing damages for future loss of wages, we must conclude that the trial court abused its discretion in awarding such damages in this instance. In its reasons for judgment, the trial court concluded that “plain reason” indicated that Theresa’s “work activity may be curtailed” if she continues to suffer from her injury. However, there was nothing in the record to indicate that Theresa would no longer be able to work due to the pain from the injury. In fact, Theresa has been able to maintain a normal work schedule since the injury. Her income has increased over the years. She has had no restrictions imposed on her by healthcare providers. None of the physicians who treated her testified that she would be unable to continue working. In fact, Dr. Vigna was willing to try the Botox injections precisely because Theresa had continued to work and function in society despite being in pain. The record simply contains no evidence upon which to base an award for loss of future wages. While we recognize that an award for future loss of wages is highly speculative, mere conjecture by the trial court regarding the plaintiffs possible future situation is not sufficient to support such an|19award. Accordingly, we strike that portion of the judgment awarding damages for future loss of wages.

CONCLUSION

For the reasons mentioned, we affirm those portions of the trial court’s judgment awarding the plaintiff general damages, past medical expenses, and future medical expenses. However, the judgment is amended to strike the award of damages for future loss of wages. Costs of this appeal are assessed to Shelter.

AMENDED IN PART, AND AFFIRMED AS AMENDED.

      . The plaintiff was remarried and referred to as Theresa Hearold at the time of trial.

      . Kent Breard, Sr., died before trial of this matter. He was dismissed from the suit. Accordingly, Shelter was the sole defendant at trial.


source: Caselaw Access Project

author: | t GASKINS, J.

license: Public Domain

text:
    Joe BOLTON, Plaintiff-Appellant v. MIKE FLEMING CONSTRUCTION, and Luba, Defendant-Appellee.
    No. 36,521-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Fischer & McMahon, by Mark K. Man-no, for Appellant.
    Crawford & Anzelmo, by K. Douglas Wheeler, Monroe, for Appellee.
    Before GASKINS, DREW and HARRISON (Pro Tempore), JJ.
   | t GASKINS, J.

The plaintiff, Joe Bolton, appeals the judgment of a workers’ compensation judge (WCJ) denying his claim for supplemental earnings benefits and for penalties and attorney fees against the defendant, Mike Fleming Construction, for failure to pay indemnity and medical benefits. In its answer to the appeal, the defendant claims that the WCJ erred in rejecting its claim of fraud against the plaintiff under La. R.S. 23:1208. The defendant also objects to the WCJ’s award of medical benefits to the plaintiff. For the following reasons, we affirm.

FACTS

Bolton had numerous health problems including trouble with his knees, shoulders, and back. He had surgery on his knees six times. He had surgery on his left shoulder twice and he had surgery on his elbow once. He had hernia surgery and eye surgery. In addition, he had degenerative arthritis in his back. He had sustained injuries on three different occasions on previous jobs and had drawn workers’ compensation benefits. After a work injury in 1984, the plaintiff was basically unemployed and did odd jobs until July 2000, when he was hired by the defendant.

Mike Fleming Construction engages in residential home construction and carpentry. Bolton began working for the defendant on July 17, 2000. He was to be paid $7.00 per hour and was to work 40 hours per week. His job was to sweep up and to carry small boards around construction sites. He usually worked with a crew of 6-8 other employees.

On July 27, 2000, the plaintiff was sent, by himself, to remove the wood framing around a concrete patio slab. He claims that as he was | ^preparing to discard some boards, his left foot slipped out from under him, followed by his right foot. He claims that he reached back to catch himself with his right hand, injuring his right shoulder. He picked up his tools and called his foreman, Robert Vasquez. When Mr. Vasquez arrived, Bolton was lying on the concrete driveway, as if he was taking a nap, with his tools stacked nearby.

The plaintiff sought medical treatment. He went to Willis-Knighton Work Kare and was seen by Dr. Fred Price. Dr. Price diagnosed him with a shoulder sprain and restricted him to light duty work. The arm was placed in a sling. Bolton later continued treatment of his right shoulder with his orthopedist, Dr. Ryan Bicknell.

The accident occurred on Thursday. The plaintiff did not go to work on Friday, but he did report for work on Monday. The defendant claims that it provided light duty work for Bolton in accordance with his physician’s orders. The plaintiff worked through Wednesday, and then quit his job.

The plaintiff had already scheduled knee surgery for a problem not related to this work injury. Bolton met Mike Fleming in the parking lot of a convenience store where he was given his last pay check. According to Fleming, Bolton told him that he was about to have knee surgery. The plaintiff expressed interest in returning to work after his recuperation. Surgery on the knee was performed on August 15, 2000.

The defendant did not hear from Bolton again until January 17, 2001, when he filed a disputed claim for compensation against the defendant, claiming injury to his right hand, shoulder and scapula. In addition to | ¿naming Mike Fleming Construction as a defendant, the plaintiff also included its self-insurance fund, Louisiana United Business Association (LUBA). LUBA was later dismissed as a party.

Bolton told insurance investigators that he had never had any trouble with his right shoulder before this accident. During the investigation, it was revealed that the plaintiff had sought treatment for right shoulder pain on several occasions prior to this injury. The defendant claimed that the plaintiff willfully made false statements and representations to obtain benefits.

The matter was tried on October 11, 2001 and concluded on November 26, 2001. The case was submitted on December 19, 2001. On February 15, 2002, the WCJ rendered a judgment largely in favor of the plaintiff. The WCJ found that Bolton proved by a preponderance of the evidence that he sustained a work-related accident resulting in a right shoulder injury on July 27, 2000, in the course and scope of his employment. The WCJ found that the defendant failed to prove that the plaintiff violated La. R.S. 23:1208, based upon a finding that the statements made by the plaintiff were inconsequential and not for the purpose of obtaining workers’ compensation benefits. The WCJ denied the plaintiffs claim for supplemental earnings benefits (SEBs). The defendant was ordered to pay the plaintiffs medical expenses in the amount of $225.00. The plaintiffs claim for penalties and attorney fees was denied. The plaintiff appealed and the defendant answered the appeal.

I ¿SUPPLEMENTAL EARNINGS BENEFITS

The plaintiff argues on appeal that the WCJ erred in denying his claim for SEBs from August 3, 2000, prospectively, without giving reasons. According to Bolton, because the WCJ found there was an accident with injury in the course and scope of employment, the injury is com-pensable. Because there was no showing that the plaintiff earned any wages after August 2, 2000, he claims that he is entitled to SEBs from that date. This argument is without merit.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corporation, 97-0688 (La.12/2/97), 704 So.2d 1161; Figueroa v. Hardtner Medical Center, 35,-678 (La.App.2d Cir.1/25/02), 805 So.2d 1267. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal v. Gaylord Container Corporation, supra; Figueroa v. Hardtner Medical Center, supra. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the fact finder’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. Seal v. Gaylord Container Corporation, supra; Figueroa v. Hardtner Medical Center, supra.

s The purpose of SEBs is to compensate the injured employee for the wage-earning capacity he has lost as a result of the accident. Marshall v. Louisiana Pacific Corporation, 35,182 (La.App.2d Cir.11/2/01), 799 So.2d 837.

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90 percent or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Daigle v. Sherwin-Williams Company, 545 So.2d 1005 (La.1989); Figueroa v. Hardtner Medical Center, supra.

In determining whether a finding that an employee has not met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn 90 percent or more of his pre-injury wages. Seal v. Gaylord Container Corporation, supra; Figueroa v. Hardtner Medical Center, supra.

Once the employee’s burden is met, the burden shifts to the employer. An employer can discharge its burden by establishing, by a preponderance 1 fiof the evidence, (1) the existence of a suitable job within the claimant’s physical capabilities, and within the claimant’s or the employer’s community or reasonable geographic region; (2) the amount of wages that an employee with claimant’s experience and training can expect to earn in that job; and (3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Actual job placement is not required. La. R.S. 23:1221(3)(c)(i); Seal v. Gaylord Container Corporation, supra; Figueroa v. Hardtner Medical Center, supra; Payne v. Lawn Lourd Lawn Service, 35,491 (La.App.2d Cir.12/5/01), 803 So.2d 321; Marshall v. Louisiana Pacific Corporation, supra. If the employer meets this burden, then the claimant must show, by clear and convincing evidence, that he is unable to perform the offered or available work solely because of substantial pain. La. R.S. 23:1221(3)(c)(ii); Seal v. Gaylord Container Corporation, supra.

According to Bolton, there was a com-pensable accident; he was then restricted to light duty. He disputes the claim that light duty work was offered by the defendant. The defendant did not initiate vocational rehabilitation and there was no showing that the plaintiff had any earned income since August 2, 2000. The plaintiff contends that he proved that he was not earning 90 percent of his pre-injury wage, so the burden of proof shifted to the defendant to prove job availability and/or earning capacity. The plaintiff claims that he is entitled to SEBS from August 3, 2000 at the maximum rate of $186.87 per week. The plaintiff claims entitlement to past |7due benefits in a lump sum plus continuing SEBs until he is able to earn 90 percent of his pre-injury wage.

The defendant argues that Bolton is not entitled to SEBs because he was given light duty work. According to the defendant, the plaintiff never complained that he was unable to do light duty work because of pain. Because the plaintiff did not carry his burden of proving that, as a result of his injury, he is unable to earn 90 percent of his pre-injury wage, the defendant contends that the burden of proof never shifted to the defendant to show the plaintiffs ability to work and the availability of a suitable job. No rehabilitation services were offered to the plaintiff because he was able to work at a light duty job at the same wage.

The parties stipulated that Bolton was never temporarily totally disabled and that he was released to return to light duty work on July 27, 2000, the day of the accident. He was instructed not to reach over his head and a limitation was placed on the amount of weight he could lift.

According to Bolton, he was given a work restriction slip by Dr. Price at Work Rare, which he took to the defendant. Robert Vasquez acknowledged that he received the slip from the plaintiff and Bolton was assigned to light duty work carrying small boards, under twenty pounds, and sweeping up around the construction site. After the injury, when Bolton resumed work, Vasquez claimed that he observed Bolton carrying boards in his sling and he cautioned him not to exceed his light duty restrictions. Vasquez claimed that the plaintiff was carrying the boards with no obvious pain.

| sMichael Fleming testified that after Bolton was injured, he was placed on light duty work with no reduction in salary. He stated that Bolton would still have been employed with the company if he had not quit. Fleming stated that the plaintiff told him that he was scheduled to have knee surgery. Fleming told Bolton that he could come back to work after he recuperated from the surgery. Fleming stated that he never heard from the plaintiff again until the present suit was filed.

Bolton testified that when he returned to work after the accident, Vasquez told him to take it easy and assigned him the task of pulling nails. He acknowledged that he could work with one hand while the injured arm was in a sling. He asserts that he was then asked to help hold up a wall while it was nailed in place. He contended that he was not given light duty work. He claimed that due to shoulder pain, he quit his job with the defendant. The plaintiff testified that he could have gotten other jobs within the light duty restrictions, but he simply had not gone back to work.

By denying the plaintiffs claim for SEBs, the WCJ found that Bolton did not carry his burden of proof. The record shows that the plaintiff suffered a minor injury and was released to light duty work immediately after the injury. The record also shows that the defendant offered light duty work to the plaintiff at no reduction in pay. Under these circumstances, the plaintiff has failed to show that, as a result of the accident and injury, he is unable to earn 90 percent or more of his pre-injury wage. Therefore, the WCJ did not err in denying Bolton’s claim for SEBs.

^PENALTIES AND ATTORNEY FEES

Bolton claims that the trial court erred in denying his claims for penalties and attorney fees for the defendant’s failure to approve indemnity and medical benefits. The plaintiff claims entitlement to penalties of $2,000 for failure to pay indemnity and $2,000 for failure to pay medical benefits. He also claims attorney fees. This argument is without merit.

Failure to provide compensation benefits shall result in the assessment of a penalty and reasonable attorney fees unless the claim is “reasonably controverted” or nonpayment results from conditions over which the employer or its insurer had no control. La. R.S. 23:1201(F).

Regarding a claim under La. R.S. 23:1201(F), an employee has the burden of proving his entitlement to statutory penalties for the employer’s failure to timely pay workers’ compensation benefits. To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Figueroa v. Hardtner Medical Center, supra.

To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General Motors Corporation, 36,339 (La.App.2d Cir.9/18/02), 828 So.2d 150. The court must determine whether the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant | inthroughout the time he refused to pay all or part of the benefits allegedly owed. Feild v. General Motors Corporation, supra.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Figueroa v. Hardtner Medical Center, supra. The WCJ’s decision to award or deny attorney fees is subject to manifest error of review. Feild v. General Motors Corporation, supra.

The record shows that the plaintiff paid the plaintiffs medical expenses at Work Kare and paid for some of the plaintiffs visits to Dr. Bicknell. Kelly Rhea, the insurance adjuster for the defendant’s workers’ compensation insurer, testified at trial. She stated that the plaintiffs claim has numerous “red flags” that prompted the company to investigate. These included the fact that the accident was not witnessed. Also, according to Ms. Rhea, Bolton’s drug screening test, done the day of the accident, showed the presence of a strong pain killer. These factors prompted the defendant to investigate the plaintiffs claims. When Ms. Rhea attempted to take a statement from the plaintiff, his lawyer terminated the interview in order to attend another deposition. He indicated that he would reschedule the statement within a week. However, this did not occur promptly.

Ms. Rhea testified that the initial reason for the denial was because the plaintiffs attorney did not allow the claim to be investigated. After the statement was completed, indemnity benefits were denied because light duty Inwork had been made available to the plaintiff. Also, based upon the plaintiffs medical records, the defendant determined that the plaintiff had not disclosed prior complaints of pain in the right shoulder.

The employer in a workers’ compensation case has the duty to investigate and make a reasonable effort to assemble and assess factual and medical information to ascertain whether a claim is compensable. Allen v. Misco Paper, 27,146 (La. App.2d Cir.8/23/95), 660 So.2d 175. However, in this case, the investigation was delayed by the plaintiff. Under these circumstances, we do not find that the WCJ was manifestly erroneous in denying the plaintiffs claim for penalties and attorney fees.

FRAUD

The defendant answered the appeal, claiming that the WCJ erred in rejecting its fraud claim against the plaintiff. This claim is without merit.

Forfeiture of workers’ compensation benefits is governed by La. R.S. 23:1208, which provides in pertinent part, “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment ... to willfully make a false statement or representation.” La. R.S. 23:1208(E) provides the remedy, among others, for an employee’s fraudulent acts: “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.”

La. R.S. 23:1208 is a broadly worded statute that applies to any false statements or representations, including those concerning prior injuries, and the employer need not show that it has been prejudiced as a condition of L ¡.forfeiture. Figueroa v. Hardtner Medical Center, supra. The statute, which requires a worker to forfeit workers’ compensation benefits for willfully making a false statement or misrepresentation to obtain benefits, is rationally related to the state’s objective of promoting honest representations and full disclosure by claimants. Figueroa v. Hardtner Medical Center, supra.

La. R.S. 23:1208 allows for the forfeiture of benefits when proof is made that (1) there is a false statement or representation; (2) that is willfully made; and (3) is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7; Figueroa v. Hardtner Medical Center, supra.

The forfeiture remedy is a harsh one and must be strictly construed. False statements that are inadvertent or inconsequential will not result in forfeiture. Morton v. Wal-Mart Stores, Inc., 36,398 (La.App.2d Cir.10/25/02), 830 So.2d 533.

According to the defendant, Bolton willfully made false statements, concealing his complaints of right shoulder pain prior to the accident and he made the misrepresentations for the purpose of obtaining workers’ compensation benefits.

In the plaintiffs deposition and in his statements to the insurance investigators, Bolton denied any prior complaints of right shoulder pain. The plaintiff was asked if he had ever sought any medical treatment of any type for his right shoulder. He denied ever making any complaint of right shoulder pain to any physicians prior to this accident. However, Bolton’s |13medical records reveal that he had in fact complained of right shoulder pain several times prior to this work related injury. On September 24, 1993, the plaintiff complained of pain around the right shoulder blade and neck. Point tenderness along the medial and inferior aspect of the right shoulder were noted by Dr. Robert Holladay, an orthopedic surgeon. On August 11, 1993, the plaintiff again consulted Dr. Holladay with complaints of pain between the shoulder blades in the rhomboid muscles bilaterally. An entry in Bolton’s medical records by Dr. Maurie Patterson notes complaints of persistent right shoulder pain. On March 26,1999, Dr. Bicknell noted a complaint by Bolton of right shoulder pain. This was diagnosed as a rhomboid strain.

When confronted with these facts at trial, Bolton admitted that his prior answers were incorrect. However, he qualified his statements by saying that his prior complaints of right shoulder pain were in the rhomboid muscle in the back of his shoulder. The work injury was in the front of his shoulder and felt more like a rotator cuff tear.

Dr. Bicknell, the plaintiffs treating orthopedist, testified by deposition. He acknowledged that, based upon the medical records in this case, July 2000 was not the first time that the plaintiff had complained to him or to other physicians regarding right shoulder pain. He stated that the pain Bolton was experiencing from the rhomboid muscle would have felt more like back pain rather than shoulder pain.

Dr. Bicknell testified that there was no way to say with any degree of probability that the plaintiffs discomfort in his right shoulder is related to ] uthe fall rather than the same pain he had been experiencing for a number of years. Dr. Bicknell acknowledged that the plaintiff had numerous previous medical complaints, including pain in the right shoulder girdle. However, given the history presented by the plaintiff of having sustained a fall, he had to conclude that the fall added to the plaintiffs problem with his right shoulder. Dr. Bicknell stated that it would be fair to say that in this accident the plaintiff injured a new area of the shoulder and aggravated some old areas of injury.

Given these facts, we do not find that the WCJ erred in finding that the plaintiffs remarks did not rise to the level of imposing the penalty of forfeiture of benefits required under La. R.S. 23:1208. The record shows that, even though the plaintiff sought treatment for right shoulder pain prior to this accident, his complaint was in a different area of the shoulder. Although the plaintiff was not accurate in saying that he had never sought treatment for any pain associated with the shoulder in any manner, the record does show the work-related injury to have caused a new complaint not previously voiced by the plaintiff. Therefore, the WCJ’s finding that the plaintiffs statements were inconsequential is not clearly wrong or manifestly erroneous.

The defendant also claims that Bolton made willfully false statements about his ability to work. The defendant pointed to the notes of the plaintiffs physical therapist (PT) during his treatment for the present injury indicating that he had made little progress and yet was very active outside of therapy. The notes showed that the plaintiff was using heavy equipment |1Blike a chainsaw. The PT also noted a possible development of a dependency on pain medication. The PT further noted that the plaintiff was possibly magnifying his symptoms. In spite of this, the plaintiff told the insurance adjuster that he was not able to do any kind of work.

The record shows that the plaintiff was able to do light duty work with specified restrictions from the date of his injury. The parties also stipulated that the plaintiff is not claiming to be temporarily totally disabled. There is also no allegation that he is totally permanently disabled. Therefore, any statement by the plaintiff claiming to be unable to work at all is inconsequential to the issues presently before the court. While such a statement would not be accurate, it does not rise to the level of a willful false statement necessary for the imposition of the penalty provisions of La. R.S. 23:1208.

Based upon the record before us, we find that the WCJ was not manifestly erroneous or clearly wrong in rejecting the defendant’s claim that, under La. R.S. 23:1208, Bolton should forfeit any workers’ compensation benefits to which he might be entitled.

MEDICAL BENEFITS

According to the defendant, the WCJ erred in awarding medical benefits to Bolton of $225 for one doctor’s visit not previously paid for by the defendant. This argument is without merit.

Under La. R.S. 23:1203(A), an employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedieal treatment related to an employee’s work-related injury. |1fi However, this duty is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to La. R.S. 23:1034.2 or the actual charge made for the service, whichever is less. La. R.S. 23:1203(B).

The defendant contends that Bolton did not prove by a preponderance of the evidence that his shoulder problems and treatment were caused by the fall at work. The defendant argues that no physician has linked Bolton’s complaints of right shoulder pain to the accident. According to the defendant, Bolton’s doctor said that the work injury could have aggravated his right shoulder problems or it could have been a continuation of the problems he already had. The defendant also points out that Bolton is having the same trouble with his left shoulder as with the right and that there was no source of trauma to the left shoulder.

The plaintiff and Dr. Bicknell provided evidence from which the WCJ could reasonably find that there was an accident and that the shoulder was injured in the accident. As outlined above, Dr. Bicknell stated that the accident injured new areas of the plaintiffs shoulder and aggravated some old injuries. Under these facts, the plaintiff sustained his burden of showing a causal relationship between the accident and the shoulder injury. The workers’ compensation judge did not err in awarding unpaid medical expenses in the amount of $225.00.

^CONCLUSION

For the reasons stated above, we affirm the decision of the workers’ compensation judge in all respects. Costs in this court are assessed one-half to the plaintiff, Joe Bolton, and one-half to the defendant, Mike Fleming Construction.

AFFIRMED.

      . Although the plaintiff points out that the result of the drug test were not admitted at trial, he acknowledged that he frequently took the pain killer, Lortab. His wife also confirmed this in her testimony. The plaintiff also stated that, although he had not taken any of the medicine before this accident, he went to his vehicle and took some after he was injured.


author: JjPEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Carrol NARCISSE, Appellant.
    No. 36,595-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Marcus A. Allen, Sr., for Appellant.

      Richard Ieyoub, Attorney General, Walter E. May, Jr., District Attorney, James R. Hatch, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and KOSTELKA, JJ.
   JjPEATROSS, J.

Defendant, Carrol Narcisse, was charged with three counts of obscenity, a violation of La. R.S. 14:106(A). Defendant was tried by a jury and convicted as charged. At sentencing, the State filed an habitual offender bill of information. Defendant was found to be an habitual offender and sentenced to two-year sentences on each count. The trial court ordered the three sentences to be served concurrently with one another, but consecutively to any other hard labor sentence the Defendant was then serving. Defendant now appeals his conviction. For the reasons stated herein, we affirm.

FACTS

Defendant was convicted of aggravated battery in 1997 and sentenced to serve six years at hard labor at the David Wade Correctional Center in Claiborne Parish. Defendant suffered from asthma; and, during his incarceration, he required regular medical treatment in the infirmary. On September 2, 2000, due to exacerbation of his asthma, Defendant was in isolation room # 2 in the North Infirmary to receive breathing treatments to help improve his breathing. The isolation room is a locked hospital room that holds only one prisoner. On one wall of the isolation room there is a large picture window. The room is directly across a small hallway from the nurses’ station in the infirmary.

The infirmary treated prisoners, staff and visitors who are injured or who may need medical treatment while visiting the prison. The hallway containing the nurses’ station and the isolation rooms is one of the two general access routes for the infirmary used by the medical staff, 12correctional officers, persons seeking treatment and by the public touring the facilities.

Defendant’s first act of obscenity occurred at approximately 6:40 p.m. on September 2, 2000, when nurse Beth West (“West”) was on duty at the infirmary. Also on duty at the time was corrections officer Tineka Norton (“Norton”). As West was walking down the hallway between the isolation room and nurses’ station, she saw Defendant standing up in isolation room # 2, leaning almost against the picture window, with his pants pulled slightly down. Defendant was rubbing his erect penis while looking at Norton, who was near the nurses’ station and whose back was to the window. West was only a short distance from the window and she had a clear view of Defendant masturbating. West called out to Norton to turn around and look. When Norton did so, she only saw Defendant, “jumping back” away from the window and into his wheelchair. West ordered Defendant to stop exposing himself and masturbating. West then contacted the supervising officer and wrote a report about the incident. Since Norton did not actually see Defendant masturbating, she did not write a report about the incident.

Defendant’s second act of obscenity occurred after corrections cadet Loleta Brown (“Brown”) came on duty on the same night of September 2, 2000. At approximately 10:00 p.m., Brown was making her rounds. As she walked by isolation room #2, Brown observed Defendant standing by 13his wheelchair near the picture window watching her and rubbing his erect penis with his hand. Brown ordered Defendant to stop masturbating and to go to bed. Brown called the supervising officer and reported that Defendant was masturbating in her presence. She then filed a written report about the incident.

Finally, Defendant’s third act of obscenity was also observed by West on the same night. At approximately 11:00 p.m., West was sitting at the nurses’ station directly across from the picture window in isolation room # 2, where Defendant was located. West looked up and observed Defendant sitting in his wheelchair near the window. His pants were again pulled down and he was rubbing his erect penis while staring at West. West told Brown, who was also at the nurses’ station, “he’s (Defendant) doing it again.” Brown looked up and saw Defendant sitting in his wheelchair, with his pants pulled down, rubbing his erect penis with his hand. Brown observed that Defendant was looking at West as he was masturbating. West told Defendant to stop and to go to bed. Brown reported the incident to the supervising officer, but she did not write a report because she believed that the incident had been directed towards West. West wrote a report about the incident.

As previously stated, Defendant was charged with three counts of obscenity and the matter was tried by a jury. During the jury voir dire, Belinda and Ronald Perry were both called on the same prospective jury pool. Jury questioning established that Belinda Perry was a deputy clerk of court for Claiborne Parish and that Ronald Perry was her husband. During ^questioning, Mrs. Perry stated that, because of her job, it would be hard for her to take one side over the other. She also stated that she felt “beyond a reasonable doubt” on a percentage basis meant that the State had to prove 100 percent of the case to her. Ronald Perry answered that he did not have any problem with deciding the case one way or the other. He also stated that he knew “almost everyone” in the courtroom. At this point, Defendant’s counsel asked the entire panel if they also knew “almost everybody” in the courtroom and “several prospective jurors raised their hands.” Defendant’s counsel did not ask Mr. Perry any other question on this topic. When asked to give a percentage as to “beyond a reasonable doubt,” Mr. Perry answered that it meant on a percentage basis that the State had to prove 95 percent of the case to him.

The assistant district attorney challenged Mrs. Perry for cause because Mrs. Perry believed that beyond a reasonable doubt meant 100 percent proof. The trial court granted the State’s challenge as to Mrs. Perry, together with all other prospective jurors who believed that the State had to prove its case 100 percent.

Defendant challenged Mr. Perry for cause because Mr. Perry was married to Mrs. Perry, a deputy clerk of court, and because he knew most of the people in the courtroom. The trial court ruled that those relationships in and of themselves would not affect his ability to be a juror and that most everyone knew each other in a small place like Claiborne Parish. Defendant then used a peremptory challenge to remove Mr. Perry.

IsAffcer the jury was selected, the witnesses were sequestered from the courtroom and ordered not to discuss the case among themselves dr with anyone else involved in the matter. The trial judge then took a brief recess, during which time Defendant’s counsel noticed that an unidentified woman came into a corner of the courtroom and made contact with a witness for the State. Next, Defendant’s counsel noticed that the assistant district attorney and the unidentified woman went into a side room with that witness. Defendant’s counsel found the trial judge in chambers and made an objection to the interaction between the witness and the unidentified person.

After the recess, the trial judge conducted a hearing on Defendant’s objection to the unidentified woman talking to a witness after an order of sequestration was in place. Defendant moved for a mistrial, which was denied. The trial court allowed Defendant to question the unidentified person, who turned out to be Ann Boone (“Boone”), a prospective rebuttal witness for the State.

At the hearing, Boone testified that she was an employee at the David Wade Correctional Center, that she was also the ex-wife of one of the State’s witnesses and that she had brought the “master record” from the prison for the witnesses to review their original reports of the incidents involving Defendant. She testified that some of the witnesses had not reviewed their individual reports of the incidents, which had taken place more than a year before the trial. Boone denied “prepping” the witnesses and stated that she was simply presenting them with requested reports.

DBoone further testified that her hallway conversation with the assistant district attorney and the witness, Barbara Hoof (“Hoof’), was just to introduce Hoof to the assistant district attorney. Defendant moved to be allowed to review the “master record,” but the trial judge denied the motion. The trial court did, however, order that Boone also be sequestered, with the “master record,” in the event that either she or the record were needed in the trial.

Hoof was also called to testify at the hearing. Hoof testified that, when she came into the courtroom, she sat with the other witnesses and no one told her that the witnesses had been sequestered. Only later did the assistant district attorney tell her that she was a witness in the case and that she could not talk to anyone. Hoof also testified that the assistant district attorney asked her what her recollections were about the report she had completed on the incident. As previously stated, Defendant’s motion for a mistrial was denied.

The jury trial commenced on November 28, 2001. At the close of the State’s case, Defendant moved for a directed verdict, arguing that the State did not prove that a prison is a public place or a place open to the public view, as required by La. R.S. 14:106(A), and that Defendant could not be convicted of obscenity unless it was proven that he committed the obscene act in a public place or a place open to the public view. The trial court denied Defendant’s motion, holding that whether a prison is a public place or a place open to a public view is a question for the jury to determine.

17After the trial, the jury found Defendant guilty on all three counts and the trial court ordered a pre-sentence investigation. Defendant was sentenced on February 5, 2002. The trial court reviewed the pre-sentence investigation report, which recommended the maximum sentence of three years at hard labor for each count and the maximum fine of $2,500 for each count. The trial court, however, found that the maximum sentences and fines were not appropriate. The State filed an habitual offender bill of information and Defendant was sentenced separately on each count to two years at hard labor and given the minimum fine of $1,000 for each count. The trial court ordered the three sentences to be served concurrently with one another, but consecutively to any other hard labor sentence Defendant was then serving and Defendant was given credit for time served. This appeal ensued.

On appeal, Defendant raises the following assignments of error:

1. The court and jury erred in qualifying jails and prisons as public places or places open to public view;
2. the court erred in allowing a juror to remain on the panel and not be removed for cause, thereby requiring defense counsel to use a peremptory challenge to remove him; and
3. the court erred in overruling defense motion for a mistrial due to the tampering of witnesses who were ordered under sequestration by the court.

DISCUSSION

Public Place or Place Open to the Public View

Defendant argues that his conviction must be overturned because he did not commit an obscene act in a public place or a place open to the public view. At the time Defendant committed the acts for which he was convicted, La. R.S. 14:106(A) provided:

|SA. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipple in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to the prurient interest or is patently offensive.

Defendant contends that jails and prisons are not public places or places open to the public view because, in 2001, the legislature amended La. R.S. 14:106(A) to specifically include jails and prisons in the statute. The current La. R.S. 14:106(A) provides:

A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipple in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to the prurient interest or is patently offensive.

Defendant charges that this statute would not have been amended if the former version of the statute had already included jails and prisons in the definition of a public place or a place open to the public view. Since the former version of the statute did not cover jails and prisons as public places or places open to the public view, Defendant argues that he should not have been convicted of the obscenity offenses; and, therefore, his conviction must be overturned. We do not agree.

The jurisprudence in this state has never held that an act of obscenity could only occur in places that are completely open to the public or in places only open to the public view. In numerous decisions, courts in Louisiana have found public obscenity in acts committed in areas not otherwise considered “public.” For instance, in State v. Odom, 554 So.2d 1281 (La.App. 1st Cir.1989), writ granted and judgment modified on other grounds, 559 So.2d 1362 (La.1990), the appellate court found that the defendant committed an obscene act even though he was inside his own home when he exposed his genitals through an open window to people outside his home. Further, in State v. Allo, 510 So.2d 14 (La.App. 5th Cir.1987), writ denied 514 So.2d 1174 (La.1987), the appellate court upheld a conviction of obscenity even though the defendant was in his own yard and behind a gate when he exposed his penis to a person. In State v. Arabie, 507 So.2d 859 (La.App. 5th Cir.1987), the appellate court found that the defendant could be convicted of obscenity even though he was in his car, with his car door slightly open, when he exposed his genitals and was masturbating. Finally, in State v. Rodriguez, 98-2574 (La.App. 4th Cir.2/16/00), 753 So.2d 339, writ denied, 01-1788 (La.3/28/02), 812 So.2d 648, the appellate court held that the defendant could be convicted of obscenity even though he was sitting in his vehicle, with his car doors closed, while exposing his penis.

The compilation of these decisions indicate that a public place or a place open to the public view is defined as any place where other people can observe the obscene act. It is not necessary that a defendant expose himself to the general public in a completely public and open area in order to be convicted of obscenity. A public place or place open to the public view does not have to be open to all members of the public. Any person who can see the act of obscenity being committed is a member of the public. If we were to exclude jail infirmaries as public places or places open to the public 110view, then every staff member or visitor could be victimized and harassed by obscene acts from prisoners.

In the case sub judice, Defendant was behind an open picture window when he exposed his penis and masturbated in front of the staff at the jail infirmary. The hallway in front of the picture window was used by staff, visitors and members of the public on a daily basis. Anyone in the hallway can see through the window into the isolation room where Defendant was located. The staff at the jail are members of the public who observed Defendant exposing his penis and masturbating. The public nature of this area of the jail clearly makes it a public place and a place open to the public view. Moreover, the jail infirmary is much more open to and used by staff and visitors than other areas of a jail or prison.

The trial judge held that the question of whether the jail infirmary is a public place or a place open to the public view is a question for the jury to determine. We agree. All the previously mentioned jurisprudence have also found that this is a question for the trier of fact to decide. See Odom, supra; Allo, supra; Arabie, supra; Rodriguez, supra. The evidence presented to the jury was sufficient for a rational juror to conclude that Defendant was guilty of obscenity. The State submitted testimony as to the public location of the hallway in front of the picture window and that Defendant was exposing himself to members of the public, namely the staff at the jail. The jury found Defendant guilty on all three counts of obscenity under all requirements set forth by La. R.S. 14:106(A). We will not disturb this finding on appeal.

I nit is inconsequential that La. R.S. 14:106(A) was revised to specifically state that jails and prisons are included as pub-lie places or places open to the public view. This revision simply clarifies that the entire jail or prison is a public place or place open to the public view and not just certain public portions of a jail or prison, such as infirmaries. We find that the jail infirmary in this case is a public place and a place open to the public view under the former version of La. R.S. 14:106(A); and, therefore, this assignment of error is without merit.

Juror Removal

Defendant argues that the trial judge should have excused Mr. Perry on Defendant’s challenge for cause, based on the juror’s personal relationship with others in the courtroom and because his wife worked at the clerk of court’s office. Defendant maintains that, because Mr. Perry should have been dismissed on a challenge for cause, Defendant should not have had to use a peremptory challenge to dismiss him from service on the jury. La.C.Cr.P. art. 797 provides:

The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
11?.(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.

The trial judge found no basis for Defendant to challenge Mr. Perry for cause and we agree. In State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996), the supreme court held that, “A trial judge has great discretion in determining whether sufficient cause has been shown to reject a prospective juror. Such determinations will not be disturbed on review unless a review of the voir dire as a whole indicates an abuse of discretion.” In the case sub judice, Defendant has not - shown why the court should have removed Mr. Perry as a prospective juror. Mr. Perry indicated that he would have no trouble in making a decision in the case either way and that he believed reasonable doubt meant that the State had to prove 95 percent of its case to him. Nothing in the record shows that Mr. Perry would not have been an impartial juror. Defendant did not establish that Mr. Perry had a personal relationship with the judge, prosecutor or any other trial participant listed in La.C.Cr.P. art. 797. Furthermore, in Tart, the supreme court held that, “We are reluctant to reverse a ruling of the trial judge on a challenge for cause where it does not appear from a review of the record as a whole that the trial judge has somehow abused his discretion.” In the case sub judice, we find no abuse in the trial judge’s discretion of not granting Defendant’s challenge of Mr. Perry for cause; and, therefore, this assignment of error is without merit.

| ^Tampering of Witnesses-Mistrial

Lastly, Defendant insists that he should have been granted a mistrial because there was unauthorized contact between two of the witnesses after the witnesses were sequestered by the trial judge. La.C.Cr.P. art. 775 provides:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

Specifically, Defendant asserts that his case was prejudiced because of the interference of witness Boone when she brought outside documents into the courtroom for witness Hoof to review prior to testifying.

A mistrial is a drastic remedy; and, except in instances in which the mistrial is mandatory, it is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Sepulvado, 359 So.2d 137 (La.1978). In the case sub judice, Defendant has not shown that he was substantially prejudiced by the contact and communication between the witnesses. |14 Further, Defendant has only made generalized allegations of prejudice and he has not shown that the contact and communication between the two witnesses has deprived him of a fair trial. Neither Boone nor Hoof were called to testify at trial. These two witnesses were not even present to hear the trial judge’s sequestration order, arriving in the courtroom after the order had already been given. Even if these witnesses had been called to testify at trial, witnesses in general commonly review their recorded recollection before trial. There was no tampering of the witnesses by anyone in this case. The trial judge was not in error when he denied Defendant’s motion for a mistrial; and, therefore, this assignment of error has no merit.

CONCLUSION

For the foregoing reasons, the conviction of Carrol Narcisse is affirmed.

AFFIRMED.

      . Defendant was in a wheelchair because of an injury he had received in an accident while riding in a prison van on an earlier date.

      . By the time of trial, Brown had remarried. At the time of the incident, her name was Loleta Marie Hollenshead.

      . Ann Boone also went by the name Ann Goodwin. She gave her name as Ann Boone for the trial record.


author: | t CARAWAY, J.,

text:
    Ronald Gene CARROLL, et al, Plaintiffs-Appellants, v. Robert HOLT, et al, Defendants-Appellees.
    No. 36,615-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Frank M. Ferrell, Shreveport, for Appellants.
    Tutt & Bordelon, LLC By: Charles G. Tutt, Shreveport, for Appellees.
    Before STEWART, GASKINS and CARAWAY, JJ.
   | t CARAWAY, J.,

The accident in this case occurred when a roofer climbed onto a canopy overhanging a door of a customer’s house. The canopy collapsed, and the roofer plummeted to the ground sustaining personal injuries. The jury found that the canopy did not present an unreasonable risk of harm, and the roofer’s claims were dismissed. The roofer appeals, urging that the canopy did present an unreasonable risk of harm and that fault should be apportioned between the parties. Finding no manifest error in the jury’s verdict, we affirm.

Facts

Ronald Gene Carroll owns a roofing company. In April of 2000, his company re-shingled a house owned by defendants, Robert and Dorothy Holt. On May 22, 2000, Carroll returned to the residence because of a leak in the roof. After identifying the location of the leak, Carroll stated to Mr. Holt that he needed to retrieve a ladder from his truck so that he could climb onto the roof. In response, Mr. Holt invited Carroll to use the Holts’ ladder that was located at the back of the house by an exterior door. The water leak was in the roof area near that door. Carroll testified that he normally would not use the ladders of customers, but that he did on this occasion because of Mr. Holt’s persistence. The ladder was an eight-rung step ladder approximately eight feet in height.

The accident occurred when Carroll attempted to climb upon the roof at the location of an extension roof or canopy that extended over a door on the side of the house. The canopy was intended to provide overhang | ^protection from the rain at the entrance and had been built after the initial construction of the home. The canopy was approximately five to six feet wide and extended out 35 inches from the fascia board of the original roof. Two 2" x 4" braces nailed at the outer ends of the canopy connected diagonally back to the side of the house. The top of the canopy was covered with shingles and extended evenly from the roof of the house. The bottom had vinyl siding, which, according to Carroll, made it impossible to determine whether or not the canopy was connected to the rafters. The canopy had been built for the Holts by Joe Bizet.

Carroll was an experienced roofer and had owned his own contracting business for 32 years. He testified that he had never fallen from a roof before the accident. On that day, however, he climbed the Holts’ ladder and stepped onto the canopy, which immediately collapsed and caused him to plummet to the ground. As a result, Mr. Carroll’s pelvic bone was fractured in two places. He also suffered fractures of the sacrum and the number twelve vertebra.

Eddie Lee Parish, an employee of Carroll for over 23 years, testified that he had re-shingled the Holts’ house in April of 2000. At trial, he first testified that he usually stepped on canopies like the one at issue in this case. However, he was impeached with his statement from his deposition where he stated that he usually did not step on canopies because they were unstable.

|3The defense provided expert testimony from roofing contractors. They agreed that the canopy was not an extension of the rafters of the original roof and that its construction was standard in the Shreveport/Bossier area. Their testimony indicates that they would not expect a braced canopy like the one at issue to support the weight of a person and that scaffolding should be placed underneath before working on such canopy.

Following trial, the jury found that the canopy did not present an unreasonable risk of harm. Carroll disputes this finding and asserts that Mr. Holt is comparatively at fault for not advising Carroll of the danger at the time of the accident and for requiring Carroll to use his ladder.

Discussion

A reviewing court cannot disturb the factual findings of a trial court absent abuse of discretion or manifest error. Powell v. Regional Transit Authority, 96-0715 (La.6/18/97), 695 So.2d 1326; Rosell v. ESCO, 549 So.2d 840 (La.1989); State v. Baxter, 33,188 (La.App.2d Cir.5/10/00), 759 So.2d 1079. To reverse the trial court’s factual findings, the appellate court must find from the record that no reasonable factual basis exists for the findings and must determine that the record establishes the findings as clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

This case presents a negligence claim. La. C.C. art. 2317 states that persons are responsible for damages caused by things in their custody. The Civil Code further states the following:

|4The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La. C.C. art. 2322. As a part of the 1996 tort revision, the law of strict liability was altered by the addition of the requirement of knowledge on the part of the owner or custodian of the thing. See Jackson v. Gardiner, 34,643 (La.App.2d Cir.4/4/01), 785 So.2d 981. This revision establishes a negligence standard where the owner’s duty is to exercise reasonable care to recognize and repair or remove a vice or defect in the building which presents an unreasonable risk of harm to others. Id. at 985.

A defect cannot be inferred simply because an accident occurred. See Sanders v. Bain, 31,362 (La.App.2d Cir.12/9/98), 722 So.2d 386; Dufour v. E-Z Serve Convenience Stores, Inc., 98-996 (La.App. 5th Cir.3/30/99), 731 So.2d 915. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, many factors are to be considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Dupree v. City of New Orleans, 99 3651 (La.8/1/00), 765 So.2d 1002, 1012.

| s Jackson, supra., involved a damaged roof and a fall by an inspector of the roof. This court, finding an obvious and easily avoidable risk, stated:

The duty which a landowner owes to persons entering his property is governed by a standard of reasonableness, and a potentially dangerous condition that should be obvious to all is not unreasonably dangerous. Thornton v. Board of Sup’rs of Louisiana State University, 29,898 (La.App.2d Cir.10/29/97), 702 So.2d 72; Shaw v. Fidelity & Casualty Insurance Co., 582 So.2d 919 (La. App. 2d Cir.1991). Where a risk of harm is obvious, universally known and easily avoidable, the risk is not unreasonable. Butzman v. Louisiana Power and Light Co., Inc., 96-2073 (La.App. 4th Cir.4/30/97), 694 So.2d 514; Robertson v. State ex rel. Department of Planning and Control, 32,309 (La.App.2d Cir.12/10/99), 747 So.2d 1276, writ denied, 00-0041 (La.2/25/00), 755 So.2d 882; Thornton, supra.

Generally speaking, any sloped roof presents a risk that requires persons to take reasonable precautions in climbing on the roof. The defense in this case presented evidence that this obvious risk associated with roof work is heightened in the case of any extension roof or canopy. This is because the canopy may not be built on an extension of the roof rafters or attached to the rafters in a manner secure enough to support the weight of a person. Carroll seizes upon this heightened risk and instability, which was present in this canopy, as proof that an unreasonable risk of harm existed. We disagree.

The canopy was built for the purpose of diverting rainwater away from the doorway. It was not unstable so as to present an unreasonable risk of harm for its intended purpose for persons using the doorway. The canopy had been earlier re-shingled without unreasonable risk to Carroll’s personnel. Because of a roofer’s inability to know the strength of the [ ^construction of a canopy, precautions must be taken. Nevertheless, the burden of taking such precautions against the possibility of weakness in the canopy structure is minimal. Most significant, the heightened risk of a canopy structure, particularly one braced in the manner of the Holts’ canopy, was shown by the evidence to be an obvious risk to roofers.

The obviousness of the canopy’s danger is also significant in answering Carroll’s further contentions regarding Mr. Holt’s aid to Carroll at the time of his fall and the use of Mr. Holt’s ladder. The water leak was near the area of the canopy so that at the time of the accident, the parties were inspecting the site to locate the problem. Mr. Holt testified that before Carroll’s arrival, he had climbed the ladder at a location up against the house on the side of the canopy to get onto the roof. He testified he avoided putting his weight on the canopy and would not use the canopy as a place to mount the roof. Nevertheless, Mr. Holt testified that in the course of Carroll’s inspection of the canopy, while Mr. Holt was supporting the ladder in a location apparently under the edge of the canopy, Carroll climbed directly onto the canopy and immediately fell.

From our review of Mr. Holt’s testimony, we do not find that Mr. Holt, who was eighty-years-old at the time, recommended or insisted that Carroll climb onto the canopy at that crucial point. A fair reading of his testimony is that he simply offered Carroll the use of his ladder for Carroll’s inspection of the problem. He was supporting the ladder as Carroll climbed l7at a place where Mr. Holt would not have mounted the roof. Nevertheless, Mr. Holt’s testimony indicates that he did not know whether Carroll climbed at that location merely to inspect the canopy from the ladder or to mount the roof. At the time of the accident, Carroll was fully in charge of the inspection process. He was the roofer. Mr. Holt did not have a duty to direct Carroll’s actions and did not mislead Carroll into trusting the stability of the canopy. Again, the potential weakness in the canopy, which was established by the testimony of several expert witnesses, should have been obvious to Carroll under the circumstances. The jury’s finding of no liability under these circumstances may not be set aside for manifest error.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of the defendants, Robert Holt, Dorothy Holt, and State Farm Insurance Companies, is affirmed. Costs are assessed against the plaintiffs, Ronald Gene Carroll and Billie Ruth Carroll.

AFFIRMED.

      . Mr. Bizet was initially named as a party defendant, but he was dismissed from the suit because he had filed bankruptcy.

      . While Mr. Holt admitted that he would not climb upon the canopy, he also testified that he had never been told by Mr. Bizet whether or not the canopy had been constructed in a manner to support the weight of a person.