author: .[j AMY, Judge.

text:
    Marion Elizabeth Berry ROBICHAUX v. Floyd John ROBICHAUX.
    No. 2004-162.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.
    Edward J. Milligan Jr., Lafayette, LA, for Defendant/Appellant, Floyd John Robi-chaux.

      Vincent Joseph Saitta, Colomb & Saitta, Lafayette, LA, for Plaintiff/Appellee* Marion Elizabeth Berry Robiehaux.
    • Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   .[j AMY, Judge.

The defendant appeals the trial court’s determination that he was voluntarily underemployed in calculating his child support obligation. He further contests the elements considered in calculating his income, the inclusion of private school tuition in the support obligation, and the judgment’s inclusion of extraordinary medical expenses. Finally, both parties agree that the judgment included an error in the calculation of their adjusted gross income. For the following reasons, we affirm as amended.

Factual and Procedural Background

The parties, Floyd and Beth Robiehaux, were divorced in April 2002. The present case involves the child support obligation calculated following the divorce. In January 2002, prior to the confirmation of their divorce, the parties stipulated that Mr. Robichaux’s child support obligation for the two minor children was as follows:

Appearers agree that FLOYD JOHN ROBICHAUX will pay to MARION ELIZABETH BERRY ROBICHAUX the sum of FIVE HUNDRED FIFTY AND NO/100 ($550.00) DOLLARS for support of the minor children, which payment will be made on or before the 17th day of each month and which payment is retroactive to the date of filing, specifically August 20, 2001, and the parties further agree that in six (6) months after the date of appearance before this Court, they will appear in Court for purposes of having a full hearing on the issue of child support.

This stipulation was included in a Judgment to Rules executed on January 10, 2002.

The present matter came before the court after Ms. Robiehaux filed a “Rule for Past Due Child Support, Rule for Contempt and Attorney’s Fees, and Rule to Modify Child Support and Establish Payment of Health Care Costs of the Minor Children” in March 2003. At the time the trial court considered the above rule, it observed that, due to a variation between the stipulation and the Judgment on Rules, it “must decide | ¡.the amount of child support due by FLOYD to BETH from August 20, 2001 through the date of hearing, May 22, 2003.”

The trial court issued reasons for ruling, noting the parties’ educational and work histories. The trial court observed that the couple operated Ms. Robichaux’s parents’ business, Racoon Records, and that Ms. Robiehaux eventually purchased the business from her parents. During this period, Mr. Robiehaux earned as much as $75,000 to $80,000 per year. The record reveals, and the trial court observed, that Mr. Robiehaux left the business in 1999 due to unhappiness with Ms. Robichaux’s father’s continued participation in the operation of the business. During the subsequent years, Mr. Robiehaux became a real estate agent earning $3,000 during the 1999-2000 year and a mortgage banker earning $3,000 to $4,000 during the year 2000. At the time of the hearing, Mr. Robiehaux was employed as a staff person for State Farm Insurance, earning approximately $18,000 per year. He earned an additional $900.00 in commissions. Mr. Robichaux explained that he has been relying on various investments obtained in the community property partition to meet his living expenses.

Due to the closure of Raccoon Records, Ms. Robichaux’s income decreased as well. At the time of the hearing on the matter, she was collecting unemployment benefits in the amount of $236.00 per week. Ms. Robichaux was seeking employment as a secretary or accounting clerk.

Considering Mr. Robichaux’s educational and employment background, the trial court found Mr. Robichaux to be voluntarily underemployed, ordering that his child support obligation be set at the following amounts for the various time periods: 1) $666.00 per month — August 30, 2001 to December 31, 2001; 2) $865.07 per month| — January^ 1, 2002 to December 31, 2002; 3) $885.57 per month — January 1, 2003 to March 31, 2003; 4) $1,198.40 per month — April 1, 2003 to June 10, 2003; 5) $1,113.93 per month — June 11, 2003 to July 5, 2003; 6) $803.09 per month — July 6, 2003 to August 31, 2003; 7) $663.25 per month — September 1, 2003 forward.

Mr. Robichaux appeals, assigning the following as error:

1. The Trial Court’s findings that Appellant was voluntarily underemployed is manifestly erroneous.
2. The Trial Court committed manifest error in allocating the entire amount derived by Appellant from Capital Gain and his IRA Distribution for the year 2001 as income.
3. The Trial Court committed manifest error in allocating the entire amount of his Pension for the year 2002 as income.
4. The Trial Court committed manifest error and abused its discretion in ordering that the remaining child continue to attend private school as opposed to public school.
5. The Trial Court’s calculation as to the gross income of both parties for April 1, 2003 through June 10, 2003 of $6,816.67 is manifestly erroneous.
6. The Judgment is manifestly erroneous as to apportioning uncovered medical expenses since the Trial Court did not decide this issue nor address it in his reasons for Judgment.

Discussion

Voluntary Underemployment

In his first assignment of' error, Mr. Robichaux questions the trial court’s determination that he is voluntarily underemployed. He notes that, after obtaining his undergraduate degree in Marketing, he worked for Stuller Settings, earning approximately $40,000. He left that position to work at Raccoon Records, earning $75,000 to $80,000 per year. He testified that he felt this salary was high, but that was the figure paid to him by the family for his work. Mr. Robichaux explained that |4his subsequent positions did not result in the type of earnings he had anticipated. He testified that, at the time of the hearing, he earned $1,800 per month and, while eligible for commissions, business was slow. He contends the position with State Farm presents “a potential for growth and advancement for him.” Furthermore, he contends, Ms. Robichaux produced no evidence of bad faith on his part in seeking a lower paying position in order to lower his child support obligation. He notes that his decision to leave employment with Raccoon Records was not due to fault or neglect in protecting his employment, but stemmed from difficulties with his father-in-law. He points to cases denying a finding of voluntary underemployment which he contends are factually analogous.

Louisiana Revised Statutes 9:315.11 provides:

If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.

In ruling on the issue of Ms. Robi-chaux’s claim of involuntary underemployment, the trial court explained, in part:

Since leaving Raccoon Records, Floyd has earned a real estate license, a mortgage originator’s license, a property and casualty insurance license, a life and health insurance license and a notary public commission. Also, Floyd testified that he did not want to return as an employee of Stuller Settings because he did not like working for the company. Apparently, FLOYD has never even checked to see if Stuller Settings would be interested in rehiring him.
FLOYD testified that the Chris Kidder State Farm Insurance Agency had potential and that he thought things would get better. FLOYD also believed that he would get better at selling insurance, which would raise his commissions though he could not say to what degree. Remarkably, FLOYD testified that he has never had a meeting with his employer, Chris Kidder, to discuss his future with the business. In addition, though his starting pay with State Farm Insurance is [¡¡approximately what a secretary earns, FLOYD has not looked for any other employment over the past fifteen (15) months.
The Court finds that FLOYD is voluntarily underemployed considering his work history and educational background. The Court notes that FLOYD has used personal funds acquired through the community property partition to maintain a much higher lifestyle than his current salary would warrant. If FLOYD can supplement his own living expenses in hopes that his income will increase at Chris Kidder State Farm Insurance Agency, then there is no reason why he should not be supporting his children at that level. The Court believes that FLOYD’s lack of motivation in seeking employment equal to his abilities is directly related to his anger over leaving Raccoon Records and his belief that he and BETH were co-owners of the store. FLOYD testified that he regularly works out at Red Lereille’s Health Club, which he stated was cheaper than therapy. Though the Court does not order that FLOYD attend counseling, it may indeed help him to deal with his anger and depression over these matters and the resulting lack of motivation on his part to pursue a better paying position.
As of the date of the hearing on May 22, 2003, FLOYD was earning $1,989.47, which includes $900.00 in commissions for the year 2003. However, the Court believes that FLOYD should be earning at least $35,000.00 per year at present and the Court finds that $2,916.66 should be imputed to him as his monthly adjusted gross income for 2003 and thereafter.

The record supports the trial court’s finding. As stated above, Mr. Robiehaux holds a college degree and a work history of substantially higher earnings than he was earning at the time of the hearing. Significantly, the trial court did not find Mr. Robichaux’s earning potential to be $75,000-$80,000, the highest earnings in his work history. Rather, the trial court set the earning potential at a more modest level, that of $35,000. We note that this figure is generally reflective of what the trial court determined Mr. Robichaux to be using to maintain his standard of living in 2002, i.e., both his salary and his investment income. Having reviewed the record, we find no manifest error in the trial court’s determination that Mr. Robichaux was voluntarily underemployed, with an earning potential of $35,000.

This assignment lacks merit.

| BCalculation of Gross Income

In his next two assignments of error, Mr. Robichaux contends that the trial court erred in the calculation of his monthly gross income for 2001' and 2002. In particular, Mr. Robichaux questions the inclusion of capital gains, an IRA-distribution, and his pension. He admits that these resources were used “from their withdrawal to the present to subsidize his living expenses and obligations through the date of the hearing in 2003.” He further states that after-“these funds are depleted, he will be relegated to a monthly income with Chris Kidder Insurance Agency consisting of a salary and any bonuses or commissions that he may earn through his efforts. The income derived by Appellant from these items should have been prorated over a period of time and utilizing the amounts in each year gives a false impression as to Appellant’s actual gross earnings.”

Louisiana Revised Statutes 9:315(C)(4)(a) indicates that a “gross income” calculation is to include:

The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, and spousal support received from a preexisting spousal support ' obligation[J

(Emphasis added.)

In discussing the calculation of gross annual wages, the trial court explained:

FLOYD’s 2001 Income Tax Return indicates that he earned $17,097.00 in wages; however, this was the portion of BETH’s wages attributed to him during the marriage. Therefore, this figure will not be considered by the Court to determine FLOYD’s 2001 income. Though the Schedule C indicates FLOYD had a business loss of $1,776.00, the Court has added back in $2,655.00 for depreciation and $906.00 in truck expenses. FLOYD presented no evidence or testimony to indicate that he needed the use of a vehicle in the mortgage business, and since he did not introduce the depreciation schedules into evidence, the Court finds |7that he earned a total of $1,785.00 in income from his business. The Court also notes that during 2001, FLOYD had a capital gain of $14,750.00, received an IRA distribution of $11,000.00, together with $1,699.00 in real estate income and $20.00 in taxable interest. Accordingly, the Court finds that FLOYD’s adjusted gross income for 2001 was $29,254.00, or $2,437.83 per month.
FLOYD’s 2002 tax returns indicate that he earned $19,648.00 working for State Farm Insurance Company. Also, FLOYD cashed in approximately $29,082.00 worth of pension and annuities, $11,158.00 of which was taxable. Of the $29,082.00 he testified that he had approximately $8,000 left as of the date of trial. FLOYD testified that he used his money to subsidize his living expenses. Therefore, the Court calculates that FLOYD spent approximately $14,055.00 of the pension during 2002, which when added to his salary of $19,648.00 and $417.00 in rental income the Court finds that he lived on $34,120.00 or $2,843.33 per month.

Given the definition of “gross income” contained in La.R.S. 9:315(C)(4)(a), we find no error in the trial court’s determination to include those figures in the calculation of Mr. Robichaux’s gross income. Furthermore, given the ready access to these sums, whether spent in a single year or not, we find no abuse of discretion in the trial court’s decision to include the figures in the years in which they were considered rather than incorporate them in a pro rata fashion as urged by Mr. Robichaux.

This assignment lacks merit.

Private'School Tuition

In his next assignment of error, Mr. Robichaux questions the trial court’s inclusion of private school tuition for the minor child in the child support obligation. He points out that, during the marriage, he and Ms. Robichaux enjoyed a comfortable lifestyle and chose for their children to attend private school. Mr. Robichaux notes that his salaries while employed at Stuller Settings and Raccoon Records permitted this expense. However, as discussed above, his subsequent positions did not produce ^equivalent income.. Similarly, Ms. Robichaux’s income had decreased as well. Pointing to Piccione v. Piccione, 01-1086 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, Mr.' Robichaux contends that the trial court is required to consider both the needs of the child and the parents’ ability to pay in calculating the support obligation. Due to the couple’s reduced salaries, Mr. Robichaux argues, the private school tuition was incorrectly included in the support figure.

Louisiana Revised Statutes 9:315.6, entitled “Other extraordinary expenses; addition to basic obligation” provides, in part:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation: •
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.

In ruling on this issue, the trial court found:

As of August 20, 2001, when the Petition for Divorce, Custody and Child Support was filed, the two (2) minor children were both attending private schools. When Michelle was younger, she attended Our Lady of Fatima School and at the time the divorce proceedings were instituted she was attending St. Thomas More Catholic High School. The only school ever attended by Ross was Our Lady of Fatima School which he was still attending at the time of the hearing in this matter. The testimony at trial indicated that both parties agreed that a Catholic school education would be a good education for their children. In 2001, the cost of St. Thomas More was $399.17 per month. For the 2003-2004 school year, the cost of tuition at Fatima is $3,985.00 subject to an annual grant in the amount of $1,500.00, for a total of $207.08 per month.
FLOYD argues that BETH lives in a good school district, and there is no reason why Ross cannot attend public school in the fall....
The official comments to La.R.S. 9:315.6 state that it is no longer [] necessary to show that attendance at a special or private school is required to meet the “particular educational” needs of a child. Instead, the needs of a child to be met by the special or private school may include the need for stability or eontinuity in the child’s educational 19programs. The Court finds that it is in the best interest of Ross that he continues at Our Lady of Fatima School for his stability and continuity, especially in light of the facts in this case. His parents have now divorced, his sister has graduated from high school and will be' moving on to college, and his mother has lost her business and they have had to move to a smaller residence. All of these changes in Ross’s life are a lot for a nine (9) year old child to handle. The Court feels that Ross should not have to undergo the traumatic experience of changing schools. ROSS should not be made to suffer because his parents’ marriage broke up.

The subsequent child support calculations reflect inclusion of private school tuition, both for the couple’s daughter until her graduation and their son’s continuing tuition. A trial court’s decision as to whether to include private school tuition in the child support obligation is a factual determination, not to be disturbed in the absence of abuse of discretion. Preslar v. Preslar, 35,862 (La.App. 2 Cir. 6/12/02), 821 So.2d 577.

Having reviewed the trial court’s reasons in light of the record, we find no such abuse of discretion. In addition to the trial court’s finding that continuation of the minor child’s private school education could offer stability in a time of significant change, the trial court found that Mr. Ro-bichaux’s standard of living was supplemented by the use of investment funds. We find no abuse of discretion in the determination that, whether Mr. Robichaux meets his earning potential through a salary or through a supplemental source such as investment income, he is financially able to assist with private school tuition.

This assignment lacks merit.

Calculation of the Parties’ Gross Income

In his next assignment of error, Mr. Robichaux points to an error in the trial court’s calculation of the gross income of both parties for the period of April 1, 2003 through June 10, 2003. Ms. Robichaux agrees in her brief that the trial court’s | ^calculation of $6,816.67 for the couple’s gross income for that period is in error. Reference to the trial court’s reasons for ruling reflect the error. Ms. Robichaux’s adjusted gross income for that period was found to be $1,022.67 per month while Mr. Robichaux’s adjusted gross income was found to be $2,916.67. These figures total $3,939.34. As the trial court’s calculation contained in the judgment is incorrect, we amend the judgment to reflect that the couple’s adjusted gross income for the period of April 1, 2003 through June 20, 2003 is $3,939.34.

Apportionment of Uncovered Medical Expenses

Finally, Mr. Robichaux questions the judgment’s provision for apportionment of uncovered medical expenses. Mr. Robi-chaux does not question the fact that he was assigned a percentage of the uncovered medical expenses. Rather, he appears to contend only that the inclusion of the expenses is in error as there was no discussion of the uncovered medical expenses in the trial court’s reasons for ruling.

In the event that a trial court’s reasons for ruling and judgment conflict, the judgment controls. Moss v. Coury, 97-640 (La.App. 3 Cir. 12/10/97), 704 So.2d 1248, writ denied, 98-783 (La.5/29/98), 720 So.2d 340. Accordingly, we find no error in the judgment’s provision for the uncovered medical expenses of the minor child.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to indicate that the parties’ adjusted gross income for the period of April 1, 2003 through June 20, 2003 is $3,939.34. In all other respects, the judgment is affirmed. All costs of this proceeding are assigned to the appellant, Floyd John Robichaux.

AFFIRMED AS AMENDED.

      . The record indicates that the couple’s daughter reached the age of eighteen during these proceedings, the judgment's eventual decrease in the support obligation is reflective of this change.


source: Caselaw Access Project

author: 11 COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Paul OLIVIER.
    No. 03-1589.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.
    Rehearing Denied Aug. 25, 2004.
    Renee M. Louviere, Assistant District Attorney, Franklin, LA, for Appellee State of Louisiana.
    Lynden J. Burton, Jeanerette, LA, for Defendani/Appellant Paul Olivier.
    Court composed of SYLVIA R. COOKS, BILLIE COLUMBARO WOODARD and MARC T. AMY, Judges.
   11 COOKS, Judge.

Defendant, Paul Olivier, appeals his conviction and sentence for misapplication of funds by a contractor, in violation of La. R.S. 14:202. For the following reasons, we reverse Defendant’s conviction and set aside the sentence.

FACTS AND PROCEDURAL HISTORY

Michelle and Rodney Provost entered into a contract with the Defendant, Paul Olivier, to construct their home. The Provosts deposited money into a cheeking account maintained by Olivier Building Contractors. Defendant was to pay for necessary labor and materials with those funds; however, he failed to use the funds for their intended purpose.

Defendant was charged by bill of information with two counts of misapplication of funds by a contractor, a violation of La. R.S. 14:202. Defendant entered a plea of not guilty to both charges. Count two of the bill of information was dismissed and the Defendant went to trial on the one remaining count. The jury returned a verdict of guilty of misapplication of payments by a contractor in the amount of fifty-nine thousand dollars. Defendant was sentenced to serve five years at hard labor, all but one year suspended, and was placed on five years supervised probation with numerous special conditions. A Motion to Reconsider Sentence was filed and denied by the trial court. This appeal followed. Defendant contends the trial court erred in imposing a constitutionally excessive sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is an error patent which requires that we reverse Defendant’s conviction and set aside his sentence.

| ¡..There is a defect in the bill of information by which Defendant was charged. La.R.S. 14:202 provides, in pertinent part:

A. No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.

The penalties for a violation of La.R.S. 14:202 are as follows:

B. When the amount misapplied is one thousand dollars or less, whoever violates the provisions of this Section shall be fined not less than one hundred . dollars nor more than five hundred dollars, or imprisoned for not less than ninety days nor more than six months, or both.
C.When the amount misapplied is greater than one thousand dollars, whoever violates this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned with or without hard labor for not less than ninety days nor more than six months, or both, for each one thousand dollars in misapplied funds, provided that the aggregate imprisonment shall not exceed five years.

Accordingly, the penalty for a violation of La.R.S. 14:202 is determined based on the total amount misapplied. The bill of information in the case at bar does not specify whether the Defendant was charged under section (B) or (C) of La.R.S. 14:202. Although value was discussed at trial and the jury returned a verdict finding a specific value, the bill of information did not properly charge the grade of the offense.

Pursuant to La.Code Crim.P. art. 470, “[vjalue, price, or amount of damage need not be alleged in the indictment, unless such allegation is essential to charge or determine the grade of the offense.” While La.Code Crim.P. art. 470 does not require that an indictment include a specific monetary value, the allegations in the indictment must be sufficient to determine the grade of the offense. Also, the amount misapplied is determinative of whether a defendant is entitled to a jury trial and whether this court has appellate jurisdiction or only supervisory jurisdiction over the matter. See State v. Bass, 509 So.2d 176 (La.App. 1 Cir.1987).

In State v. Breaux, 96-1516 (La.App. 3 Cir. 4/30/97), 693 So.2d 326, the defendant was charged by bill of information with aggravated criminal damage to property and was found guilty of simple criminal damage to property where the damage amounted to five hundred dollars or more but less than fifty thousand dollars. The bill of information failed to set forth the amount of damage inflicted by the defendant. This court held the bill was invalid and reversed the defendant’s conviction. The matter was remanded to the trial court for further proceedings and the state was allowed to amend the bill of information to properly charge an offense. See also State v. Whatley, 03-655 (La.App. 3 Cir. 11/5/03), 858 So.2d 751. In State in the Interest of A.P., 02-1030 (La.App. 3 Cir. 2/5/03), 838 So.2d 97, the juvenile was charged with theft of goods. The petition failed to establish the value of the items taken and the record contained no evidence of the value of the items although the testimony revealed the items at issue were two CDs. This court held that failure to set forth the value in the bill of information caused it to be invalid and reversed the adjudication of delinquency and order of commitment, discharged the defendant, and dismissed the state’s petition.

The above cited cases involve theft and simple criminal damage to property; however, they can be analogized to the present offense since all are graded offenses. Based on La.Code Crim.P. art. 470 and the above cited cases, we find the bill of information in the case at bar is invalid. Therefore, Defendant’s conviction is reversed and his sentence set aside. The case is remanded to allow the State the opportunity to amend the bill to properly charge an offense. See Breaux, 693 So.2d 326; Whatley, 858 So.2d 751; Bass, 509 So.2d 176.

All other errors patent and Defendant’s assignment of error are rendered moot ]4by our decision and need not be addressed.

DECREE

For the foregoing reasons, the bill of information is invalid. Defendant’s conviction is reversed, his sentence set aside, and the matter remanded for proceedings in accordance with the opinion.

REVERSED AND REMANDED.


author: hGREMILLION, Judge. | t COOKS, J.,

text:
    Valerie Duhon DOMINGUE, et al. v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2003-895.
    Court of Appeal of Louisiana, Third Circuit.
    June 16, 2004.

      M. Charles Brandt, Jr., Lafayette, LA, for Secondary PlaintiffiAppellant Valerie Duhon Domingue.
    Larry Lane Roy, Preis, Kraft & Roy, Jennifer A. Wells, Preis, Kraft, & Roy, Brian T. Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellant Lafayette Parish School Board.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, OSWALD A. DECUIR, GLENN B. GREMILLION, and JOHN B. SCOFIELD, Judges.

       Honorable JOHN B. SCOFIELD participated in this decision by appointment of the Supreme Court as Judge Pro Tempore.

   hGREMILLION, Judge.

The plaintiff, Valerie Duhon Domingue Baranco, tutrix of Benjamin Domingue, appeals the trial court’s judgment finding Domingue 90% at fault in causing the injuries he sustained after he was hit by a vehicle. The defendant, the Lafayette Parish School Board (School Board), appeals the trial court’s judgment finding it 10% at fault in causing the accident. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On October 30, 2000, Domingue, who was then eleven years old, decided to walk home from Acadian Middle School (AMS) with his friend, Cortez Siner, rather than ride the bus as he was instructed to do so by his mother. Domingue and Siner exited the rear of the school, where other students, who live in the neighborhood immediately behind the school, exit to walk home. En route to their neighborhood, which was slightly more than a mile from the school, Domingue ran out into Moss Street, a busy four-lane highway, and was struck by a truck driven by Joseph Le-Blanc. Domingue sustained serious injuries requiring several surgeries and months of physical therapy.

Baranco filed suit in October 2001, urging that the School Board breached its duty to properly supervise her son, failed to have any checks in place to assure that children who are supposed to ride the bus do so, failed to have a formal written policy or plan regarding the return of the children to their homes, and specifically, failed in assuring that Domingue rode the school bus home, but arrived there via the school bus. Trial commenced in October 2002. At the conclusion of the trial, the trial court found that the School Board was 10% at fault while Domingue |gwas comparatively, 90% at fault. The trial court made the following awards:

General Damages $ 200,000
Special Damages $ 59,052.13
Future Medical Expenses $ 20,000
Subtotal $279,052.13
Minus 90% Comparative Fault -$251,146.92
Total $ 27,905.21

The trial court issued a judgment on December 19, 2002, ordering that Baranco, on behalf of Domingue, be paid $27.905.21, plus legal interest. Both parties timely appealed to this court.

ISSUES

Baranco claims the trial court erred in assessing Domingue with 90% of the fault. The School Board claims the trial court erred in 1) imposing a duty on it which is not grounded in statutory or jurisprudential law; 2) in finding that its failure to have a particular procedure in place was a cause-in-fact of Domingue’s injuries; 3) in awarding future medical damages in the complete absence of any evidence supporting such an award; 4) in awarding excessive general damages; and 5) in taxing it with all court costs and expert expenses when it allocated only 10% of the fault to the School Board.

LIABILITY

The Louisiana Supreme Court recently summarized the law pertaining to negligence actions in Lazard v. Foti, 02-2888, pp. 3-4 (La.10/21/03), 859 So.2d 656, 659:

| aThis court has adopted a duty-risk analysis to determine whether liability exists under the particular facts presented. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176. Under this analysis, the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762, 765. Under the duty-risk analysis, all four inquiries must be affirmatively answered for the plaintiff to recover. Id.
A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Sav. & Loan, 98-1601 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204. The inquiry is whether the plaintiff has any law, statutory or jurisprudential, to support his claim. Roberts v. Benoit, 605 So.2d 1032, 1043 (La.1991)(affirmed on rehearing).

The School Board urges that the trial court committed legal error in imposing a duty on it more stringent than that required by law citing Wallmuth v. Rapides Parish School Board, 01-1779 (La.4/30/02), 813 So.2d 341, in which the supreme court faced the issue of one student injuring another. Although Wall-muth adopted the standard of liability applicable to the school board for the actions of its students under La.Civ.Code art. 2320, we find this same standard applicable to a school board’s overall duty to supervise its students.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La.Civ.Code art. 2320; Adams v. Caddo Parish School Bd., 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, writ denied, 94-684 (La.4/29/940), 637 So.2d 466. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98); 732 So.2d 530, writ denied, 99-228 (La.3/19/99), 740 So.2d 117. This duty does not make the school board the insurer of the safety of the children. Id. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Adams, 631 So.2d 70.
1¿Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Id. .... Furthermore, before a school board can be found to have breached the duty to adequately supervise the safety of students, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Id.

Id. at 346.

Siner, who was twelve years old at the time of the accident, testified that he had been kicked off the bus and was walking home. He said that Domingue was about to get on the bus, but he asked him to walk home with him instead. He stated that his parents did not know he had been kicked off of the bus and that he did not have permission from his parents to walk home that day. Siner stated that he and Domingue walked down Moss Street and attempted to cross the street when the accident occurred. He testified that the truck driven by LeBlanc swerved and hit Domingue. He further testified that Do-mingue had walked home a few times before, however, he did not know Domingue got in trouble for doing so. Siner testified that he did not know why he and Do-mingue did not use the crossing guard to cross Moss Street. He further stated that he knew Moss Street was' very busy. He also testified that, if he and Domingue had crossed by way of the crossing guard to get onto the other side of Moss Street, they would not have had to cross the street again to - get home. Siner testified that he chose the route they would take to get home and that he had walked this route to get home from school once before. He said that there was one teacher on duty in the area where he and Domingue exited the school.

| Jáelaine Doty, Baraneo’s Mend and neighbor, testified that her son, who was eleven at the time, also attended AMS. She testified that she was under the impression that someone from the school made sure her son got on the bus. She also testified that she filled out a form at the beginning of the school year indicating whether her child was a car-rider, a walker, or a bus-rider, and if so, what number bus they were supposed to be on.

Scott Segura, the School Board’s transportation supervisor, testified that he has been with the transportation department for ten years. He stated that regular education bus drivers have no duty to make sure that any child rides the bus in the morning or afternoon. He stated that, at the beginning of the school year, each bus driver is given a list of kids who are supposed to be riding his bus. Segura testified that, although there are teachers on bus duty, a child who says “I am walking home today,” would not be stopped from doing so and that there is no measure in place to prevent a child from deciding unilaterally to walk home without advising anyone. He stated that the actual amount of riders per day varies greatly due to illness, after school activities, and other circumstances. Segura said that there is no way of knowing whether an individual child will be on the bus due to all of these particular circumstances. He stated that it would be impossible, logistically and financially, to keep track of all of the students in all schools to determine if they were going to ride on the bus or not. He further testified that the department of transportation’s responsibility only begins once the child actually gets on the bus and not before then. Segura stated that approximately 22,000 kids ride the bus at some time or another in the Lafayette Parish school district. Segura was questioned as to why there is not | fianything in the handbook they send out to parents at the beginning of the school year stating there is no plan or program to ensure that every child gets on the bus. He replied that it is understood that the parent’s have a responsibility to determine whether the kids get on the bus.

Lawrence Dupre, the former principal of AMS at the time of the accident, testified that, at the time, school enrollment was around 660 to 700 students. He estimated that around thirty to forty students walked home from AMS and that around one hundred students were car-riders. Dupre stated that the policy in place at the time of accident was that students reported to either 1) the bus loading area, 2) the car-rider area, or 3) to the area where the walkers leave the campus. He stated that teachers supervised the students from the classroom to one of those locations and that they were responsible for making sure the students got to the location without delay. Dupre testified that there was no roll call or anything to make sure that the bus riders actually got on the bus. He stated that the primary function of the teachers on duty was disciplinary — to make sure that the students did not run or go between buses, that they went to the area that they were supposed to go to, and that they loaded the bus, in a safe and orderly manner.

Dupre went on to describe how students are tracked throughout the day for attendance purposes, but that, once school is let out at 3:35 p.m., students are expected to go to their correct designation. He stated it was the student’s decision whether to walk home or board the bus. However, he stated that the school does compile a list of the parent’s wishes with regard to whether their child is to be a walker, bus-rider, or car-rider. He stated that it is the student’s responsibility to |7comply with his parent’s wishes and that AMS did not do anything to implement the parent’s particular wishes. However, he did state that, once a child gets on the bus, certain rules apply regarding where the child can be dropped off. Dupre testified that, basically, the school relies on ten-to-twelve-year-olds to go where they are expected to once school lets out. Dupre further testified that he has been the principal of three other schools over the course of fourteen years and that the manner in which the students were dismissed at AMS was the same at all of the other schools.

Dupre further testified that, at the beginning of the school year, an orientation is conducted with the students and they are shown where to go if they are walkers, bus-riders or car-riders. Dupre was asked whether a color-coded name tag could identify whether the student was a bus-rider, car-rider, or walker. He responded that it would be a means of identifying the student’s transportation method, but that it would be impractical to implement because a student’s status often changes throughout the day and week depending on extra-curricular school activities, illness, and other circumstances. Dupre stated that the method that was in place at AMS resulted in very few problems. He testified that most of the problems were due to either the student lingering to talk and missing the bus or to a teacher keeping the students after class which caused them to miss the bus. He testified that “overwhelmingly the students really knew what their responsibilities were and carried them out.” ,

Dupre testified that, if a parent made a special request because of a child’s special needs or for other reasons, the school would make every effort to assist in meeting those needs. He testified there was no prior request by Baranco requesting |sthat the school ensure that Domingue get on the bus.

Shirley Sampy, the assistant principal at AMS at the time of the accident, also testified that there was no procedure in place to ensure that bus-riders get on the bus, except that each student knows it is their responsibility. Sampy also .testified that Baranco did not notify them that Do-mingue was not to walk home.until after the accident. She also testified that requiring .the bus driver’s to do some sort of roll-call was not a practical solution because it would be too time consuming. Sampy further testified that, while roll call sheets are mandated by State.law in the classrooms, there is no such requirement pertaining to the bus. She also testified as to the difficulties that would be encountered if the bus drivers instituted some sort of tag system. She stated that, if the bus driver were to find that he was missing some students, it would be nearly impossible to locate them because the bus driver is not allowed to get off the bus once students have loaded. Thus, he would have to call for a teachep to come over and go search, for the missing. students while he sat with a bus full of kids waiting to depart.

Domingue testified that, at the time of the accident, he weighed seventy-four pounds and was in the sixth grade. . He testified that he had walked home from school twice, without telling anyone, when he was in fifth grade. He stated that, on the day of the accident, he had planned to get on the bus, and was stepping onto it, when Siner asked him if he wanted to walk home. Domingue testified that he and Siner began to cross Moss Street in the middle of the street, rather than at a light. The next thing he remembers is being transported by ambulance to Lafayette General and then to Children’s Hospital in New Orleans, where he underwent surgery on his hip | t,and elbow.

Domingue testified that he was a bus-rider and that his mother did not allow him to walk home. He testified that his mother had caught him the two times he walked home when he was in the fifth grade, fussed at him, told him how dangerous it is to walk home from school, and punished him. He stated that he understood that he was prohibited from walking home and the reasons why. However, Do-mingue testified that, when he was walking home with Siner and crossing the busy Moss Street, it never occurred to him that it was dangerous. He further testified that he was not allowed to go to Winn Dixie or Burger King because he would have to cross Moss Street. He also testified that, on the day of the accident, he knew he was supposed to take the bus home and that his mother’s instructions were that he take the bus. Domingue stated that he chose to walk instead. He testified that he still runs and plays baseball, basketball, and football, skateboards, and rides his bicycle. He testified that he passed the sixth grade and was home-schooled from the time of the accident until February or March of the following year, when he returned to school.

Baranco testified that, on the day of the accident, she thought Domingue would be on the school buá because that' was what he was supposed to do and that was what she- had instructed him to do. She testified regarding the incidents when Do-mingue was in the fifth grade and walked home. She stated that, the first time, he did not arrive home when he was supposed to and that she called the school and told them that Domingue did not get off the bus and could they page him. She stated that the lady who answered the phone paged for Domingue, but that he did not answer. | inShe testified that she got into her truck and went out to look for him and found him and two other boys walking home from school. She claims that she called the school back wanting to know why he had walked home when he was supposed to be on the school bus. However, Baranco stated that the school did not respond to her inquiry. She went on to testify that Domingue was punished and that she explained to him why he should not walk home. However, she testified that he did it again in the fifth grade and that she called the school and went out looking for him. She stated that the school gave no explanation. Baranco also stated that Domingue was punished again. Baranco testified that she spoke to Dupre and told him that she was concerned about Domingue walking home. She only remembers that Dupre did not have an answer as to why Domingue walked home.

Baranco further testified that the form sent out at the beginning of the year to determine if a child was a bus-rider, walker, or car-rider is what gave her the impression that someone made sure her child was put on the bus. She testified that, in October 2000, Domingue was not mature enough to walk home because he was forgetful, did not follow directions well, and engaged in immature activities. She stated that she had to explain things to him several times before he would understand.

After reviewing the standard applied to the School Board, we find that the duty imposed by the trial court went above and beyond that which is required by law. The trial court opined that a procedure to distinguish walkers from non-walkers may have acted as a deterrent. -We find this reasoning unpersuasive in imposing such a duty on the School Board. Assuming that such procedures were in place, there is nothing that would prevent a “designated walker,” who had been authorized by luschool personnel to exit the school as a “designated walker” in the same manner as Domingue and Siner, from running across a highway and being injured. We do not feel that any of the suggested measures would have changed the outcome. Moreover, punishment and reprimand by his own mother did not deter Domingue from doing that which he knew he was not supposed to. We are certain that anything short of an impossible system, that would require a roll-call of every student exiting the school, taking into account students who may have left school earlier in the day and who are involved in an ever-changing series of after-school events, would have been an effective deterrent. Furthermore, it is not unreasonable to expect children in the junior high age range to follow their parent’s directions. It is clear from Do-mingue’s own testimony that he knew he was not supposed to walk home from school, he knew that Moss Street was dangerous, and he decided to do it anyway.

We also find that the form sent out at the beginning of the school year did not give parents the false impression that the School Board would ensure that its students used the checked method to return home following the end of the school day. Moreover, any reliance Baranco claims on the form is misled. She clearly should have been aware, based on the fact that Domingue had walked home two times in the fifth grade, that the form was not a guarantee that her son would arrive home by school bus.

Baranco points us to several cases, however, we find that none of them actually support her position. In Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3 Cir.1966), the plaintiff urged that the defendant failed to adequately supervise the students after school had let out which led to another student poking the hjplaintiff in the eye with a stick. This court found that, although the school board has a duty to supervise its students while they await the school bus, accidents such as this one “happen so quickly that unless there was direct supervision of every child (which we recognize as being impossible), the accident can be said to be almost impossible to prevent.” Id. at 510. Similarly, while we recognize that the School Board has a duty to 'supervise students while they are leaving school, it is almost impossible to provide supervision in a situation such as the case at hand.

In Sutton v. Duplessis, 584 So.2d 362 (La.App. 4 Cir.1991)-, six-year-old Peter missed the school bus, was sent to the office, and told to wait until his mother could pick him up from school. However, he saw a friend in the hallway and walked home with him. Upon, arriving at the friend’s house, the friend’s mother instructed Peter to return to school as his mother would be waiting for him. The six-year-old darted into the street and ran into a vehicle. The trial court found Peter’s mother 60% at fault for failing to pick him. We reversed and found the school board 100% at fault stating that, “the School must have a policy to insure that younger students, such as Peter, are properly supervised and do not leave the school unattended.” Id. at 365. We reached the same result in Gary v. Meche, 626 So.2d 901 (La.App. 3 Cir.1993), in which another six-year old was injured when she ran into the street and collided with a pickup truck. We find these circumstances easily distinguishable from the one at hand. As’noted in Wallmuth, 813 So.2d at 346, the school board’s duty is to provide “competent supervision appropriate to the ages of the children and the attendant circumstances.” The level of supervision required for six-year-olds versus eleven and twelve-year-olds cannot be compared. The current Impolicy of AMS, to ensure that its students are aware of their responsibilities, including where to report to once school has been dismissed, is sufficient.

We find the school board did not breach its duty to Domingue, that is to ensure the orderly and non-violent flow of children to the appropriate area of departure. Accordingly, we reverse the trial court’s finding that the School Board was at fault and find Domingue 100% at fault in causing the accident.

GENERAL AND SPECIAL DAMAGES

As we have found the School Board bears no liability, these issues are rendered moot.

COURT COSTS

Finally, ‘the School Board urges that the trial court abused'its discretion in allocating all of the court costs and expert expenses to them. Based on our finding that the School Board is 0%' at fault we reverse the trial court’s allocation of these costs and expenses and allocate them 100% to Domingue.

CONCLUSION

The trial court’s judgment finding the defendant-appellant, the Lafayette Parish School Board, 10% at fault and assessing it with 100% of the costs is hereby reversed. All costs of this appeal are assessed to the plaintiff-appellant, Valerie Duhon Do-mingue Baranco, tutrix of Benjamin Do-mingue. ■.

REVERSED AND RENDERED.

THIBODEAUX, C.J., dissents for the reasons assigned by Judge COOKS.

COOKS, J., dissents in part for the reasons assigned.

| t COOKS, J.,

dissents in part.

I respectfully disagree with the majority opinion reversing the trial court and absolving the School Board of any responsibility in causing the injuries suffered by Benjamin. At the very least, I would assess some percentage of fault to the School Board for this accident.- The majority opinion allows this school to completely abdicate its responsibility for student safety once the dismissal bell rings. This view is contrary to principles established in pri- or jurisprudence holding school boards liable for failing to establish procedures for the safety of students in its legal custody. Imposing some degree of fault to the school board would require this school, and others similarly situated, to implement procedures for the safe dismissal of students. Simple measures, such as posting duty teachers at points of entry to and exit from campus and requiring students to wear color-coded identification tags, might have prevented this accident. These measures are not so onerous a burden to the school considering the risk of injury to a student at dismissal time. In my opinion, the majority opinion sets a dangerous precedent for school administrators seeking direction from the judiciary regarding their potential liability at dismissal time.

[ g Custody and Duty of Supervision

It is a well established rule a school board has the duty of “reasonable competent supervision” for the safety of the children within its legal custody. Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98), 732 So.2d 530, 533. This court has recognized the “liability of the school board and its employees for injuries to students exists only when the school board has actual custody of the students entrusted to their care.” Id. The first inquiry in this case is whether the school board had legal custody of Benjamin at dismissal time. The majority wrongly concludes there was a break in custody after the dismissal bell rang. The majority relies on the testimony of the principal of Acadian Middle School (AMS) to find “it is the student’s responsibility to comply with his parent’s wishes and ... AMS did not do anything to implement the parent’s particular wishes.” The assistant principal testified “there was no procedure in place to ensure that bus-riders get on the bus, except that each student knows it is their responsibility.” The School Board’s transportation supervisor testified “the department of transportation’s responsibility only begins once the child actually gets on the bus and not before then.” He further testified, “it is understood that the parents’ have a responsibility to determine whether the kids get on the bus.” This testimony led the majority to conclude once the dismissal bell rings the children are on their own. The school board no longer has a duty to supervise bus riding students or establish procedures to ensure their safety. I am sure this is news to parents of bus riders, all of whom rely upon the school to see that their children arrive home safely. The majority opinion is contrary to jurisprudence, some from this circuit. '

Legal custody and its attendant duty for student safety is “generally always present when a child is on campus during regular school hours.” Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98), 732 So.2d 530, 533. Additionally, the responsibility for supervising students has been extended to children on school sponsored field trips, participating in school sponsored extracurricular activities on school grounds and waiting on school property for the school bus. See Jackson v. Colvin, 98-182 (La.App. 3 Cir. 12/23/98), 732 So.2d 530. Generally, in the case of car riders and walkers, responsibility for the child ends once they leave campus. However, “there are times, nevertheless, when school boards, although not responsible for the entire walking route of students to and from school, have voluntarily assumed a duty to provide crossing guards at certain places.” Id. at 533. In. these cases, the school board must ensure the guard is on duty at the designated time. See Barnes v. Bott, 615 So.2d 1337 (La.App. 4 Cir.), writ denied, 619 So.2d 546 (La.1993). The situation is different when the child is a bus rider. In these cases, school board custody, and the duty of competent supervision, extends beyond the dismissal bell until the child arrives home. This court has recognized a continuing “custodial relationship” which does not end until that child arrives home safely. In Jackson, this court has stated:

When the school board provides bus transportation for the student, the duty of care and supervision extends temporally and spatially throughout this custodial relationship.

Jackson at 533.

In Jackson, the student customarily walked home from school and was stuck by a car on her way home. In absolving the school board of any liability, this court discussed the legal custody of the school board to bus riders and to students who walk home. The court stated:

Unless the school board provides transportation for a child there is no custodial relationship and therefore no duty of supervision to and from school. La.RN 17:158 authorizes a school board to provide free transportation for students residing more than one mile from the school Lthey attend. School boards are not authorized to provide transportation for students residing within one mile their school. Santana resided within one mile of her school. A school board in these circumstances is not responsible for students who walk to and from school.

Jackson at 732 So.2d 534.

The court in Jackson cited another case from this court, Dunn v. Gentry, 94-1164 (La.App. 3 Cir. 4/5/95), 653 So.2d 783, writ denied, 95-1148 (La.6/16/95), 655 So.2d 335, where both the bus driver and the motorist were held responsible for the death of a student hit by a logging truck when attempting to cross the street. The court found if a child is bus rider, the responsibility for the child’s safety is unbroken until the child reaches home safely. This court, quoting the Louisiana Supreme Court in Clomon v. Monroe City School Bd., 572 So.2d 571 (La.1990), stated:

The child, the bus driver, and the motorist are constituents of this process, bound together legally and practically in a special, exigent relationship, from the moment the bus stops and signals until the child is safely across the roadway.

Dunn at 786.

It is clear from the Jackson and Dunn case since Benjamin was a bus rider, the school board’s custodian relationship was unbroken and remained from the time he entered the school yard until the time the school bus was scheduled to drop him off at home. This duty, minimally, required the School Board to establish procedures to ensure bus riders board and remain on the bus.

Procedure for the Safe Dismissal of Students

It is undisputed Acadian Middle School had no procedure in place to ensure students reported to their designated areas. Both the principal and assistant principal testified to this fact. The majority concludes supervision of students during dismissal would be “almost impossible.” I disagree. Duty teachers posted at points of entry to and exit from campus along with color-coded identification tags would provide one |Bmethod to track students after the dismissal bell. This is part of the school’s responsibility. The absence of adequate procedures for supervising students at Acadian Middle School was amply demonstrated at trial during the testimony of the assistant principal, Ms. Sampy. Another student, Cortez Siner, was designated as a bus rider. He was suspended from riding the bus for three days because of disciplinary problems. Ms. Sampy testified she never notified Cortez’s mother that he was not riding the bus or that he was walking home. The following exchange occurred between Ms. Sampy and the trial court:

THE COURT: And he was suspended — Was it a two (2) day—
THE WITNESS: It probably was a three (3) day suspension.
THE COURT: Okay. And so a form would have been generated, or a phone call, to Cortez’s parents?
THE WITNESS: Yes.
THE COURT: But at least—
THE WITNESS: It would have been attempted.
THE COURT: If I’m to believe the testimony, that didn’t happen as to him. At least it sounded like the parents did not know that he had been— Cortez had been suspended.
THE WITNESS: It was attempted to call the parents, but for some reason I didn’t get in touch with the mother or father.
THE COURT: So it was unsuccessful.
THE WITNESS: Yes. So Cortez was given a copy of the form to take home to his parents.
THE WITNESS: Apparently, I didn’t get in touch with the parents the first time, and I trusted Cortez to give the paper to his parents, which, of course, as a child he didn’t do that.

I would find the School Board breached the duty of reasonable supervision by failing to establish procedures for the safe dismissal of students. The majority cites Sutton v. Duplessis, 584 So.2d 362 (La.App. 4 Cir.1991) and Gary v. Meche, 626 So.2d 901 (La.App. 3 Cir.1993), both of which hold the school board liable. However, the majority seeks to distinguish these cases from the present one. In so doing, the majority ignores the legal principles upon which these cases are based. | (¡Principles which are applicable to the case at hand.

In Sutton, the mother of a six-year old student failed to pick him up from school on time. The child was waiting in the principal’s office. He was told not to leave the office. However, he wandered off campus and was hit by an automobile. This court found the risk of injury foreseeable and the school board liable for failing to provide procedures to guard against this situation. The court stated:

The possibility that parents occasionally will not show up on time to get their children at dismissal, whether it be early dismissal or a regular one, is certainly foreseeable by school authorities. Therefore, the school must have a policy to insure that younger students, such as Peter, are properly supervised and do not leave the school unattended.
As the trial judge stated: “It is apparent that the School Board had no procedures to care for those students like Peter whose parents had failed to pick them up early on the day of report card conferences.” In this case, reasonable supervision would require at the very least a teacher or other adult assigned specifically to watch these students.

Sutton at 365-66.

In Gary, the trial court found there was no duty on the part of the school to reasonably supervise students after school hours, this court reversed, stating:

Concerning the actions or inactions of the School Board and the Town of Welch, the record reveals that the elementary school had no supervision policy for its students once classes were dismissed.... In reaching these conclusions, the trial judge failed to consider the well-established principle in this state that a school board has the duty to provide reasonable care commensurate with the risks incurred by the children in its custody... .Both Barnes and Sutton reiterated a school board’s duty to reasonably supervise young students. Neither restricted this duty to school hours. (See also Johnson, supra, 353 So.2d 1114.) In Barnes, the school board was found to have breached this duty by failing to adopt procedures which would either insure the crossing guards’s presence or provide an alternative plan for assisting the children in crossing the street. In Sutton, the school board was found to have breached its duty by failing to insure that young children do not leave school unattended.

Id. at 903-904.

The Gary court rejected the trial court’s finding that “it is the responsibility of [7the parents to see that their children arrive home safely.” Id. at 903. The court found the school board “had the authority to supervise and that certain supervisory measures were feasible.” Id. at 904.

In Jackson v. Colvin, supra, this court, discussing the holding in Gary, found once the school board assumes the “custodial relationship” for a child, it must establish procedures to provide for adequate supervision. The court stated:

The facts in Gary, 626 So.2d 901, present another example where the transition from school board custody to parental custody had not taken place ... In imposing liability on the school board, the court found that the school board failed to present any evidence of a supervision policy once classes were dismissed. There was no one on duty in the school yard at dismissal, a critical time to ensure that students safely reached their busses or their parents’ vehicles. Although the child was off-campus, the accident occurred immediately following and as a result of the child’s unsupervised departure from school grounds.

Jackson at 534.

In this case, as in Gary “supervisory measures were feasible.” The school had no policy in place to insure students would not just walk off campus unattended. Benjamin’s mother assumed her child would be riding the bus home. The parents were required to designate in writing whether their child would be a car rider, bus rider or walker. Parents of bus riding students assume the children will be under the supervision of school board personnel until they arrive home after school. By undertaking to provide transportation to Benjamin, the school board assumed this responsibility but failed to provide adequate supervision after school hours. A similar situation occurred in Barnes v. Bott, 571 So.2d 183 (La.App. 4 Cir.1990), when a child was injured when attempting to cross street. The school hired a crossing guard. However, on the day of the accident the crossing guard was absent due to illness but failed to notify the school. The court found the school board liable, stating:

By participating in and accepting the benefits of the program, we find that the School Board voluntarily assumed the duty of verifying that the |scrossing guard would be present at designated intersections during her normal duty hours.... [N]o procedure was established by the school which would timely alert them to the absence of the guard in order to insure that the intersection was supervised or that the students or their parents were aware of the absence. The School Board cannot absolve itself of responsibility by asserting that the principal was never instructed by the City to provide a substitute in the case of absence .... We find that the School Board breached its duty to its students by failing to adopt and implement a procedure which would require a designated school board employee to verify the presence of a school crossing guard and to provide for alternative personnel or a timely warning in the event of the guard’s absence.

Id. at 186.

In this case, by providing bus transportation to students and requiring parents to designate in writing whether they wished to use the buses, the school board assumed the duty of establishing procedures to insure bus riders arrived home safely. At the very least, the school should have a procedure for insuring students arrive at their correct destination on campus and leave campus in accordance with the wishes of the parent.

Accident was Foreseeable and Procedures were Available

The majority incorrectly concludes the accident was unforeseeable and there were no feasible alternatives to having no system in place at dismissal. The majority states:

We are certain that anything short of an impossible system, that would require a roll-call of every student exiting the school, taking into account students who may have left school earlier in the day and who are involved in an ever-changing series of after-school events, would have been an effective deterrent. Furthermore, it is not unreasonable to expect children in the junior high age range to follow their parent’s directive.

I do not find it is unreasonable to expect a school to keep track of its students at dismissal time regardless of an “ever-changing series of after-school events.” Acadian Middle School did not even try to fulfill their responsibility of supervision. Acadian Middle School in Lafayette is located on Moss Street, a busy four-lane 1 flroadway. School enrollment is between 660 and 700 students. Once the school bell rings there are three designated areas for the safe dismissal from campus, the car-rider area, the bus loading area and the area where walkers leave campus. Because Acadian Middle School is located on a busy highway, students who will walk home, cannot be dismissed except in a designated area. The school recognized the danger on Moss Street and employed a crossing guard for children walking home from school. However, regardless of the danger, the principal, Mr. Dupre, testified Acadian Middle School has no procedure in place to see that students arrive at the correct designated area or leave campus by the correct mode of transportation. This fact alone is enough to find the School Board breached its responsibility to insure the safety of its students at dismissal time. Moreover, in this case, parents were lead to believe there was a procedure in place. Parents were required to designate in writing how their children would be transported home. Once the school undertook the responsibility and gave parents a reasonable expectation of their child’s safe dismissal, they should have followed through with adequate procedures. Benjamin was only eleven years old. His home was three miles from campus. He was designated by his mother as a bus rider. His mother had previously voiced her concerns over her son walking home from school to school personnel. Mr. Dupre testified he has been a principal for fourteen years. As an experienced principal he should be well aware of the fact that an eleven year old boy will disobey his parents and exercise poor judgment especially when in the company of an older child. The accident which occurred, being hit by a car, is also foreseeable, considering the danger on Moss Street. As previously stated, simple measures, such as posting duty teachers at points of entry to and exit from campus and requiring students to wear color-coded identification tags, might have prevented this accident. These measures |inare not so onerous a burden to the school considering the risk of injury to a student at dismissal time. I would find the School Board partly at fault in causing this accident.


author: | THIBODEAUX, Chief Judge. _JjEZELL, J.,

text:
    Thomas VINCENT v. NAPA AUTO PARTS AND SUPPLY.
    No. 2003-295.
    Court of Appeal of Louisiana, Third Circuit.
    June 23, 2004.

      Robert Dean Hoover, Baton Rouge, LA, for Defendant/Appellee, NAPA Auto Parts and Supply.
    Eugene A. Ledet, Jr., Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff/Appellant, Thomas Vincent.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   | THIBODEAUX, Chief Judge.

In this workers’ compensation matter, Thomas Vincent appeals a judgment denying him penalties and attorney fees against his employer, NAPA Auto Parts and Supply. Mr. Vincent claims that the workers’ compensation judge erred in denying these awards for his employer’s alleged failure to timely authorize an appointment with his doctor of choice and to authorize a diagnostic examination.

The workers’ compensation judge was manifestly erroneous. We reverse and award a penalty of $2,000.00 each for the failure to authorize an appointment with Mr. Vincent’s physician of choice and for the failure to authorize a diskogram. We also award attorney fees of $10,000.00 for work at both trial and appellate levels. The provision of these benefits was not prompt and was not reasonably controverted. La.R.S. 23:1203 and 23:1201(F)(2).

I.

FACTS

On May 7, 2001, Mr. Vincent was involved in a work-related accident while employed by NAPA Auto Parts. He began receiving workers’ compensation benefits shortly thereafter. Following his injury, Mr. Vincent was treated by several physicians, including a chiropractor and two neurosurgeons. Howevér, his pain failed to resolve. On September 26, 2001, counsel for Mr. Vincent sent a request to see Dr. John Cobb, an orthopedic specialist, to Myrna Cannon, the claims supervisor working on Mr. Vincent’s case for NAPA’s insurer. The letter was received on October 2, 2001. An appointment with Dr. Cobb was then authorized on November 14, 2001.

Dr. Cobb examined Mr. Vincent on December 10, 2001. He recommended that a diskogram be performed upon Mr. Vincent. His report and the | ¡.request for the diskogram were received by Ms. Cannon on January 10, 2002. In February, Blake Stevens, the vocational rehabilitation specialist assigned to Mr. Vincent’s case, began to try to schedule an exam for a second opinion. Mr. Vincent was not seen for the second opinion until August 13, 2002, by Dr. Robert Po, who agreed with the diagnosis made by Dr. Cobb and the need for a diskogram. After a consultation with Mr. Stevens, a licensed vocation rehabilitation counselor, in which he was told of the possible dangers involved in a diskogram, which include paralysis, Mr. Vincent decided to forego the test and seek another means of diagnosis, specifically a repeat of an earlier MRI. Two weeks prior to the trial on this matter, Mr. Vincent changed his mind and became willing to undergo the diskogram. Authorization for the test was approved the day of trial.

In November 2001, Mr. Vincent filed a complaint with the Office of Workers’ Compensation seeking penalties and attorney fees, claiming that NAPA failed to timely authorize the visit to Dr. Cobb. The complaint was later amended to assert that NAPA failed to timely authorize the disko-gram requested by Dr. Cobb. After the hearing on the matter, the workers’ compensation judge found that the appointment with Dr. Cobb was authorized within sixty days of the request, making the authorization timely. Accordingly, he denied penalties and attorney fees on that claim. The workers’ compensation judge also found that NAPA was not unreasonable in seeking a second opinion as to the need for a diskogram and that the [¡¡delay for the authorization was also not unreasonable based on Mr. Vincent’s own initial refusal to have the diskogram performed. From this decision, Mr. Vincent appeals.

II.

ISSUES

We shall consider whether:

(1) the workers’ compensation judge erred in finding that NAPA timely-authorized the visit with Dr. Cobb;
(2) the workers’ compensation judge erred in finding that NAPA complied with their obligation to provide prompt medical care with regards to the diskogram; and,
(3) the workers’ compensation judge erred in failing to award penalties and attorney fees for the alleged violations.

III.

LAW AND DISCUSSION

A. Failure to Authorize Appointment With Physician of Choice

There is no factual dispute regarding the evidence on this issue. Mr. Vincent’s attorney’s letter to the adjuster requesting authorization to see Dr. Cobb was sent on September 26, 2001, and received by Ms. Cannon, the adjuster, on October 2, 2001. She reviewed the letter on October 3 and failed to communicate with Mr. Vincent’s attorney until November 14, 2001.—• a lapse of six weeks. Ms. Cannon testified that she was familiar with Mr. Vincent’s right to see Dr. Cobb and further acknowledged that he had not been seen by an orthopedist of his choice. Moreover, Ms. Canon did not question the accuracy of Mr. Vincent’s medical records which she had in her possession.

Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, 1186, concluded that “[bjased on this language [La.R.S. 23:1201(F)(2)] a penalty and attorney fee can be imposed for the failure to authorize treatment except where ‘the claim is reasonably controverted.’ ” Authement further explained:

The employer is obligated to ‘furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.’ LSA-R.S. 23:1203(a). Thus, we conclude that a failure to authorize treatment can result in the imposition of penalties and attorney fees except when the claim is reasonably controverted. Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment.

Id. at 1187. (Emphasis supplied).

Moreover, “[o]ne purpose of the workers’ compensation statute is to promptly provide compensation and medical benefits to an employee who suffers injury within the course and scope of employment.” Id. at 1186-87. (Emphasis supplied). In this case, the failure to authorize an appointment with Dr. Cobb for six weeks was not prompt. We, therefore, assess a penalty of $2,000.00 and an attorney fee of $3,500.00 pursuant to La.R.S. 23:1201(F)(2).

B. Failure to Authorize Diskogram

Dr. Cobb examined Mr. Vincent on December 10, 2001 and determined the need for a diskogram for which he requested authorization to perform. His request was received by the claims adjuster on January 10, 2002. Having received no response from NAPA, Mr. Vincent’s attorney wrote to the claims adjuster on February 25, 2002, to again request authorization for the diskogram. Dr. Po saw Mr. Vincent for a second opinion at NAPA’s request on July 11, 2002. Dr. Po concurred with the need for a diskogram and informed Mr. Stevens, the vocational rehabilitation | ¡¡counselor, on August 13, 2002. Finally, in September 2002, Mr. Stevens called Mr. Vincent to discuss Dr. Po’s findings. He summarized their conversation as follows:

I advised Mr. Vincent about the. disko-gram and [advised him that] it’s a delicate procedure and if [it is] not performed adequately ... there could be medical complications such as paralysis or perhaps false positives that would show additional findings other than what an MRI or mylogram indicates.
I told him that due to the delicate procedure, paralysis can occur [when the] dye is ... shot into the ... spinal cord.

When asked the following question, Mr. Stevens admitted that Mr. Vincent expressed his fears related to the diskogram procedure only after their telephone conversation in September.

Q All right. So if I understood your previous testimony correctly, from December 11 of 2001 through sometime in September of 2002 Mr. Vincent never voiced any concern over the diskogram, it was not until your conversation with him on the possibility of paralysis, correct?
A He had ... requested a repeat MRI because he was fearful of the disko-gram.
Q And that was after you told him about the paralysis, or during the same conversation?
A Certainly.

When Mr. Vincent was asked about the reservations he expressed about undergoing the diskogram procedure, he stated:

Well, I was scared then at the time, sir. I mean, Blake [Stevens] had done talked to me and, like I say, it scared me, he said they had one that blowed up and, you know, paralyzed him and I mean I was scared.

Later, after talking with his counsel, Mr. Vincent changed his mind and asked him to get the diskogram procedure set up. Finally, NAPA’s insurer authorized the diskogram on November 12, 2002, after Mr. Vincent’s attorney filed an amended | ¡¡petition alleging the delay in authorizing the diskogram on October 21, 2002. The trial was held on November 14, 2002.

Again, NAPA was unreasonable in failing to authorize a diskogram until ten months after the initial request was made by Mr. Vincent’s treating physician, Dr. Cobb, and three months after that request was corroborated by NAPA’s physician of choice, Dr. Po. The failure to authorize the diskogram is indeed a failure to authorize treatment, entitling Mr. Vincent to a penalty of $2,000.00 and an attorney fee in the amount of $3,500.00. La.R.S. 23:1201 and 23:1203(A); La.R.S. 23:1201(F)(2).

We award an attorney fee of $3,000.00 for work performed at the appellate level.

IV.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed. A penalty of $2,000.00 each is assessed for the failure to authorize an appointment with Mr. Vincent’s physician of choice and the failure to authorize a diskogram. Further, attorney fees of $3,500.00 is assessed for each violation in addition to an award of $3,000.00 for work done at the appellate level.

All costs are assessed against NAPA Auto Parts and Supply.

REVERSED AND RENDERED.

PICKETT, J., joins the Opinion of the court with respect to Sections I, II, and III.A, but Dissents with respect to Section III.B. for the reasons assigned by Judge EZELL.

EZELL, J., Dissents and Assigns Written Reasons.

_JjEZELL, J.,

dissents.

I respectfully disagree with the majority opinion and, for the following reasons, would affirm the decision of the trial court.

In Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (alteration in original), the supreme court clearly set out the standard of review for factual findings in workers’ compensation matters as follows:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. 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 factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Louisiana Revised Statutes 23:1121(B) provides that employee shall have the right to select one treating physician in any field or specialty when injured in the course and scope of his employment. Furthermore, La.R.S. 1223:1121(C)(emphasis ours) provided at the time Vincent was injured:

If the employer or insurer has not consented to the employee’s request to select a treating physician or change physicians when such consent is required by this Section, and it is determined by a court having jurisdiction that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee for reasonable attorney fees related to this dispute and for any medical expense so incurred by him for an aggravation of the employee’s condition resulting from the withholding of such physician’s services.

Based on the evidence before him, the workers’ compensation judge found that NAPA did not unduly delay Mr. Vincent in seeing Dr. Cobb. Although the workers’ compensation judge seemingly applied an incorrect standard in reaching this conclusion , he clearly found that the seven-week time between the request and the approval was not unreasonable, arbitrary or capricious. Accordingly, the workers’ compensation judge ruled that penalties and attorneys’ fees would not be appropriate. I find nothing in the record which indicates NAPA’s actions were arbitrary or -capricious, or that the workers’ compensation judge’s findings were manifestly erroneous.

As for Mr. Vincent’s claim that the workers’ compensation judge erred in failing to award penalties and attorneys’ fees for the delay in authorizing the diskogram, again, I disagree.

Myrna Cannon received Dr. Cobb’s report requesting the test on January 10, 2002. In February, Blake Stevens began making attempts on behalf of NAPA to schedule a second opinion as to the necessity of this test. After several attempts were made with various doctors, Mr. Stevens finally arranged an examination with Dr. Po. After the need for the diskogram was confirmed by Dr. Po, a consultation with Mr. |RStevens occurred in which Mr. Vincent was told of the possible dangers involved in a diskogram, including paralysis. Mr. Vincent decided to forego the test and seek another means of diagnosis. In fact, Mr. Vincent did not indicate that he desired the diskogram until two weeks pri- or to the trial. After he indicated that he had changed his mind and sought the dis-kogram, the test was approved shortly thereafter.

As noted by the workers’ compensation judge in his oral reasons for judgment, Mr. Vincent himself declined the test, based on his fears of risks associated with the exam. The workers’ compensation judge found that NAPA was not unreasonable in “seeking a second medical opinion to address the need for a diskogram” and that NAPA was not “unreasonable in not authorizing the diskogram until November of 2002, given the fact that Mr. Vincent himself declined having a diskogram [until] that time.” The workers’ compensation judge found that NAPA reasonably controverted Mr. Vincent’s claim that the authorization for the diskogram was delayed in an arbitrary and capricious manner. The limited record in this matter contains no evidence which shows this finding to be manifest error.

Because NAPA was neither arbitrary nor capricious in authorizing either the visit to Dr. Cobb or the diskogram, NAPA should not owe Mr. Vincent penalties or attorneys’ fees for its actions.

      . Mr. Vincent also claimed that NAPA failed to timely notify him of a rehabilitation conference with Dr. Cobb and that NAPA failed to timely provide him with the report generated by Dr. Po after his examination. Mr. Vincent was ultimately rewarded $250.00 in penalties and $750.00 in attorney fees for the failure to provide Dr. Po's report and his claim based on the rehabilitation conference was denied. However, as neither of these issues were appealed, they need not be addressed further.

      . The workers’ compensation judge specifically mentioned in his oral reasons that no penalties or attorney fees were due because the requested appointment had been approved within sixty days, as if this were a bright line time limit for authorizing a medical exam, rather than noting the correct arbitrary or capricious standard.

      . The workers' compensation judge specifically mentioned in his oral reasons that no penalties or attorneys’ fees were due because the requested appointment had been approved within sixty days, as if this were a bright line time limit for authorizing a medical exam, rather than noting the correct arbitrary or capricious standard.