author: hCALOGERO, Chief Justice.

text:
    LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. KANSAS CITY SOUTHERN RAILWAY CO., et al.
    No. 2002-C-2349.
    Supreme Court of Louisiana.
    May 20, 2003.

      Richard P. Ieyoub, Attorney General, James M. Bookter, Lawrence A. Durant, Baton Rouge, Lawrence E. Marino, Wil-lia.m M. Hudson, III, Lafayette, Counsel for Applicant.
    Bobby S. Gilliam, Wilkinson, Carmody & Gilliam, Shreveport; Albert M. Hand, Jr., Cook, Yancey, King & Galloway, Shreveport; Osborne J. Dykes, III, John S. Stephens, Counsel for Respondent.
   hCALOGERO, Chief Justice.

Louisiana Department of Transportation and Development (“DOTD”) expended several million dollars to remove environmental pollution at a construction site for Interstate 49 in Shreveport, Louisiana. The United States government, through the Federal Highway Administration (“FHWA”), thereafter reimbursed DOTD ninety percent of the remediation costs. DOTD sued, among other defendants, Kansas City Southern Railway Co. (“KCS”) under the Louisiana Environmental Quality Act (“LEQA”) to recover the clean-up costs, alleging that KCS polluted the site. The courts below held that DOTD’s action was limited to the ten percent of clean-up costs it had actually incurred, and that DOTD could not recover the portion of the costs reimbursed to DOTD by the FHWA. We reverse the lower courts and conclude that DOTD may seek judgment against KCS for the full measure of damages caused by its pollution.

FACTS AND PROCEDURAL HISTORY

Each year, Congress appropriates billions of dollars to subsidize state highway construction projects, and the FHWA apportions these funds among the states. 23 U.S.C. §§ 104(b), 118. States become eligible for their allotted federal funds by obtaining FHWA approval for a project, signing a project agreement with the FHWA, paying the full cost of construction from state funds, and, finally, requesting | ¿reimbursement from the FHWA for the federal share of the cost, which is ninety percent on interstate projects. In completing these federally funded highway projects, states must closely adhere to FHWA standards and procedures.

On June 2, 1989, DOTD entered into a project agreement with FHWA to construct a segment of Interstate 49 in Shreveport. During construction, DOTD discovered environmental contamination at the site. FHWA apportioned a share of Louisiana’s federal highway construction funds to remedy the polluted site preceding construction of the highway. In disbursing these funds, the parties followed the procedure applicable to highway construction. DOTD paid the full costs of clean-up from state funds, and was thereafter reimbursed by FHWA the ninety percent federal share. DOTD filed suit to recover the cost of eliminating the pollution, naming as defendants KCS, North Louisiana Goodwill Industries Rehabilitation, Inc., Steel Erectors, Inc., Crystal Gas Storage, Inc., and the insurance carriers for these entities. KCS is the only defendant remaining in this litigation.

In its petition, DOTD alleged that KCS’s responsibility for the contamination arises out of a March 31, 1966 train derailment which occurred at or near the property in question. The contents of the derailed train cars were destroyed or disposed of at the scene of the accident. The train had allegedly been carrying hazardous materials, and the materials were buried at or near the site. DOTD brought its action under the LEQA, La.Rev.Stat. 30:2271, et seq., specifically citing La.Rev.Stat. 30:2276(G)(3), which provides that a party who has incurred remedial costs in responding to a discharge or disposal of a hazardous substance covered by the Act may sue to recover such remedial costs. In response to the allegation in the defendant Crystal’s answer1 ¡¡that DOTD could not recover the portion of the clean-up costs reimbursed by FHWA, DOTD filed a Motion in Limine seeking to withhold from the jury evidence of FHWA’s participation in DOTD’s remediation. In support of its Motion in Limine, DOTD argued that the collateral source rule prevented defendants from receiving a reduction in their liability simply because DOTD received funding for the remediation from an independent source. DOTD further stated that its relationship with FHWA was analogous to a partnership, giving DOTD authority to recover the full amount of damages on the partnership’s behalf. DOTD pointed out that FHWA was paying, as well, ninety percent of the attorney’s fees to pursue this action.

Crystal filed a Motion for Partial Summary Judgment, seeking dismissal of DDOTD’s claim as to the remediation costs paid from federal funds. Crystal argued that DOTD had no standing or other legal authority to recover on behalf of the FHWA the ninety percent of the damages reimbursed by FHWA. According to Crystal, allowing DOTD to seek the entire amount of incurred clean-up costs would constitute an impermissible double recovery by DOTD of the identical remediation costs. KCS joined Crystal’s Motion for Partial Summary Judgment. In its Opposition, DOTD re-urged the applicability of the collateral source rule. Alternatively, DOTD asserted that FHWA had specifically authorized DOTD to act on its behalf to recover the federal portion of the clean-up costs. DOTD relied on affidavits, as well as on four documents prepared by FHWA in an attempt to prove this agency relationship.

The district court granted the defendants’ Motion for Partial Summary Judgment. The court found that DOTD would receive a double recovery if it were allowed to recover the ninety percent federal share of the clean-up costs after having the same costs funded by the federal government. The trial court further found insufficient evidence to indicate that a partnership existed between DOTD and FHWA or that DOTD was specifically authorized by FHWA to recover the federal money expended. After the district court entered judgment, Crystal entered into a confidential settlement agreement with DOTD.

DOTD filed a Motion for New Trial, alleging that the federal share of any remediation costs recovered would belong to the FHWA, not DOTD. Thus, DOTD Iswould not receive a windfall or double recovery. DOTD attached in support of its motion several affidavits which had not been previously considered by the district court. The district court denied DOTD’s Motion for New Trial, specifically finding that no genuine issues of material fact existed with regard to its earlier conclusion that DOTD could not recover remediation costs already reimbursed by FHWA, as this would constitute a prohibited double recovery. The district court found that, according to the pleadings, DOTD sued only in its own right, not in an agency capacity on behalf of FHWA. After the district court designated its judgment as final, DOTD appealed the grant of Crystal’s Motion for Partial Summary Judgment.

The court of Appeal affirmed the district court’s grant of partial summary judgment, finding that allowing DOTD to recover the entire amount of remediation costs incurred would constitute an impermissible double recovery. The court of appeal held that the collateral source rule was not applicable in this action under the LEQA. Furthermore, the court found that DOTD supplied no evidence containing any special authorization from FHWA enabling DOTD to sue on its behalf to recover the federal portion of the remediation costs. We granted certiorari to review the correctness of the court of appeal’s decision. LAW AND ANALYSIS

DOTD urges this court to reverse the court of appeal and find that it has standing to seek a judgment against KCS for the entire amount of expenses made necessary by the contamination at the construction site. DOTD primarily argues that, pursuant to authority granted by the FHWA, it is suing the alleged polluter on FHWA’s behalf; thus, it will not receive a double recovery. DOTD alternatively | ^contends that the collateral source rule prevents KCS from obtaining a reduction in liability for the DOTD’s removal costs, in large measure funded by FHWA.

As a preliminary matter, KCS filed a motion in this court to strike those affidavits relied upon by DOTD in its Motion for New Trial, which had not been previously entered into evidence at the summary judgment hearing. KCS urges that, pursuant to La.Code. Civ. Proc. art. 2164, an appellate court cannot consider evidence outside of the record on appeal, and DOTD did not appeal the denial of its Motion for New Trial. We note that DOTD’s Motion for New Trial concerned only whether DOTD had authority to sue to recover cleanup costs on behalf of FHWA. It unnecessary for this court to address the issue of whether DOTD is suing in a representative capacity on behalf of FHWA in light of the resolution in this opinion favorable to DOTD on its alternate assignment of error regarding the collateral source rule.

Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Warren v. Fidelity Mut. Ins. Co., 99 So.2d 382, 385 (La.App. 1st Cir.1957); Williamson v. St. Francis Med. Ctr., Inc., 559 So.2d 929, 934 (La.App. 2d Cir.1990); Griffin v. The Louisiana Sheriff's Auto Risk Assoc., 99-2944, p. 34 (La.App. 1st Cir.6/22/01), 802 So.2d 691, 713. Under this well-established doctrine, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer. Terrell v. Nanda, 33,242, p. 3 (La.App.2d Cir.5/10/00), 759 So.2d 1026, 1028.

The collateral source rule is of common law origin, Restatement (Second) of Torts § 920A (1979), yet well-established in the jurisprudence of this state, see Warren, 99 So.2d at 385; Doerle v. State, DOTD, 147 So.2d 776, 782 (La.App. 3d Cir.1962); Thomas v. Paper Haulers, 165 So.2d 61, 63 (La.App. 2d Cir.1964). And, it has not been altered statutorily. In fact, early Louisiana cases cite legal encyclopedias and other common law reference sources as the basis for application of the collateral source rule. See Warren, 99 So.2d at 385 (citing 25 C.J.S. Damages, § 99); see also Doerle, 147 So.2d at 782 (citing 25 C.J.S. Damages, § 99; 15 Am.Jur. Damages, § 201).

Several public policy concerns support the collateral source rule generally. The reason most often stated is that the defendant should not gain an advantage from outside benefits provided to the plaintiff independently of any act of the defendant. Bryant v. New Orleans Public Service, Inc., 406 So.2d 767, 768 (La.App. 4th Cir.1981), affirmed, 414 So.2d 322 (La.1982). It is also clear that thé collateral source rule promotes tort deterrence and accident prevention. Suhor v. Lagasse, 00-1628, p. 3 (La.App. 4 Cir. 9/13/00), 770 So.2d 422, 424. Moreover, absent the collateral source rule, victims would be dissuaded from purchasing insurance or pursuing other forms of reimbursement available to them. Bryant, 406 So.2d at 769.

In support of its contention that its otherwise applicable recovery under the LEQA should not be reduced by the amount of federal reimbursement, DOTD argues that the collateral source rule must be given a broad application to further the public policy considerations supporting it. DOTD notes that the “polluter pays” principle, a fundamental aspect of the public policy embodied in environmental law, seeks to deter environmental contamination by placing the burden of that contamination on the polluter. Joslyn Mfg. Co. v. Koppers Co., Inc., 40 F.3d 750, 762 (5th Cir.1994). DOTD alleges that the elements of the collateral source rule are present in this case: KCS is not entitled to a credit for payments to DOTD provided independently of RKCS’s procuration or contribution.

KCS, on the other hand, asserts that courts have applied the collateral source rule only in limited contexts, specifically, in tort situations involving insurance and other proceeds procurable by the victim. KCS further argues that the LEQA is a penal statute, and that the collateral source rule cannot be applied in this case, as penal statutes must be strictly construed, citing Goodwin v. Agrilite, 26,601, p. 7 (La.App.2d Cir.9/21/94), 643 So.2d 249, 254.

Both courts below agreed with KCS. The court of appeal found that the collateral source rule, a tort-based concept with a limited application, did not apply in this environmental clean-up dispute, which “does not involve insurance, tort deterrence, or accident prevention,” according to them. Louisiana Department of Transportation & Development v. Kansas City Southern Ry., 30,002, p. 36 (La.App.2d Cir.8/8/02), 827 So.2d 443, 461.

We reverse the court of appeal and hold that the collateral source rule applies in cases arising under the LEQA, at least where a damaged party is seeking reimbursement only for remediation expenses. If, after a trial on the merits, it is found to be legally responsible for some portion of the contamination present at the construction site, KCS cannot be exonerated from paying the full consequences of its act simply because DOTD independently obtained reimbursement in large part from FHWA for the clean-up costs incurred. This holding is not contrary to the existing jurisprudence of this state, and is consistent with the case law of numerous federal and state jurisdictions. Finally, our holding today is commanded by the paramount public interest in ensuring that those persons or entities responsible for harming our environment and the welfare of our citizens be held fully responsible for the consequences of their actions, and deterred from committing future violations of thelflLEQA-

We recognize that the collateral source rule is most commonly applied to insurance proceeds. Under this general rule, a tortfeasor’s liability to an injured plaintiff should be the same, regardless of whether or not that plaintiff had the foresight to obtain insurance. Wooten v. Central Mut. Ins. Co., 182 So.2d 146, 148 (La.App. 3d Cir.1966). However, our courts have applied the doctrine to a range of situations where the collateral source is provided to the plaintiff by a government agency or even a gratuitous source.

For example, a tortfeasor’s liability may not be reduced by the amount of a victim’s medical expenses paid by Medicare. Womack v. Travelers Ins. Co., 258 So.2d 562, 568 (La.App. 1 Cir.1972); Weir v. Gasper, 459 So.2d 655, 658 (La.App. 4th Cir.1984); Cooper v. Borden, 709 So.2d 878, 882 (La.App. 2d Cir.1998). In Francis v. Brown, 671 So.2d 1041, 1046-47 (La.App. 3d Cir.1996), the court applied the collateral source rule and required the defendant to pay the full amount of the plaintiffs medical bills, including those amounts which had been paid by plaintiffs attorney. Additionally, a plaintiffs recovery is not reduced by the welfare payments received during period she did not work. Bonnet For and Behalf of Bonnet v. Slaughter, 422 So.2d 499, 502 (La.App. 4th Cir.1982).

In each of the above-cited cases, the courts focused their analysis on the fact that a wrongdoer may not benefit, and an injured party’s recovery may not be diminished, because of benefits received by the plaintiff from sources independent of the wrongdoer’s procuration or contribution. As one court described the collateral source rule, “only payments already made by the tortfeasor can be used to grant the tortfeasor a credit towards the amount of the ... award.” Coscino v. Wolfley, 696 So.2d 257, 264 (La.App. 4th Cir.1997).

ImWe additionally believe it is mere happenstance that the collateral source rule has been applied chiefly in the context of a conventional La. Civ.Code art. 2815 tort. The court of appeal’s finding that the collateral source rule is inapplicable to this “environmental clean-up dispute” because it “does not involve insurance, tort deterrence, or accident prevention” is erroneous. Because the particular concerns presented through application of environmental law have arisen relatively recently, Louisiana courts have not had the opportunity to address the impact of statutes that impose duties affecting the environment on the collateral source rule. Like conventional tort cases, environmental law statutory remedies involve claims to recover damages for harm caused by a defendant’s acts. For the following reasons, the logic supporting application of the collateral source rule is equally persuasive whether we are dealing with a defendant polluter under the LEQA, or a traditional “tortfeasor” whose liability arises under La. Civ.Code art. 2815, or other general tort law.

A cause of action arising under an environmental statute, such as the LEQA, presents compelling public policy reasons supporting application of the collateral source rule. Louisiana citizens, speaking through the drafters of our 1974 Constitution, have established environmental preservation as a preeminent public policy concern:

The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature In shall enact laws to implement this policy.

La. Const, art. IX, § 1 (1974). When applying environmental laws, the concern prompting the collateral source rule’s goals of tort deterrence and accident prevention is especially implicated, although in the context of deterring future acts in violation of the LEQA. See Suhor, 00-1628, p. 3, 770 So.2d at 424. The welfare of our environment and the health of our citizens command that those persons or entities which are found to have polluted our state pay full restitution for the consequences of their acts. Violators of the LEQA should not be allowed to escape the consequences of their actions because the federal government chooses to provide financial assistance to states in essential and time-sensitive clean-up operations.

As we noted previously, Louisiana derives its collateral source rule from the common law; thus, we find persuasive other U.S. jurisdictions’ application and interpretation of the collateral source rule. A review of the relevant case law indicates that courts do not restrict application of the collateral source rule to cases involving insurance payments and other benefits purchased by the injured party. To begin, the Restatement (Second) of Torts, § 920A provides:

(1) A payment made by a tortfeasor or by a person acting for him to a person he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.

(Emphasis added). The comments to § 920A specifically note that social legislation benefits, such as social security and welfare payments, are subject to the collateral source rule.

The facts of Town of East Troy v. Soo Line Railroad Co., 653 F.2d 1123 (7th Cir.1980), are strikingly similar to the facts of the case at hand. A tank car and | ^eighteen other railroad cars being transported by the defendant Soo Line derailed within the limits of the plaintiff town. Id. at 1125. The tank car, carrying 20,000 gallons of phenol, ruptured and spilled its contents onto the ground. Id. Shortly thereafter, residents of the plaintiff town, who had relied on shallow private wells for water use, began to notice signs of phenol in their water. Id. To remedy the problem, the town constructed a centralized deep well public water system. Id. The town paid the costs of construction with a $500,000 Community Development Grant from the U.S. Department of Housing and Urban Development.

The district court held defendant Soo Line responsible for the accident and awarded damages to the town. Id. at 1132. Soo Line argued on appeal that the town had suffered no injury because it had remedied any damage using the federal grant, and, therefore, could not recover damages. Id. The Seventh Circuit Court of Appeals applied the collateral source rule, holding that the town’s recovery could not be reduced because of reimbursement by an independent source for damages caused by Soo Line. Id. The court reasoned that double recovery for a plaintiff is preferable to allowing a defendant to avoid paying the consequences of his wrongful acts, as double recovery is often “the routine result of application of the collateral source rule.” Id.

The same federal circuit court had previously refused to reduce the liability of a defendant corporation which had sold diseased fish to a plaintiff, where that plaintiff had secured $51,000 in federal funds to compensate for the loss of the fish. Roundhouse v. Owens-Illinois, Inc., 604 F.2d 990, 994 (6th Cir.1979). The Roundhouse court recognized that the collateral source rule is most commonly applied to insurance payments, yet concluded that the crucial component of the doctrine “is whether the source of the funds is independent of (collateral to) the 11swrongdoer.” Id.

In Hall v. Miller, 143 Vt. 135, 465 A.2d 222, 226 (1983), the court applied the collateral source rule to a breach of warranty action against a defendant who sold the plaintiff cattle infected with brucellosis. Under state and federal indemnification programs designed to encourage prompt compliance with disposal orders and prevent further spread of the disease, plaintiff received a total payment of over $9,000. Id. The court reasoned that the defendant should not be allowed to argue in mitigation that someone else, with whom he has no connection, has indemnified the injured party. Id. The court rejected the defendant’s argument that his liability should be reduced because the plaintiffs recovery was completely fortuitous and in no way the result of the plaintiffs foresight or expense: “as between the two parties, it is better that the injured plaintiff recover twice than the breaching defendant escape liability altogether.” Id.

In Wheatland Irrigation District v. McGuire, 562 P.2d 287, 302 (Wyo.1977), the plaintiff property owners brought an action to recover flood damage to their property caused by the rupture of the defendant irrigation district’s dam. The court applied the collateral source rule to funds plaintiffs received from the federal government’s flood relief program. According to the court, the fact that benefits have been received from governmental sources does not preclude application of the rule. Id. (citing Joshmer v. Fred Weber Contractors, 294 S.W.2d 576, 586 (Mo.Ct.App.1956) (relief payments)). See also Alesko v. Union Pacific R.R. Co., 62 Idaho 235, 109 P.2d 874, 878 (1941) (holding that collateral source rule barred evidence of governmental relief benefits for flood damage caused by defendant). Additionally, in Buckley Nursing Home, Inc. v. Massachusetts Commission Against Discrimination, 20 Mass.App.Ct.172, 478 N.E.2d 1292, 1299-1300 (1985), the court refused to offset welfare Inpayments received by the plaintiff against the defendant’s liability for damages. The court in Gatlin v. Methodist Medical Center, 772 So.2d 1023, 1032-33 (Miss.2000), also applied the collateral source rule to funeral payments made by a victim’s rights fund, which were obtained through no effort of the plaintiff.

The overwhelming authority, therefore, supports our holding today in this case that the collateral source rule applies to the reimbursement DOTD received from FHWA. A wrongdoer’s liability should not be reduced by the amount of collateral source payments to an injured plaintiff, even where the nature of the collateral source is a public relief provided to the plaintiff by application of federal or state law. The court of appeal and KCS erroneously focus the analysis on whether DOTD will receive a windfall if allowed to recover the full measure of damages from KCS after having been previously reimbursed by FHWA. Other state and federal jurisdictions, however, have generally not been concerned with allowing a plaintiff to receive a windfall as a result of the collateral source rule. See e.g., Town of East Troy, 653 F.2d at 1132; Hall, 465 A.2d at 226. The federal Second Circuit Court of Appeals, in applying the collateral source rule to an action brought under the Carriage of Goods by Sea Act, aptly noted that “the question is not whether a windfall is to be conferred, but rather who shall receive the benefit of a windfall which already exists .... This may permit a double recovery, but it does not impose a double burden. The tortfeasor bears only the single burden for his wrong.” Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 538 (2d Cir.1994) (citing Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir.1962)).

Similarly, in the present case, we must choose between allowing DOTD a 11Bpossible windfall, or allowing the liability of potential wrongdoer under the LEQA to be reduced by the 90 percent federal share. We find that the former option is preferable and is not inconsistent with existing Louisiana jurisprudence. As the court in Griffin determined:

the focus of the collateral source rule is that a tortfeasor should not be allowed to benefit from the victim’s foresight and prudence in securing insurance and other benefits. Thus, the focus of our analysis should be on the nature of the write-offs vis-a-vis the tortfeasor, rather than vis-a-vis the tort victim .... To allow such a reduction in the tortfeasor’s liability would indeed be a “windfall” — inuring to the benefit of the tortfeasor! This is precisely what the collateral source rule is designed to prevent.

Griffin, 99-2944, p. 36, 802 So.2d at 714-15 (emphasis added). Although the Griffin court was discussing the collateral source rule’s most common application to insurance payments in tort cases, the logic applies with equal force to the facts and circumstances at hand. The Fourth Circuit Court of Appeal, in discussing the collateral source rule generally, has also noted that, for policy reasons, “double recovery is justified in some cases because the tortfeasor should not receive the benefits of the victim’s thrift, employment benefits, or special services rendered by a third party.” Suhor, 00-1628, p. 3, 770 So.2d at 424.

It is important to note that if DOTD eventually obtains a judgment against KCS after a full merits trial, FHWA may later seek, and indeed is likely to collect, a portion of this judgment from DOTD as reimbursement for the clean-up costs it provided. Actual ownership or utilization of the proceeds from any judgment which may be rendered against KCS is an issue for another day. Therefore, it speculative at this | í ¿point whether DOTD will actually receive a windfall or double recovery by being allowed to' receive a judgment against KCS for the entirety of the remediation costs.

Finally, we address KCS’s contention that the LEQA is a penal statute, and thus should not implicate the collateral source rule. We take KCS’s argument to be that the collateral source rule, as a permissible facilitation of multiple recovery, is defensible only if what the tortfeasor pays is the actual remedial cost imposed upon the victim by the tortfeasor’s conduct. According to KCS, a statute that is penal in nature, and which imposes a greater penalty than mere remediation is not an appropriate application or extension of the collateral source rule. KCS cites Goodwin, 26,601, p. 7, 643 So.2d at 254, which noted that LEQA § 30:2276(G) is penal and must be strictly construed.

The Goodwin case did find that LEQA § 30:2276(0 was a penal statute because it speaks to double recovery of remediation costs. It is true that sections 30:2276(G)(1) and (G)(2) are penal because they provide that polluters are hable for twice their portion of the remedial costs of clean-up. However, another statutory provision, LEQA § 30:2276(G)(3), was added to the statute in 1993, after the Goodwin cause of action arose, and this new provision, unlike the other portions of the statute, grants an injured party a cause of action to recover remediation costs only. See La. Acts. No. 986, § 1 (1998). The Goodwin court specifically stated that its holding did not apply to the recent amendment adding subsection (G)(3). Goodwin, 26,601, p. 8, 643 So.2d at 255. DOTD’s petition and brief to this court specifically recite that it is pursuing a cause of action under LEQA § 30:2276(G)(3). Thus, the fact that Goodwin referred to other sections of the statute as penal is of no moment to DOTD’s claim. DOTD is simply seeking to hold an alleged polluter responsible for the actual damage it caused. Therefore, there is no merit to KCS’s assertion that|17DOTD is impermissibly relying on a penal statute for its recovery.

CONCLUSION

We hold today that the collateral source rule applies to DOTD’s action against KCS for the costs incurred to clean-up the highway construction site. Any judgment to be rendered by the district court against KCS should not be reduced by the ninety percent federal share of the remediation funded by FHWA. This holding is commanded by Louisiana’s unique constitutionally enunciated public policy of environmental protection and preservation, coupled with the public policy supporting the collateral source rule. Persons or entities found to have violated the LEQA must pay the full measure of damages they caused, and cannot escape liability because our state is independently entitled to reimbursement of ninety percent of remediation costs from a federal agency.

We emphasize that our holding today is a narrow one addressing the applicability of the collateral source rule in the circumstances of this case. The resolution of the discrete legal issue posed at this juncture should have no bearing on whether KCS is either actually responsible for some part of the contamination, or whether it is legally bound to pay for all or part of the remediation. In fact, KCS has vehemently denied that the 1966 train derailment contributed in any way to the site’s pollution. The issue of liability is to be resolved by the district court after a trial on the merits.

DECREE

Accordingly, the judgments of the lower courts are reversed, and the case remanded to the district court for proceedings consistent with this opinion.

REVERSED; REMANDED TO DISTRICT COURT.

      . La.Rev.Stat. 30:2276 provides in pertinent part:
      A. The court shall find the defendant liable to the state for the costs of remedial action taken because of an actual or potential discharge or disposal which may present an imminent and substantial endangerment to health or the environment at a pollution source or facility, if the court finds that the defendant performed any of the following:
      (1) Was a generator who generated a hazardous substance which was disposed of or discharged at the pollution source or facility.
      (2) Was a transporter who transported a hazardous substance which was disposed of or discharged at the pollution source or facility-
      (3) Was a disposer who disposed of or discharged a hazardous substance or hazardous waste at the pollution source or facility.
      (4) Contracted with a person for transportation or disposal at the pollution source or facility.
      (5) Is or was the owner or operator of the pollution source or facility subsequent to the disposal of hazardous waste.
      B. The court does not have to find that the defendant was negligent, knew that the hazardous substance was being improperly disposed of, or that the activity was illegal at the time of disposal.
      C. The defendant shall be responsible for his proportionate contribution to the remedial costs as defined in this Chapter.

      P

      (3)In furtherance of the purpose of this Chapter, a person who has incurred remedial costs in responding to a discharge or disposal of a substance covered by this Chapter, without the need for an initial demand by the secretary, may sue and recover such remedial costs as defined in R.S. 30:2272(9) from any person found by a court to have performed any of the activities listed in Subsection A if the plan for remedial action was approved by the secretary in advance or, if an emergency, the secretary was notified without unreasonable delay and the secretary accepts the plan thereafter.

      . DOTD asserted that Crystal was liable for remedial costs of clean-up because Crystal's predecessor company owned the site, upon which an oil refinery leaked hazardous material. Crystal subsequently operated an oil refinery or barrel topping facility at which Crystal generated and disposed of additional hazardous material at the site.

      . DOTD argued that FHWA's reimbursement was irrelevant to the issue of DOTD's liability, or, alternatively, that any probative value would be substantially outweighed by the danger of jury confusion or prejudice to DOTD.

      . The documents considered by the district court in the hearing on defendants’ motion for partial summary judgment were: (1) ''Interim Guidance for Hazardous Site Affecting Highway Project Development,” dated August 1988; (2) FHWA letter from Virginia Cher-wek; (3) FHWA letter from Jean Rogers, Regional Counsel; and (4) FHWA letter from Wilbert Baccus, Associate Chief Counsel. It is unnecessary to the disposition of this case for this court to discuss the contents of these documents. The court of appeal opinion provides a thorough description. See Louisiana Department of Transportation & Development v. Kansas City Southern Ry. Co., 36,002, p. 15-18 (La.App.2d Cir.8/8/02), 827 So.2d 443, 451-54.

      . The affidavits DOTD attached to its Motion for New Trial were: (1) affidavit of William A. Sussman, the FHWA Louisiana Division Administrator; (2) affidavit of Kam Movassaghi, Secretary of DOTD; (3) affidavit of Wilbert Baccus of the FHWA.

      . The legislature passed the LEQA in 1984. Acts 1984, No. 791, § 1.

      . One court has analogized the citizen suit cause of action under the LEQA to a tort cause of action, and applied the one-year prescription applicable to torts. See Morris & Dickson Co. v. Jones Bros. Co., 29, 379, p. 24 (La.App.2d Cir.4/11/97), 691 So.2d 882, 895 (citing Kenneth M. Murchison, Enforcing Environmental Standards Under State Law: The Louisiana Environmental Quality Act, 57 La. L.Rev. 497, 555 (1997)).

      . The comments to Restatement (Second) of Torts § 920A (1979) state “to the extent that the defendant is required to pay the total amount there may be a double compensation for a part of the plaintiff's injury.”

      . It is not likely that DOTD will actually enjoy a double recovery in light of its representation to this court and the lower courts that it will repay FHWA the ninety percent federal share of any judgment obtained.

      . DOTD asserts that it will reimburse FHWA on its own, but, even if it does not, DOTD contends that FHWA will nonetheless seek recovery of its ninety percent participation from any judgment DOTD obtains.


source: Caselaw Access Project

author: I;VICTORY, Justice.

license: Public Domain

text:
    Pamela ALONSO v. Billie B. LINE, Jr., and Wisner, Adams, Walker & Line, P.C.
    No. 2002-CC-2644.
    Supreme Court of Louisiana.
    May 20, 2003.

      Edward J. Walter, Jr., Darrel J. Papil-lion, Moore, Walters, Thompson, Hoover, Thompson, Papillion & Cullens, Baton Rouge, for Applicant.
    David A. Bowling, Susannah R. Cooley, Robyn S. Ford, Wilson & Bowling, New Orleans, for Respondent.
   I;VICTORY, Justice.

We granted this writ to determine whether Louisiana has personal jurisdiction over an Alabama attorney based upon either the Louisiana long-arm statute, La. R.S. 13:3201, or personal service upon the attorney in Louisiana while he was waiting to testify at a hearing on his exception of lack of personal jurisdiction. Finding that sufficient minimum contacts with Louisiana support the exercise of personal jurisdiction under La. R.S. 13:3201, we reverse the judgments of the lower courts and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 14, 1998, plaintiff, Pamela Alonso (“Alonso”) and her mother were involved in an automobile accident in Baton Rouge, Louisiana when they were rear ended at an intersection. At that time, Alonso was a resident of Alabama and her mother was a resident of Louisiana, as was the driver of the other vehicle. Both vehicles were insured under contracts of insurance issued in Louisiana. In March of 1998, Alonso contacted defendant, Billie Line (“Line”), an Alabama attorney whom she had known since 1996 and who had represented her in connection with several real estate closings and related matters. Alonso told Line that she had been involved in a traffic accident in Louisiana and that she had been visited by an insurance adjuster | ¡from State Farm Insurance Co. regarding the accident and asked Line if he would represent her in connection with the accident and deal with the insurance adjuster. It was Alonso’s understanding that Line was going to represent her in connection with the accident and handle all aspects of the case. They discussed a fee and Line told her that the usual fee in this type of case was a one-third contingency fee but that they would wait and see what happened before committing to a fee. There was no written representation agreement. Alonso and Line went over the details of the accident,' discussed the medical aspects of the case, and he subsequently called the insurance adjuster in Alabama to discuss the case. In June of 1998, Alonso moved to Louisiana, at which time she was also being represented by Line in connection with an Alabama lease dispute. Line contacted Al-onso several times by telephone in Louisiana to inform her of the status of the lease dispute.

At the time Line undertook the representation, he was a sole practitioner, though in January of 1999 he joined the law firm of Wisner, Adams, Walker & Line, P.C. He confirmed that he agreed to represent Alonso in connection with the accident but testified it was never his intention to file suit. He testified that his usual practice would be to try and settle the case and if he could not, he would refer the case to another Alabama attorney. He testified that he contacted the State Farm insurance adjuster in Alabama to inform him that he would be filing a claim on Alonso’s behalf. Line testified as to his belief that because Alonso was an Alabama resident when the accident occurred, Alabama law would apply, including that state’s two-year statute of limitations, and that the case could be filed in Alabama. After Alonso called him in late 1999 checking on the status of the case, in January of 2000, Line called the adjuster and was told that the adjuster had closed the file because the one-year Louisiana prescriptive period had run. Upon learning this, Line contacted a Louisiana attorney through Martindale Hubbell who confirmed that Louisiana had a one-year | ..¡prescriptive period that applied to this case. He then called Alonso on January 11, 2000, and told her that the statute of limitations had run. On January 11, 2001, Alonso filed a malpractice suit in Louisiana against Line and the law firm of Wisner, Adams, Walker & Line, P.C., for failing to timely pursue the matter. On January 22, 2001, Line and the law firm were served in Alabama through the Louisiana long-arm statute. They did not contest service, but filed an exception alleging lack of personal jurisdiction. The hearing was held on December 3, 2001 and Line traveled to Baton Rouge to attend and testify at the hearing. While waiting in the courtroom for the hearing to commence, he was personally served with an additional copy of the petition.

At the hearing, Alonso alleged that because personal service had been effected upon Line in Louisiana, the issue of whether personal jurisdiction existed under the Long-arm Statute was moot. The trial judge took that matter under advisement, but also heard testimony from Line regarding his contacts with Louisiana. Line testified that his only contact with Louisiana was as a free agent with the New Orleans Saints football team in 1971 when he trained with them in Hattiesburg, Mississippi. He testified that he is not licensed to practice law in Louisiana and has never solicited business in this state or advertised in this state. Without deciding whether jurisdiction was proper under the long-arm statute, the trial court denied the exception of lack of personal jurisdiction finding that service within the state conferred personal jurisdiction. The court of appeal reversed in a 2-1 decision, ruling as follows:

WRIT GRANTED. The trial court’s judgment denying relator’s exception of lack of personal jurisdiction is hereby reversed, and judgment is rendered in favor of Billie B. Line, Jr. and Wisner, Adams, Walker & Line, P.C. on the basis that there were insufficient minimum contacts with the State of Louisiana to exercise personal jurisdiction over the nonresident defendants. See LSA-R.S. 13:3201; LSA-C.C.P. art. 930; and Griffith v. French, 97-2635, p. 3 (La.App. 1st Cir.12/28/98), 723 So.2d 1140, 1142; writ denied, 99-0220 (La.3/19/99), 740 So.2d 116.

]Alonso v. Line, 02-0786 (La.App. 1 Cir. 9/24/02). We granted this writ to determine whether the Louisiana court has personal jurisdiction over Line in this case. Alonso v. Line, 02-2644, 833 So.2d 944 (La.1/10/03).

DISCUSSION

Louisiana Code of Civil Procedure article 6 defines personal jurisdiction as “the legal power and authority of a court to render a personal judgment against a party to an action or proceeding.” Pursuant to that article, the exercise of personal jurisdiction in this case requires service of process on the defendant, and “the submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception.” La. C.C.P. art. 6(A). In addition, pursuant to La. C.C.P. art. 6, “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and with the Constitution of the United States.” La. C.C.P. art. 6(B).

| sWe discussed the history of Louisiana’s long-arm Statute, whereby this state’s courts can constitutionally exercise personal jurisdiction over non-residents, in Ruckstuhl v. Owens Corning Fiberglas Corp., 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999), as follows:

Historically, the jurisdiction of the state courts to render judgments in per-sonam was limited to a defendant’s physical presence within the court’s territorial jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565 (1877). However, recognizing the realities of modern commercial life, the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), rejected the legal fiction of “presence” and instead focused its attention on the due process aspect of personal jurisdiction. The Court held that subjecting a nonresident defendant to a judgment in per-sonam requires that he must “have certain minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe, 326 U.S. at 316, 66 S.Ct. 154 (citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Further, “[wjhether due process is satisfied must depend ... upon the quality and nature of the activity in relation to the fair and orderly administration of the laws.” Id. at 319, 66 S.Ct. at 154.
The Louisiana legislature enacted Louisiana’s first Long-arm Statute in 1964 in order “to permit the courts of this state to tap the full potential of jurisdiction in personam over nonresidents permitted by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).” La. R.S. 13:3201, Comment (a).

731 So.2d at 884.

The original long-arm statute, La. R.S. 13:3201, listed specific activities by a defendant which would subject it to the personal jurisdiction of this state, as follows:

A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the non-resident’s:
(a) transacting any business in this state:
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or | fiquasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
(e) having an interest in, using, or possessing a real or immovable property in this state.

In addition, La. R.S. 13:3202 expressly limited La. R.S. 13:3201 to causes of action arising from acts or omission enumerated therein.

However, as further explained in Ruck-stuhl:

... realizing that the Long-arm Statute still did not really extend to the limits allowed by due process, in 1987, the legislature amended La. R.S. 13:3201 by Acts 1987, no. 418 to add Subsection B which provides:
In addition to the provisions of [13:3201(A)], a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and the Constitution of the United States.
Accordingly, “[t]he limits of the Louisiana Long-arm Statute and the limits of constitutional due process are now coextensive.” Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La.1987). “Now, under the express wording of the present Long-arm Statute, the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements.” Id.

731 So.2d at 885.

“Since the 1987 amendment, the courts generally have ignored the original [statutorily-enumerated] long-arm provisions.” “However, the specific contacts listed in LSA-R.S. 13:3201A, which once set out the limits of Louisiana’s long-arm | ^jurisdiction, now serve as a ‘valuable list of ... contacts sufficient to give rise to in personam jurisdiction.’ ” Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 2.3, p. 15 (19991) (citing La. R.S. 13:3201, cmt.1987).

“The due process test first enunciated in International Shoe requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Ruckstuhl, supra at 885 (citing International Shoe, supra, 326 U.S. at 320, 66 S.Ct. at 160). “The test has evolved into a two-part test, the first part being the ‘minimum contacts’ prong, which is satisfied by a single act or actions by which the defendant ‘purposefully’ avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Id. (Citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)). “The nonresident’s ‘purposeful availment’ must be such that the defendant ‘should reasonably anticipate being haled into court’ in the forum state.” Id. (Citing Worldwide Volkswagen, supra, 444 U.S. at 297, 100 S.Ct. 559, 62 L.Ed.2d 490).

“By requiring that a defendant must have purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, the requirement ensures that he will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person.” de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d 103, 106 (La.1991) (citing Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.E.2d 92 (1987); Burger King Corp., supra; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); World-Wide Volkswagen, supra).

Once the plaintiff meets his burden of proving minimum contacts, “a presumption of reasonableness arises” and “the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” Ruckstuhl, supra at 886; de Reyes, supra at 107 (citing 4 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, Sec. 1067, pp. 301-302). In determining this fundamental fairness issue, courts must examine (1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Ruckstuhl, supra at 890.

Alonso argues that jurisdiction is proper under the following sections of the long-arm statute: (1) contracting to supply services in this state; (2) causing injury or damage by an offense or quasi offense committed through an act or omission in this state; and (3) causing injury or damage in this state through an omission outside the state if the nonresident derives revenue from services rendered in this state. La. R.S. 1 a13:3201(A). She argues that Line’s agreement to represent her was an agreement to supply services in this state because any lawsuit arising out of the automobile accident could only be filed in Louisiana, as the accident occurred in Louisiana, she was rear-ended by a Louisiana resident while riding with a Louisiana resident, and both vehicles were insured under Louisiana insurance policies. Further, by failing to take any action to farther Alonso’s case, when the specific action he needed to take was filing a lawsuit in Louisiana, he caused injury or damage through an omission in this state. Finally, because Line was hired to render professional services, if he had actually done some work he may have been entitled to “revenue from services rendered in this state.” Thus, by accepting the representation of Alonso in connection with this accident, he subjected himself to being sued in this forum if he were to commit malpractice.

Line argues that minimum contacts do not exist because he never purposefully availed himself of the privileges and benefits of Louisiana law. He claims that because he never intended to file suit in Louisiana, did not know that Louisiana law applied to the case, and never intended to do more than communicate with the insurance adjuster in Alabama and refer the case to another attorney in the event it could not be settled, he committed no purposeful acts directed towards Louisiana sufficient for the exercise of personal jurisdiction. We disagree.

La. R.S. 13:3201 clearly lists as a “contact” sufficient for the exercise of personal jurisdiction “contracting to supply services in this state” and “causing injury or damage by an offense or quasi offense committed through an act or omission in this state.” While Line claims he did not intend this agreement to be a contract to supply services in this state, Line admits he never discussed this with his client and did not limit his representation of her to merely negotiating a settlement. Alonso has clearly alleged that he committed legal malpractice through an “omission,” e.g. failure to file |insuit, in this state. His alleged negligent act is that he should have researched this Louisiana traffic accident case, discovered that the case was governed by Louisiana law and that suit had to be filed within one year of the accident, and made sure that suit was filed within that time period. His undertaking the representation of Alonso in connection with this Louisiana tort suit and his subsequent failure to take steps in Louisiana to protect Alonso’s claim from prescribing, causing her damage in this state, satisfies the minimum contacts prong of the due process test.

As plaintiff has met her burden of proving minimum contacts, the burden then shifts to Line to prove that the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness. In this case, while Line testified that it is somewhat difficult to travel in that he is a large man with knee problems and cannot travel by car to Louisiana, we find that this burden is not so difficult as to overcome presumption of reasonableness. After all, Line previously traveled to Baton Rouge by plane to appear in court. Second, Louisiana has a significant interest in adjudicating a dispute involving legal malpractice committed against a Louisiana resident for failure to file lawsuit timely in Louisiana. Third, the plaintiff resides in Louisiana, satisfying her interest m convenient and effective relief, and the case out of which the malpractice occurred arose in Louisiana, making for an efficient resolution of this controversy. Finally, the only other state whose interest could possibly be affected by the assertion of jurisdiction by this Court is Alabama and Line has put forward no procedural or substantive policies of Alabama which would conflict with this state’s exercise of jurisdiction over this case.

In CONCLUSION

By agreeing to represent a client in an automobile accident case that occurred in Louisiana between Louisiana residents, and to which Louisiana insurance policies applied, and by allegedly failing to take the necessary legal action in Louisiana to ensure that the case did not prescribe, the defendant in this case, an Alabama attorney, subjected himself to the jurisdiction of this state through La. R.S. 13:8201. Because we find that personal jurisdiction exists under the Long-arm Statute, we pretermit the issue of whether service of process on Line when he was in a Louisiana court to testify at the hearing on his exception of personal jurisdiction was sufficient to effect personal jurisdiction over him.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed insofar as it found no personal jurisdiction over Line, and the matter is remanded to the trial court for further proceedings.

REVERSED IN PART AND REMANDED.

      . Judge Fitzsimmons concurred as follows: Fitzsimmons, J., concurs in the granting of the writ. Actual personal service on Mr. Line, while he was physically present in Louisiana, would usually satisfy any question of personal jurisdiction. However, he was in Louisiana only to plead the peremptory exception raising the objection of lack of personal jurisdiction in the same case for which he was served. We must recognize a jurisprudential rule granting the exceptor immunity from personal service on Louisiana suits while physically present in Louisiana to encourage litigants to come before the court and argue the lack of personal jurisdiction, and protect the right to litigants that wish to represent themselves. To preserve the standard rule of attachment of jurisdiction upon personal service in the home state of the suit, this immunity from service would only apply to the case in which the exceptor pled and wished to argue the exception of lack of personal jurisdiction. With no valid personal service on Mr. Line, the absence of minimum contacts upheld his claim of lack of personal jurisdiction. For these reasons, I concur in the grant of the writ.

      . The court of appeal found no minimum contacts sufficient to confer personal jurisdiction over the law firm. Although no one has seriously addressed Louisiana’s jurisdiction over the law firm, we do not disturb the court of appeal's ruling on this issue. We note that Line, and not his law firm, was hired by plaintiff, that no service was made on the law firm other than under the long-arm statute, and that plaintiff has not established sufficient minimum contacts with the law firm, with which she had no contract.

      . In reaction to the United States Supreme Court decision of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), in 1984, Subsection (h) was added to provide for jurisdiction over a cause of action arising from a nonresident’s manufacture of a product or component part of a product which causes injury or damages in this state under certain circumstances. Subsection (h), now subsection (8), provides:
      Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer's marketing practices.

      . "In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction, namely 'general' and 'specific' jurisdiction.” A & L Energy, Inc. v. Pegasus Group, 00-3255 (La.6/9/01), 791 So.2d 1266, 1271, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001) (citing de Reyes, supra). "Specific jurisdiction over a nonresident defendant is appropriate when that defendant has puiposefully directed its activities at residents of the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.” Id. (Citing Burger King, 471 U.S. at 473, n. 15, 105 S.Ct. 2174). "General jurisdiction, on the other hand, will attach where the nonresident defendant’s contacts with the forum state, although not related to the plaintiff’s cause of action, are continuous and systematic.” Id. However, "the classification of general versus specific jurisdiction merely serves as an analytical too! to categorize the degree of interrelation between the defendant’s activities, the forum, and the cause of action; the same two-part due process evaluation must be conducted considering the fats in each individual case.” Id.

      . As Line was unable to practice in Louisiana, his duty was to timely advise plaintiff that she needed a Louisiana lawyer, or, failing that, to otherwise secure Louisiana counsel, to file suit within the prescriptive period.


author: 11 TRAYLOR, J.

text:
    STATE of Louisiana in the Interest of D.P.B.
    No. 2002-CK-1742.
    Supreme Court of Louisiana.
    May 20, 2003.
    Rehearing Denied June 20, 2003.

      Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, David 0. Harkins, Jr., Stephen T. Sylvester, Shirley M. Wilson, for Applicant.
    Lavalle B. Salomon, Monroe, for Respondent.
   11 TRAYLOR, J.

The juvenile, D.P.B., was adjudicated a delinquent for the crime of manslaughter, La. R.S. 14:31. He appealed, contending the state failed to prove beyond a reasonable doubt that the homicide was not justified. Finding merit in defendant’s claim, the court of appeal reversed the trial court’s adjudication and disposition. The state now seeks a writ of certiorari, contending the court of appeal erred in determining the evidence was insufficient to support the adjudication and disposition and in concluding the homicide was justified. Finding merit to the state’s claim, we reverse the court of appeal judgment and reinstate the adjudication and disposition of the juvenile court.

FACTS

On the evening of October 3, 2000, defendant, D.P.B., and his best friend, J.P.R., since second grade began the evening as they usually did — in each other’s company. J.P.R. picked up defendant in his Ford Mustang, and subsequently,, picked up two of their friends, C.H. and E.U., and they rode to various places in West Monroe and Monroe, Louisiana. At some point that evening, C.H. began driving J.P.R.’s vehicle as J.P.R., defendant and E.U. began to consume alcohol with J.P.R. ^consuming the most.

Later that night, defendant and J.P.R. began fighting in the back seat of the vehicle because J.P.R., in his drunken state, kept leaning on defendant. The verbal altercation became physical as the two exchanged pushes, kicks and blows. Defendant and J.P.R. had a history of this wrestling-type fighting, but would always reconcile the following day.

At approximately 1:00 a.m., C.H. dropped defendant at the house he shared with his father and an older brother. Thereafter, C.H. drove to J.P.R.’s house, which is only minutes from defendant’s house. C.H. and E.U. attempted to get a heavily intoxicated J.P.R. out of the vehicle and into his house, however, he refused to get out of the vehicle. Eventually, C.H. and E.U. walked to C.H.’s house, leaving J.P.R. in his vehicle. At approximately 2:04 a.m., J.P.R. called defendant and, according to defendant, the two exchanged words and defendant hung up the telephone.

From this point, only defendant’s version of the facts is known, as provided in his statement to police the morning of the incident. A few minutes later J.P.R. drove up to defendant’s home. Defendant was in his bedroom when he heard J.P.R.’s vehicle. He knew it was J.P.R. because he heard the activation of the vehicle alarm. Upon realizing it was J.P.R., defendant went from his bedroom to the living room where he observed J.P.R. enter through the unlocked carport door which led into the kitchen of the home. Defendant told J.P.R. to get out of the house or he would be shot. Defendant claimed J.P.R. told him to do what he had to do. Thereafter, defendant retrieved a .30-30 hunting rifle from the fireplace mantle of the living room and loaded two rounds of ammunition into the weapon before J.P.R. reached him. | ^Defendant alleged he called for his father, who was asleep in his bedroom. Defendant claimed that J.P.R. grabbed the barrel of the weapon and the two struggled as they traveled approximately thirteen feet, ten inches from the fireplace into a hallway leading to the front door of the house. In the hallway, the weapon discharged striking J.P.R. in the lower abdomen. The contact wound fatally injured J.P.R.

DISCUSSION

The state argues that the court of appeal substituted its view of the facts for that of the trial judge in determining that the evidence was insufficient to support the conviction. More specifically, the state argues the court of appeal erred in finding that under La. R.S. 14:20(4) the state failed to prove beyond a reasonable doubt that defendant believed deadly force was necessary to compel J.P.R. to leave his home. We find these contentions have merit.

La. R.S. 14:20(4) provides that a homicide is justifiable when committed by a person lawfully inside a dwelling against a person who has made an unlawful entry into the dwelling and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises. Under the traditional statutes, La. R.S. 14:20(1) or (2), defendant would not have been justified in shooting his friend. However, the legislature’s enactment of the “shoot the burglar” provisions of La. R.S. 14:20(3) or (4), eliminated any duty to retreat from an intruder in one’s home, and eliminated any requirement that the shooter believe himself to be “in imminent danger of losing his life or receiving great bodily harm.” Thus, the court of appeal embraced La. R.S. 14:20(4) to justify defendant’s fatal shooting of his friend. However, we find this provision not applicable to the specific facts of this case.

The instant set of circumstances surely is not what the legislature envisioned 14when it justified committing a homicide against a “person who is attempting to make an unlawful entry.” La. R.S. 14:20(4). In State v. Plumlee, 177 La. 687, 149 So. 425 (1933), this Court stated that, “[0]ne has no right to take human life directly or indirectly to prevent trespass or any other petty crime.” While Plumlee dealt with the justification of deadly force to prevent a felony, see La. R.S. 14:20(2), the' Court’s discussion of proportionate use of deadly force remains pertinent here:

Two things must concur in order to justify us in killing another to prevent him from committing some act; first, it must reasonably appear necessary in order to prevent him from committing a crime; and second, the crime to be prevented must be a great crime, and not a petty offense from which no great injury would result to us or others, in body or property. Therefore, if it reasonably appears that the crime can be prevented by any other available means, as by a warning, by a show of force, or by the use of any force short of killing, the killing would not be justified. And if the crime to be prevented was a petty offense, not likely to result in great injury in body or property to us or others, we would not be justified in killing to prevent it, even if it could not be prevented by any other means.

Plumlee, 149 So. at 428. In the instant case, the state offered several options, none of which would be considered retreat, but which would have been more reasonable than defendant using deadly force against his friend, J.P.R. First, defendant could have called 911. Second, he could have locked the carport door. Third, he could have awakened his father upon seeing J.P.R. enter the carport door. Fourth, he could have “beat his a — ” again.

In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult — to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)... ,[T]he appellate Lcourt must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocense.” La. R.S. 15:438; see State v. Jacobs, 504 So.2d 817, 820 (La.1987) (all direct and circumstantial evidence must meet the Jackson test); State v. Porretto, 468 So.2d 1142, 1146 (La.1985) (La. R.S. 15:438 serves as an evidentiary guide for the jury when considering circumstantial evidence). Furthermore, in a case in which defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

The state sought to prove the elements of manslaughter, La. R.S. 14:31, by introducing the testimony of seven witnesses, namely, C.H. and E.U., friends of defendant and J.P.R.; Detective Gary Mercer; Dr. John Price; Officer Vincent Guiterez; Detective Mark Nappier; and Sergeant Jeff Harris.

C.H. and E.U. testified that as the evening of October 3, 2000 progressed, C.H. assumed the driving, while the other three began consuming alcohol, with J.P.R. consuming the majority of the alcohol. They testified that J.P.R. was very drunk and had trouble talking and keeping his balance. They recalled that curse words were exchanged, and a physical fight ensued between defendant and J.P.R. because J.P.R. kept leaning on defendant in the back seat of the Mustang. C.H. and E.U. indicated that such altercations were not unusual between the best friends and that they would regularly fight and make up, and then act as if nothing had happened.

C.H. testified that after they dropped defendant at his house, J.P.R. stated he “ought to go down there and whip his a— .... ” He remembered that in his statement to the police, he indicated defendant threatened to kill J.P.R. that night, but he did not recall such a statement at the time of trial. C.H. testified that more than likely when he would go to defendant’s house, J.P.R. would already be there and that defendant and J.P.R. spent a lot of time together.

E.U. testified that he had just met defendant and J.P.R. a few weeks earlier. He testified that defendant threatened to kill J.P.R. during their fight and that defendant stated he was not afraid to go to jail for murder. E.U. also testified that he did not believe defendant really meant it. He testified that J.P.R. indicated his intent to go to defendant’s house and fight him.

Officer Gary Mercer responded to the shooting. Upon arrival at the scene, Officer Mercer made contact with defendant in and around the carport area. He ^testified defendant was rattling to anyone that walked by him. Officer Mercer testified that defendant stated he shot J.P.R. and that he, J.P.R., was trying to start a fight. Defendant further stated to Officer Mercer that he told J.P.R. that he had a gun and, if he, J.P.R., would not stop, he would shoot him. Officer Mercer testified that apparently J.P.R. did not stop and defendant indicated he stated to J.P.R., “Okay, bitch” and shot him. Officer Mercer also testified that upon arrival at the crime scene, he peered into the house through the front door and could see the body lying in the small hallway leading to the carport door.

Dr. John Price, the general surgeon who performed surgery on J.P.R., testified that the gunshot wound was a contact wound and that the weapon was either on the skin or one or two inches away from the skin. He testified J.P.R. was shot in the lower abdomen, which is below the umbilicus. He testified that J.P.R. may have been within barrel reach of the weapon held by defendant.

Officer Vince Guiterez of the Monroe Police Department was the first to arrive at the scene. He testified that as he exited his car, defendant walked up to him and stated, “I’m the one that shot him.” Upon entering the house, Officer Guiterez testified that he observed the condition of the house to be “just dirty” and nothing appeared to be in disarray. He did notice a picture frame on the floor in the hallway maybe about two and half feet from the body, indicating it was possible the frame fell when J.P.R. hit the wall after the shooting. Although, in his report, Officer Guiterez noted that defendant told him J.P.R. broke into the house, Officer Guiter-ez did not observe any “door busted” or any signs of forced entry.

Further, Officer Guiterez testified that defendant was placed in his police car and, while transporting him to the station, Officer Guiterez remembered defendant stating that “he’d shoot the m- f-again,” and then proceeded to ask how fast the car would run. Officer Guiterez testified that defendant never indicated he was in fear |sof his life during the incident, did not appear to be remorseful and appeared belligerent and non-caring. Defendant asked if J.P.R. would be arrested for the alcohol consumption; however, Officer Guiterez testified that he never asked about J.P.R.’s condition. Once at the police station, Officer Guiterez recalled defendant mentioning his earlier fight with J.P.R. and how he “beat the m-f-’s a — .”

Detective Mark Nappier of the Monroe Police Department arrived upon the scene and entered the house after defendant and J.P.R.’s body were removed. In observing the crime scene, he did not see any indication of a struggle. He observed pools of blood on the floor and a broken picture frame in the hallway, near where J.P.R. had apparently fallen. He testified that there is a front door leading to a hallway that to the left leads to the carport door and to the right leads to bedrooms. Directly in front of the front door is a room, which has a fireplace. He estimated the distance between the fireplace to the hallway to be about ten to fifteen feet. He testified that according to defendant, a struggle ensued at the fireplace and continued toward the hallway, where J.P.R. was shot. However, Detective Nappier did not observe any signs of a struggle and did not observe anything knocked off the desk that was next to the fireplace. He stated the house was cluttered, but he did not observe anything out of place. Detective Nappier testified defendant informed him of the altercation between him ,'and J.P.R. earlier that night and that he had beat J.P.R.’s “a — .” Defendant never told Detective Nappier that he was afraid of J.P.R. or that he was afraid J.P.R. would hurt him. Detective Nappier opined defendant and J.P.R. were physically about the same size. He also testified that no weapon was found on J.P.R. Further, Detective Nappier did not recall defendant ever telling him that J.P.R. broke into the house. When informed that J.P.R. died of the gunshot wound, Detective Nappier observed that defendant did not appear remorseful and merely wanted to know when he would be released.

RSergeant Jeff Harris of the Monroe Police Department, who specializes in crime scene investigation and identification, “worked” the crime scene by taking photographs, lifting fingerprints, making sketches, etc. He testified that he was not able to lift any useable fingerprints from the weapon, not even defendant’s fingerprints. He also testified that he did not observe any signs of a struggle in the house. He indicated the house was cluttered, but nothing was out of place. He testified. that from the fireplace to the foyer was thirteen feet ten inches in distance.

Defendant’s father, C.B., testified for the defense. He testified that he was home and asleep during the incident. He stated that he was awakened by a loud noise and defendant’s calls for help during the course of the altercation. He heard the gunshot before he got to his bedroom door. As he opened the door, he saw J.P.R. leaning over in the hallway and defendant had fallen back against the front door. C.B. testified that he took the weapon from defendant, told him to call 911 and carried the weapon to his bedroom. He testified that he picked up a floor fan that had been knocked over. Further, C.B. testified that over the past three years prior to the incident J.P.R. “really wasn’t allowed in the house except when I was there and he had permission daylight or dark” because he caught J.P.R. stealing liquor from his bar. He further stated that friends, including J.P.R., were not allowed in or to call the home after 11:00 p.m. on weekends. He further testified that he did not discourage defendant from hanging out with J.P.R. In fact, C.B. testified that he was enrolled as counsel of record for J.P.R. on two DWI cases in Monroe City Court at the time of this incident.

Based on a thorough review of the record, we find the evidence presented by the state satisfies the standard under Jackson v. Virginia, supra, namely, when viewed in the light most favorable to the prosecution, no independent or unbiased evidence supports defendant’s contention that deadly force was necessary to compel his friend |into leave. Testimony of the state s witnesses was sufficient to prove beyond a reasonable doubt that the shooting was not justified under Louisiana’s “shoot the burglar” statute, La. R.S.14:20(4). The evidence demonstrated J.P.R. was drunk and unarmed when he entered defendant’s home. No sign of forced entry was apparent, nor was there any sign of a struggle as indicated by defendant. The two teens had a history of regular wrestling-type fights, but always resumed their friendship. Defendant and J.P.R. were equally matched in size and weight, and had fought earlier that night, with defendant winning. Defendant stated to the officers that he told J.P.R. that if he did not leave he would shoot him. He admitted that after J.P.R. had arrived at the house, he armed himself with a .30-30 rifle.

Clearly, the court of appeal substituted its own judgment for that of the juvenile court judge when it reversed defendant’s conviction. The appellate court appears to agree with the juvenile court’s finding of fact, stating that based on “the overall evidence presented, a rational fact-finder might have reasonably concluded that defendant could not have believed the use of deadly force was necessary to compel his best friend to leave the home.” Further, the court of appeal acknowledged that their fighting history failed to indicate that their previous altercations were anything more than wrestling matches which ended up with defendant and J.P.R. remaining friends. With this acknowledgment, the court of appeal concluded under these circumstances “it would have been rational to conclude that despite [J.P.R.’s] unauthorized entry into the home, defendant could not have reasonably believed that this fight would have been any different from before and that deadly force was not a necessary choice.” Additionally, the court of appeal acknowledged defendant’s earlier threat to kill J.P.R. The appellate court noted defendant’s lack of remorse and claims that he had beaten J.P.R. earlier in the evening indicated a lack of fear on his part. The court of appeal further acknowledged the lack of fear was supported by the questionable evidence of In whether a struggle took place. Lastly, the appellate court agreed with the state that defendant could have locked the door, or awakened his father and avoid altogether whether deadly force was necessary.

Reviewing courts must recognize that the juvenile court judge observed the conduct and demeanor of the witnesses and was in the best position to determine credibility and weigh the evidence. Therefore, the juvenile court’s factual findings and credibility determinations and assessment of the weight of particular testimony must be afforded great deference. Based on the facts of this case and evidence presented, the state established beyond a reasonable doubt that defendant could not have reasonably believed that deadly force was necessary to compel J.P.R. to leave his home. In addition, the state adequately negated defendant’s hypothesis of innocence in that the shooting was an accident.

Accordingly, a review of both the facts and the law compels us to reverse the judgment of the court of appeal and reinstate the juvenile court’s adjudication and disposition.

DECREE

For the above reasons, the judgment of the court of appeal is reversed and the adjudication and disposition of the juvenile court are reinstated.

      . Defendant was convicted of manslaughter. The trial court ordered the custody of defendant to remain with the State Department of Corrections until his twenty-first birthday, but suspended all but two years to be served in a secure setting.

      . Defendant did not testify at his trial.

      . However, Sergeant Harris testified J.P.R.'s key to his vehicle was found in the vehicle's ignition.

      . In the instant case, on appeal to the Second Circuit, Court of Appeal, the defense sought to claim defendant's lethal actions were justified under either La. R.S. 14:20(3) or (4). Under those provisions, a homicide is justifiable:
      (3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle. The homicide shall be justifiable even though the person does not retreat from the encounter.
      (4) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. The homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter.


author: I «WHIPPLE, J.

text:
    Charlotte CLARK, et al. v. The PARISH OF ST. MARY GRAVITY DRAINAGE DISTRICT # 3, the Parish of St. Mary and the State of Louisiana Through the Department of Transportation and Development
    No. 2001 CA 1835.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Allen J. Myles Plaquemine, for Plaintiffs/Appellants, Charlotte Clark, et al.
    Dale H. Hayes Morgan City, for Defendant/Appellee, Consolidated Drainage District # 2 (GDD# 3).
    Julius W. Grubbs New Iberia, for Defendant/Appellee, State of Louisiana, Department of Transportation and Development.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I «WHIPPLE, J.

Plaintiffs appeal from a summary judgment rendered in favor of defendant, the Department of Transportation and Development (“the DOTD”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 5, 1996, the bodies of two young boys, Javon Clark (age 9) and Ronnie Clark (age 13), were recovered in a drainage canal referred to as “Duck Bayou,” near D & B Seafood on Louisiana Highway 70 (“La.70”) in Morgan City, Louisiana. The two boys were seen fishing on the side of the canal earlier that afternoon. Investigating officers eventually determined that the boys had attempted to fish from the middle of the canal by utilizing a small, inflatable child’s swimming pool as a make-shift raft, while wearing plastic floatation devices, all of which were found at the scene. The deaths were ruled as accidental drownings by a Coroner’s office investigator at the scene.

The drainage canal is maintained by St. Mary Parish Gravity Drainage District No. 3, while the DOTD utilizes a seventy-foot right of way on both sides of the center line of the canal. Members of the Morgan City Volunteer Fire Department recovered the bodies of the two boys. According to the Morgan City Volunteer Fire Department’s First Responder Report, the body of Ronnie Clark was found within the DOTD’s right of way area of the canal, and the body of Javon Clark was found in the center of the canal. Rescue workers were not able to determine where the two boys entered the canal.

A wrongful death and survival action was filed by family members of the boys naming the Mayor of Morgan City and St. Paul’s Insurance Company, the liability insurer of the City of Morgan City, as defendants. The petition was later amended to also name as defendants, St. Mary Parish Gravity Drainage District |aNo. 3, the State of Louisiana through the Department of Transportation and Development, and the Parish of St. Mary.

In their claims against the DOTD, plaintiffs contended: (1) that the DOTD is charged with being the possessor of the land where the accident occurred; (2) that the DOTD is solidarity liable as custodian and owner of the canal, under the theory of negligence and strict liability; and (8) that the DOTD knew or should have known of the dangerous condition, which existed at the site of the canal, yet they failed to fence it in or post signs warning of hazardous conditions.

Motions for summary judgment were filed by the St. Mary Parish Council, the City of Morgan City and St. Paul Fire and Marine Insurance Company, the DOTD, and Gravity Drainage District No. 3. The trial court granted summary judgment in favor of the St. Mary Parish Council and the DOTD, and denied the motion by the Gravity Drainage District, stating as follows:

With regard to the Motion for Summary Judgment filed by the Department of Transportation and Development, the question is, as a matter of law, did the Department of Transportation and Development have any responsibility for the drainage canal, and if it did have that responsibility, was it unreasonably dangerous and did DOTD know, or should have known of the unreasonable dangerousness of the canal. DOTD’s only connection with the canal was the fact that it had a highway crossing the canal. In making that crossing, it did not do anything to create an attractive nuisance and did not have the responsibility for maintaining the canal.
Therefore, I’ll grant summary judgment in favor of the Department of Transportation and Development.
The Gravity and Drainage District is the owner of the canal, and the question is, whether it knew or should have known that the canal created an unreasonable risk of injury, and, in fact, if it did create an unreasonable risk of injury. And I feel that based on the record presently before the Court, there’s an issue of material fact that needs to be decided by a trial, so I’ll deny the Motion for Summary Judgment in favor of the Gravity and Drainage District.

|4A written judgment granting summary judgment in favor of the DOTD was signed on May 11, 2001. Plaintiffs appeal, challenging the grant of summary judgment in the DOTD’s favor.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. It should only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Zeringue v. Karl Ott Poles & Pilings, 2000-0522, p. 3 (La.App. 1st Cir.5/11/01), 808 So.2d 628, 630-631.

Summary judgments are now favored, and the documents submitted by both parties are to be equally scrutinized. The initial burden remains with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967; Davis v. Specialty Diving, Inc., 98-0458, 98-0459, pp. 4-5 (La.App. 1st Cir.4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Sanders, 96-1751 at p. 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether or not a particular |Bfact in dispute is material can be seen only in light of the substantive law applicable to the case. Davis, 98-0458, 98-0459 at p. 5, 740 So.2d at 669.

A plaintiff may proceed against the DOTD under theories of negligence or strict liability. Louisiana Revised Statutes 9:2800 governs strict liability claims against the DOTD under LSA-C.C. art. 2317 and limits the strict liability of public entities by requiring proof of actual or constructive knowledge of the defect which caused the damage. While we note that the sole factor distinguishing negligence claims from strict liability claims formerly was proof of scienter, the law of strict liability also has since changed to require proof of scienter for both negligence and strict liability claims. See LSA-C.C. art. 2317.1; see and compare Bessard v. DOTD, 94-0589, p. 3 (La.11/30/94), 645 So.2d 1134, 1136.

In accord with the changes in the law of strict liability, and under either theory, in order for a plaintiff to succeed in an action against the DOTD, the plaintiff must show that (1) the property causing the damage was in the custody of the DOTD; (2) the property was defective due to a condition that created an unreasonable risk of harm; (3) the DOTD had actual or constructive knowledge of the risk; and (4) the defect was a cause in fact of plaintiffs injury. Bessard v. DOTD, 94-0589 at p. 3, 645 So.2d at 1136; Goodliffe v. State Through Department of Transportation and Development, 29,948, pp. 5-6 (La.App.2d Cir.10/29/97), 702 So.2d 36, 39-40.

Thus, the initial determination is whether the DOTD had custody of the drainage canal. In support of its motion for summary judgment, the DOTD | (¡introduced the affidavit of Francis H. Wyble, the deposition testimony of Michael C. Moss, Joey Jermaine Francois, Mercedes Clark, Charlotte Ann Clark Harris, Theresa M. Francois, Rick Harris, and a memorandum in support of the DOTD’s motion for summary judgment.

In essence, the DOTD contends that the DOTD’s right of way over La. 70, does not establish any ownership of the canal by the DOTD. Citing LSA-R.S. 48:223, which provides that the DOTD may construct “canals, ditches, or drains sufficient in its judgment to properly drain any highway embraced in the system of state highways[,]” the DOTD contends it can not be deemed liable as an “owner” or custodian of the drainage canal. See LSA-R.S. 48:223 A. Citing subsection F of LSA-R.S. 48:223, the DOTD notes that:

F. (2) Maintenance of any drainage project constructed under the provisions of this Subsection shall be the responsibility of the local governing authority which constructed the project and shall not be the responsibility of the department.

The DOTD also cites St. Mary Parish Ordinance No. 637, which created the Gravity Drainage District No. 3, a “public corporation and political subdivision of the State of Louisiana,” and described the boundaries thereof, to include the drainage canal at issue herein, as further proof that the drainage canal was owned and maintained by the Gravity Drainage District No. 3.

As further support, the DOTD relies on the deposition testimony of Michael C. Moss, an Assistant Maintenance Engineer of the DOTD. Moss stated that although the DOTD maintains the roadway and mows the grass on the adjacent right of way area, the DOTD does not maintain the area covered with water adjacent to the roadway. Moss testified that pursuant to a standing agreement with |7the Drainage District, the portion of the right of way that is covered with water is maintained by the Drainage District.

The deposition testimony of George W. Mikhael, Public Works Director for the City of Morgan City, also confirms that the canal was maintained by Gravity Drainage District No. 3. Mikhael testified that all problems with drainage are reported to the Commissioner of the Gravity Drainage District No. 3. His job entailed inspecting the canals maintained by the Drainage District and reporting any problems to the Drainage Board. Mikhael further testified that the local police department was responsible for the placement of any signs on the property.

The DOTD also submitted the affidavit testimony of Francis H. Wyble, who was retained as an expert in traffic engineering. Wyble previously had worked as an engineer for the Louisiana Department of Transportation and Development, from 1957 to 1990. Based upon his experience, and after personally inspecting the scene of the accident on several occasions, Wyble testified that he was not aware of any incidents wherein the DOTD had erected any type of warning signs prohibiting or warning the general public from swimming or entering the Duck Bayou drainage canal within the area of the DOTD’s right of way along La. 70. Further, he was unaware of any incidents or occasions wherein the DOTD had erected warning signs along state highways prohibiting or warning the general public about swimming or entering a waterway at similar locations and/or under like circumstances. He further stated that he was not aware of any obligation or duty by the DOTD to erect any signs to warn of the dangers complained of herein.

The record reflects that prior to the hearing of the motion for summary judgment, the plaintiffs did not submit any countervailing testimonial or documentary evidence in opposition to the DOTD’s motion for summary judgment, in the form of affidavits or pleadings setting forth specific facts showing that there is a genuine issue for trial. At the hearing on the motion for summary judgment, |showever, plaintiffs attempted to introduce the deposition testimony of Chris LaRocca, George Mikael, and Michael Moss. Over the objections of counsel for the DOTD, the trial court allowed the plaintiffs to introduce the three depositions and the entire record of the proceedings, which had already been introduced into evidence by the DOTD. See Hoolahan v. Munch, 98-199, 98-200 p.8 (La.App. 5th Cir.9/16/98), 719 So.2d 1094, 1097, writ denied, 98-2619 (La.12/11/98), 729 So.2d 1048.

After carefully considering the evidence presented herein, and applying the legal precepts governing our review, we find that the DOTD established its right to summary judgment in its favor as a matter of law. The evidence undisputedly shows the DOTD took no affirmative actions to “maintain” the drainage canal because the DOTD had no duty to maintain drainage canals over which state highways traverse. Stated differently, the DOTD had no duty to warn or protect against the potential dangers of a drainage canal that it did not build nor own, and that it was not responsible for maintaining, merely because the DOTD had a right of way to traverse the canal. See LSA-R. S. 48:223. Thus, because we find that the DOTD did not have custody of the drainage canal, referred to as “Duck Bayou,” the plaintiffs can not succeed in an action against DOTD.

Furthermore, even if the DOTD had owned, maintained, and had actual custody of the canal, the evidence shows that the DOTD had no actual or constructive knowledge of the risk herein and had no duty to warn against such potential dangers. Our courts have continuously held that there are inherent dangers of drowning in every body of water and the facility itself serves as a warning of the dangers, especially to those who are of the age of discretion. In the absence of a showing by plaintiffs of some hidden or concealed danger created by the DOTD there was no duty on its part to provide safeguards against persons falling into the canal, such as fences or warning signs. See Bourque v. Leblanc, 328 So.2d 413, 416 (La.App. 3rd Cir.1976), Atwell v. City of Baton Rouge, 286 So.2d 783, 785 (La.App. 1st Cir.1973), writ denied, 288 So.2d 648, (La. 1974), Slaughter v. Gravity Drainage District No. 4, 145 So.2d 50, 55 (La.App. 3rd Cir.), cert. denied (1962), Hall v. Lemieux, 378 So.2d 130, 132 (La.App. 4th Cir.1979), writ denied, 381 So.2d 1220 (La.1980).

These arguments lack merit.

CONCLUSION

For the reasons stated above, the May 11, 2001 judgment of the trial court granting the DOTD’s motion for summary judgment is affirmed. Costs of this appeal in the amount of $1,053.00 are assessed against plaintiffs, Charlotte Clark, et al.

AFFIRMED.

      . The legislature amended LSA-C.C. art. 667 and enacted LSA-C.C. art. 2317.1 in 1996 La. Acts, 1st Ex.Sess. No. 1, § 1, effective April 16, 1996. The plaintiffs’ claims arose subsequent to the effective date of Act 1 of 1996. The changes made to Article 667 and the addition of Article 2317.1 limit the scope of strict liability and are substantive in nature. See Adams v. Parish of East Baton Rouge, 2000-0424, pp. 8-9 (La.App. 1st Cir. 11/14/01), 804 So.2d 679, 688, writ denied, 2002-0448 (La.4/19/02), 813 So.2d 1090; Dennis v. The Finish Line, Inc., 99-1413, 99-1414 p. 5 n. 8 (La.App. 1st Cir. 12/22/00), 781 So.2d 12, 20 n. 8, writ denied, 2001-0214 (La.3/16/01), 787 So.2d 319.

      . See also LSA-R.S. 38:1764 and 38:1614 for the corporate status and powers of drainage districts.