author: I,WOODARD, Judge. pAMY, J.,

text:
    Melvin GUILLOT, et al. v. John DOE, et al.
    No. 2003-1754.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Dean A. Doherty, Lafayette, LA, for Plaintiffs/Appellees: Melvin Guillot and Tammy Guillot.
    Brian T. Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellants: Diane Lubiecki, Julien Lubiecki, and Allstate Insurance Company.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   I,WOODARD, Judge.

During a birthday party/sleep over at Mrs. Diane Lubiecki and Mr. Julien Lu-biecki’s home, a child attending the party accidently shot Jonathan Guillot in the forehead while attempting to unload a pellet gun. On appeal, the Lubieckis request that this court reverse the trial court’s allocation of fault and its $45,000.00 general damage award. Also, the Lubieckis contend that the trial court improperly awarded Mrs. Tammy Guillot $5,000.00 for her mental anguish/emotional distress, under La.Civ.Code art. 2315.6. We affirm the trial court’s $45,000.00 general damage award and its allocation of fault, but we reverse its decision to award Mrs. Guillot damages.

On January 24, 1997, the Lubieckis invited several children to attend a birthday party/sleep over at their home for their eleven-year-old son, Robert. Previously, Robert told the children who attended the party to bring their BB or pellet guns, if they had one, so they could go on a hunting trip for birds and other small animals.

The Guillots initially agreed to allow two of their sons, Brandon and Ryan, to spend the night, only, if the Lubieckis promised to supervise the children while they were using the guns. Specifically, Mr. Lubiecki told the Guillots: “[Djon’t worry about it. You know, we’ll treat [your children] like they’re our own.” The Lubieckis also promised to lock the guns up in their bedroom closet when the children were not hunting. At trial, Mr. Guillot recalled Mr. Lubiecki’s words of assurance: “I promise you [the guns] will be locked up. Nobody will be around them without me supervising.”

The Guillots did not want their youngest son, Jonathan, to spend the night, since he was only seven years old at the time and had never slept over at a friend’s house. However, after receiving repeated assurances from the Lubieckis, the Guillots eventually allowed him to spend the night, as well. Mr. Guillot testified:

A[I] ... went over the same thing again.... Asked [Mr. Lubiecki], ‘You know, you’re sure y’all going to watch him, and you know, [Jonathan’s] my little guy [and] he’s only ... seven....”
[ 2[He said,] “Oh, yes. Don’t worry about it.”
A [He said,] “[Jonathan’s] going to be fine. We’re going to watch him; treat him like our own.”
Basically, ... Mr. Lubiecki probably thought I was a nut because I kept going over and over it....
Q You repeated the same instructions—
A Yes, sir.
Q —about gun safety?
A Yes, sir.
Q And were you given the same assurance?
A Yes, sir.

Later that night, the Lubieckis went to bed at approximately 10:00 p.m., but they did not lock the guns in their closet as they promised. At around midnight, before Brandon went to bed, he placed his pellet gun in Robert’s unlocked bedroom closet with the rest of the guns that were already in there, which allegedly included a couple of shotguns and a twenty-two (.22) caliber rifle.

The following morning, on January 25, 1997, Mr. Lubiecki went outside to his shed, which was approximately thirty yards from the house, to work on his van. Soon afterwards, Mrs. Lubiecki, who was unaware of the fact that her husband was in the shop, drove to the store and, thus, left the children that were still in the house without adult supervision.

At some point after Mrs. Lubiecki left the home, one of Robert’s friends, Belton Richard, III, found Brandon’s pellet gun and accidentally fired it, causing a pellet to strike Jonathan in the forehead. Belton dropped the rifle and ran outside screaming: “I shot him. I shot him. Help, help, help.”

When Mr. Lubiecki heard Belton’s screams, he found Jonathan and inspected the wound to his head. Mr. Lubiecki told Jonathan that “it was just a nick” and | splaced a Band-Aid on it. Robert’s older sister, Shannon, who came in the house soon after the accident, took the Band-Aid off and cleaned the wound “with a Q-Tip.”

After treating his wound, she called the Guillots to tell them about their son’s injury. When Mrs. Guillot answered the phone, Shannon told her: “[Jonathan’s] been scratched, and I don’t think it’s really anything, but you might want to come and look.”

Mrs. Guillot had a bad feeling that the situation was more serious than Shannon had revealed, so she told her husband the news and they rushed to the Lubieckis’ home. When they arrived, Mr. Lubiecki was outside on the porch. As they approached the house, the first thing he told them was that, when he heard Belton screaming “I shot him,” he initially thought that Belton had grabbed the twenty-two (.22) in the closet. Mr. Lubiecki also expressed how relieved he was when he found out that Jonathan had been shot with a pellet gun: “Man, thank God it was a pellet gun [because] I thought [Belton] had grabbed the twenty-two (.22).”

At trial, Mr. Guillot described Jonathan’s condition when they first saw him:

Q Okay. Was [Jonathan] crying?
A Just a little. He was more like shaking, scared, you know, shaken up.
Q Okay. Could you see any blood on his forehead?
A Yes.
Q Was there a Band-Aid covering the wound?
A Yes sir.
Q Despite the Band-Aid, could you still see blood on his head?
A Yes sir.
Q Was it dripping or was it just dried up?
A It was kind of still wanting to bleed, you know, but it wasn’t gushing or anything. [Mr. Lubiecki and Shannon] had cleaned him up.

|4When Mrs. Guillot saw her son’s condition, she began to cry. She was also very angry, since she believed Shannon misrepresented the severity of Jonathan’s injury by calling it a mere scratch.

Soon afterwards, the Guillots took Jonathan to the emergency room at Our Lady of Lourdes Regional Medical Center (OLOL). Dr. Scott Thompson, the treating emergency room physician, made the following notations, concerning Jonathan’s injury, in OLOL’s “Emergency Record/Physician’s Record”:

HISTORY OF PRESENT ILLNESS: This little boy took a BB or pellet to the right forehead. He didn’t get hit anywhere else. He said it stung a little bit.
PHYSICAL EXAMINATION: VITAL SIGNS: Stable. GENERAL: Polite little boy. He has a little divot of skin about the size of a BB missing on the right mid forehead. Superior and lateral to that is a little knot under the skin consistent with a BB. It is about an inch removed from the entry site. There is no other bony irregularity....
IMPRESSION: BB SUBCUTANEOUS.
TREATMENT: I told the family that because this is a young boy and it is on the face, I am going to ask one of the plastic’s people to remove it. I did try to “thumbnail” the BB forward and it seems pretty much locked in the skin.

Later, Dr. Kenneth L. Odinet, a plastic surgeon, also examined Jonathan’s wound. He noted:

On radiograph, you can see the pellet embedded in the frontal bone. I saw the child initially in the emergency room, having [no] symptoms and no complaints and I told the parents we could just leave the pellet there, but they insisted on removal.

On January 28, 1997, three days after Jonathan was released from the emergency room, Dr. Odinet performed a minor surgical procedure at Lafayette General Medical Center to remove the pellet.

On February 3, 1997, he returned to Dr. Odinet for a follow-up examination, after which the doctor informed the Guillots that Jonathan’s physical wound would |sheal quickly; although, he warned that psychological treatment might be necessary in the future to heal any emotional scars.

Approximately five years after being shot, in December of 2001, Jonathan opened up about the accident for the first time. He asked his parents: “Why would [Belton] want to do that to me?” He also told his mother he blamed himself because he had asked to spend the night at Robert’s house. At this point, Mrs. Guillot decided that her son needed psychological counseling.

On January 29, 2002, Dr. Maureen Brennan, a clinical psychologist, met with the Guillots to discuss Jonathan’s medical history, background, and their goals for therapy. Afterwards, Dr. Brennan met with Jonathan on three separate occasions for therapy and diagnosed him with “chronic adjustment disorder.” After the third session, Dr. Brennan noted that Jonathan’s condition had improved dramatically; as such, she did not expect him to need further counseling.

Sometime later, at the request of the Lubieekis’ insurer, Allstate Insurance Company, Dr. Kenneth R. Bouillion performed an independent psychological evaluation of Jonathan’s condition. According to Dr. Bouillion, Dr. Brennan’s initial diagnosis of Jonathan’s condition as “chronic adjustment disorder” was accurate.

On May 9, 2003, the trial court signed a final judgment, awarding damages as follows: (1) $45,000.00 in general damages and $3,454.76 in special damages to Mr. Guillot, as Jonathan’s representative; and (2) $5,000.00 in general damages to Mrs. Guillot.

On appeal, the Lubieekis contend that the trial court erred: (1) by awarding Mr. Guillot, as Jonathan’s representative, $45,000.00 in general damages; (2) by finding them 85% at fault for Jonathan’s damages; and (3) by awarding Mrs. Guillot damages for her mental anguish/emotional distress.

* *

Excessive Damages

The Lubieekis assert that $45,000.00 is an excessive general damage award under the circumstances of this case, specifically, given Jonathan’s particular injuries.

An appellate court should rarely disturb an award of damages due to the great | fiand, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion.

Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.”

We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. “The primary considerations in assessing damages are the severity and duration of the injured party’s pain and suffering.” The facts and circumstances of this case, alone, should determine an award’s adequacy or inadequacy. Therefore, in this instance, we must determine whether the trial court’s award for Jonathan’s particular injuries, under the particular circumstances, was a clear abuse of its broad discretion.

While attempting to unload a pellet gun, Belton accidentally caused it to discharge. The pellet that struck Jonathan lodged against his skull and caused “a 2 to 3 mm open wound” to his forehead. This wound did not bleed profusely; however, it was still bleeding when his parents got to the scene of the accident.

Dr. Odinet advised the Guillots that they could safely leave the pellet in Jonathan’s head, but they insisted that it be surgically removed. During surgery, he was given surgical anesthesia, which involved the use of intravenous sedation as well 17as nitrous oxide. Afterwards, he had headaches for three months and was left with a visible scar that bothered him continuously until the time of trial.

The Lubieckis correctly point out that the injury to Jonathan’s forehead was, fortunately, a very minor wound, and the only residual indication of the wound, “a small pink mark,” migrated up his forehead as he grew older to the point it is no longer visible without manipulating his hair. However, while it is true that his physical suffering was negligible, the Lubieckis fail to acknowledge the significance of his psychological injuries.

Jonathan testified that he had nightmares for over a year after the accident. Also, at trial, he acknowledged that he suffered with the following symptoms for more than five years: self-blame, being withdrawn, easily startled by loud noises, trouble concentrating in school because he kept thinking about the accident, a loss of interest in activities that he used to enjoy, and trouble interacting with his siblings.

Jonathan was unable to verbalize his feelings about being shot for almost five years, but, during that time, Mrs. Guillot could see that he was troubled. She gave this account of the dramatic changes she saw in her son’s personality and behavior following the accident:

Before, Jonathan was just my little — I called him my — tambourine shaker. I mean, [he was] just super excited about everything [and he was] always just willing to go anywhere and do anything....
After this accident, Jonathan stayed to himself. He didn’t want to really ... go anywhere. He didn’t want to ride his horse. He just seemed like he wasn’t trusting of strangers or even of some family members. And he just wasn’t himself. He just ... wanted to stay to [himself], like a little loner.

When she noticed these changes in him, initially, she thought they would pass in time. She testified:

As a mother, you hope that they’ll pass, and at times I saw that they would. I would just speak with him. I’d try to move him right on out of the self-pity stage or the I did something wrong in this little game stage, or [Mr. Guillot and I] did encouragement. We tried to just get him to move along.

|sShe also sought advice from her pastor, the pastor’s wife, and other friends that attended her church. However, not until Jonathan reached adolescence, when he was first able to reveal to her the inner turmoil that he was suffering with due to the accident, did she realize that he needed professional counseling. Nevertheless, the Lubieclds insist that, by not getting a professional to treat their son earlier, the Guillots failed to mitigate his damages.

“[A]n accident victim has a duty to exercise reasonable diligence and ordinary care to minimize [his/her] damages after the injury has been inflicted.” The plaintiff does not need to make extraordinary or impractical efforts, but s/he must undertake those that are reasonably prudent under the circumstances. The defendant bears the burden of proving what extent the plaintiff should have mitigated his/her damages. “[T]he rule of mitigation of damages is to be applied with extreme caution.”

Under the circumstances, we believe the Guillots exercised reasonable diligence in dealing with Jonathan’s psychological injuries. Dr. Brennan confirmed that the reason Jonathan, who was seven years old at the time of the accident, could not express his feelings for almost five years was because he needed time for his verbal skills to develop. Also, she believed the Guillots handled the situation appropriately by seeking professional counseling as soon as their son could express himself.

Anyone injured through the fault of another is entitled to full indemnification for his/her damages. Defendants take victims as they find them and are responsible for all natural and probable consequences of their tortious conduct.

In this instance, Jonathan was a young child not yet able to verbalize his feelings. As such, the Defendants must bear full responsibility for Jonathan’s ^suffering during those years when his silence prevented him from getting professional treatment for his psychological injuries.

We cannot say that it was an abuse of discretion for the trial court to award $45,000.00 in general damages. Clearly, the award is not the result of passion or prejudice, and it bears a reasonable relationship to the proved damages. Other triers of fact could have determined that a lower award was more appropriate, but from the entirety of the evidence, viewed in the light most favorable to the prevailing party in the trial court, we conclude that a rational trier of fact could have fixed this award at the level set. Moreover, this is not one of those unusual cases where the award is contrary to reason.

Thus, we affirm the trial court’s $45,000.00 general damage award. Allocation of Fault

The trial court concluded that the Lubieckis were 85% at fault, Cindy Fridge, as Belton’s representative, was 10% at fault, and the Guillots were 5% at fault. The Lubieckis, however, assert that the Guillots, who allowed their son to spend the night when they had Ml knowledge of the presence and intended use of pellet guns, should bear a percentage of fault equal to theirs.

Concerning an appellate court’s review of a trial court’s allocation of fault, our supreme court in Clement v. Frey explained: “[T]here is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations.” In both, unlike the appellate court, the trier of fact has the benefit of witnessing the entire trial and reviewing first hand all the evidence.

The trier of fact’s allocation of fault is a question of fact; therefore, we should not overturn its determination, absent a showing of manifest error. If the trial Imcourt’s determination was reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

In the instant matter, the trial court succinctly stated its basis for its allocation of fault:

Before agreeing to allow Jonathan to spend the night, the Guillots talked with the Lubieckis about gun safety. The Lubieckis assured the Guillots that all children attending the sleep over would be supervised. The Lubieckis specifically said the various guns in the home would not be where the children would have access to them. However, prior to the Guillots leaving the Lubiecki’s home[,] they observed several pellet and BB rifles and pistols in an area that was accessible to the children. On the next morning, [Mr. and Mrs. Lubiecki] exited the home with children still at the residence^] and the guns were still accessible to the children. As a direct result of this lack of supervision, Belton Richard was able to negligently handle the pellet gun and injure Jonathan. There were no adults present in the Lubiecki home when Belton injured Jonathan.
The Court hereby apportions the fault as follows: Diane and Julien Lubiecki, eighty-five (85) percent; Belton Richard, ten (10) percent; and Melvin and Tammy Guillot, five (5) percent.

After reviewing the record, we find no manifest error and agree with the trial court’s determination that, due to the Lu-bieckis’ lack of supervision, they should bear the greatest percentage of fault.

Therefore, we affirm its allocation of fault.

Bystander Recovery

The trial court awarded Mrs. Guil-lot $5,000.00 for her mental anguish/emotional distress, under La.Civ.Code art. 2315.6, from witnessing the wound to Jonathan’s forehead soon after Belton shot him. Nevertheless, the Lubieekis contend that she is not eligible for bystander recovery.

Two categories of cases allow claimants to recover for their mental anguish/emotional distress: (1) traditional cases, in which a defendant’s negligence is aimed directly at the plaintiff and (2) bystander recovery cases, in which the | n defendant’s negligence is aimed at a third person and the plaintiff suffers emotional distress/mental anguish from having viewed the injury. Clearly, Mrs. Guillot’s claim falls within the latter category, since she was a bystander who witnessed her son’s injury soon after he was shot with a pellet gun.

Louisiana Civil Code Article 2315.6, which does not interfere with traditional theories of negligent infliction of emotional distress and solely deals with bystander recovery, provides:

A. The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person’s injury:
(1) The spouse, child or children, and grandchild or ■ grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.
(2) The father and mother of the injured person, or either of them.
(3) The brothers and sisters of the injured person or any of them.
(4) The grandfather and grandmother of the injured person, or either of them.
B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article.

(Emphasis added.) Accordingly, Article 2315.6 allows certain classes of bystanders, [1gwho view an event causing injury to another person or come upon the scene soon afterwards, to recover damages for their mental anguish/emotional distress.

Bystander damages are available when serious emotional distres s arises directly and immediately from the claimant’s observation of a traumatic injury-causing event to the direct victim or from the observation of the aftermath of the traumatic injury-causing event soon thereafter. Thus, our Legislature intended to compensate claimants for his/her immediate shock after witnessing the direct victim’s harm that is both severe and apparent but not for the anguish and distress that normally accompany an injury to a loved one under all circumstances. As our supreme court explained in Lejeune v. Rayne Branch Hospital:

The emotional distress sustained must be both serious and reasonably foreseeable to allow recovery. Serious emotional distress, of course, goes well beyond simple mental pain and anguish. Compensation for mental pain and anguish over injury to a third person should only be allowed where the emotional injury is both severe and debilitating. For instance, ... “serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.” A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia and shock. []

(Emphasis added.)

In order for Mrs. Guillot to recover, she must prove the following four elements by a preponderance of the evidence: (1) she viewed an event causing injury to another person, or came upon the scene of the event soon thereafter; (2) she is within the class of relatives able to recover; (3) the injured person suffered such harm that one can reasonably expect someone in her position to suffer serious emotional distress from the experience; and (4) her mental anguish/emotional distress must be | ^severe, debilitating, and foreseeable.

Within minutes of the shooting, Mrs. Guillot arrived on the scene. When she saw Jonathan’s forehead bleeding, she broke down and began to cry hysterically. She continued to cry at the emergency room, so the emergency room doctor decided to sedate her with Valium.

Notwithstanding, even though the evidence clearly suggests that she was very upset, she did not suffer the degree of “serious emotional distress” our Legislature envisioned. Her anguish was more akin to the anguish and distress that any mother would feel in this situation. Also, in Trahan v. McManus the supreme court noted that “the essence of the tort is the shock caused by the perception of the especially horrendous event.” (Emphasis added.)

Without minimizing Jonathan’s pain and suffering or the seriousness of the accident, we find that this accidental injury, which resulted in a minor physical wound, does not qualify as a “horrendous event.” As such, the mental anguish/emotional distress that Mrs. Guillot felt, after viewing her son’s injury, is not compensable.

Accordingly, we must reverse the trial court’s $5,000.00 award for her mental anguish/emotional distress.

CONCLUSION

We affirm the trial court’s $45,000.00 general damage award and its allocation of fault. However, we must reverse its decision to award Mrs. Guillot $5,000.00 for her mental anguish/emotional distress. We assess all costs of this appeal evenly between the Plaintiffs/Appellees, Melvin and Tammy Guillot, and the Defendants/Appellants, Diane Lubiecki, Julien Lubiecki, and Allstate Insurance Company.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

AMY, J., concurs in part, dissents in part, and assigns reasons.

pAMY, J.,

concurring in part, dissenting in part.

I agree with the majority that the apportionment of fault is supported by the record and must, therefore, be affirmed. Furthermore, I agree that the award of damages to Mrs. Guillot for her mental anguish/emotional distress following the accident must be reversed. However, I respectfully dissent from the majority’s affirmation of the $45,000 in general damages awarded to Jonathan Guillot. Given the limited nature of the injury reflected in the record, I conclude that a substantial reduction in the general damages is required. Therefore, according to the dictates of Coco v. Winston Indus., Inc., 341 So.2d 832 (La.1976), I would reduce the award of general damages to the highest point reasonably within the trial court’s discretion.

      . Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

      . See Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

      . Youn, 623 So.2d 1257.

      . Id. at 1261.

      . See Id.

      . Iorio v. Grossie, 94-846, p. 8 (La.App. 3 Cir. 10/4/95), 663 So.2d 366, 372 (citing Andres v. Liberty Mutual Ins. Co., 568 So.2d 651 (La.App. 3 Cir.1990)).

      . See Youn, 623 So.2d 1257.

      . See Id.

      . Jacobs as Tutor of Jacobs v. New Orleans Pub. Serv., Inc., 432 So.2d 843, 845 (La.1983).

      . Id.

      . Moreau v. N. Am. Fire & Cas. Ins. Co., 01-976 (La.App. 5 Cir. 12/26/01), 806 So.2d 809.

      . Id. at 816.

      . Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70.

      . Am. Motorist Ins. Co. v. Am. Rent-All, Inc., 579 So.2d 429 (La.1991).

      . See Youn, 623 So.2d 1257.

      . See Id.

      . See Id.

      . 95-1119 (La.1/16/96), 666 So.2d 607, 610.

      . Id.

        . See Conrad v. City of New Iberia, 03-121 (La.App. 3 Cir. 6/13/03), 847 So.2d 784.

      . Id.

      . Norred v. Radisson Hotel Corp., 95-748 (La.App. 1 Cir. 12/15/95), 665 So.2d 753.

      . Id.

      . Ford v. State, 99-1297 (La.App. 3 Cir. 4/12/00), 760 So.2d 478, writ denied, 00-1935 (La.9/27/00), 769 So.2d 1214, writs denied, 00-1938, 00-1864 (La.9/29/00), 770 So.2d 352, 770 So.2d 350.

      . Trahan v. McManus, 97-1224 (La.3/2/99), 728 So.2d 1273.

      . Id.

      . 556 So.2d 559, 570 (La.1990).

      . See La.Civ.Code art. 2315.6.

      . 728 So.2d at 1279 n. 8 (quoting Lejeune, 556 So.2d at 570 n. 11).


source: Caselaw Access Project

author: JjCOOKS, Judge.

license: Public Domain

text:
    Nugier PERRODIN v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 2003-1681.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Charles E. Soileau, Bertrand & Soileau, Rayne, LA, for Appellant, Nugier Perro-din.
    Sam R. Aucoin, Voorhies & Labbe, Lafayette, LA, for Appellee, Lafayette City-Parish Consolidated Government.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   JjCOOKS, Judge.

Nugier Perrodin filed a writ application contending the judgment of the Office of Workers’ Compensation, sustaining the Lafayette City-Parish Consolidated Government’s exception of prescription to his claim for medical benefits, was erroneous. For the following reasons, the writ is granted, made peremptory and the judgment of the trial court sustaining the exception of prescription is reversed.

FACTS AND PROCEDURAL HISTORY

Nugier Perrodin began his employment with the Lafayette Parish Fire Department in 1966. Over the years, Perrodin rose through the ranks until he held the job of acting chief of the department. During his career, Perrodin was treated for numerous ailments, including chronic obstructive pulmonary disease. On March 10, 2002, Perrodin was hospitalized for heart and lung problems. His discharge diagnosis was: (1) pneumonia; (2) exacerbation of chronic obstructive pulmonary disease secondary to pneumonia, (3) car-diomyopathy, and (4) leukocytosis. Perro-din was advised that he could no longer perform duties which could cause him to inhale smoke, soot or fumes, or that involved stressful situations. Perrodin attempted to return to a supervisory type position after his discharge, but was unable to because of work restrictions placed on him by his physicians.

On June 13, 2002, Nugier Perrodin filed a 1008 claim seeking disability indemnity benefits and medical benefits, alleging heart and lung injury pursuant to the Fireman’s Heart & Lung Act, La.R.S. 33:2581. The claim listed the date of injury or illness as March 10, 2002. The employer, Lafayette City-Parish Consolidated Government (hereafter City-Parish), filed an Exception of Prescription, alleging Perro-din suffered from the condition complained of for many years prior to the filing of the claim. Specifically, the City-Parish argued Perrodin should not be allowed to [¡.maintain a suit for workers’ compensation medical benefits if it is filed several years after he knows that his diagnosed occupational disease is work-related, even if his suit is filed within one year of the date he became disabled.

A hearing on the exception was held before the Office of Workers’ Compensation. After the hearing, the workers’ compensation judge (WCJ) took the matter under advisement and eventually granted the exception of prescription as to medical benefits and denied the exception as to indemnity benefits. The WCJ issued the following written reasons in support of her judgment:

The parties agree that the issue was authoritatively addressed in Bynum v. Capital City Press, Inc., 95-1395 (La.7/2/96), 676 So.2d 582 wherein the La. Supreme Court held that all three factors found in La. R.S. 23:1031.1.E. must be present for prescription to begin running. Therefore, prescription does not begin to run until the disease has manifested itself, the employee is disabled from working as a result of the disease, and the employee knows or has reasonable grounds to believe that the disease is occupationally related. Mr. Perrodin’s problems had long been manifested, and he was aware of the connection to his employment. The issue is at what point in time did he become disabled from working as a result of the disease. The employer contends Mr. Perrodin was “disabled” as far back as in 1996 when Mr. Perrodin missed a couple of days of work while in the hospital. The WCJ is not familiar with any authority that supports this argument.
The current facts are similar to those found in LaCour v. Hilti Corporation, 1998-2691 (La.5.18.99), 733 So.2d 1193. The employee suffered with upper extremity complaints relating to his demonstrations of power actuated and pneumatic tools. His problems began in 1989 and he underwent the first of several surgical procedures that year. He continued to work until after a procedure in August 1995. The court found that Mr. LaCour’s disability began January 11, 1996 because “that was the date when he was forced to terminate his employment and all three factors set forth in Bynum were met.” Clearly Mr. Perrodin’s right to indemnity benefits has not prescribed.
The jurisprudence, however, holds that medical benefits are subject to the prescriptive period set forth in La.R.S. 23:1209(C) rather than the period set forth in La.R.S. 23:1031.1 for occupational disease disability claims. In Leitsman[Leistman] v. Louisiana Workers’ Compensation Corporation, 1997-1300 (La.App. 3 Cir. 3/6/98), 709 So.2d 298, writ denied at 1998-0952 (La.5/29/98), 720 So.2d 341, the court found that 23:1209(0 applied to medical claims, and that prescription for the claim for medical expenses began running either from the time of the first symptoms or the date of realization of the work-related nature of the disease. As in the Leistman case, using either of those dates the claim for medical payments has prescribed long before the filing of this claim.

Perrodin filed a writ application contending the trial court erred in granting the exception of prescription with regard to his claim for medical benefits.

ANALYSIS

In his claim, Perrodin contended he was entitled to workers’ compensation indemnity and medical benefits under the Fireman’s Heart & Lung Act, La.R.S. 33:2581. That statute provides as follows:

Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

La.R.S. 23:1209(0) is the general workers’ compensation statute dealing with the prescriptive period for medical benefits claimed by employees. It provides:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

This section was adopted by the legislature in 1985 in response to the Louisiana Supreme Court’s holding in Lester v. Southern Casualty Ins. Co., 466 So.2d 25 (La.1985) that the prescriptive provisions of La.R.S. 23:1209 did not apply to claims for medical expenses.

Perrodin argues the legislature carefully chose to only use the words “accident” and “death,” indicating it did not intend to apply a prescriptive period to an injured worker’s claim for medical benefits due to a “developing injury” or an “occupational disease.” He further argues the “developing” nature of heart and lung ailments are not susceptible to a specific commencement like an “accident” or “death,” which can be established on a particular date. The City-Parish acknowledged that Perro-din continually performed his duties with the Fire Department until March of 2002. At most the City-Parish points to a two-day hospital stay in December 1996, which was diagnosed as pneumonia. He returned to his duties immediately thereafter, and continued in his employment until he was diagnosed with severe emphysema in March 2002.

The WCJ relied on this court’s decision in Leistman v. LWCC, 97-1300 (La.3/6/98), 709 So.2d 298, writ denied, 98-952 (La.5/29/98), 720 So.2d 341, in determining that Perrodin’s claim for medical benefits had prescribed. In that case, the employee, a computer processor, began having problems with her wrists and fingertips in the latter part of 1992. She sought treatment and, in July 1993, was diagnosed with bilateral carpal tunnel syndrome. Allegedly, it was not explained to her how she contracted the syndrome. She had surgery in October 1993, and stated even at that point she was unaware that her condition could be work-related. After the surgery, and after her health insurer denied approval for occupational therapy, the employee finally inquired as to whether her condition was work-related. Despite being informed her condition could be work-related, she went ahead with a second surgery in December 2003 without notifying her employer or seeking preap-proval. | sAfter the second surgery, she notified her employer that she believed her condition was work-related. The employer’s insurers refused payment for occupational therapy. The employee filed suit in June 1996, over two years after she was refused payment. The insurer filed an exception of prescription, which was granted by the WCJ.

This court affirmed the grant of the exception of prescription, finding a strict reading of La.R.S. 23:1209(C) barred the employee’s claim for medical benefits. While we find no error with our decision in Leistman, we find our decision in White v. Fresenius Medical Care, 01-1023 (La.App. 3 Cir. 12/12/01), 801 So.2d 1239, writ denied, 02-138 (La.3/28/02), 811 So.2d 945, more instructive in this case. In White, the employer questioned the WCJ’s conclusion that an extended period of prescription applied because the worker suffered from a “developmental injury.” The employer argued because the extended filing period for developing injuries does not apply to medical benefits, the standard limitation period of one year from the accident applies. We stated in White:

[The employer] acknowledges the language regarding the longer prescriptive period related to developing injuries described in Paragraph A. The employer points to the Louisiana Supreme Court case of Lester v. Southern Caves. Ins. Co., 466 So.2d 25 (La.1985), wherein the Court considered the applicability of the period limitations of Paragraph A to medical expenses. At the time of the 1985 case, La.R.S. 23:1209 did not contain Paragraph C, which relates to medical expenses. In considering..the language of Paragraph A, the Court concluded that La.R.S. 23:1209 is applicable only to recovery of indemnity benefits. With regard to medical expenses, the Court explained that, absent language specifically related to' recovery of these expenses, the ten-year limitation period for personal actions set forth in the Louisiana Civil Code was applicable.
Subsequent to Lester, the legislature amended La.R.S. 23:1209 to include Paragraph C, setting forth specific limitation periods for recovery of medical expenses. [The employer] argues that, in addition to the discussion in Lester indicating that La.R.S. 23:1209 does not apply to medical expenses, the amendment of the statute to include a specific, prescriptive period is clear and unambiguous. Thus, according to [the ■ employer], although operation of Paragraph A may afford a | (“developing injury” a more extensive limitations period for indemnity benefits, the more extensive limitations period for medical expenses has now been specifically excluded by omission of this language from Paragraph C. We disagree.
Article 9 of the Louisiana Civil Code requires: ‘When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” Although’ [the employer] argues that the text of La.R.S. 23:1209 is clear and unambiguous, we point out that, even if this assertion is correct, we must consider whether its application would lead to absurd consequences in this situation. In this case it would.
If this court were to accept [the employer’s] argument regarding the Supreme Court’s discussion in Lester of a previous version of the statute coupled with the wording of La.R.S. 23:1209(C), a claimant would potentially be permitted to receive indemnity benefits, but not medical expenses. Although this type of rigid application was adopted by a panel of the second circuit in Holcomb v. Bossier City Police Dept., 27,095 (La.App. 2 Cir. 8/25/95); 660 So.2d 199, we decline to follow such an interpretation. In that case, two members of the five-judge panel dissented on this point, with one member writing that it was not the legislature’s intent in overruling Lester to “reach a result as conflicting and incongruous as the one in this case.” Id. at 204 (Brown, J., dissenting.) We conclude that a similar result would be unacceptable in this ease.. Accordingly, we find no error in the workers’ compensation judge’s conclusion that the limitations period applicable in “developing injury” cases relates to both indemnity and medical benefits.

We find the reasoning of this court in White is applicable to this case. To use La.R.S. 23:1209(0 to prevent Perrodin from receiving medical benefits, while allowing the recovery of indemnity benefits, would be an absurd result. The Fireman’s Heart & Lung Act was enacted as an acknowledgment of the heightened possibility of firemen suffering heart and lung disease due to the nature of their duties. To disallow medical benefits to a fireman who has suffered heart and lung injury-through such a “rigid application” of La. R.S. 28:1209(0), would defeat the purpose for which the Fireman’s Heart & Lung Act was enacted. Therefore, we reverse the judgment |7of the OWC granting the exception of prescription with regard to medical benefits.

DECREE

For the foregoing reasons, Perrodin’s writ application is granted and made peremptory. The judgment of the Office of Workers’ Compensation sustaining the exception of prescription on the issue of medical benefits is reversed and the matter remanded for proceedings consistent with this opinion. All costs are assessed against the Lafayette City-Parish Consolidated Government.

WRIT GRANTED AND MADE PEREMPTORY. EXCEPTION OF PRESCRIPTION REVERSED AND MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . We are aware of the holding in Lacour v. Hilti Corporation (La.5/18/99), 733 So.2d 1193. However, without further instruction we decline to extend this holding to the Fireman's Heart & Lung Act.


author: JjAMY, Judge. |, COOKS, J.,

text:
    Cathy DARDEN v. R. Craig SMITH and The Ferriday Villa Partnership.
    No. 2003-1144.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Daniel G. Brenner, Bolen, Parker & Brenner, Ltd., Alexandria, LA, for Plain-tiffyRespondent, Cathy Darden.
    Thomas M. Hayes, III, Hayes, Harkey, Smith & Cascio, Monroe, LA, for Defendant/Applicant, R. Craig Smith.
    David L. Guerry, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendant/Applicant, The Ferriday Villa Partnership.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, MARC T. AMY, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   JjAMY, Judge.

The plaintiff, a member of the Concordia Parish Police Jury, filed a suit for defamation, intentional infliction of severe emotional distress, malicious prosecution, and abuse of process. The defendants filed a motion to strike under La.Code Civ.P. art. 971 and a motion for summary judgment, alleging that the statements at issue were matters of public concern as they related to matters before the Police Jury. The trial court denied the motions. For the following reasons, we grant the motion to strike pursuant to the dictates of La. Code Civ.P. art. 971 and award attorney’s fees as is required by the article.

Factual and Procedural Background

The instant matter relates to the proposed construction of a low-income housing development in Ferriday, Louisiana. After approval of the project was rejected by the Concordia Parish Police Jury, the project proponent, Ferriday Villa.Partnership, and its general partner, R. Craig Smith, filed suit in federal court alleging that the denial of the permit was [BJased solely on discriminatory policies toward entities that provide federally-assisted-low-income housing. The Police Jury and its individual Police Jurors’ actions in denying Ferri-day Villa the opportunity to providé low-income housing in Concordia Parish is part of a policy and custom by them to prevent federally-assisted-low-income persons from finding housing within Concordia Parish. This policy and custom has no articulable or protected basis or foundation.

The complaint pointed out that the Police Jury did not require an allegedly “similarly situated” developer, Macon Ridge Community Development Corporation, to deposit monies into an escrow account pri- or to approval of a permit as it did Ferri-day Villa. This allegation was the basis for the equal protection claims brought pin the suit. Furthermore, the federal complaint alleged that “[t]he action of the Police Jury and its individual Police Jurors, in denying the building permit for Ferri-day Villa, was racially motivated and has a racially discriminatory impact upon Con-cordia Parish and its citizens.” The Police Jury and its members were named as defendants. The federal lawsuit was ultimately dismissed through summary judgment in favor of the Police Jury and its members. The federal trial court’s memorandum ruling reveals a finding that the Police Jury’s actions were not “arbitrary, capricious, or motivated by ill will.” Furthermore, the ruling indicates that “the Police Jury’s actions related to the legitimate purpose of ensuring that funds would be available for improving and maintaining the physical and fiscal integrity of the water and sewer system of the Town of Ferriday.”

Also, in March 2001, R. Craig Smith filed a complaint with the Louisiana Board of Ethics, alleging that Police Juror Cathy Darden considered the building project while employed by Macon Ridge, a competitor of Ferriday Villa. Although Ms. Darden had not voted on an allegedly similar project approved for Macon Ridge, Mr. Smith alleged that certain provisions of the Code of Governmental Ethics had been violated. The matter was closed, after the Board of Ethics found no violations.

13Cathy Darden filed the instant matter in June 2002, seeking damages related to defamation, intentional infliction of severe emotional distress, and malicious prosecution and abuse of process. Mr. Smith and Ferriday Villa were named as the defendants. Subsequently, the defendants filed a “Motion to Strike and Motion for Summary Judgment, or Alternatively, for Partial Summary Judgment.” Primarily, the defendants sought dismissal of the plaintiffs claim through operation of La.Code Civ.P. art. 971, which provides a mechanism for dismissal of a claim when it stems from an act in furtherance of the defendant’s “right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue.” The motions were denied by the trial court. The record provides no reasons for ruling.

The defendants filed a writ application with this court, seeking review of the trial court’s denial. A panel of this court ordered that the matter be considered after full briefing and oral argument. The defendants present the following assignments of error for review:

1. The Trial Court erred by failing to determine whether the plaintiff established a probability of success as required by La.C.C.P. Art. 971(A)(1).
2. The Trial Court erred in denying the Special Motion to Strike Darden’s defamation claim based upon the federal suit.
3. The Trial Court erred in denying the Special Motion to Strike Darden’s defamation claim based upon the Ethics Complaint.
4. The Trial Court erred in denying the Special Motion to Strike Darden’s emotional distress claim.
5. The Trial Court erred in denying the Special Motion to Strike Darden’s malicious prosecution claim.
6. The Trial Court erred in denying defendants’ Motion for Summary Judgment on all of Darden’s claims.
|47. The Trial Court erred in not awarding attorney fees to Applicants under La.C.C.P. Art. 971(B).

Discussion

Motion to Strike

At issue is whether La.Code Civ.P. art. 971 extends to all of the claims in the plaintiffs petition or whether it is limited to the defamation claim. If extended to all of the claims, the defendants contend, the plaintiff failed to sustain the burden of proof required of her in order to have her petition for damages survive under Article 971.

Enacted by the legislature to promote participation in matters of public concern, La.Code Civ.P. art. 971 provides:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
|SB. In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney’s fees and costs to a plaintiff prevailing on the motion.
C. The special motion may be filed within sixty days of service of the petition, or in the court’s discretion, at any later time upon terms the court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.
D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with any issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
| fi(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) “Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

Scope of Article 971

We first address the plaintiffs contention that Article 971 relates only to the defamation claim contained in the petition. In support of her assertion that the intentional infliction of emotional distress and malicious prosecution claims are not subject to the motion to strike, she points to an “Editor’s Note” indicating that the Article is limited to defamation actions.

We find no merit in the plaintiffs contention that Article 971 is limited to a cause of action in defamation. While the reported cases on Article 971 are focused on defamation claims, the language of Article 971(A)(1) itself is broad, stating that it applies to “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech ...” (Emphasis added). Even if we were to find this language ambiguous, which we do not in this context, reference to the declaration of legislative intent indicates a desire for the Article to be “construed broadly.” Acts 1999, No. 734. As we determine that all of the causes of action alleged by the plaintiffs petition are subject to the motion to strike if the |7merits of that motion are established, we turn to consider the parties’ respective burdens of proof.

Burden of Proof under Article 971

In order to succeed under Article 971, the movant must make a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue. In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim. Thomas v. City of Monroe Louisiana, 36,526 (La.App. 2 Cir. 12/18/02), 833 So.2d 1282. See also Baxter v. Scott, 37,092 (La.App. 2 Cir. 5/16/03), 847 So.2d 225, vacated on other grounds, 03-2013 (La.11/14/03), 860 So.2d 535.

We first consider the defendants’ initial burden in this case, i.e. demonstrating that the subject matter of the suit stems from an action relating to free speech and in relation to a public issue. The defendants supported their motion to strike by submitting various exhibits. Notwithstanding these exhibits, reference to the plaintiffs petition alone demonstrates that the causes of action arise from acts in furtherance of the defendants’ right of free speech and in connection with a public issue. This is true as the statements at issue in the plaintiffs suit relate to actions of the Police Jury and its individual Police Jurors; in particular, motives allegedly underlying the Police Jury’s decision making process. Whether truthful or not, the |sstatements clearly relate to a “public issue” as defined by the examples of such an act provided under La.Code Civ.P. art. 971(F)(1). Thus, as commenting on such an issue is a matter in furtherance of the right of free speech guaranteed in the United States and Louisiana Constitutions, the burden of proof shifts to the plaintiff to demonstrate the probability of her success on each of the claims alleged by her petition.

Defamation

The Louisiana Supreme Court has explained that in order for a plaintiff to prevail on a defamation claim, he or she must prove: “(1) a false or defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. Furthermore insofar as a plaintiff is a public official, the supreme court has observed that:

A public official plaintiff cannot recover for a defamatory statement relating to his or her official conduct, even if false, unless the public official proves actual malice by clear and convincing evidence. Kidder v. Anderson, 354 So.2d 1306, 1308 (La.1978). At the very least, the public official plaintiff must prove that the defendant published the false statement with a high degree of awareness of its probable falsity. Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2686, 105 L.Ed.2d 562 (1989). Or the public official plaintiff must prove that “the defendant in fact entertained serious doubts as to the truth of the publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).
Even if a public official plaintiff demonstrates that a defendant was grossly negligent in publishing false statements, that showing is insufficient to prove that the defendant acted with reckless disregard for the truth. Masson v. New Yorker Magazine, Inc., 501 U.S. at 510, 111 S.Ct. at 2429. Instead, a public official plaintiff must clearly prove that the defendant actually knew the published statements were false or that the defendant was highly aware that the statements were probably false.

Davis v. Borskey, 94-2399, p. 10-11 (La.9/5/95), 660 So.2d 17, 23.

We find no merit in the plaintiffs assertion that because the statements at issue were false, an element we do not consider here, and related to a matter that would affect public confidence in her or injure her in her occupation, the statements were defamatory per se. Due to this, she contends, she was not required to demonstrate malice, either actual or otherwise. In support of -this argument she references an excerpt from the fourth circuit’s opinion in Sassone v. Elder, 601 So.2d 792 (La.App. 4 Cir.1992), reversed, 626 So.2d 345 (La.1993), wherein it discussed the definition of defamatory words and those that are defamatory per se. However, this concept is inapplicable to the case at bar as its discussion of malice is not in the context of a public official. The supreme court’s direction in this regard is clearly articulated in Davis, 660 So.2d 17. Thus, in order for her defamation claim to survive the motion to strike, the plaintiff was required to demonstrate a probability that she would be able to establish actual malice by clear and convincing evidence.

The evidence presented by the plaintiff does not indicate that she would be able to do so. Notably, there is an absence of evidence indicating that the defendants’ statements were made with a reckless disregard for the truth. Recall that, according to Davis, “a public official plaintiff must clearly prove that the defendant actually knew the published statements were false or that the defendant was highly aware that the statements were probably false.” Davis, 660 So.2d at 28. Ms. Dar-den only contests the accuracy of the statements made and does not offer proof indicating that she would be able to satisfy this considerable burden. Accordingly, the motion to strike was erroneously denied in this regard.

Intentional Infliction of Emotional Distress

Turning to the cause of action for intentional infliction of emotional distress, the plaintiff would be required to demonstrate:

(1) [T]hat the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.

LaBove v. Raftery, 00-1394, p. 16-17 (La.11/28/01), 802 So.2d 566, 577, quoting White v. Monsanto, 585 So.2d 1205 (La.1991).

Our review of the parties’ respective exhibits in support of and in opposition to the motion to strike indicates that the plaintiff has failed to demonstrate a probability of success as to this claim. In her affidavit, Ms. Darden explained that:

Appearer attests that the filing of the lawsuit, the filing of the ethics complaint, and the comments contained in those documents, caused In appearer extreme concern and emotional upset. Appearer attested that she was concerned as to her financial responsibility in connection with the lawsuit, and for her position as Police Juror in response to the ethics complaint. She was further concerned and upset regarding the reporting of the events in the local paper, which disseminated the information contained in the lawsuit to the Concordia Parish Community. Darden attests that she was extremely distraught over the impact these actions may have had and still have on her reputation and credibility within the community. Appearer further attests that she is concerned over potential impact of these statements on her political career. Darden further attested that she was required to expend her personal funds in defense of the ethics complaint.

Even if the court were to accept that the defendants’ conduct was “extreme and outrageous” or that the plaintiffs emotional distress was severe, issues we need not reach, there is no evidence that the defendants desired, to inflict such emotional distress or knew that it was likely to follow. Again, the plaintiff did not sustain her burden of proof as to this cause of action.

Malicious Prosecution

Finally, on her claim for malicious prosecution, the plaintiff would be required to prove:

(1) [T]he commencement or continuance of an original criminal or civil law judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.

Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).

Again, Ms. Darden’s evidence fails to demonstrate the presence of “malice” in the filing of the ethics complaint or the federal lawsuit. While the other matters were, in fact, resolved in the plaintiffs favor, the above standard requires the presence of |12maliee. Her evidence is simply inadequate in this regard. Accordingly, this cause of action is also subject to the motion to strike.

As we have concluded that the plaintiffs causes of action are subject to the motion to strike and that she failed to rebut the burden of proof sustained by the | ^defendants in this case, we find that the trial court was in error in failing to grant the motion to strike.

Attorney’s Fees

As can be seen above, La.Code Civ.P. art. 971(B) indicates that “a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney’s fees and costs.” (Emphasis added). Additionally, the defendants have requested the assessment of attorney’s fees in this case. In light of the mandatory language of the article, we award attorney’s fees and costs. Our review of this matter indicates that an award in the amount of $5,000 is appropriate.

DECREE

For the foregoing reasons, the defendants’ writ application is granted. We grant the motion to strike, dismissing the plaintiffs petition with prejudice. Attorney’s fees in the amount of $5,000 and all costs of this matter are assessed to the plaintiff, Cathy Darden.

WRIT GRANTED AND MADE PEREMPTORY.

COOKS, J., concurs in part in the result, and dissents, in part.

|, COOKS, J.,

concurs in part in the result, and dissents in part.

I concur with the result reached by the majority opinion, however, I differ with the opinion in two respects. I would not have awarded attorney’s fees to Mr. Smith and FVP under La.Code Civ.P. art. 971 or, alternatively, I would have decided the case by way of the motion for summary judgment. The inquiry by the court under La.Code Civ.P. art. 971 is whether the “plaintiff has established a probability of success on the claim” while the test for summary judgment is whether there are any genuine issues of material fact. Both procedural vehicles require an examination of the underlying elements of proof required to support the cause of action. On its face, it may appear only a question of semantics. However, such is not the case, according to the result reached by the majority opinion. La.Code Civ.P. art. 971(B) provides, in relevant part:

In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney’s fees and costs.

By mandating the award of attorney’s fees to a prevailing defendant, in every case, as the majority has done, we risk penalizing individuals for asserting their constitutional right to petition the court for redress of an alleged grievance. Although Ms. Darden did not present enough evidence to sustain her cause of action, she had every right to defend her character and reputation against a perceived attack. She had a reasonable belief in the rightness of her cause evidenced by the fact that both the | ¿federal petition and the ethics complaint were resolved in her favor. I would find the award of attorney’s fees a discretionary matter based on the individual facts of the case and, in this case, I would have declined an award. This is the view of the Fourth Circuit in Stern v. Doe, 2001-0914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98. In Stem, a high school student was mistakenly featured on a television program as a truant. He sued the station on a claim of false light, invasion of privacy. The television station filed a motion to strike and asked for attorney’s fees. The court found the legislative “intent of this statute is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process.” Id. at 101. The court used this standard in affirming the trial court’s denial of attorney’s fees, finding “there is insufficient evidence that plaintiff’s claim was attempting to abuse the judicial system.” Id. at 103. To mandate attorney’s fees as a penalty in every case would chill a plaintiffs right to petition the court. If, in the alternative, La. Code Civ.P. art. 971 does mandate an award of attorney’s fees in every case to a prevailing defendant, I would have used the motion for summary judgment to decide this case.

      . A letter from the Board of Ethics, dated September 28, 2001, and entered into the record as an exhibit, indicates:
      Based on the information obtained, the Board concluded, and instructed me to inform you, that no apparent violation of the Code of Governmental Ethics occurred, since Ms. Darden did not participate in the vote to issue Macon Ridge Community Development Corporation a building permit. Also, it did not appear that either Macon Ridge Economic Development Region, Inc. and/or Macon Ridge Community Development Corporation had a substantial economic interest in the conditional denial of a building permit to Ferriday Villa. The Code defines “substantial economic interest” as “an economic interest which is of greater benefit to the public servant or other person than to a general class or group of persons, except ... [t]he interest that a' person has as a member of the general public.” LSA-R.S. 42:1102(21). As it does not appear that Ms. Darden participated in a vote in which her employer had a substantial economic interest, the Board instructed the staff to close the file.

      . Noted in the legislation enacting Article -í 971, Acts 1999, No. 734, Section Two provides:
      The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and de-dares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

      . The "Editor’s Note" provides:
      This article appears to establish a specialized defense motion akin to a motion for summary judgment, but limited to defamation actions and allowing a more liberal time for bringing the motion than the motion for summary judgment allows. It appears that witnesses can be heard. See Lee v. Pennington, 830 So.2d 1037, ([La.]App. 4 Cir.2002).

      . The plaintiffs petition references the following statements of the defendants:
      10.
      In the Ferriday Villa suit, R. Craig Smith and the Ferriday Villa Partnership stated that the decision by petitioner to delay awarding the building permit to defendants was "racially motivated" (paragraph 21), "based solely on discriminatory policies towards individuals” (paragraph 25), that the actions were "arbitrary and capricious” (paragraph 26) and was "racially motivated” (paragraph 27). (Ferriday Villa Partnership lawsuit attached hereto).
      11.
      On or about March 12, 2001, R. Craig Smith filed an ethics complaint against Cathy Darden with the Louisiana Board of Ethics, requesting an investigation which Smith asserted, "... will reveal that multiple violations of the Code of Governmental Ethics have occurred.” (Complaint of R. Craig Smith March 8, 2001 to the Louisiana Board of Ethics)(attached hereto as Exhibit 3)
      12.
      In the ethics complaint, defendant Smith asserted that "... Ms. Darden violated Section 1112, 1113, 1114, and 1120 of the Code of Governmental Ethics.” (Ethics complaint of defendant March 8, 2001, page 2).
      13.
      In the ethics complaint, defendant Smith asserted that "Ms. Darden influenced a vote of the Police Jury that resulted in a building permit being granted to her employer, even though she was not present at the time the Police Jury voted on the project.” (Ethics complaint of defendant March 8, 2001, page 2)
      14.
      In the ethics complaint, defendant Smith stated that "... these actions on Ms. Dar-den's part constitute violations of the aforementioned sections of the Code of Governmental Ethics.” (Ethics Complaint of defendant March 8, 2001, page 2)
      15.
      An investigation of the ethics complaint ensued, resulting in a finding in favor of Ms. Darden "... that no apparent violation of the Code of Governmental Ethics occurred, since Ms. Darden did not participate in the vote to issue Macon Ridge Community Development Corporation a building permit.” (Opinion of the Louisiana Board of Ethics dated September 28, 2001)(attached hereto as Exhibit 4)

      . Bearing on the question of malicious prosecution, and touching on the other claims is the affidavit of R. Craig Smith, in which he states, in part:
      6. Prior to the presentation of the application to the Police Jury for a building permit, I spoke to Cathy Darden, who told me that her constituents were concerned about the type of housing. I am informed that the members of Darden's constituency who opposed the issuance of the building permit were Caucasian.
      7. The inferences that I drew from these facts led me to the conclusion that the Caucasian residents north of the town of Ferri-day did not want low income, primarily black residents, residing in the area, and that they were pressuring the Police Jury to deny the permit.
      8. The Police Jury denied the FVP building permit in August, 1998. Thereafter, the Police Jury delayed approval of the FVP application, and refused to grant it even after Town of Ferriday had passed a resolution on July 7, 2000 to provide water and sewer for the project, and after Fire Marshall approval had been obtained. Later, on August 28, 2000, the Police Jury made a requirement that FVP escrow $20,000 for improvement of a Town of Ferriday lift station as a condition for issuance of the building permit. Ultimately, the Police Jury made no requirement with respect to the condition of the roadway, one of the reasons given by the Police Jury as a basis for denying the application initially.
      9. In 2000, while FVP was seeking a building permit, another developer, Macon Ridge Economic Development Region, Inc. (hereafter "Macon Ridge”), sought and was granted a permit to construct housing for the elderly on Lincoln Road, across the street from the proposed FVP project. Macon Ridge was not required by the Police Jury to escrow $20,000 for payment to the Town of Ferriday for improvement of the lift station. At that time, Cathy Darden was an employee or a business affiliate of Macon Ridge, and the Macon Ridge project was financed through the U.S. Department of Agriculture's Rural Development and was to serve the elderly and handicapped.
      10. At the time that FVP filed its suit in federal court, I believed that the Police Jury's opposition to the FVP project was a pre-text, that the real reasons for the Police Jury's opposition to and denial of the permit was that it bowed to pressure from Caucasian citizens of the area around Lincoln Road who opposed the project because of the race of a majority of the occupants of the proposed apartments, and that the Police Jury's denial of the FVP building permit had a racially discriminatory impact upon the Parish and its citizens.
      11. Despite compliance with the requirements imposed by the Police Jury and the Town of Ferriday, FVP was denied a building permit. FVP filed suit against the Police Jurors and its members on November 7, 2000. After a status conference with the federal judge, the Police Jury finally granted the permit in September, 2001, over three years after the initial application.

      . The plaintiff points to a fourth circuit case in which attorney’s fees were not assessed, see Stern v. Doe, 01-914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98. In Stem, the plaintiff appeared before the court in forma pauperis, influencing the court's conclusion that he would likely be unable to pay attorney’s fees. In that case, notably, the fourth circuit referenced State, DOTD v. Williamson, 597 So.2d 439 (La.1992), for the proposition that the courts may consider the reasonableness of attorney’s fees even in the face of statutory language authorizing their assessment. In Williamson, however, the statute at issue, La.R.S. 48:453(E), provided that attorney’s fees "may ” be awarded. La.Code Civ.P. art. 971(B) provides that a prevailing party "shall be entitled to reasonable attorney's fees and costs.” (Emphasis added). In light of the clear language of Article 971, we conclude that Stem is not persuasive here.


author: JjPETERS, J.

text:
    STATE of Louisiana v. Levi Joseph GARRICK.
    No. 02-0712.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Robert F. DeJean, Jr., DeJean, DeJean, & DeJean, Opelousas, LA, for Defendant/Appellant, Levi Joseph Garrick.
    Earl B. Taylor, District Attorney, Opel-ousas, LA, for Appellee, State of Louisiana.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.
   JjPETERS, J.

We revisit this case on remand from the supreme court. This court initially reversed the defendant’s conviction and remanded the matter to the trial court for a new trial. State v. Garrick, 02-0712 (La.App. 3 Cir. 12/11/02), 832 So.2d 1110. The supreme court reversed our decision and remanded the matter to this court for consideration of the defendant’s remaining assignments of error. State v. Garrick, 03-0137 (La.4/15/04), 870 So.2d 990. For the following reasons, we again reverse the conviction and remand the matter to the trial court for a new trial.

The defendant, Levi Joseph Garrick, was convicted after a jury trial of the offense of armed robbery, a violation of La.R.S. 14:64. This court found that the State of Louisiana failed to fully and fairly comply with its own open file procedure, and, in doing so, failed to timely disclose the exculpatory content of testimony provided by a former co-defendant turned prosecution witness, and this failure constituted “a legal defect in the proceedings of such a nature which makes the verdict reversible as a matter of law.” Garrick, 832 So.2d at 1120.

In reversing our decision and remanding the matter for consideration of the remaining assignments of error, the supreme court explained that it “has held generally that discovery violations do not provide grounds for reversal unless they have actually prejudiced the defendant,” and that “while late disclosure as well as non-disclosure of exculpatory evidence may deprive the defendant of a fair trial,” the context of the entire record must be evaluated to determine the impact on the defense. Garrick, 870 So.2d at 994. The supreme court concluded that, in this case, “the trial court’s denial of a mistrial or a postponement of the evidentiary portions of trial did not prejudice the defense or otherwise render the proceedings fundamentally unfair.” Id at 995.

| ?,The facts and procedural history of this case are sufficiently detailed in our previous opinion and will not be repeated herein. Our initial opinion considered only the defendant’s first two assignments of error. Therefore, following the instructions of the supreme court, we will consider the remaining two assignments of error to the extent necessary to render a decision in this matter.

In his third assignment of error, the defendant asserts that the trial court erred in refusing to grant his challenge for cause of four prospective jurors: Pamela Lamke, Camellia Lamana, Ray LaGrange, and Mark LaGrange. The defendant argues that when questioned during voir dire, these four jurors stated that they would not follow the law as explained by the trial court. Specifically, that which is at issue in this assignment of error is the definition of principals to a crime.

Only those persons who knowingly participate in the planning and/or execution of a crime are principals. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427. Mere presence at the scene is not enough to “concern” an individual in a crime. Id. Moreover, a person may only be convicted as a principal for those crimes for which he personally has the requisite mental state. Id. Knowledge that a crime will be, or has been, committed is insufficient by itself to convict a person as a principal. State v. Cayton, 98-100 (La.App. 3d Cir.10/28/98), 721 So.2d 542.

State v. Jetton, 32,893, p. 4 (La.App. 2 Cir. 4/5/00), 756 So.2d 1206, 1212, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299.

The defendant asserts that the four prospective jurors all stated in voir dire that, even if the defendant did not aide or abet in the commission of the armed robbery, or procure someone else to commit it, they would find him guilty of the offense simply because he knew the offense was about to occur and failed to leave the scene.

At the beginning of voir dire, the trial court gave the prospective jurors the following instruction concerning their obligation to follow the applicable law:

At the end of this case I’m going to instruct you as to the law that’s applicable to this case. You’re going to have to apply that law as |aI instruct you. Even if you have a difference with what the law states, any of you have a problem with accepting the law, even one that you don’t agree with and applying it because that’s the rules in which we operate in this system of justice? Do any of you have a problem with that or any reservations about it?

No prospective juror indicated a personal problem or reservation with this instruction. However, when questioned by defense counsel, the four jurors at issue expressed disagreement with the law of principal. When questioned concerning the defendant’s presence at the scene of the offense, Ms. Lamke stated: “If he knew better and shouldn’t have been in the vehicle, I’d get out. That’s my personal opinion.” Ms. Lamana was more specific in the following exchange with the defendant’s counsel during voir dire:

MS. LAMANA: Right, [I] feel like even though he had no part in it, if he didn’t help them in any way he still had knowledge of what was going on, he’s guilty.
COUNSEL FOR THE DEFENDANT: O.K. So you couldn’t follow that [law]?
MS. LAMANA: No, I think as long as he was aware of what was happening, he knew what they were doing, then he is also a part of it and he’s guilty.

Immediately after this exchange with Ms. Lamana, counsel for the defendant asked Ray LaGrange if he agreed with Ms. La-mana and Mr. LaGrange responded: “That’s the same way I feel.” After a conference with the trial court, counsel for the defendant then continued to question Ms. Lamana.

COUNSEL FOR THE DEFENDANT: So I’ll be clear, Ms. Lamana, if the evidence were to show that he did not directly commit an act — any crime himself, okay, he did not aid and abet in its commission, help out, you understand what that means?
MS. LAMANA: Right
COUNSEL FOR THE DEFENDANT: And he did not directly or indirectly counsel or procure any other person to commit the act.
RMS. LAMANA: But he still was aware of what was gonna happen.
COUNSEL FOR THE DEFENDANT: Yes, ma’am.
MS. LAMANA: Then he’s guilty.
COUNSEL FOR THE DEFENDANT: So you know what this law means?
MS. LAMANA: Right.
COUNSEL FOR THE DEFENDANT: It’s nothing foreign to you.
MS. LAMANA: No.
COUNSEL FOR THE DEFENDANT: The mere fact that he was there and had knowledge would cause you to find him guilty?
MS. LAMANA: That’s right.
COUNSEL FOR THE DEFENDANT: And that’s Mr. Ray LaGrange, right?
MR. RAY LAGRANDE: Yes.
COUNSEL FOR THE DEFENDANT: You feel the same way?
MR. RAY LAGRANGE: Yes.
COUNSEL FOR THE DEFENDANT: What about you Mr. [Mark] LaGrange?
MR. MARK LAGRANGE: Same way.

The defendant then challenged the four prospective jurors for cause. In denying the challenge for cause, the trial court stated: “And the reason for the ruling, I find I’m better off saying nothing but I don’t find that that interpretation is necessarily erroneous and I’m going to leave it at that.” The defendant did not object to the trial court’s ruling when his challenges for cause were rejected. The defendant then utilized his peremptory challenges to remove the four jurors.

The record now before us does not reflect whether the defendant objected to |fithe trial court’s ruling on his challenges for cause. Louisiana Code of Criminal Procedure Article 800(A) provides that “[a] defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.” However, in the interest of justice, we will consider this assignment of error. See State v. Hundley, 99-1156 (La.App. 3 Cir. 3/22/00), 760 So.2d 417.

A defendant may challenge a juror for cause when “[t]he juror will not accept the law as given to him by the court.” La. Code Crim.P. art. 797(4). In State v. Schmidt, 99-1412, pp. 29-31 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, 148-49, writ denied, 00-2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002), this court stated:

A criminal defendant has the fundamental right to have a jury determine whether he may be guilty or innocent; whether the state proved all elements of the crime beyond a reasonable doubt. La. Const. art. I, § 17; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Nevertheless, this fundamental right would become meaningless if not guided by the principle that the jury should be impartial in order to ensure that the criminal defendant receives a fair trial. This principle does not mean that a criminal defendant has the right to be tried by a particular type of jury or juror, but it simply means that it is essential that the jury be impartial and competent. State v. McLean, 211 La. 413, 30 So.2d 187 (1947); State v. Lewis, 98-904 (La.App. 3 Cir. 12/9/98); 724 So.2d 830, writ denied, 99-0438 (La.11/12/99); 749 So.2d 649. To ensure that the jury is competent and impartial, La. Const, art. I, § 17 provides safeguards, such as the defendant’s “right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.”
The purpose of voir dire is to test the competency and impartiality of prospective jurors to determine whether they are fit to serve on the jury. Voir dire is designed to uncover information about the prospective jurors, which may be used as a basis for challenges for cause or exercise of peremptory challenges. State v. Berry, 95-1610 (La.App. 1 Cir. 11/8/96); 684 So.2d 439, writ denied, 97-0278 (La.10/10/97); 703 So.2d 603. When a defendant exposes the partiality of a juror, the juror may not be automatically excluded for cause. The state or the trial court may rehabilitate the juror by asking questions and obtaining answers | (¡demonstrating the juror’s ability to decide the case impartially pursuant to law and evidence. Ultimately, the trial court has the power to determine whether or not a juror may be excused for cause. State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97); 692 So.2d 612, writ denied, 97-2761 (La.2/20/98); 709 So.2d 773.

To succeed on appeal with the claim that the trial court erroneously denied the challenge of a prospective juror for cause, a defendant must exhaust his peremptory challenges and show that the trial court’s denial of his challenge for cause was an abuse of discretion. State v. Cross, 93-1189 (La.6/30/95); 658 So.2d 683; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, appeal after remand, 97-0177 (La.3/4/98), 712 So.2d 8, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998); Turner, 692 So.2d 612. Once these factors have been established, prejudice is presumed and need not be shown by the defendant. Id.; Cross, 658 So.2d 683. In Cross, the Louisiana Supreme Court stated that a trial court’s erroneous ruling on a challenge for cause, depriving the defendant of one of his peremptory challenges, “constitutes a substantial violation of [the defendant’s] constitutional and statutory rights, requiring reversal of the conviction and sentence.” In Turner, 692 So.2d 616, we wrote:

The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion. State v. Robertson, 630 So.2d 1278. “A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, where subsequently, on further inquiry or instruction, [the juror] has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence.” Cross, 658 So.2d 687. See also State v. Welcome, 458 So.2d 1235 (La.1983), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 152; State v. Passman, 345 So.2d 874, 880 (La.1977).

It is undisputed that the defendant utilized all twelve of his peremptory challenges. Thus, the question on appeal is whether or not the trial court’s denial of the defendant’s challenges for cause constituted an abuse of discretion.

The mere fact that a prospective juror has stated an opinion that is prejudicial to the defense is not in itself sufficient to warrant a challenge for cause if a further inquiry demonstrates the prospective juror’s “ability and willingness to decide the Lease impartially according to the law and evidence.” State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 1089, 1109, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002). See also, State v. Taylor, 03-1834 (La.5/25/04), 875 So.2d 58.

In the matter now before us, and unlike Ball and Taylor, neither the state nor the trial court attempted to rehabilitate the prospective jurors concerning their ability to follow the law as instructed by the trial court. Our courts have consistently found reversible error when prospective jurors have expressed unwillingness or uncertainty in following the applicable law and where rehabilitation by the trial court was unsuccessful or did not occur. See State v. Bozeman, 08-897 (La.App. 5 Cir. 1/27/04), 866 So.2d 1029; State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612, writ denied, 97-2761 (La.2/20/98), 709 So.2d 773; State v. James, 459 So.2d 1299 (La.App. 1 Cir.1984), writ denied, 463 So.2d 600 (La.1985); State v. Sheppard, 350 So.2d 615 (La.1977).

In the matter before us, we are left with four jurors who stated emphatically that they would find the defendant guilty based on his mere knowledge of the crime and presence at the scene. Given the fact that the defendant’s entire defense was based on his attempt to withdraw from the criminal enterprise, we do not know whether these jurors based their verdict on their opinion of the law or a disbelief in the defense’s version of the facts. Thus, we conclude that the trial court abused its broad discretion in rejecting the defendant’s challenges for cause, and that the defendant’s fundamental right to have his fate decided by an impartial jury was violated by this abuse of discretion.

We find merit in the defendant’s third assignment of error. In doing so, we set aside the conviction and sentence, and remand the matter to the trial court for a new 1 Rtrial. Because we find merit in the third assignment of error, we need not consider the defendant’s final assignment of error.

DISPOSITION

For the foregoing reasons, we reverse the defendant’s conviction, set aside his sentence, and remand this matter to the trial court for a new trial.

REVERSED AND REMANDED.