author: | WOODARD, Judge. | WOODARD, Judge.

text:
    John PEREZ, et al. v. FERRELLGAS, INC., et al.
    No. 02-1035.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 2003.
    Order Granting Rehearing in Part Oct. 1, 2003.
    Michael C. McMullen, Kansas City, MO, Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Interve-nor/Appellant: Ferrellgas, Inc.
    J.B. Jones, Jr., Jennifer Jones Bercier, The Jones Law Firm, Cameron, LA, Philip G. Hunter, Hunter & Morton, Alexandria, LA, for Plaintiffs/Appellants: Brent Michael Benoit, Clara Benoit, as tutrix of Ashley Shay Benoit, Herman R. Benoit, Michael Bonin, Keisha Marke Leger Stevens, as tutrix of Christopher Leger, Clarence W. and Sally Britt, William John Britt, Jeffery W. Kebodeaux, Loyce Kebo-deaux, Wilfred W. Kebodeaux, Alice Mae Perez, John Perez, Joseph Stephen Perez, Jr., Angela Thibodeaux, Melvin Thibo-deaux, and Mildred Thibodeaux.
    John W. deGravelles, deGravelles, Pal-mintier, Holthaus & Fruge, Baton Rouge, LA, Daniel Keith Wall, Marcantel & Mar-cantel, Jennings, LA, for Plaintiffs/Appellants: Angela Thibodeaux, Mildred Thibo-deaux, and Melvin Thibodeaux.
    Michael Hyman, Hyman Law Firm, Baton Rouge, LA, Edgar Dean Gankendorff, Oats & Hudson, New Orleans, LA, for Intervenors/Appellants: Continental Insurance Company and Wright Enrichment, Inc.
    Michael J. Remondet, Jr., Peter B. Der-ouen, Jeansonne & Remondet, Lafayette, LA, for Intervenors/Appellants: Ferrell-gas, Inc. and TIG Insurance Company.
    Louis C. LaCour Jr., Adams and Reese, New Orleans, LA, John E. McElligott Jr., Davidson, Meaux, Sonnier, McElligott & Swift, Lafayette, LA, Steven G. Emerson, Thomas H. Davis, Stinson, Morrison, Hecker, Kansas City, MO, for Defendants/Appellees: Empiregas Inc. of Lake Charles, Empiregas Corporation, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    Larry A. Stewart, Stafford, Stewart & Potter, Alexandria, LA, David R. Frohn, Frohn & Thibodeaux, Lake Charles, LA, for Defendant/Appellee: National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    Bruce D. Beach, Nora M. Stelly, Allen & Gooch, Lafayette, LA, for Defendants/Ap-pellees: Webstone Company, Inc., Goddard Industries, Inc., United States Fire Ins. Co., and North Rivers Insurance Co.
   | WOODARD, Judge.

For the reasons assigned this day in Bonin v. Ferrellgas, 02-1031, 855 So.2d 781 (La.App. 3 Cir. 8/6/03), we reverse the judgment of the trial court, and cast the costs of this appeal on Empire.

REVERSED AND RENDERED.

ON REHEARING

| WOODARD, Judge.

For the reasons assigned this day in Bonin v. Ferrellgas, 02-1031 (La.App. 3 Cir. 8/6/03), 856 So.2d 781, we grant the rehearing in part and deny it in part.

REHEARING GRANTED IN PART, DENIED IN PART.


source: Caselaw Access Project

author: I íWOODARD, Judge. |,WOODARD, Judge.

license: Public Domain

text:
    Angela THIBODEAUX, et al. v. FERRELLGAS, INC., et al.
    No. 02-1036.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 6, 2003.
    Order Granting Rehearing in Part Oct. 1, 2003.
    Michael C. McMullen, Kansas City, MO, Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Interve-nor/Appellant: Ferrellgas, Inc.
    J.B. Jones, Jr., Jennifer Jones Bercier, The Jones Law Firm, Cameron, LA, Philip G. Hunter, Hunter & Morton, Alexandria, LA, for Plaintiffs/Appellants: Brent Michael Benoit, Clara Benoit, as tutrix of Ashley Shay Benoit, Herman R. Benoit, Michael Bonin, Keisha Marie Leger Stevens, as tutrix of Christopher Leger, Clarence W. and Sally Britt, William John Britt, Jeffery W. Kebodeaux, Loyce Kebo-deaux, Wilfred W. Kebodeaux, Alice Mae Perez, John Perez, Joseph Stephen Perez, Jr., Angela Thibodeaux, Melvin Thibo-deaux, and Mildred Thibodeaux.
    John W. deGravelles, deGravelles, Pal-mintier, Holthaus & Fruge, Baton Rouge, LA, Daniel Keith Wall, Marcantel & Mar-cantel, Jennings, LA, for Plaintiffs/Appellants: Angela Thibodeaux, Mildred Thibo-deaux, and Melvin Thibodeaux.
    Michael Hyman, Hyman Law Firm, Baton Rouge, LA, Edgar Dean Gankendorff, Oats & Hudson, New Orleans, LA, for Intervenors/Appellants: Continental Insurance Company and Wright Enrichment, Inc.
    Michael J. Remondet, Jr., Peter B. Der-ouen, Jeansonne & Remondet, Lafayette, LA, for Intervenors/Appellants: Ferrell-gas, Inc. and TIG Insurance Company.
    Louis C. LaCour Jr., Adams and Reese, New Orleans, LA, John E. McElligott Jr., Davidson, Meaux, Sonnier, McElligott & Swift, Lafayette, LA, Steven G. Emerson, Thomas H. Davis, Stinson, Morrison, Heeker, Kansas City, MO, for Defendants/Appellees: Empiregas Inc. of Lake Charles, Empiregas Corporation, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    Larry A. Stewart, Stafford, Stewart & Potter, Alexandria, LA, David R. Frohn, Frohn & Thibodeaux, Lake Charles, LA, for Defendant/Appellee: National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    Bruce D. Beach, Nora M. Stelly, Allen & Gooch, Lafayette, LA, for Defendants/Ap-pellees: Webstone Company, Inc., Goddard Industries, Inc., United States Fire Ins. Co., and North Rivers Insurance Co.
   I íWOODARD, Judge.

For the reasons assigned this day in Bonin v. Ferrellgas, 02-1031, 855 So.2d 781 (La.App. 3 Cir. 8/6/03), we reverse the judgment of the trial court, and cast the costs of this appeal on Empire.

REVERSED AND RENDERED.

ON REHEARING

|,WOODARD, Judge.

For the reasons assigned this day in Bonin v. Ferrellgas, 02-1031 (La.App. 3 Cir. 8/6/03), 855 So.2d 781, we grant the rehearing in part and deny it in part.

REHEARING GRANTED IN PART, DENIED IN PART.


author: |, PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Dexter Randell CRUTCHFIELD, Appellant.
    No. 37,539 KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 2003.

      Stephen A. Glassell, William C. Monroe, Shreveport, for Appellant.
    Schuyler Marvin, District Attorney, R. Lane Pittard, Randall Smith, Assistant District Attorneys, for Appellee.
    Before PEATROSS, DREW & MOORE, JJ.
   |, PEATROSS, J.

Defendant, Dexter Randell Crutchfield, was charged with two counts of armed robbery, in violation of La. R.S. 14:64. The two counts of armed robbery were based on his arrests for two separate offenses. Defendant agreed to plead guilty to one count of armed robbery in exchange for the State’s agreement that the other count would be dismissed. After Defendant’s guilty plea, the trial court sentenced him to serve a term of 25 years at hard labor. Defendant moved for reconsideration of his sentence, but this motion was denied. Defendant now appeals his sentence as excessive. For the reasons stated herein, we affirm.

FACTS

On the night of June 6, 2001, Jeff McCuen (“McCuen”), the shift manager at an Arby’s restaurant in Bossier City, went to the branch of Regions Bank on East Texas Street to make a deposit. As McCuen pulled into the drive through area at the bank, Defendant got out of the passenger side of a car which had turned into the facility behind McCuen. Defendant approached McCuen’s truck and pointed a handgun at him, demanding the money. McCuen, startled by Defendant, tried to drive away; but, in so doing, he hit Defendant and pushed him through a window of the bank building. At that point, Defendant’s accomplice, who was driving the other car, drove away from the scene. Defendant got up and pointed his weapon a second time at McCuen, again demanding the money. McCuen threw the | ¡¡.bank bag holding the deposit out of his vehicle. Defendant picked up the bag and fled on foot. McCuen reported the robbery and the license plate number to the police. Defendant was caught near the crime scene a short time later with the money in his pocket. He confessed and named his accomplice in the instant offense, as well as an accomplice from an earlier robbery. Both of those persons later pled guilty to reduced charges.

As previously stated, Defendant pled guilty to one count of armed robbery. On appeal, Defendant argues that the trial court erred in denying his motion to reconsider his sentence because it failed to consider his cooperation with authorities; that he had been a model prisoner since being arrested on the instant charge; that he was 23 when he committed this offense; that he had been raised by a caring and devoted mother; that he was an active participant in church as a teenager; that he resorted to criminal behavior to support his drug addiction; and that he will have to serve 85 percent of his sentence before being eligible for release. Defendant also argues that the trial court imposed on him an unconstitutionally excessive sentence.

DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. It is the goal of La. C.Cr.P. art. 894.1 to provide a factual basis for the sentence imposed, thus providing a record that will allow for a reasoned review of the sentence. State v. Lanclos, 419 So.2d 475 (La.1982).a The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Scott, 36,763 (La.App.2d Cir.1/29/03), 836 So.2d 1180. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos, supra.

The second prong used to determine if a defendant’s sentence is excessive is to examine whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Where a defendant has Upled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. Id. Absent a showing of manifest abuse of the trial judge’s discretion, a reviewing court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

Prior to imposing sentence in the case sub judice, the trial judge reviewed Defendant’s Pre Sentence Investigation (PSI) report and considered the facts of the case. Defendant, then 25 years old, had adult convictions for simple theft, simple robbery bargained down from armed robbery and forgery. He had arrests for numerous traffic offenses and one for possession of a firearm by a convicted felon. Defendant was a third-felony offender. In mitigation, the trial judge noted that Defendant had cooperated with the authorities, admitted his culpability in the instant offense and had shown remorse. The trial judge, however, determined that a lesser sentence would deprecate the seriousness of the offense, noting that Defendant’s third-offender status would have subjected him to an extensive period of imprisonment had he been so charged. Finally, the trial judge expressed his belief that Defendant was in need of correctional treatment.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. The trial judge in the instant case was aware of Defendant’s social, educational and employment record through the PSI report. He received letters in support of Defendant from Defendant’s mother and from the adult education director of the parish sheriffs office prior to the denial of Defendant’s motion for reconsideration of his sentence. The trial judge considered these before he imposed the sentence.

Our review of the record in the case sub judice shows an adequate factual basis for the sentence imposed on Defendant. On this record, we do not find constitutional error. We note that Defendant has a pri- or conviction for simple robbery, which was bargained down from a charge of armed robbery. He received leniency from the State in the case sub judice through its agreement to dismiss an unrelated charge of armed robbery, a conviction for which would have exposed him to a consecutive sentence of 10 to 99 years, even without the filing of an habitual offender bill. The sentence imposed, which is only one quarter of what could have been imposed on Defendant, is lawful. Considering Defendant’s record and the facts and circumstances of this case, we find that the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction, nor is it shocking to our sense of justice. There is no showing of an abuse of the trial judge’s discretion in the imposition of this sentence, which is not constitutionally excessive. Accordingly, Defendant’s assignments of error are without merit.

^CONCLUSION

For the foregoing reasons, the sentence imposed on Defendant, Dexter Randell Crutchfield, is affirmed.

AFFIRMED.

      . The trial court failed to state that Defendant's sentence was to be served without benefits. Failure to state sentence is without benefits will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Klasek, 37,114 (La.App.2d Cir.4/11/03), 843 So.2d 646.


author: JjPEATROSS, J.

text:
    Thomas SWEENEY, Plaintiff-Appellant, v. GEICO INDEMNITY COMPANY, H & W Demolition, Inc., Lee Carter and Underwriters Insurance Company, Defendants-Appellees.
    No. 37,608-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 2003.

      Ronald J. Miciotto, Shreveport, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, Shreveport, for Ap-pellees.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   JjPEATROSS, J.

This appeal arises from a personal injury action by Plaintiff/Appellant, Thomas Sweeney, whose vehicle was struck from behind by a vehicle operated by Lee Carter while in the course and scope of Mr. Carter’s employment with H & W Demolition, Inc. The vehicle Mr. Carter was driving was owned by H & W Demolition, Inc. and was insured through Underwriter’s Insurance Company. Both H & W Demolition Inc. and Underwriter’s Insurance Company were named as defendants along with Mr. Carter (collectively referred to herein as “Defendants/Appellees”). The trial court found that the accident was the sole fault of Mr. Carter and awarded Mr. Sweeney medical expenses in the amount of $5,566; property damage of $3,198; and $12,500 in general damages, for a total award of $21,264. The only issue raised on appeal concerns the amount of the general damage award. Mr. Sweeney has appealed, asserting that the trial court’s $12,500 general damage award is abusively low and Defendants/Appellees answered the appeal, arguing that the award is abusively high. For the reasons set forth herein, we affirm the trial court’s judgment.

FACTS

Following the trial of this matter, the trial court issued written findings of fact and reasons for judgment. After reviewing the record, we | ^conclude that the following factual findings, taken verbatim from the trial court’s written factual findings, are correct and/or unchallenged on appeal:

1) on July 17, 2000, Thomas Sweeney was traveling east on Shreveport-Blanchard Highway when his vehicle was struck from the rear by a vehicle driven by Lee Carter; 2) at the time of the accident, Mr. Carter was in the course and scope of his employment with H & W Demolition, Inc. Underwriters Insurance Company had issued a policy of insurance to H & W Demolition, Inc. which provided liability coverage to H & W Demolition, Inc. and Lee Carter for damages incurred by third parties as a result of Mr. Carter’s negligence;
3) following the impact, Mr. Sweeney did not appear to be injured, but a [sic ] shortly after the accident he began to complain of pain in his left knee and back;
4) on June 24, 2000, Mr. Sweeney was seen by Dr. A.R. Ebrahim, a local internist, with complaints of left knee and left elbow pain. On examination, Dr. Ebra-him found no bruising of the knee, but noted complaints of pain during the examination. He found no problem with the left elbow during his examination. Dr. Ebrahim prescribed a course of physical therapy to relieve Mr. Sweeney’s symptoms and heal the soft tissue injuries;
5) on August 22, 2000, Mr. Sweeney returned to Dr. Ebrahim with continued complaints of pain in his knee, lumbar, and left foot. Dr. Ebrahim noted that Mr. Sweeney had not been attending physical therapy, and stated that his failure to do so had delayed the healing process;
6) on September 14, 2000, Mr. Sweeney returned to see Dr. Ebrahim with complaints of left knee pain, but no complaints of back or foot pain. Some swelling of the knee was noted during the examination, and the knee was aspirated;
7) on November 6, 2000, Mr. Sweeney saw Dr. Ebrahim and complained of low back pain, the onset having occurred about five days prior to his visit. Dr. Ebrahim was unable to relate the back pain to the accident which is the subject of this suit. There were no complaints of knee pain on this visit;
|¡¡8) on January 5, 2002 [sic], an MRI was performed on Mr. Sweeney’s back which revealed mild scolioses [sic], a degenerative disc bulge at L4-5, and minimal changes at Ll-2;
9) on April 24, 2001, Mr. Sweeney saw Dr. Austin Gleason, a local orthopedic surgeon for complaints relating to his left knee and back. Dr. Gleason’s examination revealed an increased lordotic curve in the lower back and complaints of pain during the examination. Mr. Sweeney’s knee had some limited range of motion. Dr. Gleason’s impression was that Mr. Sweeney had chronic back syndrome and chronic knee pain;
10) on May 4, 2002 [sic ], an MRI was performed on Mr. Sweeney’s left knee which showed a possible tear of the anterior cruciate ligament. He was given a support and told about the possible need for surgery;
11) on August 3, 2001, Mr. Sweeney saw Dr. Gleason’s partner, Dr. Jones, and reported that his knee was better, but that he was experiencing some numbness in his left foot;
12) on August 21, 2001, Mr. Sweeney saw Dr. Jones with complaints of low back and lower extremity pain. Although treatment options were discussed, including injections, Mr. Sweeney did not have those performed;
13) on August 27, 2001, Mr. Sweeney returned to see Dr. Gleason with complaints of increased back and leg pain. Examination revealed a marked decrease in his range of motion in his back, and Dr. Gleason recommended that another MRI be performed;
14) Mr. Sweeney did not have the MRI or other treatment options performed, and did not return to see Dr. Gleason or his partner after August 27, 2001;
15) Dr. Gleason testified that based upon Mr. Sweeney’s history that he had no prior back or knee problems, he would relate those injuries to the accident on July 17, 2000. However, the evidence at trial revealed that Mr. Sweeney did have a significant prior injury to his knee in December 1999, and that Mr. Sweeney had injured or reinjured his back in November, 2000 after having gone several months without complaining of any back pain;
16) as a result of the accident, Mr. Sweeney incurred the following medical expenses:
|4 Dr. A.R. Ebrahim $1,276.00
Dr. Austin W. Gleason and Lewis Jones 3,509.00
Radiology Imaging Associates 306.00
Dr. David N. Adams 475.00
17)as a result of the accident, Mr. Sweeney’s vehicle was a total loss. The market value of the vehicle on the day of the accident was $3,750.00 and the salvage value was $558.00. Mr. Sweeney is entitled to recover $3,198.00 as his property damage.

Based upon the preceding written findings of fact and the record presented, the trial court concluded that the sole cause of the accident was Mr. Carter’s negligence. With respect to general damages, the trial court concluded:

Based upon the nature and extent of Mr. Sweeney’s soft tissue injuries, the expert medical testimony presented at trial, the course and continuity of Mr. Sweeney’s medical treatment, and Mr. Sweeney’s prior medical history, an appropriate general damage award in this case is $12,500.00.

As previously stated, Mr. Sweeney appealed the trial court’s judgment and Defendants/Appellees answered the appeal.

DISCUSSION

On appeal, Mr. Sweeney argues that the trial court awarded an abusively low amount for general damages because he endured great pain and suffering and his injuries prevented him from taking on more manual labor projects, thereby costing him income he could have earned if he were not limited by recurring physical problems. Mr. Sweeney asserts that the trial court awarded $12,500 in general damages because it found that he had a significant injury to his knee in December 1999, and injured or re-injured his back in November 2000, after having gone several months without complaining of any back pain. Mr. Sweeney asserts, however, that he was |Bno longer seeking treatment for the 1999 injury to his knee and that he had healed from that injury prior to the accident at issue. Further arguing that the defendant takes his victim as he finds him, Mr. Sweeney argues that Defendants/Ap-pellees are responsible for the new injury to his knee, as well as for his lower back injury, and that the trial court abused its discretion by awarding an excessively low amount of general damages based on the fact that Mr. Sweeney had a prior knee injury.

Defendants/Appellees argue on appeal that Mr. Sweeney was not significantly injured by the accident; they note that Mr. Sweeney complained of no injury at the scene and continued to work after the accident. They also note that, while Dr. Gleason testified that, based on Mr. Sweeney’s medical history, the back and knee problems were related to the accident, Dr. Ebrahim, as Mr. Sweeney’s treating physician, testified that he could not relate those problems to the accident because Mr. Sweeney did not complain of back pain until several weeks after the accident. According to Defendants/Appellees, the history given to Dr. Gleason was “obviously incorrect” and Dr. Ebrahim’s testimony should be entitled to greater weight because Dr. Gleason did not treat Mr. Sweeney until nine months after the accident.

Defendants/Appellees assert that the trial court’s award was abusively high, again noting that the treating physician concluded that Mr. Sweeney’s back problems were not related to the accident and that, if, in fact, Mr. Sweeney had sustained an aggravation of a prior knee injury, any such aggravation was minimal and resolved within a short period of time.

hln assessing damages in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1. Due to the great discretion given to the trial court, an appellate court rarely disturbs an award of general damages; only when the record clearly shows that the trial court abused its discretion in awarding damages in either direction beyond that which a reasonable trier of fact would assess for the effects of a particular injury on a particular party under the particular circumstances should an appellate court either increase or decrease the award. 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); Morris v. Flores, 36,932, 36,933 (La.App.2d Cir.3/7/03), 840 So.2d 1257.

We detect no manifest error in the trial court’s ruling on general damages. Although Mr. Sweeney, as previously noted, argues that the trial court awarded $12,500 in general damages because the court found that he had a significant injury to his knee in December of 1999, and injured or re-injured his back in November 2000 after going several months without complaining of back pain, the trial court’s written findings of fact and reasons for judgment, quoted verbatim above, simply do not read that way. The trial court did state that the evidence at trial revealed that Mr. Sweeney had a “significant prior injury” to his knee in December 1999 and that Mr. Sweeney had injured or re-injured his back in November 2000, after having gone several months without complaining of any back pain; but the trial court did not state how much Mr. Sweeney’s prior injury to his knee may have contributed to his knee problems following the accident, nor did |7the trial court indicate, with reference to assessing general damages for Mr. Sweeney’s back problems, how much weight the trial court may have attributed to the evidence that Mr. Sweeney had injured or re-injured his back in November 2000. Instead, the trial court’s reasons for judgment indicate that the damage assessment was based not only on Mr. Sweeney’s prior medical history, but also on his soft tissue injuries, the expert medical testimony and the course and continuity of his treatment. The trial court was entitled to consider the evidence of other injuries or re-injuries as part of the calculus for determining general damages; and, without some indication from the court as to how much weight the court gave to the various factors considered, we cannot conclude that the trial court’s decision was manifestly erroneous.

For similar reasons, we reject the Defendants/Appellees’ answer requesting a reduction in general damages. Items of evidence cited by Defendants/Ap-pellees, including the facts that Mr. Sweeney did not attend all his physical therapy and that Dr. Ebrahim was unable to relate Mr. Sweeney’s back pain to the accident, do support our decision not to increase general damages, but do not convince us that the trial court was clearly wrong in not awarding less general damages. There is evidence in the record, including expert medical testimony, supporting a factual finding that Mr. Sweeney suffered back and knee injuries as a result of the accident. While there was a conflict in the testimony in this regard, we note that, where such a conflict occurs, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even | «though the appellate court may feel that its own evaluations and inferences are as reasonable as the trial court’s. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

We neither find the evidence to so contradict Mr. Sweeney’s testimony, nor find his testimony itself so internally inconsistent or implausible on its face, that the trial court could not have credited his story enough to warrant the general damage award in this case. Accordingly, just as we decline to raise the general damage award, we also decline to lower the award; the record before us does not show manifest error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs shall be shared equally by Plaintiff/Appellant, Thomas Sweeney, and Defendants/Appel-lees, H & W Demolition, Inc., Lee Carter and Underwriters Insurance Company.

AFFIRMED.

      . Geico Casualty Company and Government Employees Insurance Company, incorrectly named in the petition and caption as “Geico Indemnity Company”, was originally a named defendant, but was dismissed without prejudice from the suit via a Joint Motion for Partial Dismissal and Reservation of Rights based on a compromise and settlement.

      . In their answer to the appeal, Defendants/Appellees also challenged the apportionment of fault and requested that this court reapportion the fault, allocating a percentage of fault to Mr. Sweeney. This issue was expressly abandoned in Defendants/Appellees' brief.


text:
    STATE of Louisiana, Appellee, v. Jearl Ramsey PLUNKETT, Appellant.
    No. 37,306-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 2003.

      Louisiana Appellate Project, by Carey J. Ellis, III, Indigent Defender Board, for Appellant.
    Schuyler Marvin, District Attorney, Jason Trevor Brown, Andrew C. Jacobs, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY & PEATROSS, JJ.
   JjPEATROSS, J.

Defendant, Jearl Ramsey Plunkett, was convicted by a jury of the aggravated rape of T.W., a minor child under the age of 12 years, and was sentenced to serve the mandatory term of life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. In this appeal, Defendant argues that the evidence produced at trial was insufficient to support his conviction. For the reasons stated herein, we affirm.

FACTS

The record shows that, on September 18, 1999, four-year-old T.W. spent the night with Defendant, who was a close friend of the family. Apparently, Defendant often baby-sat T.W. when her mother worked or went out. T.W. slept in the same bed with Defendant on the night of September 18. The minor victim later told her mother and a friend of her mother that Defendant played a game with her in which he tied something over her eyes, which she believed was white, and put an object into her vagina. T.W. was taken to the local hospital to be examined and, subsequently, to the coroner’s office where a rape examination was performed. The rape examination revealed evidence of vaginal penetration. T.W.’s vagina was reddened and abraded. The hymen was abraded and blood was evident.

On October 18, 1999, Defendant was charged by bill of information with molestation of a juvenile. On December 10, 1999, following a grand jury indictment, the charge was amended to aggravated rape of a person under the age of 12 years.

LA search of Defendant’s home revealed a white rag in his bedroom, similar to the one described by the victim. A pair of T.W.’s soiled panties were recovered from her mother. The record indicates that these panties became soiled from Defendant’s semen that leaked from the young victim. The panties were examined by Northwest Louisiana Crime Lab and found to contain sperm that was matched to Defendant. Although Defendant attempted to provide an explanation during trial that he used the panties to wipe himself after he masturbated, this testimony was rebutted by T.W.’s mother. She testified that she changed T.W.’s panties that she wore to Defendant’s home because they were bloodied. She stated that the second pair of panties, worn by the victim the day after the rape and given to detectives by the mother, had come from a stack of recently cleaned laundry in her house and Defendant could not have had access to this particular pair of panties.

After a jury trial, Defendant was found guilty as charged by 11 members of the jury on September 12, 2002. On November 18, 2002, Defendant was sentenced to mandatory life in prison without the benefit of parole, probation or suspension of sentence.

DISCUSSION

The only issue on appeal is the sufficiency of the evidence at trial to support Defendant’s conviction of the aggravated rape of four-year-old T.W. The question of sufficiency of evidence is an issue properly raised in the trial court by a motion for post-verdict judgment of acquittal under La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Although the record does not reflect that Defendant filed a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 00-3070 (La.10/26/01), 799 So.2d 1150, 01-2087 (La.4/19/02), 813 So.2d 424. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence |4must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255.

In the case sub judice, Defendant was indicted by a grand jury on the charge of aggravated rape of T.W., a four-year-old female, in violation of La. R.S. 14:42 A(4), which defines aggravated rape as:

a. A rape committed upon a person sixty-five years of age or older or where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under anyone or more of the following circumstances:
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

La. R.S. 14:41 defines rape as:

A. The act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.

During a four-day jury trial, the State presented the testimonies of the victim, T.W. (via videotape), her mother, a friend of the victim’s mother, the investigating detective, the Deputy Coroner who examined T.W. and a forensic scientist.

Deputy Coroner Jo Ann Cook, a certified nurse practitioner, performed the rape examination on T.W. and testified as an expert in rape examinations and sexual assault. Deputy Coroner Cook testified that there was physical evidence of rape and forced trauma on the victim’s vagina and hymen. This evidence was indicative or could be associated with the penetration of a male’s penis. She further testified that there was a lot of redness around the victim’s vaginal vulva area. In Deputy Coroner Cook’s expert opinion, the majority of the injuries were internal, mainly of the hymen. She testified that four-year-old T.W.’s hymen was “bruised and very, very red and abraded.”

Detective Angela Cropper with the Webster Parish Sheriffs Department investigated the alleged rape. Detective Cropper testified that a 1 r,white cloth, similar to the one described by T.W., was found during a search of Defendant’s residence. Detective Cropper further testified that she was given a pair of soiled panties worn by the victim the day after the rape occurred and that she submitted the panties to the Northwest Louisiana Crime Lab in Shreveport for testing.

Michelle Gaines, a forensic scientist, testified as an expert in DNA analysis. Ms. Gaines analyzed the panties sent from Detective Cropper and testified that the soiled matter in the crotch of the victim’s panties was semen and that the soiled matter was 186 billion times more likely to be a mixture of DNA from the victim, T.W., and Defendant, than a mixture of DNA from T.W. and some other unknown individual. Regarding the soiled panties recovered by Detective Cropper, Deputy Coroner Cook explained that, if penile penetration and ejaculation had occurred in the victim, the stains in the victim’s panties would be consistent with seminal leakage. She confirmed that, if there had been ejaculation inside of T.W., the location of the stain would be where the seminal fluid would leak out. She also explained that, due to T.W.’s young age, the female hormone estrogen is not present; and, therefore, it would take hours for any seminal leakage to occur.

T.W.’s mother and her mother’s close friend testified, each describing how the rape was discovered and reported. Both women testified that T.W. came to them and informed them that Defendant had played a game with her and he put something over her eyes. The mother’s friend testified that T.W. |7said that the game hurt and she pointed to her vaginal and lower abdominal regions.

T.W.’s mother testified that after she brought T.W. home on September 19, she noticed that T.W.’s panties were dirty and thought that T.W. had “messed on herself.” She attempted to give T.W. a bath, but T.W. would not let her mother take her clothes off. The mother then testified that she changed T.W.’s panties and she saw blood in the panties. She stated that she washed this first pair of panties that T.W. had on when she came back from Defendant’s house and that the soiled panties she gave Detective Cropper were the panties that she had put on the victim after removing the bloodstained panties. She also stated that no one else had access to her laundry.

Janice Reliford, the forensic interviewer at the Gingerbread House, interviewed T.W. at the request of Detective Cropper. Ms. Reliford found T.W. to be credible and further found her account to be consistent throughout the interview as far as the events that took place with Defendant. Ms. Reliford testified that T.W. said that men had “sticks” and women had “boobs and butts.” In her opinion, the victim knew the female and male sexual organs, but referred to them in this manner. She also testified that she asked T.W. if Defendant put his “stick” in her “butt” or where he put it, and T.W. pointed to the female doll’s buttocks as well as general vaginal area.

| ^Defendant testified on his behalf and attempted to explain how his semen was found in the crotch of T.W.’s panties. He stated that, after masturbating in his room, his grandmother knocked on his door and he used a pair of T.W.’s panties to wipe himself off. Defendant later stated that, on the night in question, T.W. only took her shirt off and put on a t-shirt that he had for her to sleep in. He stated that T.W. put on the soiled panties Sunday morning, prior to going home. Contradictory testimony was elicited from T.W.’s mother’s friend, however, who testified that she had never seen, on the night in question or any other previous occasion, any of T.W.’s clothes given to Defendant when he was to babysit her. She testified that T.W. would go and return home in the same clothes she was wearing when she left.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, supra. This record contains sufficient evidence to support Defendant’s conviction of aggravated rape. Defendant’s assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Defendant’s, Jearl Ramsey Plunkett, conviction is affirmed.

AFFIRMED.

      . The Gingerbread House is the Children’s Advocacy Center in Shreveport where children who are suspected victims of sexual abuse are taken by police officers or Office of Community Services personnel. It provides a child-friendly environment in which the children are interviewed in reference to alleged abuse.


author: JjWILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Hozey Falicinno IVERSON, Appellant.
    No. 37,369-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      G. Paul Marx, Lafayette, for Appellant.
    Hozey Falicinno Iverson, Pro Se.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   JjWILLIAMS, J.

The defendant, Hozey F. Iverson, was charged by bill of information with possession of a controlled dangerous substance, to-wit: cocaine, second offense, a violation of LSA-R.S. 40:967(C) and 40:982. After a jury trial, the defendant was found guilty as charged. The trial court adjudicated defendant a third felony offender and imposed the mandatory sentence of life imprisonment without the benefit of parole, probation or suspension of sentence. Defendant’s motions to quash the multiple offender bill, for new trial and for post verdict judgment of acquittal were denied. Defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 4, 1999, at approximately 1:45 a.m., the defendant’s vehicle was being pursued by city of Shreveport Police Officer J.E. Coffey because the defendant was playing the music in his vehicle too loudly. Initially, the defendant attempted to flee by increasing his speed; however, he eventually pulled into a driveway and opened his car door.

When the officer arrived, the defendant was holding his right hand in the upper portion of his overalls. He disregarded the officer’s verbal command to put his hand down and exit the vehicle. The officer pulled out his service weapon and called for backup. After Officers Ramsey and L. Brett Pitman arrived and pulled their weapons, defendant put his hands on his head. Officer Coffey patted down defendant’s chest and felt what the officer believed to be drugs. The defendant got out of the vehicle and was placed on the ground and handcuffed. He was read his Miranda rights and Officer Pitman continued the pat down search of the defendant’s lower | gtorso for weapons. At some point, another officer, Amy Bowman, arrived at the scene.

The defendant was then directed to stand up to allow the officer to conduct a full search of his person incident to his arrest. The officer shook the defendant’s pants legs. After the defendant was moved to be escorted to a patrol car, the officers noticed a large bag of what they suspected to be cocaine on the ground where the defendant had been standing during the full search of his person.

Subsequently, the defendant was charged by bill of information with possession of cocaine. The bill alleged that this charge was a second or subsequent offense under the Uniform Controlled Dangerous Substance Act (CDS). LSA-R.S. 40:967(C); 40:982. It listed defendant’s CDS prior conviction as possession with intent to distribute cocaine. The bill of information was subsequently amended to reflect that the prior CDS conviction was a 1997 conviction for possession of cocaine.

After a hearing, the trial court denied the defendant’s motion to suppress evidence. The state then filed a habitual offender bill of information against the defendant charging him as a third felony offender. The defendant’s motion to quash the multiple offender bill alleged that the enhanced sentence under the habitual offender law would be a prohibited double enhancement because the state had elected to charge him under the CDS statute’s enhanced penalty provision. The trial court denied the motion to quash, finding that different predicates were used for the CDS second offense conviction and the habitual offender sentence enhancement, Defendant was adjudicated a third felony offender and sentenced to life | ^imprisonment at hard labor. Defendant appeals his conviction, adjudication as a third felony offender and sentence.

DISCUSSION

Assignment of Error Number One:

By this assignment, the defendant contends his sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, is illegal because the habitual offender statute was erroneously applied. The defendant argues that once the state elected to charge him under the enhanced penalty provision of the Controlled Dangerous Substance Law, it could not then “double enhance” by fifing a multiple offender bill of information against him. In response, the state argues that there was no double enhancement because the predicate offense for the second offense, CDS was not used in the chain of offenses for the habitual offender proceeding under LSA-R.S. 15:529.1.

LSA-R.S. 15:529.1(D) provides as follows:

D. (l)(a) If at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state or adjudicated a delinquent under Title VIII of the Louisiana Children’s Code for the commission of a felony-grade violation of either the Louisiana Controlled Dangerous Substance Law involving the manufacture, distribution, or possession with intent to distribute a controlled dangerous substance or a crime of violence as fisted in Paragraph (2) of Subsection A of this Section, or has been convicted under the laws of any other state, of the United States, or of any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction or adjudication or delinquency.

In the present case, the state charged defendant as a third felony offender relying on a July 1993 conviction of possession of stolen things |4and a December 1993 conviction of distribution of cocaine as the prior offenses, coupled with the current conviction of Schedule II CDS, second offense. In addition, a March 1997 conviction of possession of cocaine was the predicate offense for defendant’s November 2000 conviction of possession of cocaine, second offense.

In State v. Murray, 357 So.2d 1121 (La.1978), the supreme court stated:

LSA-R.S. 15:529.1 refers generally to “a felony.” It contains no restriction as to the type of felony. Its provisions may be invoked after conviction or after sentence within a reasonable time after the prior felony becomes known. State v. Maduell, 326 So.2d 820 (La.1976); State v. McQueen, 308 So.2d 752 (La.1975). By statute, the district attorney is accorded wide discretion in determining when and how he shall prosecute. LSA-C.Cr.P. Art. 61. When more than one provision of the law applies, the district attorney has the discretion to elect which of the provisions to invoke. LSA-R.S. 14:4.
We discern no reason why this discretion should not apply to the use of the multiple offender procedures as long as the same offense is not used twice to enhance the penalty.

The factual situation in the present case is distinguishable from the facts of State v. Harrison, 32,643 (La.App.2d Cir.10/27/99), 743 So.2d 883, writ denied, 99-3352 (La.6/30/00), 765 So.2d 327. There, we held:

The bill of information charging Harrison with second offense possession of marijuana utilized as the underlying felony the earlier distribution of marijuana conviction in docket no. 30,437. Accordingly, the crime of possession of marijuana, second offense required proof of the predicate offense, distribution of marijuana. Said another way, the distribution of marijuana conviction was an element of the crime of possession of marijuana, second offense. It has been held that the use of both a La.R.S. 14:95.1 conviction, carrying of a firearm by a convicted felon, and the underlying felony used as an element of the firearm conviction to enhance under La.R.S. 15:529.1 constitutes double enhancement. State v. Bailey, 97-493 (La.App. 5th Cir.11/12/97), 703 So.2d 1325; State v. Hymes, 513 So.2d 371 (La.App. 4 th Cir.1987).

State v. Harrison, supra, and State v. Moten, 619 So.2d 683 (La.App. 4th Cir.1993), prohibit the use of an underlying crime and the subsequent status offense together in a multiple offender bill of information to enhance the penalty of another felony conviction.

In State v. Moten, supra, the court stated:

A felon in possession of a firearm conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element of the firearm conviction is not also used in the same multiple bill. State v. Hymes, 513 So.2d 371 (La.App. 4th Cir.1987).

Defendant sought to quash the habitual offender bill in the trial court on the same grounds he now urges on appeal. His argument that the state is trying to enhance the penalty as a third offender using a conviction that has already been enhanced is without merit. Because the 1997 conviction for possession of a controlled dangerous substance was used only once to support the status conviction and is not included in the chain of convictions used in the subsequent habitual offender proceeding, defendant’s position is incorrect. His argument would only be correct if the state had attempted to charge him as a fourth felony offender using the 1997 conviction as one of those four convictions. Here, the state properly charged the defendant as a third felony offender, and the trial court was correct in denying the motion to quash. This assignment of error lacks merit.

Assignment of Error Number Two:

By this assignment, the defendant contends the trial court erred in denying his motion for a mistrial based upon the prosecutor’s reference to |fithe defendant’s choice to remain silent. Defendant argues that questioning by the state, with regard to post-arrest warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is prohibited unless the question is used to lay a foundation for the introduction of a statement. The state argues that the reference to the Miranda warning was indirect and that the trial court’s admonishment to the jury was the correct curative action.

LSA.C.Cr.P. art. 770(3) states, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(3) The failure of the defendant to testify in his own defense; or

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court held that it was a denial of due process for the state to utilize a defendant’s post-arrest silence when cross-examining him at trial in order to impeach his exculpatory trial testimony. The defendant had received post-arrest Miranda warnings.

The court in Doyle stated:

The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. at 177, 95 S.Ct. at 2137.... Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, |7such assurance is implicit to any person who receives such warnings. (Footnotes omitted) 426 U.S. 610 at 618, 96 S.Ct. at 2240 at 2245.

In State v. Montoya, 340 So.2d 557 (La.1976), our supreme court introduced the same principle:

In the instant case the defendant did not take the stand. Thus, there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, we conclude it was clearly reversible error for the trial court to permit the State to use the arrested person’s silence against him at trial. Doyle v. Ohio, supra; cf. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

We find that the holding in State v. Mosley, 390 So.2d 1302 (La.1980), does not support defendant’s position. The facts of the instant case are in line with those found in Mosley, although that opinion does not include the verbatim colloquy of the questioning at issue. In Mosley, the defendant argued that the trial court erred in allowing the prosecutor to ask two police officers testifying for the state whether they had advised the defendant of his constitutional rights at the time of his arrest. He reasoned that such a line of questioning is necessary and relevant only if the state seeks to lay a predicate for the introduction of written or oral statements or confessions made by the defendant. Just as in this case, there was no statement or confession.

The court in State v. Mosley, supra, held:

This Court followed Doyle in State v. Montoya, supra, holding that it was reversible error for the prosecutor to elicit from the arresting officers the fact that the defendant did not respond to police questioning. Defense argues that Montoya governs this case because the pros-ecutorial examination here is also so prejudicial as to constitute reversible error.
* * * *
| «Although we disapprove of the conduct of the prosecuting attorney in this ease, we cannot say that the obligue (sic) and obscure reference to the defendant’s post-arrest silence amount to reversible error. We agree with the defendant that whether he was advised of his rights at the time of arrest was irrelevant. However, the prosecutorial examination did not stress the right to remain silent or attempt to elicit testimony regarding defendant’s failure to respond to police questioning. The prosecutorial actions in this case, albeit improper, cannot be said to have resulted in prejudice to the defense of the accused. In the present case, the state first erred when it asked on direct examination whether or not the defendant had been advised of his Miranda rights. The officer answered that his fellow officer had advised the defendant of his rights. There was, however, no objection to this question and answer.
On re-direct, the state continued:
Q. You stated previously the defendant was Mirandised (sic)?
A. Yes, by Officer Pitman.
Q. In your presence did he make any statements post Miranda?
MR. BOWERS: Your Honor?

A bench conference was held, and the trial court removed the jury from the courtroom. Outside of the presence of the jury, the defense attorney argued that he had raised the objection because he thought there might have been an inculpatory statement of which he was unaware. He further argued that now his objection would appear to the jurors that he was trying to keep evidence of guilt from the jury. Based upon the defense counsel’s objections, and aware of the problem that the state had created, the trial court inquired as to the intent of the state in pursuing this line of questioning.

The state responded to the trial court as follows:

MR. BROSETTE: Your Honor, the State is more than happy to withdraw the question. It was just a question regarding one of the jurors (sic) to be informed that he had been advised of his Miranda rights and he exercised his right to remain silent which is his right which I think the officer has the ability to testify. The State meant no harm by the series_

|9The court then denied the motion for a mistrial and admonished the jury to disregard the question, stating:

The statement — the question asked by Mr. Brossette was properly objectionable. Mr. Bowers properly and timely objected to it. The question was improper and I sustained the objection. You’re to disregard the question.

The trial court’s denial of the motion for mistrial was correct. However, instead of simply continuing the trial without directing the jury’s attention to the last unanswered question, the admonishment under the circumstances presents a further issue for review. In State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, the supreme court also found the explicit admonition troubling. Yet, the court stated:

Although this case, unlike Mosley, involves an explicit mention of the defendant’s post-arrest silence, Doyle condemns only “the use for impeachment purposes of [the defendant’s] silence at the time of arrest, and after receiving Miranda warnings.... ” Doyle v. Ohio, 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d 91 [emphasis supplied]; see State v. Arvie, 505 So.2d 44, 46 (La.1987), wherein we stated “... the prosecutor may not use the fact of an accused’s exercise of his constitutional right to remain silent, after he has been advised of this right, solely to ascribe a guilty meaning to the silence or to undermine by inference an exculpatory version related by the accused for the first time at trial.” In this case, the trial judge’s admonition made the prosecutor’s remarks too obvious to miss, and invited the jurors to wonder why the defendant did not offer his alibi defense to the police at the time of his arrest.
Nevertheless, in brief, counsel does not dispute the state’s claim that it did not affirmatively exploit the testimony to impeach the defendant’s exculpatory account offered at trial. In the absence of that affirmative misconduct by the state, reasonable jurors may have understood the testimony in the way that the first circuit took the remarks, as a description of how the police investigation culminated in the formal arrest of the defendant with the routine incidents of custody, e.g., the reading of Miranda warnings to the person arrested. Accordingly, we find this assignment does not present reversible error.

ImThe prosecutor’s questions with regard to whether defendant was advised of his rights and made any statements post-Miranda are troubling and are not favored by this court. However, after reviewing the record, we cannot say the trial court erred in concluding that the state’s questioning fell within the range of error which required a mistrial. The questioning presents no reversible error. Likewise, we do not find any reversible error in the trial court’s decision to admonish the jury rather than to give no admonishment at all.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction for possession of controlled dangerous substance, second offense, is affirmed. Defendant’s adjudication as a third felony offender and his sentence are affirmed.

CONVICTION AFFIRMED; ADJUDICATION AS A HABITUAL OFFENDER AND SENTENCE AFFIRMED.


author: | TRAYLOR, Judge Pro Tempore.

text:
    Kenneth GRAY, Plaintiff-Appellant, v. Kenneth CROCKER d/b/a, Grand Cane Plumbing Co. and LWCC, Defendants-Appellees.
    No. 37,683-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Kenneth Gray, In Proper Person, for Appellant.
    Johnson, Stiltner & Rahman, by Phillip M. Hendry, for Appellees.
    Before GASKINS, PEATROSS and TRAYLOR (Pro Tempore), JJ.
   | TRAYLOR, Judge Pro Tempore.

Kenneth Gray (“Gray”) appeals from a judgment of the Office of Workers’ Compensation (the “OWC”) dismissing his claim for medical benefits. For the following reasons, we affirm.

FACTS

On or about February 1, 1995, Gray was injured on the job while working for Kenneth Crocker d/b/a Grand Cane Plumbing Co. (“Crocker”). According to Gray’s Form 1008, he and a coworker were lifting a manhole cover when the coworker slipped and dropped the lid on Gray’s lower back and hips.

Thereafter, Louisiana Workers’ Compensation Corporation (“LWCC”) commenced paying Gray indemnity benefits. Further, LWCC paid for medical treatment, rehabilitation and vocational rehabilitation, approximating $27,000 in medical payments for Gray through February 2, 1999.

On May 14, 2002, Gray filed a disputed claim for compensation with the OWC seeking medical benefits. Specifically, Gray demanded that LWCC pay for his hip replacement surgery. Crocker and LWCC responded with an exception of prescription, claiming that Gray’s claim had prescribed because more than three years had elapsed since the last payment of medical benefits to Gray.

After a hearing on LWCC’s exception, the Workers’ Compensation Judge (<rWCJ”) concluded that more than three years had elapsed from the |gtime of the last medical payment until Gray’s formal demand for benefits and dismissed Gray’s claim. This appeal by Gray ensued.

Discussion

On appeal, Gray argues that the WCJ erred in granting LWCC’s exception of prescription. We disagree.

Prescription for workers’ compensation medical benefits is governed by La. R.S. 23:1209(C), which provides:

C. 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 statute is unchanged from the time of Gray’s 1995 accident.

The evidence at the hearing showed that LWCC last paid medical benefits to Gray in February, 1999. Specifically, at the hearing on the exception, the WCJ heard testimony from Annette Robinson (“Robinson”), a claims representative for LWCC, that an independent medical examination (“IME”) was conducted in 1998 concerning Gray’s demand for hip surgery and that LWCC denied payment for the surgery at that time based on the IME. Gray testified that he asked for payment for the surgery “numerous times” by telephone; however, he did not specify the dates of these conversations, nor did he offer any evidence of those alleged requests. | ¡¡Robinson testified that her contact with Gray about the surgery occurred in 1998, and then she discussed this issue with him only later after three years had elapsed from the last medical payment. Finally, Gray introduced no evidence to document any payments made by LWCC after February 1999 and, in fact, testified that no such payments had been made.

Since Gray filed his claim for benefits more than three years later, he bears the burden of showing that his claim has not prescribed because prescription was suspended or interrupted in some manner. Boquet v. Tetra Technologies, Inc., 2002-1634 (La.02/25/03), 839 So.2d 13. Although Gray has been receiving workers’ compensation indemnity benefits for his injuries, the payment of indemnity benefits does not interrupt prescription for a claim for medical benefits. Boquet, supra. Since Gray presented no evidence to support any theory of interruption or suspension, we are constrained to hold that the WCJ correctly decided that Gray’s claim for medical benefits had prescribed.

Factual findings in workers’ compensation eases are subject to the manifest error or clearly wrong standard of appellate review. If the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, a court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551. In this case, the WCJ was not clearly wrong in finding that Gray’s claim had prescribed pursuant to La. R.S. 23:1209(C). [¿Accordingly, the judgment of the OWC is affirmed. Costs of this appeal are assessed to Gray.

AFFIRMED.

      . LWCC continues to pay Gray supplemental earnings benefits.

      . Gray has attached a variety of documents to his appellate brief. However, attachments to briefs do not constitute a part of the record on appeal and are not considered by this Court. See, e.g., Reed v. Peoples State Bank of Many, 36,531 (La.App.2d Cir.03/05/03), 839 So.2d 955.


text:
    Paul KLEIN and Diana Klein, Plaintiffs-Respondents, v. CISCO-EAGLE, INC., Wray Ford, Inc., and Wray Enterprises, LLC, Defendants-Applicants.
    No. 37,398-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 24, 2003.

      Rountree, Cox, Guin & Achee, by Dale G. Cox, Shreveport, for Defendants/Applicants, Wray Ford, Inc. and Wray Enterprises, LLC.
    Mayer, Smith & Roberts, L.L.P., by Caldwell Roberts, Jr., Shreveport, for Defendant/Respondent, Cisco-Eagle, Inc.
    Sockrider, Bolin, Anglin & Batte, by James E. Bolin, Jr., for Plaintiffs/Respondents.
    E. Gerrald & Company, by Eddie Ger-rald, In Proper Person.
    Before PEATROSS, DREW & MOORE, JJ.
   JjPEATROSS, J.

This appeal arises out of the budding of a new Wray Ford dealership on Benton Road in Bossier City. Defendants Wray Ford, Inc. (“Wray Ford”) and Wray Enterprises, LLC (“Wray Enterprises”) filed an Application for Writ of Certiorari or Review in this court requesting review of the trial court’s denials of motions for summary judgment filed by them. This court granted a writ of certiorari, issued a stay in the matter and docketed the case for review. After our review of the merits, and for the reasons stated herein, we reverse the judgment of the trial court and render summary judgment in favor of both Wray Ford and Wray Enterprises.

FACTS

Wray Ford operates a Ford dealership in Shreveport and desired to open a new dealership on Benton Road in Bossier City. Wray Enterprises was created to purchase the land on which the dealership would be constructed and to facilitate construction of the building. In August 1999, a bid on the project submitted by Hand Construction Company (“Hand”), general contractor, was accepted by Wray Ford. Subsequently, Wray Enterprises contracted with Hand to erect the building (“the construction contract”). Hand sub-contracted all of the electrical work on the project to Camus Electric Company, Inc. (“Camus”).

Subsequently, Wray Ford decided that it wanted a parts storage system created within the structure. The parts storage system is an elaborate system of metal shelving and metal walkways, including stairs, designed to house the dealership’s inventory of car parts. Wray Ford contracted directly with Cisco-Eagle, Inc. (“Cisco-Eagle”) to construct the mezzanine parts | ¡..storage system (“parts storage contract”). Cisco-Eagle, in turn, sub-contracted with E. Gerrald and Company (“Gerrald”) to construct the parts storage system. During construction of the dealership, George Wray, III, president of Wray Ford and an owner in Wray Enterprises, visited the site several times a week to check on the progress of the construction.

On August 23, 2000, while the construction was ongoing and before the parts storage system was complete, Plaintiff, Paul Klein, employee of and foreman for Camus, was demonstrating to Hand’s supervisor how he was going to install the third floor ceiling lights when he fell through an opening in the metal grate flooring on the second level of the parts storage system. Mr. Klein severely injured his hip and knee in the fall and he and his wife sued Wray Ford, Wray Enterprises, Cisco-Eagle and Gerrald, alleging negligent hiring, general negligence and strict liability for his accident.

Wray Ford and Wray Enterprises denied liability and subsequently filed motions for summary judgment, which were denied by the trial court. After granting Wray Ford’s and Wray Enterprises’s Application for Writ of Certiorari or Review, we now review the merits of this appeal.

DISCUSSION

Law of summary judgment

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action except those disallowed by law. La. C.C.P. art. 966(A)(2); Robinson v. Brookshires # 26, 38,713 (La.App.2d Cir.8/25/00), 769 So.2d 639, citing Norton v. Claiborne Electric Co-op, Inc., 31,886 (La.App.2d Cir.5/5/99), 732 So.2d 1256, writs denied, 99-1737, 99-1823 (La.10/1/99), 748 So.2d 443, 454 and Lee v. Wall, 31,468 (La.App.2d Cir.1/20/99), 726 So.2d 1044. The judgment sought shall be rendered only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Norton, supra; Ledent v. Guaranty National Insurance Co., 31,346 (La.App.2d Cir.12/28/98), 723 So.2d 531. La. C.C.P. art. 966(C)(2), enacted by the legislature in 1997, clarified the burden of proof in summary judgment proceedings, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In other words, the party who bears the burden of persuasion at trial (typically the plaintiff) must come forth with evidence which demonstrates his or her ability to meet the burden at trial. Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, citing MA-RAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, §§ 6.8 (1999). The plaintiff must make a positive showing of evidence creating a genuine issue as to an essential element of its claim. Mere speculation is not sufficient. LBabin, supra. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Babin, supra; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. Whether a particular fact in dispute is material can be assessed only in light of the substantive law applicable to the case. Allen v. State Farm Fire and Casualty Co., 36,377 (La.App.2d Cir.9/18/02), 828 So.2d 190, writ denied, 02-2577 (La.12/19/02), 833 So.2d 343, citing Brittain v. Family Care Services, Inc., 34,787 (La.App.2d Cir.6/20/01), 801 So.2d 457; Spears v. Jones, 00-2799 (La.App. 1st Cir.2/15/02), 807 So.2d 1182, writs denied, 02-0663, 02-0767 (La.5/3/02), 815 So.2d 106, 826.

Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226; Belt v. Wheeler, 36,585 (La.App.2d Cir.12/18/02), 833 So.2d 1256; McEachern v. Mills, 36,156 (La.App.2d Cir.8/16/02), 826 So.2d 1176.

Existence of a duty

In the case sub judice, the Wray Defendants first argue that the undisputed facts reveal that they are entitled to judgment as a matter of law because they owed no legal duty, contractually or otherwise, to Mr. Klein. The existence of a duty is a legal determination to be made by the trial judge. Taylor v. Voigtlander, 36,670 (La. App.2d Cir.12/11/02), 833 So.2d 1204; Albritton v. Woods, 34,073 (La.App.2d Cir.9/28/01), 795 So.2d 1239; Carroll v. State Farm Fire and Casualty Co., 31,652 (La.App.2d Cir.5/5/99), 732 So.2d 1263. The inquiry is whether the plaintiff has any law — statutory, jurisprudential or arising from general principles of fault — to support his claim. Taylor, supra, citing Paul v. Louisiana State Employees’ Group Benefit Program, 99-0897 (La.App. 1st Cir.5/12/00), 762 So.2d 136. A finding that there is no duty owed by a defendant to a plaintiff in a given case is an appropriate basis upon which to grant summary judgment in favor of that defendant. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318; Truelove v. Bissic, 32,883 and 32,884 (La.App.2d Cir.3/1/00), 754 So.2d 377, writ denied, 00-0950 (La.5/26/00), 762 So.2d 1109; Carroll, supra.

Mr. Klein argues that a genuine issue of material fact exists regarding which entity contracted with whom for the construction of the new dealership and parts storage system. Indeed, it is on this point that the trial court apparently agreed with Mr. Klein, finding that there was confusion in the manner in which the parties contracted for the construction of the dealership and the parts storage system and, thus, there existed an issue of fact for the fact finder. This alleged confusion results in Mr. Klein’s argument to this court that both Wray entities should be regarded as one in the same. He submits that Wray Ford’s act of directly contracting with Cisco-Eagle for a portion of the work on the project subjected it to certain safety provisions contained in the construction contract between Wray Enterprises and Hand. The construction contract between Wray Enterprises Land Hand listed Wray Enterprises as the “owner” and contained language allowing the owner to use its own forces for work on the project or to directly sub-out some of the work if desired; and, if the owner chose to do so, then certain articles of the construction contract concerning coordination of sub-contractors and safety on the project would apply to the owner. If applicable, those provisions would have the effect of making the owner of the construction contract stand in the shoes of the general contractor with respect to safety responsibilities when the owner chooses to perform work on the project with its own forces or directly contracting with a third party for portions of the work. According to Mr. Klein, these provisions operate to impose a duty on both Wray entities to coordinate the subcontractors on the job site and provide a safe workplace. Simply put, Mr. Klein seeks to impute contractual safety provisions contained in the construction contract on an entity, Wray Ford, that was not a party to that contract. In addition, |7he seeks to place those same safety-related responsibilities on Wray Enterprises as “owner” of the project, despite the fact that Wray Enterprises did not directly contract out any portion of the work. Mr. Klein’s position is without merit.

We find no confusion in the manner in which the parties contracted. Likewise, we are unpersuaded by Mr. Klein’s argument that there is some basis in contract for any duty on the part of either Wray defendant. First, the undisputed facts clearly show that Wray Enterprises was created for the purpose of acquiring the land on which the dealership would be built and for contracting for the construction of the dealership and the construction contract names Wray Enterprises as owner and Hand as general contractor. Wray Ford, a separate and distinct legal entity, was not a party to, and is not even referenced in, the construction contract. Wray Ford then contracted with Cisco-Eagle for the construction of the parts storage system. Wray Enterprises is not a party, and is not referenced in, the parts storage system contract. No evidence was presented in opposition to the motions for summary judgment that would show that Wray Enterprises and Wray Ford were anything but two separate legal entities. The fact that the bid submitted by Hand was accepted by Wray Ford, rather than Wray Enterprises, does not alter the terms of the subsequent construction contract executed by Wray Enterprises and Hand and does not confuse who are the parties of each of these contracts. We find no genuine issue of material fact here. Second, we simply reiterate that the owner of the construction contract, Wray Enterprises, did not hire and contract with Cisco-Eagle. The |sabove-mentioned safety provisions of the construction contract, therefore, never became operative. Further, the construction contract provides that Hand, as general contractor, assumes all safety responsibilities for the job site. There is no duty based in contract regarding safety of the job site to be imposed on either Wray defendant.

Next, Mr. Klein argues that the Wray defendants, again referring to both Wray entities as one in the same, assumed a duty to provide a safe workplace by virtue of Mr. Wray’s visits to the job site and that he allegedly “involved” himself in the lighting decisions regarding the parts storage system mezzanine.

Applying Louisiana law, the Fifth Circuit has consistently held that a principal is not liable for the actions of its independent contractor unless (1) the liability arises from ultrahazardous activities performed by the contractor on behalf of the principal or (2) the principal retained “operational control” over the contractor’s work or expressly or impliedly approved its unsafe work practice that led to an injury. Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558 (5th Cir.2003), citing Coulter v. Texaco, Inc., 117 F.3d 909 (5th Cir.1997). The issue in the case sub judice concerns the “operational control” avenue of potential principal liability. The first inquiry is whether, and to what extent, the principal contractually reserved the right to control the work. Here, as previously stated, control |fland supervision of the work site was expressly assumed by Hand in the construction contract and by Cisco-Eagle in the parts storage contract. In addition, recall that the construction contract specifically imposed all safety-related responsibilities on the contractor. See footnote no. 2, supra. ‘When the contract assigns the independent contractor responsibility for its own activities, the principal does not retain operational control.” Fruge, supra. Operational control exists only if the principal has direct supervision over the step-by-step process of accomplishing the work such that the contractor is not entirely free to do the work in his own way. Id. Further, the physical presence of a representative of a principal is not sufficient to show supervision or control. Id., citing Ainsworth v. Shell Offshore, Inc., 829 F.2d 548 (5th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 (1988).

In Fruge, supra, the court found summary judgment in favor of a principal/defendant appropriate where a representative of the principal was present on the job site 24 hours a day, but there was no evidence of direct supervision and control. The court in Ainsworth, supra, held that periodic inspections by a principal’s “company man” do not equate to that principal retaining control over the operations. Likewise, in Migliori v. Willows Apartments, 98-1814 (La.App. 4th Cir.2/3/99), 727 So.2d 1258, writ denied, 99-0873 (La.5/14/99), 741 So.2d 662, the fourth circuit affirmed |1f)summary judgment in favor of a defendant/owner, holding that periodic inspections of a job site by an owner to be sure that work was being performed in accordance with specifications did not constitute the exercise of operational control. Finally, in Coulter, supra, the court affirmed summary judgment in favor of a defendanVprineipal where the principal had reserved the right to monitor the contractor’s performance and had placed a “company man” on site who had the right to make safety recommendations to the contractor and was obligated to report continuing unsafe work practices or conditions to the principal. The court expressly stated that this did not equate to having control over the “methods or details of the contractor’s work.” Coulter, supra. The court in Coulter stated, “[i]n short, absent an express or implied order to the contractor to engage in an unsafe work practice leading to an injury, a principal ... cannot be liable under the operational control exception.” Id.

In the case sub judice, it is undisputed that Mr. Wray visited the site periodically to check on the progress of the work as he so testified in his affidavit. In opposition to the motions for summary judgment, Mr. Klein offered an excerpt of the deposition testimony of Mr. Klein in an effort to show that Mr. Wray was “involved” in a decision as to when to hang the lighting above the parts storage system mezzanine. Specifically, Mr. Klein testified that Mr. Wray told him that the arrangement or positioning of the shelving unit was going to be decided when the units were actually moved into the space. Mr. Klein then testified that it was his suggestion that he wait until the shelves were in place before he install the lighting. This does In not equate to operational control on the part of Mr. Wray. Even if Mr. Wray had suggested or instructed Mr. Klein to delay installation of the lights until the mezzanine was complete, this does not equate to control over the “methods or details of the contractor’s work.” Since Mr. Klein failed to present evidence of this element of his claim, we find summary judgment in favor of the Wray defendants to be appropriate on Mr. Klein’s claims of negligence.

Strict Liability

La. C.C. art. 2317 states:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody-

In 1996, the legislature added La. C.C. art. 2317.1 as a modification of the strict liability presented by La. C.C. art. 2317. La. C.C. art. 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. (Emphasis added.)

Mr. Klein’s position must be that the incomplete metal walkway was a defective thing in the care, custody and control of the Wray defendants and that the defective walkway caused his injury. It is undisputed that Wray Enterprises was the owner of the land and partially constructed dealership at l^the time the injury occurred. Liability under articles 2317 and 2317.1, however, is not based on ownership, but on care, custody and control. Migliori, supra. Mr. Klein presented no evidence in opposition to the motions for summary judgment that shows that either Wray defendant had care, custody and control of the incomplete metal walkway at the time of his injury. The fact that an owner has access to the job site and even conducts periodic inspections of the work being done at the job site does not bestow care, custody and control of the job site to the owner. Id. As previously discussed, during construction of the dealership, the contractors had care, custody and control of the job site and the physical structures being built thereon. The Wray defendants alleged the absence of proof of this element of Mr. Klein’s claim and Mr. Klein failed to produce any evidence that such care, custody and control of the incomplete metal walkway was vested in either Wray defendant. Accordingly, neither Wray Ford nor Wray Enterprises can be liable for his injury and are, therefore, entitled to judgment as a matter of law on the claim of strict liability. La. C.C.P. art. 966(C); Moody v. City of New Orleans, 99-0708 (La.App. 4th Cir.9/13/00), 769 So.2d 670, writ denied, 00-2809 (La.12/8/00), 776 So.2d 468.

Finally, before addressing the remaining claim of Mr. Klein, we note that we preter-mit any discussion of Wray Enterprises’s argument regarding possible applicability of the two-contract theory of statutory employer immunity under La. R.S. 23:1061. We need not address this issue in light of our finding that there was no duty owed by the Wray defendants to |13Mr. Klein. In summary, since Mr. Klein failed to sufficiently rebut the Wray defendants’ well-pleaded motions for summary judgment on his claims of negligence and strict liability, Wray Ford Inc. and Wray Enterprises, LLC are entitled to judgment as a matter of law on these claims.

Negligent Hiring of Gerrald

The trial court in its ruling on the motions for summary judgment did not address the claim of the alleged negligent hiring of Gerrald by the Wray defendants and Mr. Klein made no argument on this claim in opposing the motion for summary judgment or on appeal. No evidence was presented which would establish that either Wray defendant hired Gerrald; rather, it is undisputed that Cisco-Eagle hired Gerrald. Additionally, there is no evidence to suggest that either Wray defendant had any reason to know that Gerrald would be hired as a subcontractor by Cisco-Eagle. The Wray defendants, therefore, cannot as a matter of law be liable for the alleged negligent hiring of Gerrald.

DECREE

For the foregoing reasons, the judgment of the trial court denying Wray Ford Inc.’s and Wray Enterprises, LLC’s motions for summary judgment is reversed and judgment is hereby rendered in favor of Wray Ford Inc. and Wray Enterprises, LLC. Plaintiffs’, Paul and Dianna Klein’s, claims against Wray Ford, Inc. and Wray Enterprises, LLC are dismissed. Costs are assessed to Plaintiffs, Paul and Dianna Klein.

REVERSED AND RENDERED.

      . Article 6 of the construction contract contemplates and provides for "construction by owner or separate contractors” and reserves the right to the owner to "perform construction or operations related to the project with the Owner's own forces....” Article 6.1.3 provides that the owner using his own forces “shall provide for coordination of the activities of the Owner’s own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them." Article 6.1.4 states as follows:
      Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner’s own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12.
      Article 3 imposes the duty to "supervise and direct the work, using [the Owner's] best skill and attention. [The Owner] shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the work under contract....”
      Article 10.1.1 provides that "[the Owner] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract.” Article 10.2.3 further provides that the contractor (or owner using his own forces) erect and maintain "reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards.... ”

        . Article 10.2.1 of the construction contract provides, in pertinent part, that "[t]he Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss ... to employees.” Article 10.2.2 further states:
      The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities.

      . Article 3.3.1 of the construction contract provides, in pertinent part, that "[t]he Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract....” Likewise, the parts storage contract lists “project management” and "installation” as part of Cisco-Eagle’s responsibilities. It further states, "Cisco-Eagle, Inc. will have a project manager assigned to project throughout implementation. He will be on site during delivety of and installation of all equipment. He will be the coordinator with other contractors.”

      . We recognize that Wray Ford, Inc. was not the owner of the land or the structure being built on the land. In light of our conclusion that there was no duty owed by either entity, we have, for simplicity and brevity, referred to Wray Ford, Inc. and Wray Enterprises, LLC collectively in our treatment of this issue.