author: DENNIS R. BAGNERIS SR., Judge.

text:
    Jennifer K. BROWN v. Lawrence V. BUMB.
    No. 2003-CA-1563.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Jennifer Brown, Chalmette, LA, In Proper Person, Plaintiff/Appellee.
    Jeffrey A. Jones, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO JR.).
   DENNIS R. BAGNERIS SR., Judge.

The plaintiff, Jennifer K. Brown, filed a petition for protective order on behalf of her two minor children against the defendant, Lawrence Y. Bumb, the children’s paternal grandfather. Bumb filed an exception of lack of personal jurisdiction contending that the court did not have personal jurisdiction over him since he resided in Texas. The trial court denied the exception, finding that the plaintiff established the defendant had sufficient minimum contacts with the State of Louisiana to satisfy the requirements of due process.

The trial court concluded that, under La. R.S. 13:3201, it could exercise personal jurisdiction over the defendant. The trial court stated in its reasons for judgment:

Defendant’s visit to Louisiana and subsequent in person contact with Brittany Bumb, despite an order prohibiting contact between the two, is an act which caused injury or damage in this state. Defendant argues that the court cannot exercise jurisdiction over him since the alleged conduct occurred in the State of Texas. Even though the alleged molestation occurred in Texas, the cause of action complained of in this suit is based on attempts by the Defendant to contact the children in Louisiana. Defendant has admitted that he has made three trips to Louisiana in January, March and April of this year to visit his son and grandchildren. Defendant did come into the physical presence of Brittany Bumb during the March visit even though he is ordered not to have contact with her. Defendant has allegedly harassed the Plaintiffs children by sending letters to Louisiana via mail for the purpose of making contact with the children. Defendant has also | ?made telephone calls to Louisiana to speak with the children. Furthermore, the Defendant has made physical visits to Louisiana and has been in the physical presence of Brittany Bumb in Louisiana.
The court can exercise specific jurisdiction over Defendant since the suit against Defendant arises out of or is related to his contacts with Louisiana. The requirement of meaningful minimum contacts is satisfied because Mr. Bumb has purposefully directed his activities at residents in Louisiana and the litigation results from alleged injuries arising out of or related to those activities. Therefore, there exist sufficient contacts with Louisiana to satisfy the requirement of minimum contacts.
The maintenance of the suit against Defendant in Louisiana does not offend traditional notions of fair play and substantial justice. The Defendant’s harassing conduct and frequent visits with (sic) Louisiana are such that he should reasonably anticipate being haled into court in Louisiana. It is in this state’s interest to protect the Plaintiffs children. Since the activities complained of by Plaintiff are directed at children in Louisiana, it is in the judicial system’s interest for efficient resolution of controversies and the state’s shared interest in furthering fundamental social policies to exercise jurisdiction over the Defendant.

The defendant appeals the judgment, assigning four errors: (1) the trial court erred in considering the affidavit of the petitioner, which was not introduced into evidence; (2) the trial court erred in finding that the defendant had been ordered not to have contact with his minor grandchildren and that he violated said order; (3) the trial court erred in finding that it had specific jurisdiction over the defendant; and (4) the trial court erred in finding that the exercise of jurisdiction over the defendant does not offend traditional notions of fair play and substantial justice.

The defendant contends that the trial court relied upon the plaintiffs affidavit in which she attested that the defendant repeatedly contacted the children by mail and telephone. The defendant argues that the trial court erred in relying upon the affidavit, as it was not introduced into evidence at the hearing. A review of the hearing transcript reveals that the affidavit was not introduced into evidence. However, there is nothing to suggest that the trial court relied upon the affidavit as lathe plaintiff testified at the hearing about the defendant’s contacts with the children via mail and telephone calls.

The defendant also suggests that the trial court erred when it found that the defendant violated an order which mandated that he not contact his grandchildren. The defendant argues that he was never ordered, prior to the issuance of the temporary restraining order in the present suit, not to have contact with his grandchildren. The defendant is correct in this case. There is nothing in the record to indicate that the defendant was ordered not to contact his grandchildren. While plaintiff attests in her affidavit, which is in the record, that the Office of Child Services issued an order to her-ex-husband, the father of the children, not to allow defendant contact with them, there is nothing in the record to support the statement. Further, it should be noted, that if such an order existed, it was directed to the children’s father, not the defendant. However, plaintiff has not claimed that the simple violation of the order is what has injured her children. The injuries the children have incurred resulted from the continuing harassment from the defendant through letters and phone calls.

Lastly, the defendant contends that the trial court erred when it determined there were sufficient minimum contacts with the state of Louisiana to establish personal jurisdiction. Under La. R.S. 18:3201, the Louisiana long-arm statute, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States. The limits of the Louisiana long-arm statute have become co-extensive with the limits of constitutional due process. Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La.1987). Thus, the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due Lprocess requirements. Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790 (La.1987).

The bedrock principle for personal jurisdiction over a nonresident defendant requires that the defendant “have certain minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). This fundamental test to satisfy constitutional due process requires that a court evaluate the quality and nature of the defendants’ activities in the forum state to determine whether such contacts justify the state’s exercise of its judicial power over the person. Id. at 319-21, 66 S.Ct. at 160.

The due process test enunciated in International Shoe has evolved into a two-part test, the first part being the “minimum contacts” prong, which is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). The nonresident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). This “purposeful availment” requirement ensures that the nonresident defendant will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person. Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). The second part of the due process test centers around the fairness of asserting jurisdiction over the defendant. Even when minimum contacts exist, the exercise of personal jurisdiction over a nonresident defendant will fail to satisfy due process requirements if the assertion of jurisdiction offends “traditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316, 66 S.Ct. at 158.

When a forum seeks to exercise specific jurisdiction over an out-of-state defendant who has not consented to suit there, the requirement of meaningful minimum contacts is satisfied when the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries arising out of or related to those activities, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 106 (La.1991). When the cause of action, however, does not arise out of the defendant’s purposeful contacts with the forum, due process requires that the defendant be engaged in continuous and systematic contact to support the exercise of general jurisdiction. A & L Energy, Inc. v. Pegasus Group, 00-3255 (La.6/29/01), 791 So.2d 1266, 1271. Contacts may be effected by mail and electronic communication, as well as physical presence. Hunter v. Meyers, 96-1075 (La.App. 1 Cir. 3/27/97), 691 So.2d 318, 323. The second prong of the analysis is the fairness of the assertion of jurisdiction. The defendant’s conduct and connection with the forum state must be such that it should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). Once the plaintiff meets the burden of proving minimum contacts, a presumption of reasonableness of jurisdiction arises, and the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum, de Reyes. In determining this issue, the court must examine the defendant’s burden in litigating in the forum state, the forum state’s interest, the plaintiffs interest in convenient and effective relief, the judicial system’s interest in efficient resolution of controversies, and the state’s shared interest in furthering fundamental social policies. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987).

In the present case, the trial court correctly found that the defendant had sufficient minimum contacts with the state of Louisiana. The trial court noted that the cause of action complained of in this suit was based on attempts by the defendant to contact the children in Louisiana. The plaintiff has alleged that the defendant has harassed the children via mail and telephone calls. In addition, the defendant has admitted that he has made three trips to Louisiana in January, March and April of this year to visit his son and grandchildren. Thus, he has been in the physical presence of the children in Louisiana. Specific jurisdiction over the defendant is available as the suit against the defendant arises out of or is related to his contacts with Louisiana. As the trial court noted, “the requirement of meaningful minimum contacts is satisfied because Mr. Bumb has purposefully directed his activities at residents in Louisiana and the litigation results from alleged injuries arising out of or related to those activities.”

Furthermore, the trial court was correct when it stated that “maintenance of the suit against Defendant in Louisiana does not offend traditional notions of fair play and substantial justice. The Defendant’s harassing conduct and frequent visits with (sic) Louisiana are such that he should reasonably anticipate being haled into court in Louisiana.” The defendant will not be inconvenienced by the litigation in the state as he has admitted that he regularly visits within the state. Most of the witnesses reside in the state of Louisiana, including the children’s father and stepmother. Further, as the trial court noted, “it is in this state’s interest to protect the Plaintiffs children. Since the activities complained of by Plaintiff are directed at children in Louisiana, it is in the judicial system’s interest for efficient resolution of controversies and the state’s shared interest in furthering fundamental social policies to exercise jurisdiction over the Defendant.”

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Lomaine FILOGENE, Individually and on Behalf of her Minor Child, Ashley Filogene v. Victor BROWN, M.D. and ABC Insurance Company.
    No. 2003-CA-1451.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.
    Joseph R. McMahon, Jr., Metairie, LA, and Erin P. Shea, New Orleans, LA, Counsel for Plaintiff/Appellant.
    C. William Bradley, Jr., Richard S. Cris-ler, Lemle & Kelleher, L.L.P., New Orleans, LA, Counsel for Defendant/Appel-lee, Victor Brown, M.D.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, Jr.).
   EDWIN A. LOMBARD, Judge.

Plaintiff/appellant Lomaine Filogene (“Plaintiff’) filed this lawsuit individually and on behalf of her minor child, Ashley Filogene (“Ashley”), against Dr. Victor Brown, Md., (“Defendant”) and his insurer, alleging that that Defendant severely injured her daughter by his acts and omissions in failing to verify her true identity and obtain valid statutory consent prior to performing a procedure to terminate pregnancy. Defendant filed an Exception of Prematurity on the basis that Plaintiff failed to convene a medical review panel to consider the charges of medical malpractice. After a hearing, the trial judge signed a judgment granting Defendant’s exception and dismissing Plaintiffs lawsuit. Plaintiff filed a devolutive appeal from this final judgment. After review of the record, the applicable law, and the arguments, we affirm the judgment of the trial court.

Pertinent Facts

Ashley, at age thirteen, was taken under the pseudonym of Kim Jackson to Defendant’s office on April 21, 1997, by George Malvoisin and Rachel Jackson to terminate her pregnancy. Prior to undergoing the procedure, medical records and consent forms were signed by Rachel Jackson and the purported Kim Jackson which indicated that the patient’s birthdate was April 10, 1979, that she was 18 at the time of the procedure, and that she gave her full consent to the procedure.

In November 1999, after discovering that her daughter had undergone an abortion, Plaintiff filed this action in the Civil District Court. Defendant’s Exception of Prematurity based on Plaintiffs failure to proceed through the statutory medical panel review as required by the Medical Malpractice Act, La.Rev.Stat. 40:1299.41 et seq., was filed on November 17, 1999. After a hearing on April 25, 2003, the trial court entered judgment maintaining the Exception of Prematurity and dismissing Dr. Brown as a party defendant pending medical panel review.

Discussion

The Medical Malpractice Act applies solely to claims arising from medical malpractice, which is defined in La.Rev.Stat. 40:1299.41(A)(8) as any unintentional tort or any breach of contract based on health care [] or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely.... Under La.Rev.Stat. 40:1299.41(A)(7), a tort is defined as any breach of duty or any negligent act or omission proximately causing injury or damage to another and every health care provider is required, in rendering professional services or health care to a patient, to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

Under the Louisiana Medical Malpractice Act, an action for malpractice against a qualified health care provider generally may not be commenced in a court of law before the complaint has been presented to a medical review panel and the panel has rendered its expert opinion on the merits of the complaint, unless the parties agree to waive this requirement. La.Rev.Stat. 40:1299.47. The right to have claims submitted to a medical review panel is a principal advantage for qualified health care providers, according to Hutchison v. Patel, 93-2156, pp. 3-4 (La.5/23/94), 637 So.2d 415, 419.

The principal issue before this court is whether Plaintiffs claim against Dr. Brown must be submitted to a medical review panel prior to commencement of a civil action. Plaintiff attempts to circumvent the medical review panel, arguing that the procedure performed on her thirteen-year old daughter without valid parental consent is excluded from the Louisiana Medical Malpractice Act because a procedure to terminate pregnancy is an intentional tort. In Lugenbuhl v. Dowling, 96-1575 (La.10/10/97), 701 So.2d 447, however, the Louisiana Supreme Court rejected battery-based liability in lack of informed consent cases (which include no-consent cases) in favor of liability based on breach of the doctor’s duty to provide the patient with material information concerning the medical procedure. Lugenbuhl, 96-1575, p. 9, 701 So.2d at 453; see also Baham v. Medical Center of Louisiana, 2000-2022, p. 4 (La.App. 4 Cir. 7/11/01), 792 So.2d 85, 87 ([according to Lugenbuhl, lack of informed consent eases and no consent cases all sound in medical malpractice); Barnes v. Harandi 98-0781, p. 5 (La.App. 4 Cir. 12/9/98), 727 So.2d 530, 533 (claims for failure to provide adequate informed consent fall under negligence concepts and must be submitted to a medical review panel prior to the commencement of action). Accordingly, the Louisiana Supreme Court has already rejected battery-based liability for medical procedures without proper consent.

Plaintiffs attempt to circumvent the medical review panel requirement by arguing that La.Rev.Stat. 9:2800.12 should be applied retroactively is also meritless. That provision creates a new cause of damages attributable to the termination of a pregnancy but did not become effective until August 15, 1997, after the procedure was performed in this case. As the provision is substantive in nature, we will not deem it retroactively applicable in the absence of an explicit statement of intent by the legislature. See La. Civ.Code art. 6; Sudwischer v. Estate of Hoffpauir, 97-785 pp. 8-9 (La.12/12/97), 705 So.2d 724, 728-729, cert. denied, 524 U.S. 940, 118 S.Ct. 2347, 141 L.Ed.2d 717 (1998).

Accordingly, any allegations that Defendant failed to obtain proper consent prior to performing the procedure are medical malpractice allegations and require submission to a medical review panel prior to commencement of an action. The judgment of the trial court maintaining Defendants Exception of Prematurity is affirmed.

AFFIRMED.

      . Plaintiff alleges that Malvoisin sexually abused her daughter for a four-year period and was the father of the aborted child. At oral argument, counsel informed the court that Malvoisin was convicted of a charge related to his sexual abuse of Ashley and is serving a term of imprisonment.

      . "Health care is defined as any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement. La.Rev.Stat. 40:1299.41(A)(9).


author:
DENNIS R. BAGNERIS SR., Judge.
      h CANNIZZARO, J.,

text:
    Tameko BENJAMIN, on Behalf of her Minor Child, Darione BENJAMIN v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2003-CA-1918.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Frank M. Buck, Jr., New Orleans, LA, for PlaintifflAppellee.
    Ammon L. Miller, Jr., Law Offices of Ammon Miller, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge LEON A. CANNIZZARO JR.).
   DENNIS R. BAGNERIS SR., Judge.

The Housing Authority of New Orleans (“HANO”) appeals a judgment in which it was held liable for damages sustained by Darione Benjamin, the minor child of Ta-meko Benjamin, in an alleged accident on property managed by HANO in the Lafitte Housing Development. For the following reasons, we affirm the judgment of the trial court.

FACTS

Tameko and Darione Benjamin lived in an apartment managed by HANO at 633 North Galvez Street, within the Lafitte Housing Authority. On March 30, 1996, Darione Benjamin (“Darione”), who was 2 years old at the time of the accident, fell out of a second floor window and landed on the first floor balcony. Thereafter, Dar-ione was transported to the Medical Center of Louisiana where she was treated for a depressed skull fracture, a hematoma of the upper lid, a laceration to the center of the forehead, a left nondisplaced frontal fracture, and a broken left arm and wrist.

TRIAL PROCEEDINGS

At trial, plaintiffs offered the testimony of Tameko Benjamin, Monica Charles, and Dr. Mary Christine Webster. In support of its case, HANO offered the testimony of Jeffrey Wilson, Rudolph Dupart, and Dr. Thattil Gouri.

Plaintiffs’ Witnesses

Tameko Benjamin, the mother of Dar-ione, testified at trial that HANO put the new screen into her apartment window two to three days before the accident. Ms. Tameko testified that, on the day of the accident, she opened the windows in her apartment because the air conditioners were not working. She testified that around mid-day, she and her two girls (ages 5 and 2) went down for a nap. Ms. Tameko testified that her older daughter woke her up by yelling that Darione had fallen out of the upstairs window. Ms. Tameko testified that she “got up, went to the window, the screen was just hanging there. I [Tameko] looked down and my baby was just lying still on the porch.” Ms. Tameko testified that the window screen was hanging to one side. Thereafter, Ms. Tameko testified that an ambulance picked up Darione and brought her to the Medical Center of Louisiana, where she was treated for a fractured skull, and a hematoma of the upper lid. Ms. Tameko further testified that ten days after the accident, an x-ray revealed that Darione’s arm and wrist were broken.

Monica Charles, a neighbor of the plaintiffs, testified that she witnessed Darione falling out of the window. Specifically, Ms. Charles testified that she was looking over her top'porch when she saw Darione fall out of the window.

Dr. Mary Christine Webster, an expert in physical medicine, testified that she first saw Darione on January 8, 2001 for urinary incontinence. After reviewing the x-rays that were done at the Medical Center of Louisiana in March of 1996, Dr. Webster testified that she noticed “a very small amount of fluid next to one of the iliac arteries on the CT of the abdomen.” Dr. Webster testified that this finding indicated that Darione most likely suffered trauma in the pelvis and lower abdominal area at the time of her fall in 1996. Dr. Webster referred Darione to a pediatric urologist.

HANO’s Witnesses

Jeffrey Wilson, an employee of HANO, testified that sometime around November 1995 or early 1996, a blitz crew came to the Lafitte Housing Authority in order to put new screens on the residents’ windows. Specifically, Mr. Wilson testified as to the blitz crew and the age of the screens as follows:

Q. Tell me about what happened with that blitz crew doing them (sic) screens.
A. What we normally do is we take into account to what — once we get an order in, what the residents need, and then we find out that this is one of our top priorities that the residents needed screens. So once we got the shipment in, we didn’t have the manpower in to install them in a certain length of time, so we get other maintenance guys from other sites to come in and install them and take care of that general area for us.
Q. So when you are doing that, do you still use the same orders when they come in like that and you’re getting them out of the warehouse and on the units?
A. Not in most cases.
Q. So there wouldn’t be any paperwork for that?
A. No.
Q. Now, I want you to take a look at the photographs that’s been introduced as P-3B. Can you see the windows at the top in the middle of the photographs, can you see those two?
A. Uh-huh (affirmative response)
Q. In looking at this photograph, you see this window next to this window. Those aren’t the same age screens, are they?
A. No, they’re not.
Q. The one on the left, and this is the one that has been identified by Ms. Tameko Benjamin as the one that her daughter fell through, that looks like a much newer screen, right?
A. Right.
Q. The one on the right is an older screen?
A. Right

Rudolph Dupart, an Assistant Maintenance Manager for HANO, testified that according to the maintenance record, the blitz crew installed the screens in the Lafitte Housing Authority complex by November 20, 1995. He further testified that screens are for decoration and to keep insects out when the window is raised.

Dr. Thattil Gouri, an expert in pediatrics, testified that he treated Darione for excessive bed-wetting on March 5, 1998. Dr. Gouri testified that at that time, Dar-ione “had a suspected urinary tract infection.” Dr. Gouri testified that Darione had a urinalysis and culture done on July 9, 1998, which tested positive for a urinary tract infection. Thereafter, Dr. Gouri testified that he diagnosed Darione with recurring urinary infections. Because of the recurring urinary tract infections, Dr. Gouri performed an ultrasound on Dar-ione, which indicated that Darione’s bladder and urethra were normal. Dr. Gouri could not comment as to whether he thought Darione’s fall in 1996 was the reason for the frequency in urination or the frequent urinary tract infections because he did not treat Darione at the time of the 1996 accident.

Based on the evidence produced at trial, the trial court found HANO liable for Dar-ione’s injuries and awarded her $95,000.00 in damages, plus interest from the date of demand, and costs. On appeal, HANO argues that plaintiffs failed to meet their burden of proving its negligence. Further, HANO claims that the damages awarded to plaintiffs were excessive.

DISCUSSION

The main issue before this court is whether plaintiffs satisfied their burden of proving negligence on HANO’s part by a preponderance of the evidence. As stated by the Louisiana Supreme Court, negligence cases are generally resolved by use of the duty/risk analysis. Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440 (La.3/23/01), 782 So.2d 606. This duty/risk analysis requires an examination of five separate elements:

1. Whether the defendant had a duty to conform his conduct to a specific standard (the duty element);
2. Whether the defendant’s conduct failed to conform to the appropriate standard (the breach element);
3. Whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element);
4. Whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and
5. Whether plaintiff was damaged (the damages element).

Id. at 611.

Duty

Duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Godfrey v. Boston Old Colony Ins. Co., 1997-2568, p. 15 (La.App. 4 Cir. 5/27/98), 718 So.2d 441, 448. Whether a legal duty exists is dependent upon the relationship between the parties. Warren v. Campagna, 686 So.2d 969, 978 (La.App. 4 Cir. 12/27/96). A housing authority’s purpose is to provide safe, decent and sanitary housing and a suitable living environment for families that cannot afford similar housing in the private sector. Mayo v. Audubon Indem. Ins. Co., 666 So.2d 1290, 1294 (La.App. 2 Cir. 1/24/96). Thus, a housing authority owes a duty to exercise the necessary care to its tenants to protect them from dangers within its control. Id.

In the instant case, there was a legal relationship between the parties by virtue of the fact that plaintiffs are tenants of the Lafitte Housing Authority, which is managed by HANO. Thus, HANO owed plaintiffs a duty to exercise the necessary care and to protect them from dangers within its control.

Breach of Duty

After determining that a duty exists, the next issue to address is whether the HANO has violated the duty. Generally, a party who owes a duty breaches that duty when he fails to exercise reasonable care in protecting those at risk. Morrison v. Kappa Alpha Psi Fraternity, 31,805 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, 1116, citing Dobson v. Louisiana Power & Light Company, 567 So.2d 569 (La.1990). A determination of whether HANO has breached its duties depends upon the facts and circumstances of each particular case. Carey v. Rao, 2001-1235, p. 10 (La.App. 4 Cir. 9/11/02), 828 So.2d 53, 60, writ denied, 2002-2545 (La.12/13/02), 831 So.2d 986.

In this case, the question concerning breach is whether the trial court could conclude, given the facts and circumstances, that HANO failed to exercise the necessary care toward plaintiffs when it installed the window screen. The trial court found that HANO “failed in its duty to proper [sic] install the window screen that ultimately caused plaintiffs injuries.” While the trial court did “not suggest that window coverings; such as window screens are or should be design [sic] to withstand the weight of an adult who is of normal growth and develop [sic]”, it did find that “a properly attached and installed window screen should withstand tension associated with the slight use of force.” Based on our review of the record, we cannot say that the trial court was manifestly erroneous in its factual finding that HANO failed in its duty to properly install the window screen.

Cause-in-Fact and Legal Cause

Cause-in-fact and legal cause are generally questions for the trier of fact. Perkins v. Entergy Corp., 2000-1372, p. 9-10 (La.3/23/01), 782 So.2d 606, 612. As such, this court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Id. The Louisiana Supreme Court stated that “[c]ause-in-fact is a ‘but for’ inquiry, which tests whether the accident would or would not have happened but for the defendant’s substandard conduct.” Id. at 612.

The scope of protection (legal cause) inquiry is a question of policy whether the particular risk falls within the scope of the duty. A proper inquiry is the ease of association of the injury with the rule of conduct that is urged. Haydin v. Crescent Guardian, Inc. 2001-1986, p. 10 (La.App. 4 Cir. 5/12/02), 818 So.2d 1033, 1040. The extent of protection owed to a particular plaintiff is determined on a case-by-case basis in order to avoid making a defendant an insurer of all persons against all harms. See Haydin v. Crescent Guardian, Inc., 818 So.2d at 1041.

Tameko testified that a HANO employee had placed the screen in the window two to three days before the accident. Mr. Wilson testified that the “blitz crew” might have installed the screens in early 1996. Tameko further testified that when she came into her daughter’s room following the accident, the screen was hanging to one side. The trial court found “that the plaintiff was successful in proving that the improper installed window screen was a cause in fact of the injuries of which she complained.” Further, we find the trial court could reasonably conclude that HANO’s duty to properly install a window screen does encompass the risk that a child would lean against the window screen. After our review of the record, we find that a reasonable factual basis does exist in the record to support the trial court’s finding that the window screen was a cause in fact and legal cause of Darione’s injuries.

Damages

In it’s last assignment of error, HANO asserts that the damage awards are excessive. We find no merit to HANO’s argument.

It is well settled that the trial court has vast discretion in setting the amount of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). The evidence at trial indicated that Dar-ione was treated for a depressed skull fracture, a hematoma of the upper lid, a laceration to the center of the forehead, a left nondisplaced frontal fracture, and a broken left arm and wrist. We find no abuse of the trial court’s vast discretion in awarding plaintiffs $95,000.00 in damages.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

CANNIZZARO, J., DISSENTS WITH REASONS.

h CANNIZZARO, J.,

dissents with reasons.

In LeBlanc v. Stevenson, 2000-0157, p. 3 (La.10/17/00), 770 So.2d 766, 770, the Louisiana Supreme Court stated that “[although the appellate court must accord deference to the trial court, it is cognizant of our constitutional duty to review facts, not to decide if it, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support.” (Emphasis added). Additionally, in Mart v. Hill, 505 So.2d 1120 (La.1987), the Supreme Court set forth a two-part test for appellate courts to use in reviewing facts. Under that test the appellate court must (1) find from the record that there is a reasonable factual basis for the trial court’s factual findings and (2) determine that the record establishes that the finding is not clearly wrong or manifestly erroneous. Id. at 1127. Further, “if an appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affir-mance.” Id. (Emphasis in original).

In the instant case, I find that the trial court’s decision was clearly without eviden-tiary support, and that there was not a reasonable factual basis for the trial court’s factual findings. Therefore, I must respectfully dissent from the majority opinion.

The trial court and the majority opinion have concluded that the improper installation of the screen in the window from which Darione Benjamin fell was the cause of the child’s fall. The following facts were used to reach this conclusion:

1.The Housing Authority of New Orleans (“HANO”) failed to properly install a screen in a window in an apartment rented by HANO to Ta-meko Benjamin;
2. A few days after the screen was installed, Darione Benjamin, who was two and a half years old at the time, leaned on the screen and fell out of the window where the screen was installed; and
3. A properly installed screen should withstand the tension associated with the slight use of force. (The trial court assumed, without stating the basis for the assumption, that the force exerted by a child leaning against a window screen could not cause a properly installed screen to be pushed out of a window.)

The evidence that was presented at trial regarding the screen consisted of the testimony of Darione’s mother that she had accepted the screen installation and that she did not make any complaints to HANO regarding the installation. The fact that Ms. Benjamin accepted the installation of the screen indicates that there was no obvious sign that the screen was improperly installed. Because Ms. Benjamin was asleep when the accident occurred, she was not in a position to testify regarding what the children had been doing immediately prior to the accident. Additionally, there was no evidence at all regarding the condition of the screen immediately prior to the children’s naps. There was simply insufficient evidence offered by the plaintiff to carry her burden of proof as to causation. The trial court did not have any evidence from which it could have concluded that HANO improperly or negligently installed the screen.

In Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162 (La.1984), the Louisiana Supreme Court discussed the use of circumstantial evidence as follows:

In a civil case, the plaintiffs burden is to prove her case by a preponderance of the evidence. This burden may be met by direct or circumstantial evidence. If, as in this case, circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.

Id. at 164 (emphasis in original).

The trial court concluded that the only reasonable hypothesis to explain Darione’s fall was that HANO did not properly install the screen and, therefore, caused the fall. Although improper installation of the screen could have been the cause of the fall, there are other reasonable hypotheses that could also explain the fall, and none of these were excluded with any amount of certainty. For example, Ms. Benjamin’s daughters could have been playing with the screen while Ms. Benjamin was asleep in her room, and this could have caused the pins holding the screen in place to become dislodged. Darione’s bed was next to the window, and it is entirely possible that she or her sister kicked or otherwise hit the screen when they woke from their naps, because they were bored or intrigued by the new screen. This might have caused the screen to become loose. Someone else in the home might have opened the screen and unintentionally left it open such that Darione could have easily fallen out of the window. Therefore, I do not find that Ms. Benjamin has proved by a preponderance of the evidence that Dar-ione’s injuries were caused by the actions of HANO, since she did not exclude with a fair amount of certainty every other reasonable hypothesis for the fall.

The record is simply devoid of evidence, both favorable and unfavorable, and both direct and circumstantial. Therefore, the finding that HANO was negligent in installing the screen is without any eviden-tiary support.

Darione’s fall was a very unfortunate incident, and her situation is a very sympathetic one. Nevertheless, I cannot hold HANO responsible for her injuries absent any evidence to support HANO’s culpability-

Based on the foregoing discussion, I respectfully dissent from the majority decision in this ease. I would reverse the decision of the trial court and dismiss Ms. Benjamin’s claims.


author: MOON LANDRIEU, Judge Pro Tempore.

text:
    Newton R. REYNOLDS, Newtann Limited Partnership, Edwin T. Colton, III, as Trustee for the Steven Brett Reynolds Trust, and as Trustee for the Lauren Reynolds Trust v. Robert D. PAULSON and XYZ Insurance Company.
    No. 2003-CA-1884.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Patricia A. Krebs, Robert J. Stefani, Jr., Bryan J. De Tray, King, Leblanc and Bland, L.L.P., New Orleans, LA, for Plain-tiffiAppellant.
    Howard Shapiro, Charles F. Seemann, III, Shook, Hardy & Bacon, L.L.P., New Orleans, LA, for DefendanVAppellee.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge Pro Tempore MOON LANDRIEU).
   MOON LANDRIEU, Judge Pro Tempore.

Plaintiffs, shareholders of Production Supply Company, Inc. (“PSC”), appeal the civil district court’s order that sustained the defendants’ exceptions of improper venue and lack of subject matter jurisdiction. Finding that proper jurisdiction and venue are in New York pursuant to the terms of the parties’ agreements, we affirm.

The plaintiffs sold their interests in PSC as part of a merger that resulted in the creation of a new company, Transtar Metals, Inc. (“Transtar Metals”). In exchange, the plaintiffs received stock and promissory notes. One of the PSC shareholders, Newton Reynolds, entered into a Consulting Agreement to provide services to Transtar Marine, which was a division of Transtar Metals. Eventually Transtar Marine was spun off as a separate Louisiana corporation. In late 1999, Robert Paulson (“Paulson”), the CEO of Transtar Metals, planned to acquire another company, and to make an initial public offering of stock. Paulson advised the plaintiff, Mr. Reynolds, that the initial public offering of stock would dilute the shares held by the plaintiffs/shareholders unless they invested an additional $1.3 million in Transtar Metals. After the plaintiffs/shareholders invested an additional | ¡>,$1.3 million, Transtar Metals acquired Tiernay Metals Ltd. for approximately $123 million.

In March 2000, Mr. Reynolds entered into a Consulting Agreement with Trans-tar Metals under which Mr. Reynolds was to act as a sales representative for Trans-tar Metals’ marine division in New Orleans. In March 2001, the marine division became a Louisiana corporation, Transtar Marine, Inc. The plaintiffs claim that Transtar Metals failed to pay commissions due to Mr. Reynolds and he resigned in October 2003.

The plaintiffs state that the public offering of stock never took place. The plaintiffs note that in December 2002, after the value of Transtar Metals declined, it was sold for $27 million, far below the offers made a few months earlier by Mr. Reynolds and another investor. The plaintiffs brought suit against Paulson, as well as Transtar Marine, and Daniel Heindel (“Heindel”), an officer of Transtar Metals and Transtar Marine, as well as Transtar Marine’s, Paulson’s, and Heindel’s insurer, alleging breaches of fiduciary duty, detrimental reliance, and breach of contract.

Thereafter, the trial court sustained the defendants’ exceptions of improper venue as well as lack of subject matter jurisdiction and denied the defendants’ motion of nonjoinder of parties as moot. The trial court also denied the plaintiffs’ motion to compel and motion to continue as moot. The plaintiffs’ appeal followed.

On appeal, the plaintiffs argue that the Orleans civil district court had subject matter jurisdiction and venue was proper because the forum selection clauses set forth in the Merger Agreement and the Consulting Agreement were not binding on the plaintiffs. The agreements contained choice of law provisions and forum-selection clauses providing that exclusive jurisdiction is in New York State.

Consulting Agreement

The plaintiffs argue that the Consulting Agreement is in fact a contract of employment. The plaintiffs maintain that Louisiana law provides that any choice of law or choice of forum provision in an employment contract that is the subject of any civil action involving an employee shall be null and void unless the choice of forum or choice of law provision was expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the action under La. R.S. 23:921(A)(2).

Whether an individual is an employee or an independent contractor is a fact-intensive inquiry, and depends primarily on the degree of control that the principal retains in the contract over the employee’s work. Powell v. Fuentes, 34,666, p. 6 (La.App. 2 Cir. 5/9/01), 786 So.2d 277, 281-82. The mere existence of an independent contractor provision is not dispositive. Id., p. 6, 786 So.2d at 282. The plaintiffs contend that the Consulting Agreement clearly contemplated that Mr. Reynolds is an employee, subject to the control of Transtar Metals. The plaintiffs submit that Transtar Metals dictated how much time Mr. Reynolds would devote to the work, the extension of the employment relationship, the employment of assistants, and the termination of the relationship.

Also, the plaintiffs assert that Mr. Reynolds did not ratify the forum selection clause after this dispute arose. Therefore, the plaintiffs contend that the forum selection clause contained in the Consulting Agreement is invalid under La. R.S. 23:921(A)(2).

Merger Agreement

The plaintiffs also argue that the plaintiffs’ claims do not arise out of the Merger Agreement, but are based on actions taken outside the scope of the Merger Agreement. The plaintiffs assert that the claims against Paulson are based on Paulson’s actions as an officer, and not on any duties or obligations under the Merger Agreement. The claims do not arise out of contract but out of Paulson’s statutory fiduciary duty as an officer of Transtar Metals under La. R.S. 12:91. The plaintiffs complain that the Merger Agreement and its provisions, including the forum selection clause, are inapplicable. The plaintiffs state that the second cause of action is against Paulson for detrimental reliance under La. C.C. art. 1967. The plaintiffs maintain that Paulson represented to the plaintiffs that Transtar Metals would go public and that the plaintiffs were required to invest to avoid dilution of their shares. The plaintiffs relied on the representations and invested an additional $1.3 million. The company never went public.

The plaintiffs claim that they do not seek to rescind the Merger Agreement or enforce any particular provisions of that Agreement. The plaintiffs contend that the actions taken after the merger caused them financial losses. The plaintiffs assert that the claims arise out of Paulson’s mismanagement of a corporation of which the plaintiffs are shareholders.

Plaintiffs further maintain that suit should not be maintained in New York because Mr. Reynolds is a Louisiana resident, as are the Trustee and beneficiaries of the Trusts. Newtann, is a Louisiana partnership. Transtar Marine is a Louisiana corporation and Heindel is a Louisiana resident. Nonpayment of commissions and the acquisition of PSC took place in Louisiana.

The defendants point out that the parties engaged in the merger transaction in New York. Also the plaintiffs were physically present in New York when they negotiated and executed the Merger Agreement.

The defendants argue that as consideration for the merger, the plaintiffs, received cash, Transtar Metals stock, and promissory notes linked to the payment of dividends from All Metal Services (“the AMS Notes”), of which PSC owned 50 percent of the stock. In connection with the merger, the plaintiffs, Paulson, Hein-del (a shareholder of Transtar Metals), and others entered into a Stockholders Agreement, which governed subsequent sales of Transtar Metals stock.

Mr. Reynolds became an employee of the new PSC, which survived the merger. In March 2000, Mr. Reynolds executed the Consulting Agreement to terminate his employment with the new PSC.

The defendants contend that the Merger Agreement, Stockholders Agreement, and the Consulting Agreement each contain an identical choice-of-law provision and forum-selection clause.

The agreements state:

Each of the parties hereto hereby irrevocably and unconditionally submits, for itself or himself and its or his property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in the County of New York in the State of New York ... in any action or proceedings arising out of or relating to this Agreement ... and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York ... court.... Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions ....
Each of the Parties hereto irrevocably and unconditionally waives ... any objection that it or he may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to the Agreement in any New York ... court.... Each of the parties hereto irrevocably waives ... the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

Further, Section 11.10(a) of the Merger Agreement includes a broad forum-selection catch-all clause that applies not only to disputes involving the Merger Agreement itself, but also to “any Related Documents or the transactions contemplated” under the Merger Agreement or the related documents. The defendants point out that “related Documents” include the Stockholders Agreement and the AMS notes.

The plaintiffs’ petition acknowledges that the AMS notes were part of the consideration for the Merger, and part of the transactions contemplated by the Merger. The plaintiffs partially seek to recover monies due under the AMS notes. The petition also asserts that Paulson is the “alter ego” of Transtar Metals, a party to the Merger Agreement. Also, the petition asserts that Heindel and Transtar Marine are also “alter egos” of Transtar Metals.

The defendants point out that in Louisiana forum-selection clauses are valid and enforceable. Pitts, Inc. v. Ark-La Resources, L.P., 30,836, 30,837, pp. 2-4 (La.App. 2 Cir. 8/19/98), 717 So.2d 268, 270; Digital Enterprises, Inc. v. Arch Telecom., Inc., 95-30 (La.App. 5 Cir. 6/28/95), 658 So.2d 20. The party seeking to set aside such a provision bears a heavy burden of clearly proving that enforcement would be unreasonable and unjust, or that the forum-selection clause arises from fraud or overreaching, or the clause contravenes a strong public policy of the forum where the suit is brought. See Pitts, 30,836, p. 3, 717 So.2d at 270. The defendants maintain that commercially sophisticated parties are free to limit their disputes to any forum of their choosing. There is no showing that the parties were not on equal footing. The parties who conferred and approved the terms of the agreements were sophisticated negotiators.

The defendants contend that the plaintiffs, by executing and accepting the agreements and the AMS notes, contractually bound themselves to bring suit on any causes of action arising out of or relating to the documents in New York courts. The catch-all provision of the Merger Agreement (as previously noted) applies not only to disputes involving the Merger Agreement, but also to “any Related Documents or the transactions contemplated” under the Merger Agreement, i.e., the AMS notes and the Stockholders Agreement.

The defendants argue that claims against Paulson are essentially claims against Transtar Metals. The plaintiffs alleged that Transtar Metals is Paulson’s alter ego. Plaintiffs’ allegations relate to the agreements and the AMS notes pursuant to the meaning of the Merger Agreement. Paulson and Heindel signed the Merger Agreement and the Stockholders Agreement.

Independent Contractor Status

The defendants assert that the provisions of the Consulting Agreement emphasize that it ended a previous employment relationship rather than commenced one.

The Consulting Agreement states in pertinent part:

WHEREAS, the Consultant desires to resign as an employee of the Company and the Company and the Consultant desire to terminate the Employment Agreement and the relationship of the parties thereunder.

Section 1 provides:

Section 1. Resignation.
Effective immediately, the Consultant hereby resigns as an employee, officer and director of the Company and each of its affiliates (including PSC of Florida FSC, Inc. and Production Supply Company FSC, Inc.) and the Employment Agreement is hereby terminated in its entirety without further action by either party hereto.

Section 5 states in pertinent part:

Section 5. Independent Contractor.
(a) The Consultant shall perform the Services as an independent contractor to the Company. The Consultant acknowledges that he is not an agent or representative of the Company and the Consultant has no authority to act for or to bind the Company or its affiliates without their respective prior written consents.
(b) The Consultant shall not make any claim under this Agreement or otherwise against the Company for workers’ compensation, unemployment insurance compensation, health insurance (other than as specified in Section 1(c), life insurance, social security benefits, disability insurance benefits or any other benefits). The Consultant is solely responsible for his income and other taxes and the Company shall not withhold on behalf of the Consultant any sums for income tax, unemployment insurance or social security pursuant to any law or requirement of any government agency including, without limitation, unemployment tax, federal, state or foreign income tax, federal social security (FICA) payments and disability insurance taxes. The Consultant shall make such tax payments as may be required by applicable law and shall indemnify and hold the Company harmless from any liability the Company may incur as a consequence of the Consultant’s failure to make such tax payment(s).

Under Section 5(a) of the Consulting Agreement, the parties agree that Mr. Reynolds’ status is that of an independent contractor. Under Consulting Agreement Section 5(b), Mr. Reynolds is responsible for his own income tax, unemployment compensation and FICA payments.

In Knapp v. The Management Co., 476 So.2d 567 (La.App. 3 Cir.1985), the Third Circuit found that where there is no withholding of taxes or Social Security deductions, the relationship is that of a principal-independent contractor, and not that of an employer-employee. Similarly, in the present case, the lack of salary with-holdings indicate that Mr. Reynolds was an independent contractor rather than an employee.

We conclude that the Consulting Agreement was not an employment contract. Because Mr. Reynolds was an independent contractor and not an employee, La. R.S. 23:921(A)(2), (which invalidates the forum selection clause with respect to an employee), does not apply.

Non-Competition Clause

The plaintiffs aver that the Consulting Agreement contains an invalid non-competition clause with a time limit of four years. La. R.S. 23:921(B) limits non-competition agreements to two years and a reasonable geographic area of specified parishes in Louisiana. The plaintiffs maintain that the non-competition clause invalidates the agreements.

Section 11.11 of the Merger Agreement, Section 18(b) of the Stockholders Agreement, and Section 10(b) of the Consulting Agreement contain severability clauses. Louisiana courts have held that the existence of a severability clause | ^within a contract evidences the parties’ intent to enforce the remainder of a contract should one of its provisions be invalidated. In Wied v. TRCM, LLC, 30,106, pp. 6-7 (La.App. 2 Cir. 7/24/97), 698 So.2d 685, 689, the Second Circuit found that the invalid non-competition clause did not invalidate the entire contract. In the present case, sev-erability clauses are found in the three agreements. Any invalid non-competition clauses did not invalidate the entire contracts.

The trial court did not abuse its discretion in denying discovery that was directed to the merits of the case. Without the need for further interpretation from additional discovery, the Agreements provide unambiguous forum-selection clauses delegating New York as the jurisdiction where any causes of action related to the Agreements should be brought.

Accordingly, the judgment of the trial court granting the defendants’ exceptions of improper jurisdiction and venue is affirmed.

AFFIRMED.

      . La. R.S. 23:921(A)(1) and (2) provide:
      § 921. Restraint of business prohibited; restraint on forum prohibited; competing business; contracts against engaging in; provisions for
      A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
      (2) The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee's contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

      . Section 11.9 of the Merger Agreement states:
      11.9 GOVERNING LAW.

      THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED.
      Section 11.10 of the Merger Agreement provides in pertinent part:
      11.10 Jurisdiction and Venue:

      (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself or himself and its or his property, to the exclusive jurisdiction of any New York state court or federal court of the United States of American sitting in New York County, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, the Related Documents or the transactions contemplated hereunder or thereunder or for recognition or enforcement of any judgment relating thereto, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York state court or, to the extent permitted by law, in any such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
      (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it or he may legally and effectively do so, any objection that it or he may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, the Related Documents or the transactions contemplated hereunder or thereunder in any New York State or federal court sitting in New York County, New York. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any court.
      (Emphasis added.)


author: CHARLES R. JONES, Judge.

text:
    Joyce WOODS v. The CITY OF NEW ORLEANS and The Regional Transit Authority.
    No. 2003-CA-1776.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Byron J. Casey, III, Metairie, LA, for Plaintiff/Appellee.
    Thomas M. Flanagan, W. Raley Alford, III, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS JR., and Judge Pro Tempore MOON LANDRIEU).
   CHARLES R. JONES, Judge.

The Appellant, the Regional Transit Authority of New Orleans, appeals the judgment of the district court granting partial summary judgment in favor of the Appel-lee, Joyce Woods, on the issue of liability. The Regional Transit Authority also seeks reversal of the judgment of the district court awarding damages. We amend and affirm as amended.

Facts

Ms. Woods exited a transit bus owned and operated by the Regional Transit Authority of New Orleans (hereinafter the “RTA”) on February 13, 1998, at the corner of Elysian Fields Avenue and Gentilly Boulevard. As she exited the bus, Ms. Woods tripped over a piece of metal embedded in concrete. Later, the piece of metal was determined to be the remains of a pole of a “cut off’ bus stop sign owned, maintained and controlled by the RTA. Ms. Woods shattered her right second toe when she hit the metal remains of the pole. After two years of what Ms. Woods described as excruciating pain, her toe was amputated. Years prior to this incident, Ms. Woods’ big toe on the same foot was amputated as a result of a lawn mower accident. However, from this incident, Ms. Woods experience problems with her gait, balance and walking and coupled with the pain, she resolved to undergo surgery.

Ms. Woods filed suit in the Civil District Court for the Parish of Orleans against the City of New Orleans and the RTA. On May 12, 1999, the RTA admitted that it owned, maintained, and controlled the pole on which Ms. Woods tripped. Thereafter, the City and Ms. Woods filed a joint motion to dismiss the City from suit with prejudice that was granted by the district court. On October 24, 2001, Ms. Woods filed an Amended Petition alleging that the RTA was liable under La. Civ.Code arts. 2317 and 2317.1. She then filed a Motion for Partial Summary Judgment on the issue of Lability under those articles. Ms. Wood’s motion was granted and a bench trial was held on the issues of causation and damages. Judgment was subsequently rendered in favor of Ms. Woods for the following: $400,000 in general damages; $4,878.55 in past medical expenses; $10,000 in future medical expenses; and $1,627.26 in past wages. It is from this judgment that the RTA takes this timely appeal.

Argument

In its first assignment of error, the RTA argues that Ms. Woods failed to prove under La. Civ.Code arts. 2317 and 2317.1 that the RTA was liable, and that the district court erred by drawing inferences in violation of the summary judgment procedural articles. The law on which the RTA relies reads as follows:

Art. 2317. Acts of others and of things in custody
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. This, however, is to be understood with the following modifications.
Art. 2317.1. Damage caused by ruin, vice, or defect in things
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.

Ms. Woods argues that the RTA made a judicial admission that it was liable for the pole. She further relies on Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App. 2 Cir. 12/6/00), 774 So.2d 1076, which held that recovery under the theory of negligence or strict liability requires the plaintiff to prove that the defendant had custody of the thing causing the injury; that it contained a defect, that is, a condition creating an unreasonable risk of harm; and that the defective condition caused the plaintiffs injury.

In Migues v. City of Lake Charles, 96-626, (La.App. 3 Cir. 11/6/96), 682 So.2d 946, the plaintiff stepped on a pipe stub at the Lake Charles Civic Center and lost her balance and fell. The defendant challenged whether the pipe stub created an unreasonable risk of harm to the plaintiff, which, in turn, caused her injury. Although our colleagues in the Third Circuit found comparative fault among the parties, the Court also reasoned that a substantial number of people attend the Civic Center on a yearly basis and that the likelihood of the harm outweighed the utility of the pipe stub remaining in the step which was sufficient to establish that the pipe stub created an unreasonable risk of harm to the visitors of the civic center. Id at 950.

Further, La. R.S. 9:2800 provides:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Where other constructions are placed upon state property by someone other than the state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state’s benefit and use.
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
E. A public entity that responds to or makes an examination or inspection of any public site or area in response to reports or complaints of a defective condition on property of which the entity has no ownership or control and that takes steps to forewarn or alert the public of such defective condition, such as erecting barricades or warning devices in or adjacent to an area, does not thereby gain custody, control, or garde of the area or assume a duty to prevent personal injury, wrongful death, property damage, or other loss as to render the public entity liable unless it is shown that the entity failed to notify the public entity which does have care and custody of the property of the defect within a reasonable length of time.
F. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
G. (1) “Public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, | .¡instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, in-strumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and them employees, servants, agents, or subcontractors.
(2) “Public site or area” means any publicly owned or common thing, or any privately owned property over which the public’s access is not prohibited, limited, or restricted in some manner including those areas of unrestricted access such as streets, sidewalks, parks, or public squares.

The RTA further relies on the obviously distinguishable case of Jones v. Hawkins, 98-1259, p. 4 (La 3/19/99) 731 So.2d 216, 218, which states:

[F]or a plaintiff to successfully recover against a public entity for damages due to road defects, he must prove: (1) the thing that caused his damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant had actual or constructive notice of the defect, yet did not take steps to correct it within a reasonable period of time; and (4) the defect was a cause in fact of the plaintiffs harm, (emphasis added).

In the case at bar, there was no road defect. Although the court in Jones found that “the City’s duty to use reasonable care in maintaining its public ways does not encompass conducting periodic inspections of its streets, and the failure to conduct such inspections does not imply knowledge of a dangerous defect on those streets, we hold that the failure to conduct inspections does not impute to the City constructive knowledge of defects in its streets”, this Court is of the opinion that the City has more of a maintenance responsibility to the public citywide as opposed to the RTA, which is limited in its service area in comparison.

Although the RTA admits that it did not keep repair records reflecting the removal of the former pole and sign and the placement of a new pole and sign at the accident location, the RTA still could have raised an inference that two poles and signs existed simultaneously at the accident site by surveying all pole and sign locations for other sites that they service. If other two-pole, two-sign locations exist, then a reasonable inference would be raised that the RTA did have two simultaneously existing poles and signs at the accident site. The burden of proof would then shift to the plaintiff to prove otherwise.

The RTA offered no evidence to refute the fact that it had knowledge that one pole and sign was previously removed or destroyed necessitating a new pole and sign. While installing a new pole and sign, the RTA retained a duty to remediate the site of the old pole and sign such that the site did not create an unreasonable risk of harm for tripping to a person walking in the area either during the day or night. This the RTA failed to do, for the pole remenant (obviously a pipe or hollow pole, because the record reflects that the end of the pole sticking out of the concrete in which it was embedded was pinched closed) was protruding out of the concrete. By failing to remediate the site properly, the RTA retained garde over the pole stub and concrete in which it was embedded. The RTA clearly had constructive notice of the “vice or defect which caused damage prior to its occurrence.” La. R.S. 9:2800 C.

The RTA further argues that the district court drew inferences from the evidence presented. Since there is no question as to how Ms. Woods was injured, and that the RTA had custody of the pole, we find that the RTA’s admission of ownership of the pole is enough to find the RTA liable under La. Civ.Code arts. 2317 and 2317.1. Therefore, as Ms. Woods has met her burden of proof, we find that this argument is without merit.

In its second assignment of error, the RTA argues that the district court abused its discretion by awarding excessive damages to Ms. Woods in the following amounts:

$ 400,000 General Damages
$4,878.55 Past medical expenses
$ 10,000 Future medical expenses
$ 1,627.26 Past lost wages

Specifically, the RTA argues that the district court awarded Ms. Woods excessive damages for past medical expenses. We agree that the documentation Ms. Woods submitted to the district court from Charity Hospital included medical bills that were not the subject of the injury in question. The RTA has asked this Court to reduce the award for past medical expenses to $2,493.80. The RTA qualifies this reduction by subtracting a bill for Ms. Woods’ October 2000 surgery involving a scar on her right toe, and a nail bed excision on the right third toe; a bill from November 2000 for a pulmonary examination; and a bill from a December 2001 flu shot.

Ms. Woods, on the other hand, argues that the award for past medical expenses should only be reduced by $340, $12.50 for the cost of a flu shot and $325.50, the cost of the pulmonary function study.

Considering the record before this Court, and the RTA’s failure to object during trial when the Charity Hospital records were submitted into evidence, we reduce the award for past medical expenses by $340, thus awarding Ms. Woods $4,538.55.

The RTA further argues that the district court’s award of $400,000 in general damages was excessive because none of the medical evidence proved that amputation of Ms. Woods’ toe was necessary. The RTA relies on Marquez v. City Stores Co., 371 So.2d 810 (La.1979), wherein the Supreme Court reinstated damages in the amount of $7,500 for a young child who had half of his left great toe amputated following an escalator accident.

Our colleagues in the Third Circuit affirmed an award of $400,000 for a toe injury stating:

To award Hebert such a large amount, the jury must have determined that she suffered greatly with the pain. Considering Hebert’s particular injuries and the resulting chronic nature of her toe dislocations and pain, and, keeping in mind that we still must grant the jury’s finding some deference, we conclude that an award for $250,000.00 for pain and suffering and $150,000.00 for disfigurement are the highest reasonable amounts which were within the trier of fact’s discretion.

Hebert v. Podiatry Ins. Co. of America, 96-567, p. 19 (La.App. 3 Cir.1996), 688 So.2d 1107, 1118.

The evidence before the district court, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for the district court’s finding, and we shall not disturb the award on appeal. Courteaux v. State ex rel. Dept. of Transp. and Development, 99-0353, p. 11 (La.App. 4 Cir. 9/22/99), 745 So.2d 91, 98. Further, the award as apportioned to the injury is not so high or so low as to shock the conscience. Id. at 14, 745 So.2d at 99.

The district court listened to the testimony and observed Ms. Woods. The district court was in a better posture than this Court to conclude that Ms. Woods is entitled to $400,000 in general damages. The award for general damages is not such that it “shocks the conscience” as to find that there was an abuse of discretion by the district court.

The RTA also argues that the award for future medical expenses in the amount of $10,000 was excessive. The RTA contends, that Ms. Woods failed to establish the necessity of future medical treatment to a reasonable degree of certainty citing Ceaser v. Stiner, 98-898, p. 7 (La.App. 3 Cir. 12/9/98), 729 So.2d 611, 615. The testimony of Ms. Woods’ treating physician, Dr. Christopher Marrero, established that it is possible that Ms. Woods may require a knee replacement in the future. However, Dr. Marrero testified that if necessary, he would administer a number of treatments prior to the replacement of her knee. We find that the district court was too speculative in finding that Ms. Woods would require knee surgery and awarding her $10,000.

Future medical expenses must be established with some degree of certainty, and an award of such cannot be predicted on mere speculation. Morris v. United Services Automobile Ass’n., 32,528, p. 7 (La.App. 2 Cir. 2/18/00), 756 So.2d 549, 557, citing Holt v. State Through Sept. of Trans. and Development, 28,183 (La.App. 2 Cir.4/3/96), 671 So.2d 1164. Awards for future medical expenses that may or may not be incurred require medical testimony that they are indicated and their probable costs. Id.; Kessler v. Southmark Corp., 25,941 (La.App. 2 Cir. 9/21/94), 643 So.2d 345. The plaintiff must show that, more probably than not, these expenses will be incurred. Morris, supra; Morrison v. Kappa Alpha Psi Fraternity, 31,805 (La.App. 2 Cir.5/7/99), 738 So.2d 1105, writs denied 99-1668, 99-1607, 99-1622 (La.9/24/99), 747 So.2d 1120, 749 So.2d 634, 749 So.2d 635.

However, in the instant case the RTA only requests that this Court reduce the award for future medical expenses to a total of $850. Finding that this argument has merit, and because the RTA does not contest the entire amount of future medical expenses, we reduce the award accordingly.

Decree

For the foregoing reasons we affirm the granting of the motion for partial summary judgment by the district court in favor of Joyce Woods. Further, we amend the award for past medical expenses to total $4,538.55, and future medical expenses to total $850, and we affirm the judgment as amended.

AMENDED; AFFIRMED AS AMENDED.


author: MICHAEL E. KIRBY, Judge.

text:
    Raymond BURKART, Jr. v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2003-CA-1699.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2004.

      Raymond C. Burkart, Jr., Bridgette D. Kaczmarek, New Orleans, LA, for Plaintiff/Appellant.
    Sherry S. Landry, Acting City Attorney, Annabelle H. Walker, Deputy City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

Plaintiff, Raymond C. Burkart, Jr., a Major in the New Orleans Police Department (“NOPD”), appeals the Civil Service Commission’s (“the Commission”) denial of his appeal of a ten day suspension imposed upon him by NOPD Superintendent Edwin P. Compass, III (“Chief Compass”) for violations of department regulations relative to moral conduct, courtesy and professionalism.

This case involves a verbal altercation on July 27, 2001 between two high-ranking law enforcement officials, Major Burkart and Mr. Salvadore Perricone, an Assistant United States Attorney and Chief of the Organized Crime Task Force in New Orleans. This confrontation occurred in the hallway of NOPD headquarters where Mr. Perricone came to attend a meeting.

As noted by the Commission in its opinion, for several years prior to the incident in question, Major Burkart and Mr. Perri-cone had a very strained relationship arising out of conflicts in their law enforcement duties and private law practice. At the Commission hearing, Major Burkart testified that on the date of the verbal altercation, he passed Mr. Perricone in the hallway at NOPD headquarters and refused Mr. Perricone’s attempt to shake hands. Major Burkart then said to Mr. Perricone, “I’m not shaking your hand. You bum-rapped me.” According to Major Burkart, Mr. Perricone called him “a f_liar.” Major Burkart responded, “Why don’t you retire so I can bust your ass?” He said that Mr. Perricone then stepped forward and said, ‘Why don’t you do it now?” He testified that both men raised their voices and used profanity during this verbal exchange.

Mr. Perricone’s version of the events varies from that offered by Major Burkart. According to Mr. Perricone, Major Bur-kart told him he v$ould not shake his hand and called Mr. Perricone “a backstabbing s.o.b.” Mr. Perricone walked away and several minutes later, Major Burkart approached him in the hallway and said, “I can’t wait until you retire ‘cause I’m going to kick your f_ass.” Mr. Perricone, referring to a previous legal matter in which both men were involved then said, “We both know what happened back in 1995.” He claims that Major Burkart then told him, “I’m going to get you.” Mr. Perricone denies calling Major Burkart a liar.

F.B.I. Special Agent Todd Cox was also at NOPD headquarters for the same meeting as Mr. Perricone. He witnessed the verbal altercation between Major Burkart and Mr. Perricone, and he corroborated Mr. Perricone’s version of the events.

Chief Compass notified Major Burkart by letter that an investigation into the events of July 27, 2001 determined that Major Burkart was arrested on a federal warrant on a charge that he threatened to assault an Assistant United States Attorney with intent to retaliate on account of the performance of that officer’s official duties. Furthermore, the investigation determined that Major Burkart failed to conduct himself in a professional and courteous manner during the verbal exchange with Mr. Perricone by using obscenities and vulgarities. The letter noted that a hearing on this matter was held on July 17, 2002, and Major Burkart offered nothing at that hearing that would tend to mitigate, justify or explain his behavior. Chief Compass stated that he was imposing a ten (10) day suspension for violations of department regulations regarding courtesy and professionalism. These rules read as follows:

RULE 2 — MORAL CONDUCT
2. COURTESY
Employees shall be courteous, civil and respectful in their conduct toward all persons. The use of profane, vulgar or discourteous gestures or language to or in the presence of any citizen is prohibited.
The use of profane, vulgar or discourteous gestures or language either verbal or written by one employee to another employee is prohibited.
RULE 3 — PROFESSIONAL CONDUCT
1. PROFESSIONALISM
Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee of the Police Department.

Chief Compass also stated in the letter that Major Burkart’s conduct was contrary to the standards prescribed by Rule IX, Section 1, Paragraph 1.1, of the Rules of the Civil Service Commission for the City of New Orleans, which states in part:

When an employee in the classified service is unable or unwilling to perform the duties of his/her position is satisfactory manner, or has committed any act to the prejudice of the service, or has omitted to perform any act it was his/ her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service.

Major Burkart appealed the disciplinary action of Chief Compass to the Commission. The Commission held a hearing in this matter, and rendered its decision denying Major Burkart’s appeal on August 11, 2008. Major Burkart now appeals to this Court from the decision of the Commission. On appeal, Major Burkart argues that the Appointing Authority, the NOPD, erred when it took disciplinary action against him, and that the disciplinary action taken by the Appointing Authority was excessive under the circumstances.

In its opinion, the Commission notes that the information in the record regarding the history of the strained relationship between Major Burkart and Mr. Perricone is helpful in understanding why these two men had a motive for the confrontation on July 27, 2001, but it is irrelevant in determining whether the Appointing Authority was justified in disciplining Major Burkart. The Commission stated that it is undisputed that on July 27, 2001, Major Burkart passed Mr. Perricone in the hallway of NOPD headquarters, refused to shake Mr. Perricone’s hand and several minutes later said to Mr. Perricone in a loud voice, “Why don’t you retire so I can bust your ass?” The Commission found that even though the testimony differed as to whether or not Mr. Perricone called Major ^Burkart a liar, under any of the versions presented, there is no doubt that Major Burkart threatened Mr. Perricone in a public forum.

The Commission went on to state that this type of conduct by a Major in the Police Department is unquestionably harmful to the public service, particularly the important cooperative relationship between city and federal law enforcement officials. The Commission found that Major Burkart’s conduct constituted a violation of standards of professionalism and courtesy for which discipline was appropriate.

In determining that the penalty of a ten-day suspension was justified, the Commission stated that it agreed with Chief Compass’ reasons for giving Major Burkart that particular penalty. The Commission cited the following portion of Chief Compass’ testimony:

CHIEF COMPASS:
When I talked to Maj. Burkart about the encounter, he basically stated that the encounter did take place and that he did use profanity, but he felt as though he was provoked. I looked at the totality of the circumstances and him being a major on the New Orleans Police Department. And you have to have a certain amount of restraint. And in my opinion, he could have withdrawn from the encounter and he did not have to use profanity. So, therefore, I found him guilty of professionalism and courtesy violations. I didn’t find any criminal violations sustained or anything like that as far as termination. But I found that he was discourteous and he did show a lack of professionalism, therefore I gave him five days for each count, which was a 10-day suspension.
MR. BOSSETTA:
Why did you decide to give Maj. Bur-kart a 10-day suspension?
CHIEF COMPASS:
Well, I looked at the rank and Maj. Burkart holds one of the top civil service ranks in the New Orleans Police Department. And there’s a certain level of professionalism that you have to carry yourself with at that level. And I saw that, from the circumstances, in talking with Maj. Burkart, in my opinion, he had an opportunity to withdraw from the encounter and he didn’t withdraw. Therefore, he showed poor judgment, so therefore I gave him the penalty of 10 days.
MR. BOSSETTA:
Chief Compass, your relationship, obviously, with the U.S. Attorney’s Office is important to the work that you do. Could you describe for the Commission how the incident with Maj. Burkart impacts the mission that you’re trying to accomplish for the Department?
CHIEF COMPASS:
Well, basically, you have to work with other agencies and we have to have a level of cooperation. And when encounters like this take place, it basically hurts that relationship and, basically, it’s something that never should have happened, in my opinion.

The applicable legal precepts in this case are as follows: An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. The employee may appeal from such disciplinary action to the City Civil Service Commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const, art. X, § 8 (1974); Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 112-113 (La.1984). The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const. art. X § 12(B).

The Commission has a duty to independently decide, from the facts presented, whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Walters, 454 So.2d at 113. Legal cause for disciplinary action exists whenever an employee’s conduct impairs the efficiency of the public service in which that employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir.1990). The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service. Id., at 1315.

In reviewing the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Walters, 454 So.2d at 114. “Arbitrary or capricious” means that there is no rational basis for the action taken by the Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

The Commission found that the Appointing Authority sustained its burden of proof, and we agree. The record is clear that the complained of activity occurred. Major Burkart, one of the highest ranking members of the NOPD, in a loud voice told an Assistant U.S. Attorney, “Why don’t you retire so I can bust your ass?” while that federal law enforcement official was at NOPD headquarters on official business. Major Burkart acknowledges that this encounter took place, but argues that he was provoked when Mr. Perricone allegedly called him “a f_:_liar.” We note that we are not called upon to review Mr. Per-ricone’s conduct in this confrontation. Mr. Perricone is not a City Civil Service employee, and the Appointing Authority does not have the authority to discipline him. The issues before us are whether Major Burkart’s conduct impaired the efficient operation of the police department and whether his punishment was commensurate with the infraction.

We conclude, as did the Appointing Authority, that a police officer of Major Burkart’s high rank should have exercised restraint and withdrawn from the encounter, and not made the remarks at issue to a federal law enforcement official who was at NOPD headquarters on official business. We find no merit in Major Burkart’s argument that his remarks are protected speech under the First Amendment. The First Amendment does not protect all speech by a public employee. Normand v. City of Baton Rouge, Police Department, 572 So.2d 1123, 1125 (La.App. 1 Cir.1990). Whether the speech of a public employee is constitutionally protected is determined by balancing the interest of the employee, as a citizen, in commenting upon matters of public concern against the interest of the government (national, state or local), as an employer, in promoting the efficiency of the public services it performs through its employees. Id., citing Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The remarks made by Major Burkart to Mr. Perricone were not a matter of public concern; they involved a personal dispute between these two men. As in the Normand case, the employee’s interest in making these remarks does not outweigh the Appointing Authority’s interest in promoting the efficiency of the public service it performs. In Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627, this Court stated as follows:

The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Indeed, the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative. (Citation omitted).

The record establishes that Major Bur-kart threatened Mr. Perricone in a public forum. Considering the totality of the circumstances, we agree with the Commission’s finding that the type of conduct exhibited by Major Burkart on July 27, 2001 is harmful to the public service, particularly the important cooperative relationship between city and federal law enforcement personnel.

Major Burkart went into exhaustive detail at the hearing and in his appeal brief in describing the history of his acrimonious relationship with Mr. Perricone. We agree with the Commission that this history is not relevant to the issue of whether the NOPD was justified in disciplining Major Burkart for the confrontation of July 27, 2001. The Commission was not arbitrary or capricious and did not abuse its discretion in finding that Major Burkart’s conduct constituted a violation of department standards of courtesy and professionalism for which discipline was appropriate.

As for the issue of whether the punishment was commensurate with the infraction, we note that Chief Compass testified that the ten-day suspension imposed upon Major Burkart included five days for being discourteous and five days for lack of professionalism. The Commission agreed with Chief Compass’ reasons for imposing this particular sentence. After review of the record, we conclude that the ten-day suspension was appropriate punishment for Major Burkart’s violations of the department’s standards of courtesy and professionalism. The Commission’s denial of Major Burkart’s appeal of the ten-day suspension was neither arbitrary nor capricious and was not an abuse of discretion.

For the reasons stated above, the decision of the Commission is affirmed.

AFFIRMED.