author: L SAUNDERS, Judge.

text:
    LOUISIANA PURCHASE II PARTNERS LLC, v. J & E PARTNERSHIP.
    No. 02-0880.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2002.
    Rehearing Denied Jan. 29, 2003.

      David Hyland Nelson, Nelson, Zentner, Sartor & Snel, Monroe, LA, for Louisiana Purchase II Partners, LLC.
    Virgil Russell Purvis Jr., Smith, Taliaf-erro, Seibert, Jonesville, LA, for Louisiana Purchase II Partners, LLC.
    John Gates Spires, Mer Rouge, LA, for J & E Partnership.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   L SAUNDERS, Judge.

This cases arises from the execution, by the Plaintiff and the Defendant, of two agricultural leases of property in Catahou-la Parish, Louisiana. The Plaintiff, Louisiana Purchase II Partners (LAP) filed suit alleging that the Defendant, J & E Farm Partnership (J & E) failed to pay the required rent pursuant to the lease agreement. After LAP filed its complaint, J & E filed its Answer and Reconventional Demand, alleging damages for failure of LAP to provide adequate irrigation water to the leased premises and also negligence on the part of LAP. The Plaintiff then filed its Motion for Summary Judgment stating there was no genuine issue of material fact as to the issue of LAP’s responsibility to provide irrigation water to the premises. The trial court found that the lease was clear and unambiguous on this issue, thus the Motion for Summary Judgment was granted and J & E’s Reconventional Demand was subsequently dismissed. At this time, J & E appeals the Summary Judgment granted by the trial court in favor of LAP and dismissal of the Recon-ventional Demand.

FACTS AND PROCEDURAL BACKGROUND

The parties to this action are LAP, whose representatives are Mr. Gerald Keating, partner, and Dr. John Bryant, farm manager, and J & E, whose representative is Jeffery H. Morris, partner. Morris’ father, Ivan 0. Morris Jr., attended negotiations of the leases and provided the labor and management for the 1998 rice crop.

The parties entered into two written leases wherein LAP agreed to lease to J & E 2,945 acres in Catahoula Parish for the 1998 crop year. The terms of each lease were identical except for the acreage and rental amounts. In the lease, LAP agreed to provide all equipment and materials necessary to provide “high quality water less than 500 ppm Sodium from wells watering no more than 150 acres each.” The leases [2were prepared by the Lessor, and their terms had an effective date of February 10, 1998. They were to continue for a period of four years, and provided for two semi-annual rent payments. The consideration for one lease was $108,936.00 and the second lease was $144,372.00. Paragraph 32 of the lease contained the following provision:

Lessor shall be responsible for replacement of equipment in the event of catastrophic damage from natural causes (including but not limited to, fire earthquake, tornado, windstorm, and lightning). The parties expressly acknowledge and agree that in no instance shall Lessor be liable for any crop loss due to equipment failure due to mechanical breakdown, catastrophic damage from natural causes, or underground water quantity or quality.

After the leases were signed, LAP caused to be drilled 24 wells on the leasehold; the first on March 26, 1998, and the last on May 21, 1998. The drillers were given well specifications by LAP to drill each well.

Installment payments under each lease were due June 1, 1998, and December 1, 1998. On June 1, 1998, $54,468.00 became due under the first lease and $72,186.00 became due under the second lease. On December 1, 1998, $54,468.00. became due under the first lease and $72, 186.00 became due under the second lease.

LAP filed suit on February 18, 1999, alleging that J & E failed to pay both of the December 1, 1998 installments due pursuant to the provisions of the two leases. LAP sought $121, 117.00, reasonable attorney fees, and court costs in its petition. On May 21, 1999, J & E filed an Answer listing its affirmative defenses and a Reconventional Demand for damages against LAP, alleging that LAP agreed to provide irrigation water and all irrigation equipment, pumping structures and other materials necessary to provide irrigation water to the leased premises, and that, as a result of LAP’s failure to do so, J & E sustained damages. J & E also alleged that LAP was negligent |,qon numerous grounds, all addressing aspects of LAP’s failure to properly provide the irrigation sufficient to sustain the rice crop. According to J & E, the wells drilled by LAP were not built deep enough to reach the water strata, therefore the wells did not deliver a sufficient amount of water to the crops, resulting in damage. Accordingly, J & E sought damages for costs incurred in mitigating its losses.

LAP filed its first Motion for Summary Judgment on August 30, 1999. LAP asserted that based upon Paragraph 32 of the lease, there was no genuine issue of material fact regarding LAP’s liability for damages because paragraph 32 provided that LAP would not be liable for damages resulting from “failure of the irrigation system.” The court denied the motion on February 28, 2000.

Next, on September 12, 2000, LAP moved for partial summary judgment asserting that LAP had in effect a liability insurance policy which would cover J & E’s claim against it and that the unpaid rent, which by this time had been paid into the court registry by J & E, should be paid to LAP. This motion was also denied by the trial court.

Last, LAP moved for partial summary judgment on June 26, 2001 asserting that there was no warranty by LAP to provide irrigation sufficient to sustain its rice crop. In written reasons, the trial court found the leases devoid of any language wherein LAP agreed to supply irrigation to J & E’s crops; and further, paragraph 32 specifically provided that LAP would not be held responsible for crop damage due to water quantity. The Motion for Summary Judgment was granted and J & E’s Reconven-tional Demand was denied on February 12, 2002.

LAP filed a motion to turn over funds from the court registry and to set attorney fees. J & E objected, asserting that granting summary judgment dismissed |4only the Reconventional Demand and that Plaintiffs petition for past due rent still faced an answer with affirmative defenses not disposed of by the summary judgment. J & E further asserted that additional party Defendants were still party to the action and had not been affected by or referenced in the summary judgment. The objection was overruled, attorney’s fees were fixed at $20,000.00, and the clerk of court was ordered to turn over all funds in the registry to LAP.

Thereafter, J & E filed its petition for suspensive appeal which was granted by this court on April 2, 2002.

LAW AND ANALYSIS

ASSIGNMENTS OF ERROR

On appeal, J & E assert the following assignments of error:

(1) the trial court erred when it granted LAP’s motion for summary judgment and denied J & E’s reconven-tional demand; and
(2) the trial court erred when it granted LAP’s motion to turnover funds and set attorney’s fees.

ANALYSIS

ASSIGNMENT OF ERROR NO. 1

In its first assignment of error, J & E asserts that the trial court erred when it granted LAP’s Motion for Summary Judgment and denied J & E’s Reconventional Demand. LAP asserts that summary judgment was proper because paragraph 32 of the lease, disclaiming any liability for crop loss due to “underground water quantity”, is clear and unambiguous; and additionally, the’ “AS IS” clause of the lease disclaims any liability on the part of LAP for damages attributed to the irrigation wells on the leasehold. This court recognizes that summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together |Bwith affidavits show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ.P. art. 966(B). For the following reasons, we reverse the decision of the trial court granting LAP’s Motion for Summary Judgment. We hold that the paragraph 32 of the lease is not clear and unambiguous and that there still remains a genuine issue of material fact as to whether LAP had a duty to provide irrigation water to J & E’s rice crop,

. Paragraph 82 of the lease agreement

LAP argues that the provisions of paragraph 32 of the lease disclaims LAP from any and all of the allegations made by J & E. This summary judgment was granted, in part, from the trial court’s interpretation of paragraph 32 of the J & E’s lease with LAP that provides as follows:

Lessor shall be responsible for replacement of equipment in the event of catastrophic damage from natural causes (including but not limited to, fire earthquake, tornado, windstorm, and lightning). The parties expressly acknowledge and agree that in no instance shall Lessor be liable for any crop loss due to equipment failure due to mechanical breakdown, catastrophic damage from natural causes, or underground water quantity or quality.

Under La.Civ.Code art.2046, “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” However, if a contract cannot be construed simply, based on its language, because of an ambiguity, the court may look to extrinsic evidence to determine the parties’ intent. Whether or not a contract is ambiguous is a question of law. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Also, under La.Civ.Code art.2050, the provisions of a contract “must be interpreted in light of other provisions so that each is given the meaning suggested by the contract as a | ¿whole.”

The trial court held that paragraph 32, on its face, clearly and unambiguously excluded the Lessor from liability for failing to supply an adequate amount of water to the rice crop. However, we find that this paragraph is not clear and unambiguous, and could have more than one interpretation. Paragraph 32 of this lease also contains provisions guarding the Lessor from liability from crop loss caused by events beyond of the Lessor’s control. For example, paragraph 32 states “Lessor shall be responsible for replacement equipment in the event of catastrophic damage from natural causes (including but not limited to, fire earthquake, tornado, windstorm, and lightning).” This provision then goes on to discuss crop loss due to water quality or quantity. We hold that this provision could be interpreted to limit liability of the Lessor for negligence; but after a close reading of the provision and interpreted in conjunction with other provisions of the lease, it could also be intended to guard the Lessor against liability only for crop loss caused by insufficient water quantity for reasons beyond the Lessor’s control, such as instances where the land simply does not contain the desired amount of water, but not negligence.

Moreover, the first page of the lease agreement entered into by the parties states that the Lessor rents to the Lessee the property described in Exhibit A to the lease agreement. Exhibit A gives the land description and specifically and clearly sets forth that, “Lessor agrees to provide high quality water less than 500 ppm Sodium from wells watering no more than 150 acres each.” This creates ambiguity, in that one provision of the lease states that the Lessor is not responsible for water quantity, but Exhibit A clearly states that the Lessor intends to supply the crops with water containing less that 500 ppm of Sodium from wells that are intended to water |7no more than 150 acres each.

In light of Exhibit A to the lease, it would be very difficult to conclude that LAP had no obligation whatsoever to supply water to J & E’s rice crop. In any event, clearly, because of the conflict between the terms of the Paragraph 32 and Exhibit A to the lease, it follows that there are issues of material fact to be resolved by the trier of fact at a trial on the merits. Thus, summary judgment based upon the absence of any duty on behalf of LAP to supply water to the leasehold is clearly unwarranted.

“AS IS” clause contained within the lease terms

In its brief, LAP argues that the lease unambiguously states that the Lessee took the irrigation equipment “AS IS”. According to LAP, this provision disclaims liability for any inadequacies in water quantity, and the lease agreement does not “in any way, shape, or form” impose any type of obligation on LAP to do any work on the irrigation system subsequent to the date of execution of the lease. Despite the fact that LAP claims it had no duty to build any irrigation wells, following the lease negotiations, LAP caused 24 wells to be drilled upon the leasehold. LAP claims that it took on the voluminous and expensive task of drilling 24 wells purely “as a gratuity and an act of good faith.” However, J & E asserts that LAP agreed to provide all irrigation equipment pumping structures and other materials necessary and to provide irrigation water to the leased premises.

The pertinent “AS IS” provision of the lease states:

Prior to entering into this lease, Lessee has inspected the subject Irrigation Equipment and agrees to accept the same in its present “AS IS” condition and to undertake and perform the repairs and maintenance required herein.

An “AS IS” clause generally implies that the leasing party has had a reasonable opportunity to inspect for latent defects. However, in this instance, the record reflects |Rthat the irrigation equipment was not installed, nor were all the wells built upon the land until after lease negotiations and inspection. When the parties entered the lease, 10 wells were already drilled on the leasehold. Subsequent to the lease, LAP drilled 24 more wells. Although the “AS IS” clause may be applied to those wells existing at the inception of the lease, it cannot be applied to those wells built after lease negotiations because J & E never had a reasonable opportunity to inspect those wells before accepting the “AS IS” clause.

Furthermore, the conflict of the parties centers around a duty to provide adequate irrigation water to the rice crop. The “AS IS” provision does not address that duty. It only addresses maintenance and repairs to the irrigation equipment existing at the time of the execution of the lease. As such, it cannot support the summary judgment in favor of LAP.

ASSIGNMENT OF ERROR NO. 2:

In J & E’s final assignment of error it asserts that the trial court erred when it granted LAP’s motion to turnover funds and set attorney’s fees. For the reasons above, we hold that summary judgment granted in favor of LAP was improper. Accordingly, turning over funds and setting attorney’s fees is also improper. We hold that the funds are to remain in the court registry and setting attorney’s fees is not yet proper, as each issue in controversy in the case sub judice has not been disposed.

DECREE

For the above reasons, we reverse the judgment of the trial court and reverse the summary judgment granted in favor of LAP, as there still remains a genuine issue of material fact. We also reverse the turnover of funds and amount set for attorney’s fees. All costs of this appeal are attributed to Defendant, LAP.

REVERSED.


source: Caselaw Access Project

author: 11 CARAWAY, J.

license: Public Domain

text:
    Alicia SOLITO and Joe Solito, Individually and as Husband and Wife, Plaintiffs-Appellees, v. HORSESHOE ENTERTAINMENT, a Louisiana Partnership, d/b/a Horseshoe Casino Hotel, Defendant-Appellant.
    No. 36,667-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.

      Rountree, Cox, Guin & Achee by Dale G. Cox, Shreveport, for Appellant, Horseshoe Entertainment.
    Rice & Kendig, by M. Carl Rice, William F. Kendig, Shreveport, for Plaintiffs, Alicia and Joe Solito.
    Cook, Yancey, King & Galloway, by Sidney E. Cook, Jr., Shreveport, for Defendants, St. Paul Fire & Marine Ins. Co., Whitaker Construction Co., and Manhattan Construction Co.
    Before STEWART, GASKINS and CARAWAY, JJ.
   11 CARAWAY, J.

The plaintiff in this case was injured after she tripped and fell within a temporary walkway constructed near the entrance to the defendant’s hotel. The trial court found that an unreasonable risk of harm existed because of an unexpected drop-off or step within the walkway. Finding no manifest error in the trial court’s rulings, we affirm.

Facts

On Saturday, November 22, 1999, Alicia and Joe Solito went to Horseshoe Casino during the hotel grand opening weekend to dine at one of the restaurants. Although the hotel was not completely finished, Horseshoe proceeded with the scheduled grand opening anyway. In preparation for the grand opening, Horseshoe asked the general contractors, Manhattan Construction Company and Whitaker Construction Company, Inc. (“Manhattan-Whitaker”), to pour a temporary concrete ramp exiting the parking garage to the new hotel. The ramp would allow patrons to avoid an unfinished area of the hotel that was to be off limits to the public. Instead Of following the sidewalk, which curved around and adjacent to the unfinished construction area, the patrons would leave the sidewalk in front of the garage exit and walk'down the ramp to the parking and driveway entrance area. After walking across that driveway entrance area, the patrons would enter the hotel at doors away from the construction area.

The curb of the sidewalk where the ramp began was approximately six inches above the level of the surface of the driveway entrance, as shown by Plaintiffs Exhibit 11-K which is an appendix to this opinion. The ramp |2was four-feet wide and approximately eight-feet long. The sides of the concrete ramp were also sloped down to the driveway level. Manhattan-Whitaker had been asked to comply with the accessibility regulations of the Americans with Disabilities Act (ADA). Horseshoe erected a temporary canopy over the ramp. The ramp which was poured two days before the accident was removed about three weeks later.

The accident occurred as the Solitos exited the garage and encountered the ramp with a group of other patrons walking immediately in front of them. When Alicia got to the ramp, her location along the path of travel caused her right foot to just miss the ramp and step off the curb and abruptly down into the six-inch drop-off on the right side of the ramp. The resulting fall caused Alicia to hit her head on the concrete, bruising her face and left knee. She also fractured a finger and broke off a bottom middle ftpnt tooth at the gum line.

The first doctor Alicia saw after the accident was her plastic surgeon, because she was concerned about bruising on her face. She also saw a hand surgeon for her broken finger, and an orthopedic surgeon for. wrist, neck and knee pain. She also went to the dentist for the broken tooth which she had super-glued back because of embarrassment over her appearance. She continued to work as a court reporter while her injuries healed, even though two fingers on her left hand were “buddy-taped” together. She underwent physical therapy for myoligamentous and myofas-cial sprains and strains to the cervical region of her spine.

| a As k result of the accident, plaintiffs filed suit against Horseshoe Entertainment. Horseshoe brought a third party demand against the hotel contractors, Manhattan Construction Company and Whitaker Construction Company, Inc. (“Manhattan-Whitaker”), and their liability insurer, St. Paul Fire & Marine Insurance Company (“St. Paul”), asserting a contractual indemnity claim. The Solitos subsequently amended their petition to add these defendants. Manhattan-Whitaker asserted a third party claim against the subcontractor and its insurer which was dismissed prior to trial.

Before trial, Horseshoe filed motions in limine to exclude photographic evidence and expert testimony. After a bench trial, the trial court’s opinion characterized the transition ramp as a “temporary makeshift entranceway” and found that the ramp created an unreasonably dangerous condition. Accordingly, the trial court rendered judgment finding Horseshoe 100% at fault for the accident. It awarded Alicia damages of $38,772, loss of consortium damages to Joe for $5,000, and dismissed Manhattan-Whitaker. It is from this judgment that Horseshoe appeals.

Discussion

The trip and fall in this case resulted from the ramp and walkway designed to lead patrons into Horseshoe’s hotel. The ramp/walkway area is therefore a thing in the custody and control of Horseshoe which is claimed to be defective and the cause of the accident. The applicable law for the claim is Civil Code Article 2317.1, which provides, in pertinent part, as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that |4he 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.

The enactment of La. C.C. art. 2317.1 effectively turns strict liability claims into negligence claims. Whitaker v. City of Bossier City, 35,972 (La.App.2d Cir.4/5/02), 813 So.2d 1269.

Horseshoe argues that the construction and location of the temporary ramp did not present an unreasonable risk of harm. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, we note that many factors are considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Lasyone v. Kansas City S. R.R., 2000-2628 (La.4/3/01), 786 So.2d 682.

The concept of whether a defect presents an unreasonable risk of harm, which requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Oster v. State, through Dep’t of Transp. & Dev., 582 So.2d 1285 (La.1991). Because a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better Imposition to make the determination than the jury or trial court. Reed, supra. Consequently, the findings of the jury or trial court should be afforded deference ... the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. A reviewing court may only disturb the lower court’s holding upon a finding that the trier of fact was clearly wrong or manifestly erroneous. Reed, supra, (citing Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993)); Priest v. City of Bastrop, 34,841 (La.App.2d Cir.7/11/01), 792 So.2d 80; Blackwell v. Bossier Parish School Bd., 32,383 (La.App.2d Cir.12/8/99), 747 So.2d 1248; Henderson v. Sutherland’s Lumber Co., 31,714 (La.App.2d Cir.3/31/99), 733 So.2d 667.

A portion of the sidewalk, blocked off with yellow caution tape to shield patrons from the unfinished construction, curved and ran immediately parallel to the temporary ramp as shown in the attached photo. This created a gap 20 inches wide between the sloped side of the ramp and the curb of the blocked-off sidewalk. Horseshoe placed a canopy over the ramp anchored by temporary poles on the left side of the ramp, extending over the ramp and gap and attached to poles on the opposite side, along the blocked-off portion of the sidewalk. Additionally, to protect the patrons from inclement weather, a plastic covering was draped down from the canopy on the left side of the ramp. In summary, the patrons were directed to travel through a temporary walkway which was primarily an enclosed passageway approximately sixty-eight inches wide comprised of the four-foot wide ramp and the 20-inch gap between the ramp and blocked-off sidewalk.

| (jin finding that this passageway presented an unreasonable risk of harm, the trial court concluded:

The manner in which the temporary handicap ramp was constructed did create an approximate six-inch abrupt change in elevation, or drop-off, in a certain portion of the pedestrian walkway. As the pictures introduced into evidence indicate ..., the condition existed only as to a portion of the walkway. In other words, the majority of the pedestrian traffic was not exposed to this condition. If a group of pedestrians was walking along the walkway only the person unlucky enough to be within the twenty-inch “gap” would be exposed to this condition. For instance, a person in Ms. Solito’s situation would notice that people walking in front of her to her left and right would not be experiencing an abrupt change in elevation. There would be no reason to expect, nor was there any warning of this “gap.” The fact that only those people within this twenty-inch area were exposed to this “gap” probably explains why more people were not injured during the existence of this temporary makeshift en-tranceway.

The trial court concluded that “the use of the canopy and yellow tape directed the pedestrian traffic directly across the dangerous area.”

Horseshoe argues that a six-inch drop-off from curb to street is standard and reasonable and that the ramp was constructed in compliance with all codes and the ADA. It also argues that the trial court failed to make a utility/risk analysis. We disagree with these arguments.

In the context of the specially configured enclosed corridor, pedestrians moving in a group would not necessarily view the walkway as requiring an ordinary step-down from the sidewalk to street level and therefore would not expect to encounter such a hazard. The probability that a crowd of people would move together out of the parking garage could reasonably be expected by Horseshoe for its grand opening. Although the trial court’s opinion did not specifically discuss the burden of adequate 17precautions, there is no mechanical formula for the utility/risk analysis. Certainly, implicit from the attached photo of the accident scene, evidence of efficient and simple remedial measures was undisputed before the trial court. A simple orange construction barrel could have been moved into the 20-inch gap area to warn a crowd of pedestrians regarding the danger.

In summary, we are in agreement with the trial court’s conclusion that “the combination of all of these factors created an unreasonably dangerous condition.” The unique circumstances of this makeshift, temporary passageway posed an unreasonable risk of harm.

As a related assignment of error, Horseshoe argues that the trial court erred in denying Horseshoe’s motion in limine to exclude or limit the testimony of the Soli-tos’ engineering expert. Horseshoe argues that the expert’s videotaped deposition offered certain opinions about the danger of the ramp construction and that the methodology used by him in reaching those opinions did not comport with the guidelines established under Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Furthermore, Horseshoe argues that the expert was not qualified by experience, training or education |sto render opinions on the issues in question, and that under La. C.E. art. 702, his opinions should be excluded.

The Solitos’ expert obtained a civil engineering education and possessed actual experience related to human factors and traffic engineering for the planning and construction of parking lots and pedestrian pathways. His experience-based testimony assessing the unique makeshift walkway in question could be of some value to the trier-of-fact. Ultimately, the weight to be given expert testimony is dependent upon the facts on which it is based, as well as the professional qualifications and experience of the expert. Lyons v. J.A. Auger, Inc., 35,691 (La.App.2d Cir.6/12/02), 821 So.2d 536, 540; writ denied, 2002-2337 (La.11/15/02), 829 So.2d 437.

From our review, we find no abuse of discretion in this bench trial setting. Even assuming the expert’s testimony was improperly admitted under Dau-bert, the admission would be subject to harmless error analysis. Wehbe v. Waguespack, 98-475 (La.App. 5th Cir.10/28/98), 720 So.2d 1267; writ denied, 98-2907 (La.1/15/99), 736 So.2d 211. As the federal courts hold for such expert testimony in bench trials, “reversal is only warranted if all of the competent evidence is insufficient to support the judgment, or if it affirmatively appears that the incompetent evidence induced the court to make an essential finding which it otherwise would not have made.” St. Martin v. Mobil Exploration & Producing U.S. Inc., 224 F.3d 402 (5th Cir.2000). The expert’s reconstruction and analysis of this | flwalkway accident provided no incompetent opinion evidence which adversely affected the trial court’s finding of unreasonable risk of harm.

Next, Horseshoe raises causation as an error based upon Alicia’s various descriptions of her fall. In her pretrial deposition, Alicia gave different descriptions of the location of her foot in relation to the twenty-inch-wide drop-off area. At trial, she indicated that she stepped into a depression or trench in the concrete at the point where the edge of the sloped side of the ramp ended. That point would be approximately six or more inches below the top of the curb of the sidewalk. Alicia also indicated that her heel stuck in the depression area at the time of her fall. Horseshoe disputes the depression area or trench and claims that causation for the fall was not clearly established. We disagree.

Alicia’s best evidence of her fall was a photo of her approximate position stepping into the drop-off area taken a few days after the accident before the ramp’s removal. The photo, Plaintiffs Exhibit 11-E, shows Alicia stepping down into the drop-off with her right foot landing immediately next to the edge of the ramp. Below her foot appears to be loose gravel which may amount to the claimed depression in the concrete. Regardless of the existence or depth of the trench or whether Alicia’s heel caught in the hole, the existence of an abrupt drop-off at that location is undisputed and can be reasonably considered as the primary cause’of the accident.

The next issue of comparative fault raised by Horseshoe challenges the trial court’s conclusion that the drop-off was unexpected and [inunnoticeable by Alicia. A plaintiff/pedestrian has a duty to see and avoid obvious hazards. Morace v. Melvyn’s Restaurant, Inc., 30,988 (La.App.2d Cir.9/23/98), 719 So.2d 139. Nevertheless, this is a faets-and-eircumstances inquiry, and we find no manifest error in the trial court’s finding of no comparative fault in this case.

Alicia testified that she and her husband had just gotten out of the garage elevator with a large group of young people who were walking immediately in front of her. The uniform gray concrete color of the sidewalk and ramp gave no indication of a change in surfaces. The enclosed corridor, as indicated above, did -not alert Alicia to expect a transition from the sidewalk down to the street level. It was not unreasonable under the crowded conditions for Alicia and her husband to be proceeding in close proximity to the group of patrons in front of them. Persons walking in front of her who entered the ramp did not give her any indication of a step. Under these circumstances, the trial court was not clearly wrong in failing to assess fault to Alicia.

Horseshoe argues that the trial court erred in finding that all of Alicia’s dental injuries were caused by the accident, and awarding her $9,920 for dental treatment already obtained and $1,870 for future dental , work. It argues that Alicia is only entitled to special damages of $1,005, representing the expense of restoring her one broken tooth.

Á plaintiff may ordinarily recover reasonable medical expenses, past and future, incurred as a result of the injury. Rhodes v. State, through Dep’t of Transp. & Dev., 94-1758 (La.App. 1st Cir.12/20/96), 684 So.2d 1134; writ not considered, 97-0242 (La.2/7/97), 688 So.2d 487. The plaintiff bears the burden of proving the causal relationship between the accident and the injury by a preponderance of the evidence. Marshall v. Caddo Parish School Bd., 32,373 (La.App.2d Cir.10/29/99), 743 So.2d 943; Rhodes, supra. The test is whether a plaintiff has shown through medical testimony that more probably than not, the subsequent medical treatment was necessitated by the trauma suffered in the accident. Rhodes, supra. In assessing damages, much discretion is left to the trier-of-fact. La. C.C. art. 2324.1; Scott v. Pyles, 99-1775 (La.App. 1st Cir.10/25/00), 770 So.2d 492; writ denied, 2000-3222 (La.1/26/01), 782 So.2d 633; Juge v. Judson, 94-579, 94-580 (La.App. 5th Cir.1/18/95), 650 So.2d 312; writ denied, 95-0425 (La.3/30/95), 651 So.2d 846; Choyce v. Sisters of the Incarnate Word, 25,958 (La.App.2d Cir.8/19/94), 642 So.2d 287; writ denied, 94-2510 (La.12/9/94), 647 So.2d 1119; Chambers v. Graybiel, 25,840 (La.App.2d Cir.6/22/94), 639 So.2d 361; writ denied, 94-1948 (La.10/28/94), 644 So.2d 377. Before an appellate court may disturb an award of damages, the record must clearly show the trial court abused its broad discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993); Scott v. Pyles, supra.

Ten days after the accident, Alicia’s family dentist evaluated her dental injuries and, responding to a request from Alicia’s attorney, concluded that only one tooth was directly involved in the accident. This tooth (# 25) broke off at the gum line when Alicia fell. The following month, the dentist prepared a treatment plan describing extensive dental | ^repairs, including extractions, root canals, crowns with posts, bridges, and a lower partial plate, all involving Alicia’s lower jaw.

Horseshoe argues that Alicia’s recovery of special damages should be limited to $1,005, pursuant to the dentist’s initial evaluation. Dr. Gaensehals testified by deposition concerning this difference between the initial report and his treatment plan. He testified that trauma to a tooth is cumulative and that it was not unusual for an injury to the tooth to manifest itself at a later time, even years later. In his opinion, all of the restorative work performed on Alicia was either directly related to or aggravated by the trauma of the accident. He characterized the damage to the teeth surrounding tooth # 25 as indirect trauma, also caused by the accident.

The trial court concluded in written reasons that Alicia proved that her injuries were directly caused by her fall and that she proved all of the items of special damages for medical and dental treatment, and physical therapy. We find no reversible error in the exercise of the trial court’s discretion regarding this assignment.

Finally, Horseshoe claims, in the alternative, that Manhattan-Whitaker should be assessed a portion of the fault for the defect in the ramp and walkway. Additionally, it claims that Manhattan-Whitaker owed it indemnity for the Solitos’ claims because of the construction contract.

The evidence shows that Manhattan-Whitaker’s construction of the ramp was made at the request of Horseshoe for the grand opening celebration. A review of the written contract for the overall construction project reveals that the definition of the “Project” and the concept of the 11s“Work” as used in the written indemnification agreement extended only to the hotel project. This additional special project for the ramp was an oral agreement which was unrelated to the main project and therefore beyond the scope of the written contract.

Regarding Manhattan-Whitaker’s alleged fault for the defective walkway, there were three significant facts which were undisputed. First, the ramp was constructed in accordance with good construction practices, complied with ADA standards, and accepted by Horseshoe as proper. Second, the poles and canopy were installed by another party at Horseshoe’s direction. Finally, Horseshoe placed the yellow tape and plastic siding which, in combination with the placement of the canopy poles, served to direct the pedestrian traffic across the dangerous hazard. The hazard, therefore, could have been easily avoided by proper direction of pedestrians directly across the ramp or by placing a hazard warning, such as an orange construction barrel, in the drop-off area. Accordingly, we agree with the trial court’s assessment and find no fault by Manhattan-Whitaker.

Conclusion

Based upon our review of Horseshoe’s assignments of error, we find the trial court’s conclusions reasonable, presenting no manifest error of fact and in accordance with the law. The judgment is affirmed at the cost of Horseshoe.

AFFIRMED,

APPENDIX

      . Horseshoe also made a separate assignment of error concerning the trial court’s denial of its motion in limine to preclude evidence of Horseshoe's subsequent remedial measure employing the construction barrel. For the same reason, since the evidence of a simple corrective measure was circumstantially already before the court, we find no prejudice from the trial court's ruling on the subject of remedial measures.

      . La. C.E. art. 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.


author: J^FITZSIMMONS, J.

text:
    Ivan L. HAND, Jr. v. Gwendolyn Robinson HAND.
    No. 1999 CA 2420R.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied Jan. 29, 2003.

      Alfred S. Lippman, David M. Thorgu-son, Morgan City, Counsel for Plaintiff/Ap-pellee Ivan L. Hand, Jr.

      Allen A. McElroy, Jr., Robert L. Duffy, Berwick, Counsel for Defendant/Appellant Gwendolyn Robinson Hand.
    Before: FOIL, FOGG, FITZSIMMONS, GUIDRY, and PATTERSON, JJ.

      . Michael A. Patterson, serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^FITZSIMMONS, J.

Plaintiff, Mr. Ivan L. Hand, Jr., and the defendant, Mrs. Gwendolyn Robinson Hand, were married in South Carolina in 1992. They subsequently moved to England, where Mr. Hand was employed by Exxon. In 1993, Mrs. Hand returned to South Carolina, where she found employment. Subsequently, Mr. Hand moved from England to New Jersey. In 1994, Mr. Hand lost his job. In the same year, he moved to Louisiana and obtained a job with a different employer. Mrs. Hand never resided in Louisiana. She did not visit Louisiana during the period at issue. In 1996, Mr. Hand filed for divorce in Louisiana. The divorce was granted by a Louisiana judgment dated September 20, 1996.

During the divorce proceedings, Mrs. Hand filed a reconventional demand based on her claim to movable assets acquired by Mr. Hand. She asserted a claim for equitable distribution of the property acquired by Mr. Hand since February 1991. Alternatively, she sought this relief from the date of the marriage, for partition of one-half of the legal regime of community property acquired in Louisiana, and for mismanagement of community assets. In response, Mr. Hand filed a peremptory exception raising the objection of no cause of action. He argued that all the property he acquired before marriage, and in Louisiana during the marriage, was his separate property. Additionally, he asserted that Mrs. Hand had no claim for mismanagement of community funds because all the claimed assets were his separate property.

The trial court found that a legal matrimonial regime of a community of acquets and gains never existed between the plaintiff, Mr. Hand, and the defendant, Mrs. Hand. By judgment dated July 15, 1999, the trial court granted Mr. Hand’s exception of no cause of action on the claims he challenged. It dismissed the claims for pre-marital assets, the assets acquired by Mr. Hand while domiciled in Louisiana, and mismanagement of the community. The exception of no cause of faction did not cover, and the trial court did not rule on, the issue of Mrs. Hand’s entitlement to marital assets acquired by Mr. Hand while domiciled outside of Louisiana.

Mrs. Hand appealed. In an unpublished opinion, Hand v. Hand, 99-2420 (La.App. 1 Cir. 2/16/01), this court found that a community property regime did exist, reversed the trial court’s grant of the exception of no cause of action, and remanded for a trial on the merits. Subsequently, the Louisiana Supreme Court reversed this court, found that a community property regime did not exist, and reinstated the judgment of the district court. Hand v. Hand, 2000-0714 (La.11/28/01), 802 So.2d 560. However, on re-hearing, the supreme court affirmed its fundamental conclusion, that a community property regime was not established, but vacated its ruling to the extent that it maintained the grant of Mr. Hand’s exception of no cause of action. The supreme court remanded the case to this court for a determination of “whether the remaining claims raised by [Mrs. Hand] state a cause of action under La. Civ.Code art. 3523 et seq.” Hand v. Hand, 2001-0714 (La.3/22/02), 812 So.2d 625.

While Mrs. Hand may have a claim against marital assets acquired by Mr. Hand while he was domiciled outside of Louisiana, that claim has not been ruled on by the trial court and is not yet before this court on appeal. See Twin Parish Port Commission v. Berry Bros., Inc., 94-2594, p. 3 (La.2/20/95), 650 So.2d 748, 749. Thus, the issue before us is whether Mrs. Hand, in the absence of a community property regime, stated a cause of action under Civil Code article 143523, et seq., for movables acquired before the marriage and movables acquired while Mr. Hand was domiciled in Louisiana.

The peremptory exception raising the objection of no cause of action tests the legal sufficiency of the petition. La. C.C.P. art. 927A(4); Shinew v. Luciano Refrigerated Transport, Inc., 96-2454, p. 3 (La.App. 1 Cir. 11/19/97), 706 So.2d 140, 141. The issue is whether the law affords a remedy on the facts alleged in the pleading. Shinew, 96-2454 at p. 3, 706 So.2d at 141. If two or more causes of action are based on separate and distinct operative facts, partial grants of the exception of no cause of action may be rendered, while preserving other causes of action. Shinew, 96-2454 at pp. 3-4, 706 So.2d at 141.

The primary property claims at issue in this particular case are (1) movables acquired by Mr. Hand prior to marriage and (2) movables acquired during the marriage while Mr. Hand was domiciled in Louisiana. Both of these claims rest on their own distinct operative facts of time and place of acquisition. Thus, these claims represent two independent causes of action. Either or both causes of action may be retained or rejected.

Book IV of the Louisiana Civil Code, entitled Conflict of Laws, contains general provisions to be used in the absence of more specific conflict of laws provisions; for example, Civil Code article 3515. The rules highlighted by our supreme court, Louisiana Civil Code article 3523, et seq., are contained in Book IV, Title III, entitled Marital Property. The articles in Title III specifically govern marital property, regardless of whether a community property regime existed. The threshold article for movables is Civil Code article 3523. Civil Code article 3523 provides, as follows: “Except as otherwise provided in this Title, the rights and obligations of spouses with regard to movables, wherever situated, acquired by either spouse during marriage are governed by the law of the domicile of the acquiring spouse at the time of acquisition.” In essence, article 3523 [ ^designates which state law will provide the “rule of classification” for marital movable property. La. C.C. art. 3523, Revision Comments-1991(c). Upon termination of the marriage, article 3523 provides the applicable “rule of distribution only when it is not displaced by [a]rticle 3526 .... ” Id. Article 3526 is the conflict of laws rule for movable property acquired by a spouse while domiciled outside of Louisiana. If the initial requirements of article 3526 are met, it usurps the general rule of article 3523. La. C.C. art. 3526, Revision Comments-1991(a). Article 3526 provides, in pertinent part, that:

Upon ... dissolution by ... divorce of the marriage of spouses either of whom is domiciled in this state, their respective rights and obligations with regard to ... movables, wherever situated, that were acquired during the marriage by either spouse while domiciled in another state shall be determined as follows:
(1) Property that is classified as community property under the law of this state shall be treated as community property under that law; and
(2) Property that is not classified as community property under the law of this state shall be treated as the separate property of the acquiring spouse. However, the other spouse shall be entitled, in value only, to the same rights with regard to this property as would be granted by the law of the state in which the acquiring spouse was domiciled at the time of acquisition.

The other articles contained in Title III govern immovable property.

The first issue for consideration is the marital property acquired by Mr. Hand while he was domiciled in this state. As to which state law is to be applied to that property, Louisiana Civil Code article 3523 governs, not article 3526. Pursuant to article 3523, Louisiana law controls the classification of the movable property while Mr. Hand was a domiciliary of this state, and upon termination of the marriage, our law directs the distribution of the property. Thus, the marital property acquired by Mr. Hand while domiciled in Louisiana must be classified and distributed according to Louisiana classification and distribution rules found in our Civil Code. La. C.C. art. 3523 & Revision Comments-1991(b) & (c); see also La. C.C. art. 3526, Revision Comments-1991(b) (classification of | ^property requires the property to be categorized as separate or community). Under Louisiana classification law, “property acquired ... through the effort, skill, or industry of either spouse; ... and all other property not classified by law as separate property,” is classified as community property. La. C.C. art. 2338 (emphasis added). Separate property includes “property acquired by a spouse prior to the establishment of a community property regime ...La. C.C. art. 2341 (emphasis added).

Accepting the allegations at issue as true, the movable property obtained during the marriage by Mr. Hand, while a Louisiana domiciliary, was acquired outside of a community property regime. Thus, as a matter of Louisiana law, those movables are Mr. Hand’s separate property. See La. C.C. art. 2341. Mr. Hand’s separate property is his “exclusively.” Id. To hold otherwise, would require this court to ignore the clear provisions of Civil Code articles 2341 and 3523.

This is not a case where both spouses, either together or separately, resided in Louisiana at some point during the marriage, nor is it one where the matrimonial domicile was moved to Louisiana. See, e.g., Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So.2d 1105; In re Succession of Hubbard, 2000-2412 (La.App. 1 Cir. 12/28/01), 803 So.2d 1074. Nothing in Civil Code articles 2338, 2341, or 3523 requires or allows a different application of our classification articles merely because one of the spouses never resided in Louisiana. Mrs. Hand is being treated in the same manner as any Louisiana spouse asserting a claim against separate property of the other spouse. While Civil Code article 3526(2) does allow for the possibility of a “value” distribution for separate property acquired by a spouse while domiciled outside of Louisiana, the legislature chose not to include such a possibility in article 3523. This lack of positive law in support of her position may be why Mrs. Hand argues that principles of equity or unjust enrichment dictate that she be afforded the protection of community property or equal distribution of |7marital property. However, under the principles of our Civil Code, we may not rely on equity in the face of specific applicable unambiguous provisions of positive law. See La. C.C. arts. 1-4 & 9. Louisiana law clearly requires the establishment of a community regime as the threshold for the protection she seeks. See La. C.C. arts. 2338 & 2341. We cannot misinterpret unambiguous Louisiana laws to effect a national equality in marital property distribution laws.

Under the facts here, we also find no basis, or legal remedy in Louisiana law, for Mrs. Hand’s claim to pre-marital property. In particular, the Civil Code articles designated for consideration by our supreme court govern marital property, not movables acquired by Mr. Hand prior to the marriage. An analysis utilizing only Louisiana’s classification articles produces the same result. The pre-marital movables are Mr. Hand’s separate property and are to be distributed to him. See La. C.C. arts. 2338 & 2341.

Mrs. Hand’s claim for mismanagement of community assets is obviously dependent on the existence of community property. In the absence of any community property, Mrs. Hand failed to state a claim for mismanagement of community assets.

For these reasons, we find that Mrs. Hand failed to state a cause or causes of action under Civil Code article 3523, et seq. Therefore, the trial court’s judgment maintaining Mr. Hand’s exception of no cause of action is affirmed. The costs of the appeal are assessed to defendant-appellant, Mrs. Hand.

AFFIRMED.

FOIL and GUIDRY, JJ., concur.

      . For purposes of this opinion, the term marital property or asset is defined as property acquired during the marriage, regardless of its classification as community or separate property.

      .Fitzsimmons, J., dissented and assigned reasons.

      . The claim for movables acquired before Mr. Hand moved to Louisiana is based on a different and severable cause of action. The operative facts of that claim are distinct from the facts underlying the acquisitions at different times of the different movables at issue on the appeal. See Shinew v. Luciano Refrigerated Transport, Inc., 96-2454, p. 3 (La.App. 1 Cir. 11/19/97), 706 So.2d 140, 141.


author: UGAIDRY, J. ^DOWNING, J.,

text:
    Dustin PEPPER v. Thomas Seth TRIPLET and Allstate Insurance Co.
    No. 2002 CA 0022.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied Feb. 3, 2003.

      Keith M. Whipple, Houma, Counsel for Plaintiff/Appellee Dustin Pepper.
    Christopher P. Lawler, Christopher E. Lawler, Metairie, Counsel for Defendant/Appellant Allstate Insurance Co.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   UGAIDRY, J.

This is an appeal involving an award of damages to plaintiff, Dustin Pepper, for injuries resulting from a dog bite. Applying comparative fault principles, the trial court allocated twenty-five percent of the fault to the plaintiff and seventy-five percent of the fault to the defendant, Thomas Triplet. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Dustin Pepper, and defendant, Thomas Triplet, were next-door neighbors for many years. Approximately thirteen years prior to the dog bite at issue in this suit, Mr. Triplet purchased a dog, Bandit. Mr. Triplet’s backyard, where Bandit resided, was entirely fenced in. Along both sides of Mr. Triplet’s backyard, there was a four-foot high hurricane fence, which was topped by two feet of barbed wire on the side shared with the Peppers. The yard was bordered along the back by a six-foot wooden fence. The only entrances into the Triplets’ backyard were through the Triplets’ home and a six-foot wooden gate. There is no latch on the outside of the gate, and Mr. Triplet had placed a metal bar across the gate on the inside to prevent the gate from being opened and to prevent the dog from escaping.

In the many years that the parties were neighbors, Mr. Pepper had never been into the Triplets’ house or backyard. Occasionally, over the years, children playing in the Peppers’ yard would accidentally throw a ball over the fence into the Triplets’ backyard. On these occasions, both parties testified that the custom was for the child to knock on the Triplets’ door, and either Mr. or Mrs. Triplet would go into the backyard to retrieve the ball. Mr. Pepper’s only contact with Bandit prior to the bite involved petting the dog’s nose through the hurricane fence separating the yards.

|30n November 11, 2000, Mr. Pepper was watching a football game with a friend and drinking beer. Mr. Pepper’s son, who had been playing ball in the backyard, came in and told him that his ball had gone into Mr. Triplet’s yard. Mr. Pepper instructed his daughter to go knock on the Triplets’ door and request the ball, but she returned shortly and announced that the Triplets were not home. At this point, Mr. Pepper went into the Triplets’ yard himself to retrieve his son’s ball. Upon entering the yard, Mr. Pepper was approached by Bandit, who followed him as he walked towards the ball. When Mr. Pepper reached for the ball, Bandit bit him on the hand. Mr. Pepper pulled back his hand, and Bandit bit him on the stomach. Mr. Pepper then proceeded to the hospital, where he received treatment for his injuries.

Following a trial on the merits, the court rendered a judgment against the defendant and for the plaintiff in the amount of $37,623.92, to be reduced by twenty-five percent for the plaintiffs comparative negligence. The court found that Mr. Triplet could have prevented Mr. Pepper’s injuries in several ways: by putting a “Beware of Dog” sign on the fence, by securing the gate by some means more reliable that the metal bar, or by tying the dog up inside the yard. The court also found no evidence that Mr. Pepper provoked the dog. However, the court did find Mr. Pepper to be partially at fault in causing his injuries and allocated twenty-five percent of the fault to him.

| ¿Defendant appeals this judgment of the trial court, making the following assignments of error:

1. The trial court committed manifest error in finding Mr. Triplet seventy-five percent at fault when Mr. Pepper provoked the dog and when there was nothing Mr. Triplet could have done to prevent the bite from occurring.
2. The trial court committed an error of law in finding that Mr. Pepper was not trespassing.
3. The trial court committed manifest error in finding that Mr. Triplet knew or should have known that his dog possessed dangerous propensities.

The plaintiff answered the appeal, and assigned as error the trial court’s finding of comparative fault on the part of the plaintiff. The plaintiff also asserted that the defendant’s appeal is frivolous.

DISCUSSION

The liability of an animal owner is governed by La. C.C. art. 2321:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the oumer of a dog is strictly liable for damages for injuries to persons or property caused, by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. (Emphasis added).

Article 2321 was amended in the tort reform legislation of 1996, La. Acts 1996, 1st Ex.Sess., No. 1, § 1, to legislatively overrule jurisprudence | ¡-interpreting the prior version of article 2321 as imposing strict liability on animal owners for damages caused by their animals. See Holland v. Buckley, 305 So.2d 113 (La.1974). The new article 2321 eliminates strict liability for animal owners, and replaces it with a negligence standard. However, the legislature chose to retain strict liability for dog owners. As a result of this revision, there is no longer any reason for the court, in determining liability, to consider whether the dog owner knew or should have known that the dog’s behavior would cause damage or whether the dog owner failed to exercise such reasonable care as would have prevented the damage. The effect of the 1996 revision is a three-part test for assessing the liability of a dog owner. A dog owner is liable if: (1) the dog actually caused the damage to the plaintiffs person or property, (2) the owner could have prevented the damage, and (3) the dog was not provoked by the person suffering the damage. La. C.C. art. 2321.

ASSIGNMENT OF ERROR NO. 1

In this case, it is undisputed that Bandit actually caused damage to Mr. Pepper’s person. Therefore, the only remaining questions relating to Mr. Triplet’s liability are whether Mr. Triplet could have prevented the damage and whether Mr. Pepper provoked Bandit.

Mr. Triplet contends on appeal that because he had his yard fenced-in and his gate secured by a metal bar, and because he had never given Mr. Pepper the impression that he was welcome in his yard, there was nothing further he could have done to prevent the damage to Mr. Pepper, and therefore he is not liable under La. C.C. art. 2321. In Allen v. State Farm Fire and Casualty Company, 36,377 (La.App. 2 Cir. 9/18/02), 828 So.2d 190, the court considered whether an owner who erected a fence to keep his dog contained in his yard could have prevented damage to a neighbor who | ¿was bitten through the fence while trying to repair a loose board. The court found that the act of erecting a fence does not discharge the dog owner’s duty:

The amended art. 2321 recognizes the obvious and great risk that a dog might bite someone. The article therefore imposes on the owner a duty to prevent dog bites and other damage. The fence failed to do this. The [owners] could have chained the dog or kept it indoors.

Allen, 36,377 at p. 7, 828 So.2d at 194-195.

Likewise, in this case, the trial court found that Mr. Triplet could have prevented Mr. Pepper’s damages by putting a “Beware of Dog” sign on the fence, by securing the gate by some means more reliable that the metal bar, or by chaining up the dog. The court also found that Mr. Pepper did not have knowledge of Bandit’s dangerous propensities and implied that Mr. Triplet should have advised him of such. After reviewing the record, we find no manifest error in the trial court’s finding that Mr. Pepper’s damages could have been prevented by Mr. Triplet.

As for Mr. Triplet’s assertion that he is not liable because Mr. Pepper provoked Bandit by entering his “turf,” the trial court found no evidence of provocation. Mr. Pepper testified at trial that Bandit was waiting nearby when he opened the gate. When he entered the yard, he petted Bandit, and Bandit followed him as he walked across the yard to get the ball. According to Mr. Pepper, it was not until he reached for the football that Bandit attacked him. The defendant testified at trial that Bandit was territorial, and argues on appeal that the plaintiffs entrance into the yard of a dog known by him to be territorial amounted to provocation. However, the defendant presented no evidence proving the plaintiff actually provoked Bandit. Based upon the absence of this evidence, we find no manifest error in the trial |7court’s conclusion that Mr. Pepper’s actions did not amount to provocation. Further, the trial court properly concluded that Mr. Triplet was liable based on the provisions of La. C.C. art. 2321.

Although the trial court held that Mr. Triplet was liable because he could have prevented the damage to Mr. Pepper and Bandit was not provoked, the court allocated twenty-five percent of the fault for the injuries to Mr. Pepper. Both parties appeal the allocation of fault. The defendant argues that he could not be seventy-five percent at fault in causing the plaintiffs damages because he could not have prevented the damage and the plaintiff provoked Bandit. The plaintiff argues that his injuries were caused by the defendant’s failure to take measures calculated to prevent the damage and that Mr. Pepper was not at all responsible for causing his own injuries.

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Thus, the extent to which each party contributed to the damages should be the measure by which the loss is apportioned. Howard v. Allstate Ins. Co., 520 So.2d 715, 719 (La.1988). In this case, the trial court found that an allocation of twenty-five percent of the fault to Mr. Pepper was appropriate because Mr.’Pepper was partially at fault in causing his injuries:

[T]he court feels that you always take a risk when you enter somebody’s yard. I realize that the ball was his child’s ball. It was not his yard, and, of course, I think [Mr. Pepper] had to know that [Mr. Triplet] did not allow this dog out on the street.... The Court does not feel that the ... situation was so compelling that he could not have waited until the neighbors got home.... The Court feels that ^comparative negligence in the amount of 25 percent would be appropriate in this case.

Despite the fact that the court found that Mr. Pepper took a risk entering Mr. Triplet’s yard, the court found that Mr. Pepper had no knowledge that the dog had previously bitten a child. Mr. Triplet acknowledged that his dog bit a child approximately four weeks before Mr. Pepper was bitten. He also testified that he did not disclose to Mr. Pepper that his dog had bitten the child, although he did see Mr. Pepper from time to time. Mr. Pepper testified that he had no knowledge of the prior bite until after he had been bitten by Bandit. Linda Pepper, Dustin’s mother, testified as well that she did not recall learning of the prior dog bite until after her son was bitten. Despite the fact that the child who had been bitten by Bandit had been playing with Mr. Pepper’s children at the Peppers’ home when the bite occurred, the court found that Mr. Pepper had no knowledge of the prior bite.

While the trial court found Mr. Pepper’s actions to be negligent, that negligence did not rise to such a level that Mr. Triplet could not have prevented the damage or to amount to provocation. Nevertheless, Mr. Pepper’s imprudent actions in entering his neighbor’s yard with his neighbor’s dog did contribute to his damages, and therefore his recovery should be reduced by his comparative fault. It is well settled that the allocation of fault is a factual matter within the sound discretion of the trier of fact and will not be disturbed on appeal in the absence of manifest error. Birdsall v. Regional Electric & Construction, Inc., 97-0712, p. 4 (La.App. 1 Cir. 4/8/98), 710 So.2d 1164, 1168. We find no manifest error in the trial court’s allocation of fault.

ASSIGNMENT OF ERROR NO. 2

|flThe defendant next asserts that the trial court committed legal error in finding that Mr. Pepper was not trespassing, specifically challenging the following portion of the trial court’s reasons:

In closing arguments, the Defense Counsel basically made the argument ... that Mr. Triplet, this is his home. He’s got the right to privacy, I guess the king of the castle argument, so to speak. The Court disagrees with that argument for the following reasons: This is not a case where there’s a trespass where somebody has entered property and either fell in a hole, tripped on a piece of furniture, in other words, something in the backyard that was there that was a part of the [Defendant’s] property. Because we have those situations where we have uninvited guests trespassing and people get injured on somebody’s property, and those rules, they are their own set of rules.

The court went on to say that there is a separate set of rules for dog bites, i.e., strict liability, which requires a different analysis. The court did not make a ruling on the plaintiffs status as a trespasser; it merely stated that the appropriate rules to apply in this case are those pertaining to the duty of a dog owner, rather than the duty of a landowner. In Vidrine v. White, 352 So.2d 776 (La.App. 3 Cir.1977), the court found that a child’s status as trespasser, licensee, or invitee is not determinative of the duty owed him by the owner of the dog who bit him. Likewise, Mr. Pepper’s status as a trespasser or non-trespasser is not determinative of Mr. Triplet’s liability. A consideration of the propriety of Mr. Pepper’s presence on the property is unnecessary to a finding of liability; however, we may consider it for purposes of comparative fault. The trial court considered Mr. Pepper’s imprudent decision to enter his neighbor’s property and allocated twenty-five percent of the fault for his injuries to Mr. Pepper based upon this factor. This assignment of error is without merit.

I ASSIGNMENT OF ERROR NO. 3

The defendant’s final assignment of error is that the trial court erred in finding that Mr. Triplet knew or should have known of Bandit’s dangerous propensities. Under La. C.C. art. 2321, as amended, Mr. Triplet’s knowledge of the dog’s dangerous propensities is irrelevant. A dog owner is strictly liable for damage caused by the dog, which he could have prevented, as long as the dog was not provoked. La. C.C. art. 2321. There is no requirement of knowledge or presumed knowledge of the dog’s dangerous propensities in order for the owner to be liable. The imposition of such a requirement would essentially result in the dog-bite victim being unable to recover for his damages if he has the added misfortune of being a dog’s first victim. While a dog owner may not have known of his dog’s dangerous propensities, the legislature has placed the risk that a dog will bite upon the dog owner rather than the victim. A dog owner is strictly liable even in cases where neither the plaintiff nor the defendant is negligent.

Despite the irrelevance of Mr. Triplet’s knowledge of Bandit’s dangerous propensities to the outcome of the case, we find no merit in Mr. Triplet’s argument that he was not aware or had no reason to be aware of Bandit’s propensity to bite. Mr. Triplet testified that Bandit showed signs of being territorial. Mr. Triplet would chain Bandit up inside the yard when guests entered the yard. Furthermore, Mr. Triplet testified at trial that approximately one month before Mr. Pepper’s unfortunate altercation with Bandit, Bandit bit a child who had climbed over his fence while visiting the Peppers. Since Mr. Triplet’s testimony reflects that he was aware that Bandit posed a risk to persons who entered his yard and that he knew of at least one instance where a mere child had scaled his fence, we do not find |nmanifest error in the trial court’s conclusion that Mr. Pepper knew or should have known of his dog’s dangerous propensities.

FRIVOLOUS APPEAL

Mr. Pepper requests that sanctions be levied against defendant for filing a frivolous appeal. The imposition of damages for a frivolous appeal is regulated by La. C.C.P. art. 2164. The courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Guarantee Sys. Const. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98), 728 So.2d 398, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Guarantee, 728 So.2d at 405. We cannot say that this appeal was taken for purposes of delay or that appellate counsel does not believe in the position he advocates. Therefore, damages for frivolous appeal are not warranted.

CONCLUSION

For the above and foregoing reasons, the July 27, 2001 judgment of the trial court is affirmed. All costs associated with this appeal are assessed to the defendant.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

^DOWNING, J.,

dissents and assigns reasons.

I dissent as to the allocation of fault but affirm the quantum award. It has been the law of the English speaking peoples for so long that it is quoted without citation that a man’s home is his castle.

An arrest must be by corporal seising or touching the defendant’s body; after which the bailiff may justify breaking open the house in which he is, to take him: otherwise he has no such power; but must watch his opportunity to arrest him. For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence. Which principle is carried so far in the civil law, that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls.

WILLIAM BLACKSTONE, COMMENTARIES, 3:288, 4:286-290 (1768).

This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION 3 § 1893 (1833). Also see St. Julien v. South Central Bell Telephone Co., 433 So.2d 847 (La.App. 3 Cir.1983), McKellar v. Mason, 159 So.2d 700 (La.App. 4 Cir.1964), Carmouche v. Bouis, 6 La.Ann. 95, 1851 WL 4242 (1851).

This concept extends to his backyard:

The curtilage of a home, that “area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life,” is considered part of the home itself and is therefore afforded Fourth Amendment protection.

State v. Brisban, 2000-3437, p. 5 (La.2/26/02), 809 So.2d 923, 928.

[2A neighbor has no right to enter another’s fenced backyard unless the neighbor has given consent, either express or tacit. In this case no express consent was ever given and the facts show that there was no relationship from which tacit consent could be inferred. A fence without a dog indicates a desire to maintain privacy free from intrusion. A dog inside a fence emphasizes this desire. In today’s lawless society, people maintain dogs and fences expressly to protect their homes from rear access.

Here, however, because there is no evidence of hostility between these two neighbors and there is evidence that plaintiff did not believe the dog would be hostile, I can comprehend that plaintiff felt his trespass was excusable and the law should not treat every intrusion by a neighbor as an actionable trespass. It may be reasonably foreseeable that a neighbor may intrude into a fenced backyard to retrieve a ball and the owner of the dog could possibly have prevented the accident by the putting an inexpensive sign on his fence but to find the dog owner 75% at fault is clearly wrong.

In my opinion, the highest amount of fault attributable to the defendant is 25%. I do not find that the quantum determined by the trial court is clearly wrong and I affirm the quantum award.

      . Exactly how Mr. Pepper got into the Triplets’ yard was disputed at trial. Mr. Pepper testified at trial that he reached through the hurricane fence separating the two yards and removed the metal bar holding the gate closed and then entered the yard through the gate. However, Mr. Triplet testified that after the incident occurred, Mr. Pepper's mother informed him that Mr. Pepper had used a ladder to climb over the fence separating the two yards. Regardless of how Mr. Pepper gained access into the yard, it is undisputed that he did enter Mr. Triplet’s yard.

      . Although this case is governed by a Civil Code article establishing strict liability for dog owners, the principles of comparative fault are still applicable. La. C.C. art. 2323(B). See also Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988), applying the concept of comparative causation to cases arising under the strict liability provision of La. C.C. art. 2321.

      . While Vidrim was decided under a different version of La. C.C. art. 2321 than at issue in the present case, both versions of the law provide strict liability for the owner of a dog.