author: [ TRAYLOR, Justice. | ¶ KIMBALL, Justice,

text:
    Michael GRANT v. Mayor George GRACE and City Council of St. Gabriel, La.
    No. 2003-C-2021.
    Supreme Court of Louisiana.
    April 14, 2004.

      L. Phillip Canova, Jr., Louis W. Dela-haye, Canova & Delahaye, Plaquemine, for applicant.
    Victor J. Woods, Jr., Woods Holloway, for respondent.
   [ TRAYLOR, Justice.

Michael Grant, the plaintiff, was hired as a law enforcement officer for the St. Gabriel Police Department on May 17, 2001, but failed to obtain training and certification within one year as required by La. Rev.Stat. 40:2405(A)(1). Contrary to the recommendation of the Chief of Police, the City Council voted unanimously to terminate Plaintiffs employment.

Plaintiff sought to enjoin the City Council from interfering with or terminating his employment. The trial court granted a Temporary Restraining Order and later granted a Preliminary Injunction. Thereafter, the trial court granted Plaintiffs Motion for Summary Judgment, declaring Plaintiff to be wrongfully terminated and ordering his employment and compensation to be reinstated. The court of appeal affirmed the decisions of the trial court. 2002-2098 (La.App. 1 Cir. 6/27/03), 858 So.2d 542.

We granted writs to determine whether La.Rev.Stat. 33:423, which mandates that a police chief make recommendations with respect to the termination of police personnel, further mandates that the mayor or aldermen must adopt the recommendations of the police chief or if the city may take its own action after considering the police chiefs recommendations.

1 .FACTS AND PROCEDURAL HISTORY

Michael Grant, the plaintiff, was hired as a law enforcement officer for the St. Gabriel Police Department on May 17, 2001. On May 23, 2002, the Mayor and City Council, in a public meeting, asked Plaintiff to produce a certificate that he had successfully completed the statutorily required Police Officers Standards and Training Academy (POST). At the meeting, Plaintiff explained that he was unable to obtain his POST certificate. Patrick Nelson, the Chief of Police for St. Gabriel, recommended to the City Council that Plaintiff be placed in an “administrative” position until he successfully completed POST training. The City Council rejected the Police Chiefs recommendation and voted unanimously to terminate Plaintiffs employment.

On June 13, 2002, Plaintiff filed a Petition for Damages and sought a Temporary Restraining Order (TRO) prohibiting May- or George Grace and the City Council of St. Gabriel from interfering and terminating Plaintiffs employment with the Police Department. The trial court signed a Temporary Restraining Order on June 13, 2002 and a hearing on the Preliminary Injunction was scheduled for July 18, 2002. On June 17, 2002, the City filed a Motion Objecting to the Temporary Restraining Order, alleging that Plaintiff failed to demonstrate his efforts to notify the City prior to the filing of the pleading seeking the TRO and also filed its Answer and Discovery request on Plaintiff.

Thereafter, on June 25, 2002, the City of St. Gabriel, through its Mayor and City Council (collectively, the City), adopted its budget for the fiscal year 2002-2003. The 2002-2003 budget reduced appropriations from $515,000 to $449,500 including a reduction of funds allocated for “officers” positions. The funding was reduced from seven to six positions for the 2002-2003 fiscal year.

On June 27, 2002, plaintiff filed a motion reurging the trial court to grant a TRO Lprohibiting the City from interfering and/or terminating plaintiffs employment with St. Gabriel. On July 1, 2002, the trial court issued plaintiff a TRO prohibiting the City from interfering with and or terminating his employment. On July 18, 2002, the trial court granted plaintiffs request for the Preliminary Injunction. On August 15, 2002, pursuant to cross Motions for Summary Judgment filed by plaintiff and St. Gabriel, the trial court granted plaintiffs Motion for Summary Judgment, declaring Plaintiff to be wrongfully terminated, reinstating his employment and all compensation, and denying the City’s Motion for Summary Judgment. The trial court signed Plaintiffs request for a Writ of Mandamus that the City pay Plaintiff “for all hours worked previously and any in the future.”

The City suspensively appealed all three decisions of the trial court. On June 27, 2003, the court of appeal considered the extent to which La.Rev.Stat. 33:423 impedes the authority of the council to deny Plaintiff an administrative position as contemplated under La.Rev.Stat. 40:2405 and affirmed the decisions of the trial court. In so ruling, the court of appeal stated:

“[T]he state legislature has expressly vested the authority and discretion in the chief of police to transfer the peace officer to administrative duties. It has, moreover, divested the council of its authority to terminate a police officer without the prior recommendation of the chief of police. As such, the council exceeded its authority when it ignored the recommendation of the chief of police and unilaterally terminated Grant.”

Upon the application of the City, we granted certiorari to review the correctness of that decision. Specifically, we are called to resolve whether La.Rev.Stat. 33:423, which mandates that a police chief make recommendations with respect to the termination of police personnel, further mandates that the mayor or aldermen adopt the recommendations of the police chief or if the city may take its own action after considering the police chiefs recommendations as they relate to the peace officer [¿training and certification requirements set forth in La.Rev.Stat. 40:2405.

Plaintiff herein argues that such an officer must be given an administrative position under La.Rev.Stat. 40:2405 until he can complete his certification requirements. Plaintiff further asserts that La. Rev.Stat. 33:423, entitled “Duties of a marshal,” clearly states that a municipality cannot terminate law enforcement personnel without the police chiefs recommendation.

The City counters that plaintiffs failure to complete certification within one year of his employment was due to his own fault and that he violated the terms of his employment agreement with the City, which thereafter authorized the City to terminate his employment. Moreover, the City submits that La.Rev.Stat. 33:423 does not require a municipality to accept the recommendation of the Chief of Police on discipline, hiring or termination of police department personnel. The City argues that under the last clause of 40:2405, an officer who does not comply with the Certification requirements may serve in an administrative capacity, however, the municipality is not precluded from also terminating such a person.

In determining which party is correct, we analyze both statutes in relation to the situation at hand.

DISCUSSION

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184; Touchard v. Williams, 617 So.2d 885 (La.1993). The starting point in the interpretation of any statute is the language of the statute itself. Theriot, 694 So.2d at 186; Touchard, 617 So.2d at 888. Ambiguous text is to be interpreted according to the generally prevailing meaning of the words employed. La. Civ.Code art. 11. Their meaning may be sought by | .^consulting other laws on the same subject matter. Theriot, 694 So.2d at 186; Succession of Baker, 129 La. 74, 55 So. 714 (1911).

As we stated in Theriot,
We have long held that the paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law. Legislative intent is the fundamental question in all cases of statutory interpretation; rules of statutory construction are designed to ascertain and enforce the intent of the statute.
One particularly helpful guide in ascertaining the intent of the legislature is the legislative history of the statute in question and related legislation. Laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject. We give harmonious effect to all acts on a subject when reasonably possible. (Citations omitted).

Theriot, 694 So.2d at 186. With these principles in mind, our analysis begins with the Certification requirements set forth in La.Rev.Stat. 40:2405.

La.Rev.Stat. 40:2405

At the time Plaintiff was hired as a police officer for the St. Gabriel Police Department, he was subject to the statutory requisites of La.Rev.Stat. 40:2405, which state in pertinent part:

A. (1) Notwithstanding any other provision of law to the contrary, any person who begins employment as a peace officer in Louisiana subsequent to January 1, 1986, must successfully complete a certified training program approved by the council and successfully pass a council-approved comprehensive examination within one calendar year from the date of initial employment. Any person who fails to comply with this requirement shall be prohibited from exercising the authority of a peace officer; however, such persons shall not be prohibited from performing administrative duties. (Emphasis added.)

Because plaintiff did not comply with La.Rev.Stat. 40:2405 within one year of his employment, he was in violation of La.Rev. Stat. 40:2405. As a result, his employment was discussed at a City Council meeting on May 23, 2002, and after | ^hearing the Chief of Police’s recommendation, the Council unanimously decided to terminate Plaintiffs employment.

In analyzing the propriety of the City’s termination of Plaintiff under La.Rev.Stat. 40:2405, we focus first on the plain wording of the statute. Clearly under La.Rev. Stat. 40:2405, a peace officer must complete a certified training program and pass an examination within one calendar year from the date of initial employment. Indeed, any officer who fails to do so “shall be prohibited from exercising the authority of a peace officer.” Id. However, the last clause of Subsection A of La.Rev.Stat. 40:2405 which states, “such persons shall not be prohibited from performing administrative duties,” seems less clear.

Because we find some confusion as to the last clause of Subsection A of La.Rev. Stat. 40:2405, we now turn to the legislative history of the Act and the purpose for the statute’s enactment. In so doing, we view with particular interest the legislative revisions made to the statue over the years. The original 1976 version of La. Rev.Stat. 40:2405 read:

A. Every peace officer, not later than one year after accepting employment as a peace officer or within one year after the effective date of this Chapter, whichever is later, shall successfully complete a basic law enforcement training course conducted by a training center accredited by the council....

The 1982 amendment, rewrote the Section as follows:

A. Notwithstanding any other provision of law to the contrary, any person who begins employment as a peace officer in Louisiana subsequent to January 1, 1986, must successfully complete a certified training program approved by the council and successfully pass a council-approved comprehensive examination within one calendar year from the date of initial employment. Failure to comply with this requirement will be grounds for the council to seek an injunction prohibiting such an individual from exercising the authority of a peace officer. (Emphasis added.)

_[¿The next amendment under Act 1998, 1st Ex.Sess., No. 108, of the Louisiana Legislature was identical to the 1982 amendment with the exception of a re-designated the text of Subsection A as paragraph A(l) and rewriting of the second sentence as follows (in italics):

A. (1) Notwithstanding any other provision of law to the contrary, any person who begins employment as a peace officer in Louisiana subsequent to January 1, 1986, must successfully complete a certified training program approved by the council and successfully pass a council-approved comprehensive examination within one calendar year from the date of initial employment. Any person who fails to comply with this requirement shall be prohibited from exercising the authority of a peace officer, however, such persons shall not be prohibited from performing administrative duties.

Subsection A(l) has not been changed by subsequent amendments or acts.

The original 1976 version left uncertain what ramifications would occur where a peace officer failed to meet the training and certification requirements of La.Rev. Stat. 40:2405. In an apparent attempt to supply the effects stemming from such an officer’s failure, the legislature, in the 1982 amendment, provided the council with the option of seeking an injunction. Act 1998, 1st Ex.Sess., No. 108 added language to clarify that the failure to comply with La. Rev.Stat. 40:2405 would result in a strict prohibition of any person “from exercising the authority of a peace officer.” With the 1998 amendment, the legislature no longer required the municipality to seek an injunction, rather it forbade such a person from acting as a peace officer. All parties herein agree as to this interpretation.

That aside, the parties herein do not agree as to meaning or aim of the last clause of Subsection A(l), which reads: “however, such persons shall not be prohibited from performing administrative duties.” Plaintiff submits that, considering the language of the Statute, any attempt by the City to control the assignment of the police | Rdepartment’s personnel is invalid. This includes, according to plaintiff, the assignment of an officer to administrative duties without approval of the council or mayor.

We disagree. The prohibition in La.Rev.Stat. 40:2405 regarding the ability of a person to exercise the authority of a peace officer and the language which indicates that “such persons shall not be prohibited from performing administrative duties” refers solely to what capacity the officer may perform certain tasks within law enforcement if he has not met the Certification requirements. In other words, an officer who is not properly certified is not disqualified from administrative positions, but he is also not guaranteed such a position for his failure to qualify. La.Rev.Stat. 40:2405 in no way mandates that an officer who is not properly certified must serve in an administrative position without any recourse available to the municipality or the chief of police for his failure to comply with La.Rev.Stat. 40:2405.

Having determined this issue, we now turn to the more tortuous issue raised under La.Rev.Stat. 33:423.

La.Rev.Stat 33:423

Plaintiff argues that the La.Rev.Stat. 33:423 “clearly states that a municipality cannot terminate law enforcement personnel whose chief of police is elected without his recommendation.” Plaintiff, citing Lee v. Grimmer, 99-2196 (La.App. 1 Cir.2000), 775 So.2d 1223 and Thibodeaux v. Hernandez, 97-602 (La.App. 3 Cir. 10/29/97), 702 So.2d 1157, strains to further assert that the police chiefs “approval” of a municipality’s termination is necessary for a municipality to act under La.Rev.Stat. 33:423.

These arguments are simply untenable and do not jibe with the overall meaning of the statutes when they are read together. Plainly, under La.Rev.Stat. 33:423, it is mandatory that the chief of police make a recommendation to the mayor or board of | flaldermen for the “appointment of police personnel, for the promotion of officers, to effect disciplinary action, and for dismissal of police personnel.” The word recommendation “refers to an action which is advisory in nature rather than one having any binding effect.” BLACK’S LAW DICTIONARY 626 (5th ed.1979).

The court of appeal’s determination that the council exceeded its authority when it “ignored the recommendation of the chief of police and unilaterally terminated Grant” was incorrect. We reiterate, a “recommendation” is merely advice which need not be followed. Inherent in the advisory position of any advocate is the option of the receiving party to comply with or reject the recommendation. Furthermore, we note that the recommendation requirement of La.Rev.Stat. 33:423 is a duty of the police chief and, therefore, is burdened upon the police chief, not upon the municipality. Louisiana Rev. Stat. 33:423 no way mandates that the municipality adopt, in whole or in part, the recommendation of the chief of police.

Next, we reject the court of appeal’s finding that the City acted unilaterally in terminating Plaintiff. Unilateral action is action taken without regard to the opinions of others, without mutual consideration. The word “unilateral” is defined as, “One-sided; ex parte; having relation to only one of two or more persons or things.” BLACK’S LAW DICTIONARY 626 (5th ed.1979). Without a doubt, the City in this case did not act unilaterally. The Council listened to the Chief of Police’s opinion as to Plaintiff, took his recommendation under advisement, and, after consideration, decided to not adopt it.

While we find that the police chief is to be allowed to make recommendations before the municipality acts, and indeed must do so under La.Rev.Stat. 33:423, we reject the holdings of Lee v. Grimmer and Thibodeaux v. Hernandez which have provided that the specific recommendation of termination or approval of the police | inchief is a prerequisite to the municipality’s ability to terminate peace officers. This would mandate that the municipality merely “rubberstamp” all employment decisions made by the police chief and would render the recommendation requirement of La. Rev.Stat. 33:423 useless step to be taken by both the Chief of Police and the municipality.

Under La.Rev.Stat. 33:423, a police chief must make recommendations with respect to any of the employment actions enumerated therein to the municipality. However, the municipality need not adopt such recommendation and may, after the recommendation, take its own action as relates to the peace officer training and certification requirements set forth in La.Rev.Stat. 40:2405.

CONCLUSION

Our interpretation of the two statutes is in harmony with the plain meaning of the statutes and the intent evidenced by the legislature in enacting and amending both statutes. For the foregoing reasons, we reverse the decisions of the lower courts and grant the City’s Motion for Summary Judgment.

KIMBALL, J., concurs in the result and assign reasons.

KNOLL, Justice, concurs in the result.

JOHNSON, Justice, concurs.

| ¶ KIMBALL, Justice,

concurring in result.

I concur in the result reached by the majority in this case. The legislature has excepted certain cities, villages, and towns from the “recommendation” procedure provided by La. R.S. 33:423. See La. R.S. 33:423.2-33:423.13. However, these exceptions, which generally provide that the chief of police may act directly with respect to police personnel, do not apply to the town of St. Gabriel.

      . We note that the police chiefs in both Thibo-deaux and Lee deliberately chose not to recommend the dismissal of the officers who were later terminated by the respective municipalities.


source: Caselaw Access Project

author: JjPER CURIAM.

license: Public Domain

text:
    In re Heyward G. JEFFERS, Jr.
    No. 2003-B-3345.
    Supreme Court of Louisiana.
    April 14, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Bernadine Johnson, Deputy Disciplinary Counsel, for applicant.
    Heyward G. Jeffers, Jr., Stephen K. Peters, Baton Rouge, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This attorney disciplinary proceeding involves one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Heyward G. Jeffers, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In October 1998, Rodrick Jeanpierre was arrested in East Baton Rouge Parish following a traffic stop. Police officers had seized a bag of a white powdery substance, which they believed to be cocaine, and a hidden firearm from the vehicle he was operating. At the time of the arrest, Mr. Jeanpierre asserted the white powder was soap detergent he utilized to detail cars and that he had no knowledge of the firearm.

Thereafter, Mr. Jeanpierre was charged by bill of information with three counts of criminal charges involving possession of a controlled dangerous substance with the intent to distribute, possessing a firearm while in possession of a controlled dangerous substance and being a convicted felon in possession of a firearm, in violation of La. R.S. 40:967 A, 14:95 E and 14:95.1, respectively.

Mr. Jeanpierre retained respondent to represent him in the criminal proceedings. Over the course of ten months, respondent made approximately four court | ^appearances on behalf of Mr. Jeanpierre, and met briefly with him prior to each appearance. During this time, respondent failed to conduct any type of investigation into the case, nor did he take any steps to determine if there was validity to Mr. Jeanpierre’s claims that the substance found in his possession was not cocaine.

The case was scheduled for jury trial on February 7, 2000. Respondent apparently failed to advise Mr. Jeanpierre that the case was set for trial on the merits that day, and Mr. Jeanpierre believed he was merely going to court for a random periodic drug test. According to Mr. Jeanpierre, he was never advised by respondent the matter could proceed to a jury trial that day, and respondent had never discussed with him the defenses to be raised at trial.

After court convened, East Baton Rouge Assistant District Attorney Charles Grey produced an undated crime lab report, which indicated that the white powder found in the vehicle at the time of arrest was not cocaine or any other controlled dangerous substance. Accordingly, the State dismissed the two drug counts, leaving only the felon in possession of a firearm charge. Mr. Grey indicated to the court that the State intended to file habitual offender proceedings against Mr. Jean-pierre if the jury convicted him on the remaining charge. Despite this knowledge, respondent refused to enter into plea negotiations on behalf of his client.

Judge Morvant sought to commence with jury selection and requested that counsel submit their witness lists. Respondent requested a continuance, which the court denied. At that time, respondent admitted to the court that he did not have a witness list or any witnesses for presentation at trial.

Based on respondent’s exchange with the court, Mr. Jeanpierre became concerned over respondent’s obvious lack of trial preparation. Believing that he faced a mandatory minimum sentence of ten to fifteen years in prison, Mr. Jeanpierre, over 1 .^respondent's objection, elected to plead guilty to the lesser offense of attempted possession of a firearm by a felon, which carried a more lenient penalty. The court accepted the plea. Mr. Jeanpierre was sentenced as a habitual offender to five years incarceration and was immediately taken into custody.

The following day, Mr. Jeanpierre’s mother contacted Judge Morvant’s office and expressed concern over respondent’s handling of her son’s legal matter. Judge Morvant reviewed Mr. Jeanpierre’s case and discovered that Mr. Jeanpierre in fact had only one prior felony conviction and it formed the predicate for the offense to which he plead guilty. Accordingly, he concluded the prosecution erred in filing the habitual offender proceedings against Mr. Jeanpierre. Additionally, Judge Mor-vant recognized he had cited the wrong criminal statute during the plea proceedings, and that the controlling statute had no mandatory minimum sentence. Believing the threat of additional jail time had played into Mr. Jeanpierre’s decision to plead guilty, Judge Morvant intended to vacate the prior plea. He immediately notified Assistant District Attorney Grey to stop Mr. Jeanpierre’s transfer from jail to prison.

Judge Morvant reconvened the parties on February 11, 2000, after Mr. Jeanpierre had already served four days in jail. Assistant District Attorney Grey suggested that the State would let Mr. Jeanpierre enter a “best interest” plea to the possession of cocaine charge and place him on probation without any prison time, as long as the defense had no objection. In the absence of any formal objection, Mr. Jean-pierre was resentenced to serve a period of probation.

| ¿Subsequently, Judge Morvant filed a disciplinary complaint with the ODC. In his complaint, Judge Morvant asserted that respondent was unprepared for trial in this matter and, by his actions, placed his client in jeopardy.

DISCIPLINARY PROCEEDINGS

Formal Charges

Following investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 1.1(a) (incompetence), 1.2(a) (scope of representation), 1.3 (lack of diligence), 1.4 (failure to communicate), 3.2 (failure to expedite litigation), 3.5(c) (engage in conduct intended to disrupt tribunal), 8.4(a) (violating the Rules of Professional Conduct), 8.4(c) (conduct involving fraud, deceit, dishonesty, or misrepresentation) and 8.4(d) (conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent filed a general denial to the allegations of misconduct.

Formal Hearing

A formal hearing was conducted before the hearing committee. The ODC presented the testimony of Judge Morvant, Mr. Jeanpierre and Mr. Jeanpierre’s mother.

| .Judge Morvant corroborated the assertions made in his earlier complaint. He contended that respondent placed his client in great jeopardy, because Mr. Jean-pierre was facing mandatory prison time of ten to fifteen years. Judge Morvant further testified he believed there was “some type of conflict” between respondent and his client.

Mr. Jeanpierre testified at the formal hearing that he gave respondent the names of potential witnesses, but respondent did not contact them or conduct any pre-trial investigation. Mr. Jeanpierre further testified that respondent did not advise him of the scheduled trial date; rather, he only learned the trial was taking place that day when respondent saw him outside of the courtroom and asked what he was doing there. Further, Mr. Jean-pierre testified that he had never had any discussions with respondent about how the case would be defended or pleading guilty to the charges. He stated it was his idea to plead guilty to the lesser offense because he was going into court “blind,” there was “a whole bunch of confusion,” and he had the impression respondent was unprepared to proceed to trial.

Ms. Jeanpierre testified that she attended each of her son’s court appearances, even if it was for just a drug test. She maintained that she did not go on the day of her son’s scheduled trial because she had to go to work. Ms. Jeanpierre stated she also believed he was simply going to court for a random drug test since her son was dressed in his work uniform. She testified she contacted respondent after learning her son was sent to jail that day after pleading guilty to one of the pending criminal charges. Ms. Jeanpierre testified respondent advised her Mr. Jeanpierre mistakenly plead guilty because he became very confused at the trial. She alleged she subsequently contacted Judge Morvant’s office to advise of respondent’s mishandling of her son’s case.

| (¡Respondent presented no witnesses, but testified on his own behalf. He testified that he had been engaged in the practice of law for approximately fifty-three years and considered himself to be a “semi-retired solo practitioner.” Respondent stated he essentially limited his practice to criminal law. As to Mr. Jean-pierre’s case, respondent alleged he told the assistant district attorney that he would not engage in any plea negotiations until the criminal lab tests came back on the powdery substance found at the time of the arrest. Contrary to Mr. Jean-pierre’s testimony, respondent denied that Mr. Jeanpierre gave him the names of any persons that could assist in his investigation of the case. He further insisted that his client had to have had notice of the scheduled trial and, when asked why his client would arrive in work clothes if he thought he was going to a trial that day, respondent stated that Mr. Jeanpierre was “very confused about all that.” Respondent stated his client was “as ready as he ever would have been” to go to trial.

Recommendation of the Hearing Committee

The hearing committee determined there was clear and convincing evidence to support each of the formal charges. In making this determination, the committee specifically found the testimony of the ODC’s witnesses was credible, noting Judge Morvant’s testimony was corroborated by the testimony of Mr. Jeanpierre and his mother. The committee concluded respondent violated Rules 1.4(a) and 1.4(b) arising from his failure to adequately communicate with his client relative to the status of his case, especially as the scheduled jury trial approached. It also found respondent violated Rules 1.1(a), 1.2(a), 1.3 and 8.4(a), because he was unprepared to defend his client who was potentially facing a jury trial on three felony charges with minimum mandatory prison sentences. The committee reasoned respondent was simply not [ 7prepared to defend his client at trial, although his client was facing the possibility of participating in a full-blown jury trial involving three separate criminal charges. It recognized two of the criminal charges were dismissed through no perceived effort on the part of respondent. Further, the committee relied on Judge Morvant’s testimony that “respondent’s actions clearly placed his client in a position where he felt compelled to take an initial guilty plea for a mandatory prison sentence because he felt, with good reason, that his lawyer was simply not prepared to defend him in trial.”

Addressing the issue of sanctions, the hearing committee noted respondent’s actions were knowing, resulting in serious potential injury insofar as Mr. Jeanpierre could have been wrongfully incarcerated for a period of five years, an injury the committee found to be “lessened only through the fortuitous intervention of Judge Morvant.” As aggravating factors, the committee listed respondent’s prior discipline for similar misconduct, the vulnerability of the victim and substantial experience in the practice of law. Additionally, the committee focused on respondent’s refusal to acknowledge the harmful nature of his conduct and indifference to rectifying the consequences of his misconduct. Finally, as the only mitigating factor, the committee noted respondent’s full and free disclosures to the ODC.

Based on its findings, the committee recommended that respondent be suspended from the practice of law for a period of one year, with six months deferred, subject to a six-month period of supervised probation. It further proposed, in the event respondent is reinstated to the practice of law, he shall attend in addition to his mandatory continuing legal education four hours of continuing legal education in the | sarea of ethics and four hours of continuing legal education in the area of law office management.

Neither party filed an objection to the hearing committee’s findings.

Recommendation of the Disciplinary Board

Following its independent review of the record, the disciplinary board concluded the hearing committee’s findings of fact were supported by the record. It concurred in the committee’s determination that respondent violated Rules 1.1(a), 1.2(a), 1.3, 1.4(a), 1.4(b) and 8.4(d). Additionally, the board adopted the aggravating and mitigating factors cited by the committee.

Based on its findings, the disciplinary board adopted the committee’s proposed sanction of a one-year suspension, with six months deferred, subject to a six-month period of probation with the condition to reinstatement proposed by the committee.

Respondent filed an objection to the disciplinary board’s recommendation. The matter was therefore docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of | ¡¿he hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on our review, we conclude the record supports the committee’s factual findings. The record reveals an utter lack of any meaningful preparation by respondent in connection with Mr. Jean-pierre’s trial. Respondent admits he neglected to conduct any pre-trial investigation, contact any witnesses, or file any motions on behalf of his client. But for the actions of Ms. Jeanpierre and Judge Morvant, it is abundantly clear that respondent’s neglect of this matter would have resulted in his client serving a lengthy prison sentence.

Having found evidence of professional misconduct, the next issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Pursuant to the ABA’s Standards for Imposing Lauryer Sanctions, the baseline sanction for respondent’s misconduct is a suspension from the practice of law. In aggravation, we note respondent’s actions are particularly egregious in light of his |innearly fifty years of experience in the practice of law and his prior discipline for very similar misconduct. Other aggravating factors are refusal to acknowledge the wrongful nature of his conduct and vulnerability of the victim. As mitigating factors, we recognize respondent’s cooperation and the lack of a dishonest or selfish motive.

We conclude the appropriate sanction for respondent’s misconduct is a one-year suspension from the practice of law. However, in light of the mitigating factors, we will defer six months of the suspension subject to the condition that following the active portion of his suspension, respondent shall be placed on probation under the supervision of a practice monitor for a period of one year.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Heyward G. Jef-fers, Jr., Louisiana Bar Roll No. 7245, be suspended from the practice of law for a period of one year. It is further ordered that all but six months of the suspension shall be deferred, subject to the condition that following the active portion of his suspension, respondent shall be placed on probation for a period of one year under the supervision of a practice monitor. Any misconduct during the probation period shall be grounds for making the deferred portion of the suspension executory or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Mr. Jeanpierre had a prior felony conviction in West Baton Rouge Parish for possession of cocaine. He was on probation at the time of the arrest which is at issue in the instant proceedings.

      . Judge Morvant testified in his deposition that it was common practice for someone to take a "best interest” plea, pleading guilty to something for which there was no bill of information pending. He maintained it was especially common in instances when a judge is faced with a mandatory penalty as an alternative. Judge Morvant believed a period of probation was appropriate under the facts. In support, he noted Mr. Jeanpierre had remained gainfully employed for over thirteen months and had not engaged in any criminal activity.

      . At the conclusion of the hearing, Judge Morvant stated on the record:
      Now, while we're still on the record I want you to understand one thing perfectly clear. You're here today for one reason and one reason only. I put you back on the docket on my motion, and I don't know if you were advised today that it was because of efforts made by your attorney. Mr. Jeffers didn't know about this until he showed up today. So what transpired between Monday and today is as a direct result of the court’s action, no action through your attorney.

      . In 1997, this court imposed a fully-deferred 90-day suspension on respondent for similar misconduct. In re: Jeffers, 97-1414 (La. 10/10/97), 703 So.2d 591.

      . Respondent was admitted to the practice of law in 1950, approximately 48 years at the time of the misconduct.

      . ABA Standard 4.42 provides suspension is generally appropriate when a lawyer fails to perforin services for a client or engages in a pattern of neglect and causes injury or potential injury to a client. Standard 7.2 provides suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system.


author: JjCLARENCE E. McMANUS, Judge.

text:
    Tyrone ANDERSON v. Dr. Mark F. SILADY.
    No. 03-CA-1218.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2004.
    Lowell Dye, Roberts, Baudier & Dye, New Orleans, LA, for plaintiff-appellee.
    C.William Bradley, Jr., Nicole M. Duarte, J. Don Kelly, Jr., New Orleans, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   JjCLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On December 24, 1998, Tyrone Anderson, a twenty-four year old male, experienced pain in his left side radiating into his left testicle. At the time the pain began, Anderson was working at Shoney’s as a busboy. He went to the Meadowcrest Hospital Emergency Room and reported his symptoms to a triage nurse. He was then seen by Dr. Mark F. Silady. Dr. Silady diagnosed Anderson as suffering from abdominal musculoskeletal etiology, or acute abdominal tenderness. Dr. Silady advised Anderson to return to a doctor or to the hospital if his condition did not improve.

Anderson returned home and remained in bed until December 26, 1998, when he went to the West Jefferson Medical Center Emergency Room. On that day, the emergency room physician diagnosed him as suffering from “torsion” of his left testicle. A “torsion” is generally described as a congenital anomaly that can lead to a testicle’s rotational twisting on the spermatic cord to which it is attached. This twisting constricts the blood flow to the testicle. If surgery is not performed, the testicle can become necrotic and must sometimes be removed. pAfter an ultrasound, the emergency room physician confirmed the torsion and Anderson was prepared for surgery. A urological surgeon removed the necrotic left testicle and “tacked” the remaining testicle to prevent it from later “torsing”.

Thereafter, Anderson filed a complaint with the Louisiana Patient’s Compensation Fund and a Medical Review Panel was convened. After a hearing, one panelist found that Dr. Silady met the standard of care required of an emergency room physician and two panelists found that Dr. Sila-dy failed to comply with the standard of care required and the conduct by Dr. Sila-dy was a cause of the damages suffered by Anderson.

On January 5, 2000, Anderson filed a Petition for Damages seeking damages for Dr. Silady’s negligent failure to diagnose and treat his condition. Trial was held March 24-27, 2003. On August 12, 2003, the trial court rendered a judgment in favor of the plaintiff, finding that Dr. Sila-dy had breached the standard of medical care owed to Anderson and the breach caused the damages complained of by Anderson. The trial court awarded Anderson $30,000 in general damages, plus medical expenses in the amount of $9,370.72, plus interest and costs. The judgment was read in open court on June 9, 2003. The transcript of the June 9, 2003 proceeding indicates that the trial judge gave reasons for judgment and made specific findings concerning the expert testimonies and the evidence presented.

Dr. Mark Silady now appeals the trial court’s judgment arguing two assignments of error. First, he argues that the trial court erred in applying a “presumption of objectivity” and according greater weight to the testimony of the medical review panelists than to the testimony of non-panel medical experts. Second, he argues that the trial court erred in concluding that Dr. pSilady violated the applicable standard of care in his emergency room treatment of the plaintiff.

Anderson also appeals the trial court’s judgment arguing that the general damage award of $30,000 was unreasonably low and should be increased.

For the reasons which follow, we affirm the trial court’s finding that Dr. Silady breached the standard of care in his treatment of Anderson and also affirm the trial court’s award of $30,000 in general damages and $9,271.42 in medical expenses to Anderson.

DISCUSSION

After trial and a review of all evidence presented, including the testimony of the three panel members and the experts retained by the parties, the trial court rendered a judgment and presented reasons for that judgment on the record in open court. The trial court fully reviewed the testimonies of all three panel members and the experts retained by the parties. In regards to all three panel members, the trial court stated that the law presumes that the panel members are objective or are accorded the same presumption of objectivity.

La. R.S. 40:1299.47 provides that the medical review panel is composed of three health care providers. One healthcare provider is chosen by the plaintiff, one by the defendant and one by the other two members. La. R.S. 40:1299.47 further provides that before starting their duties as panelists, they shall each subscribe an oath before a notary that states:

I, (Name) do solemnly swear/affirm that I will faithfully perform the duties of medical review panel member to the best of my ability and without partiality or favoritism of any kind. I acknowledge that I represent neither side and that it is my lawful duty to serve with complete impartiality and to render a decision in accordance with law and the evidence.

IsThe original of each oath shall be attached to the opinion rendered by the panel. A review of the exhibits presented at trial reveals that the oaths were not attached to the opinion and entered into evidence at trial. However, the requirement that each panel member subscribe to this oath does indicate that, by law, there is a presumption that the panel members will decide the matter without partiality or favoritism. Therefore, the trial court was proper in stating that the panel members are presumed to be objective. The panel members’ testimonies are not, however, given more weight than the testimonies of other experts with the same or equal qualifications.

A review of the transcript of the trial court’s reasons for judgment indicates that the trial court fully considered the opinions of all experts, both panel members and non-panel members, before deciding in favor of the plaintiff. Although the trial court afforded the panel members the presumption of objectivity, the trial court also considered the testimony of the experts hired by the parties. In addition, the trial court afforded the same presumption to the panel members who found in favor of the plaintiff, as well as the one panel member who found in favor of Dr. Silady. Thus, we find the trial court correctly reviewed and weighed all evidence and testimonies before arriving at a verdict and did not afford greater weight to the testimonies of the medical review panel members.

Next, we agree with the trial court’s finding that Dr. Silady failed to meet the standard of care required of an emergency room physician and that the damages suffered by the plaintiff were a result of that conduct. The panel’s opinion states that all members agree that the plaintiff presented to Meadowcrest Hospital and Dr. Silady with a suspicious history for testicular torsion and that Dr. Silady considered this diagnosis. However, two of the panel members found that a nuclear testicular scan or Doppler ultrasound of Dthe testicle should have been ordered since there were no other findings or explanation for the symptoms. One panel member found that Dr. Shady’s judgment not to perform the scan or ultrasound was reasonable based on the negative exam for testicular torsion.

Two panel members, Dr. Richard Roberts and Dr. Michael Grieb, testified at trial that they found a violation in the standard of care because Dr. Silady did not rule out testicular torsion when he did not do the ultrasound. Dr. Roberts further testified that the standard of care would have required a charting of the observations which caused Dr. Silady to reach the conclusion that there was no testicular torsion. Dr. Silady did not chart the observations that led to that conclusion.

The third panel member, Dr. Richard McConnell, testified that he believed Anderson’s exam was not consistent with a diagnosis of testicular torsion and there was no indication on the first emergency room visit that he needed further testing. Dr. McConnell testified that there was an initial suspicion of testicular torsion but the exam of the plaintiff took away that possibility. Dr. McConnell further testified that if there was an uncertain diagnosis, his preference would be to do the Doppler ultrasound.

Dr. Wayne John G. Hellstrom then testified as an expert specializing in male fertility and sexual dysfunction. The trial court points out that he was originally called to testify regarding damages, but his testimony expanded. He testified that if he were suspicious of testicular torsion, he would operate right away and if he was even slightly suspicious or semisuspicious he would obtain a Doppler ultrasound.

Dr. Joseph S. Littner testified as an expert for the defense. He believes that Dr. Silady’s note in the chart that states “no evidence of torsion”, without stating the test conducted or the findings which led to that conclusion, is |7sufficient. He also testified that he had never seen a patient with testicular torsion that presented with normal testicular pain. Dr. Silady testified that he thought the plaintiffs testicle more than likely torsed while at work in the morning and then detorsed before he went to the emergency room and then retorsed again after he left the emergency room. Dr. Littner agreed with this opinion.

The plaintiff, Anderson, testified that when he reported to the emergency room and to the triage nurse, he simply pointed to the areas that hurt. He stated that he told Dr. Silady that the left testicle felt firmer than the right and that it hurt in the testicle. Anderson stated that he did not say his “flank” or “scrotum” hurt because he doesn’t know what that is. He further testified that Dr. Silady did not perform a physical exam of his testicles.

Based on a review of the testimonies and evidence presented at trial, we agree with the trial court that Dr. Silady failed to meet the standard of care required by an emergency room physician when he did not perform further testing to rule out the possibility of a testicular torsion.

And finally, we affirm the trial court’s general damage award of $30,000 for Anderson. Dr. Hellstrom, who is board certified in urology and specializes in male fertility and sexual dysfunction, testified that Anderson was predisposed to being reproductively impaired even before he had torsion. Sperm tests were performed after the surgery on November 2, 2000 and June 22, 2001. Those tests showed very good sperm counts and normal motility. The only abnormal finding was in relation to the morphology, or sperm shape. Dr. Hellstrom testified that Anderson’s sperm shape was abnormal and this finding is consistent with patients who have testicular torsion. This abnormal shape can affect a patient’s ability to conceive children. However, Anderson has previously fathered a child, so conception is possible. Dr. Hellstrom also ^testified that there is a good likelihood that Anderson’s semen analysis may have looked very similar to what it is now before the torsion and the surgery. He also stated that Anderson could father a child, if not naturally, then with a little help.

If Anderson had been diagnosed with torsion by Dr. Silady, at the Meadowcrest Hospital emergency room, then he may not have needed removal of his testicle and may not have needed to undergo such an invasive surgery. However, we do not find that the surgery and removal of Anderson’s testicle dramatically decreased his chances of conceiving children in the future. Therefore, we affirm the trial court’s general damage award of $30,000.

In accordance with the above, we affirm the trial court’s judgment finding that Dr. Silady failed to meet the standard of care required of an emergency room physician and we further affirm the trial court’s general damage award of $30,000, plus medical expenses of $9,271.42 and interest and costs.

AFFIRMED


author: It STEWART, J. _JjBROWN, C.J.,

text:
    John HALL, Plaintiff-Appellant v. BUQUET AND LEBLANC, INC. and Zurich American Insurance Company, Defendants-Appellees.
    No. 38,212 WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 17, 2004.
    Rehearing Denied May 6, 2004.

      John Hall, In Proper Person.
    Lunn, Irion, Salley, Carlisle & Gardner by Walter S. Salley, for Defendants Appel-lees, General Motors Corp., Zurich American Ins. Co. and Gilbane.
    Before BROWN, STEWART and LOLLEY, JJ.
   It STEWART, J.

On December 13, 2001, John Hall filed a disputed claim for compensation against his employer, Buquet and Leblanc, Inc. (“Buquet”) in the Office of Workers’ Compensation (“OWC”) seeking benefits for a back injury he allegedly suffered at work. The parties stipulated that General Motors Corporation (“GM”) was Hall’s statutory employer and that Hall suffered a compen-sable injury to his knee. GM denied that Hall’s back injury was compensable. The matter was tried before the OWC which denied Hall’s claim for compensation benefits for his back injury. Hall now appeals. For the reasons discussed herein, we affirm.

FACTS

In 2001, John Hall was employed as a laborer for Buquet on a construction site at the GM plant in Shreveport. On October 16, 2001, Hall was working on a concrete foundation when he tripped over a shovel and fell. His right knee hit the concrete, his right shoulder hit a steel beam or post, and the shovel injured his left foot. In addition, he testified he was hurting “from [his] waist line.” He said:

Q: Tell me why were you holding your waist line. What’s the reason for that?
A: Well, I really couldn’t say because the pain was most inside of the knee, but I was broke. You know what I’m saying? I was broke down in the waist like. You know what I’m saying? I couldn’t walk. You know what I’m saying? I didn’t put myself — you know what I’m saying? I was kind of off balance like, you know.

However, Hall stated that his waist was not hurting as much as his knee. A foreman and Renee Hooks; another Bu-quet/GM employee, helped Hall into a buggy. Hooks testified that she took Hall’s shoe off and saw that he was |¡>injured. She also said that Hall complained of back pain to her. The employer’s injury report prepared on October 18, 2001, reflects only a knee injury, and Mr. Hall’s own report, which may not have been written by him, reflects a “contusion.”

The record reveals that Hall had a significant history of right knee trouble including a surgery in 1981. He had also injured his back several times, first in a 1977 accident. He was involved in a fight in 1995, and was hit in the upper back with a lead pipe and at the same time reinjured his knee. He also fell from a ladder in 1998 and injured his back and both knees. Finally, he pulled his back at his brother’s funeral in 1999, and was treated by a doctor for that pain. Despite these injuries, Hall’s medical records do not indicate that his back troubles persisted after any of these incidents. Moreover, he did not indicate that he ever had any prior knee or back injuries at all on a GM injury questionnaire form. In fact, Hall left the question about back injuries blank.

Following the accident, the foreman took Hall to the medical trailer for further medical attention. Hall said that he told Bill Kindon, the GM paramedic, about all of his injuries, including his back pain, and that Kindon put ice on the injured areas, including on Hall’s back. After 10 or 15 minutes, Kindon told Hall to go home but return to the medical trailer the next morning. Hall drove to his wife’s place of employment, and they went home together from there. He said he saw his neighbor, Mary Moffett, that evening and told her what had happened that day.

|aMs. Moffett testified that she saw Mr. Hall one day in October and that he was “limping and holding his back and couldn’t hardly walk” and related his injury to his fall at work. She specifically remembered hearing Hall complain of a back injury.

Hall said that the morning after his accident, he was unable to get out of bed by himself. However, with help, he was able to get into the car, and his wife drove him back to the medical trailer at GM. He again saw Kindon who, according to Hall, applied ice to the affected areas including his back. However, Kindon stated in his deposition that Hall did not make any complaints of pain in his back. Hall returned home and did not work that day. Hall related that either that day or the next, he almost fell when he went out into his back yard to try to feed his dog. Hall returned to see Kindon the next day and told him that he almost fell on the grass and that he felt “handicapped” when he was not on a hard surface. Kindon again said that Hall did not report any lower back difficulties. However, because Hall continued to have trouble with his right knee, Kindon referred him to a physician.

Another GM employee, Roderick Maho-ney, was in the medical trailer being treated during one of Hall’s visits. Mahoney testified that he overheard Hall tell Kin-don that he almost fell while feeding his dog. However, Mahoney was not sure of the date of this visit and admitted that his own recent claim for compensation against GM had been denied due to allegations of fraud.

|4On October 18, 2001, Hall saw Dr. Douglas Holman for treatment of his knee. After examining Hall, Dr. Holman released Hall to participate in as much regular activity as he could tolerate. Dr. Holman’s records from that date reflect no complaints of back pain, and Hall said that he did not tell the doctor about his back pain because, taking Kindon’s word for it, he thought the back pain was due to his knee and his foot injury. Hall said that he did relate on an unspecified date a pain in his pelvic area when he picked his feet up. Hall also alleged that Dr. Holman took most of his information from Bill Kindon instead of him, but that he believed that Kindon had been relating all of his complaints, including his complaint of pain around his pelvis, to Dr. Holman.

Radiology from October 19, 2001, revealed “no acute abnormality” in Hall’s right knee, but Hall complained that the injury did continue to hurt. Hall returned to see Bill Kindon at GM on October 22, 2001. When testifying concerning that visit, Kindon said:

Well he came in and basically said that on Saturday while he was in the back yard feeding his dog, his knee gave way. Stepped in a hole or something to that effect and his knee gave way making him fall, striking his back or his hip. Actually it started out his hip was hurting. He had pain in his hip.

Hall flatly denied that he told Kindon that he fell at home. However, Ms. Tammy Bailey, a safety supervisor with Gilbane, GM’s third party workers’ compensation administrator, testified that she was in the safety trailer with Hall and Kindon within a week of the accident at the work site, and Hall told her and Kindon that he had tripped and fallen at home with his dog. Wesley Wallace, a Gilbane safety manager, testified that Hall told him on | s October 22, 2001, that he had “tripped and fell inside of a dog pen while he was feeding his dog.” Hall denied having a conversation with either Ms. Bailey or Mr. Wesley about his back injury.

Hall said that his back really began to hurt on about the fourth day after the accident. Hall’s wife, Patricia, said that he began to complain of back pain on “about the third day” after the accident. She also said that she was with Hall during the incident when he almost fell while feeding the dog and that he did not actually fall.

Hall claimed that he relied on the assertions of Bill Kindon that his back pain was related to the knee pain and believed that Kindon was a doctor. On October 24, 2001, Hall saw Bill Kindon again and again complained of worsening lower back pain. Kindon called Dr. Holman and related Hall’s history to the doctor. Hall returned to see Dr. Holman on October 26, 2001. Dr. Holman’s records from that date reflect no complaints of back pain. The doctor injected Hall’s knee with lidocaine and'Kenalog and sent Hall home to rest over the weekend. On October 30, 2001, Hall returned to see Dr. Holman. Dr. Holman’s records reflect:

He originally had a knee injury which we treated conservatively and injected with Kenalog. The knee is somewhat better, however, he is now having pain in both hips and in his low back. He said he took a tumble at home this weekend because his knee gave way with him.

Dr. Holman could not recall exactly how Mr. Hall related this incident to him, but remembered that Bill Kindon had told him about it first and believed that Hall confirmed Kindon’s version of what happened. Radiology revealed a narrowing of the disc space at L5-S1 but no acute | fiabnormality. Dr. Holman limited Hall to light duty work. Hall continued to report to GM every day to clock in but never actually returned to work. He returned to see Dr. Holman on November 2, 2001, and November 7, 2001, with increasing complaints of lower back pain. On November 7, 2001, the date of Hall’s last visit, Dr. Holman observed that Hall’s knee injury was “much better, almost resolved” and injected his back with Depo-Medrol. Dr. Holman referred Hall to another doctor for his complaints of back pain, but Hall said he could not afford to see another doctor unless GM paid for the visit. GM refused to pay.

At his deposition, Dr. Holman said that the narrowing between discs observed in Hall’s back could be the result of an acute incident or could be the result of normal wear and tear. Dr. Holman also gave his opinion that Hall’s back symptoms were not related to his October 16, 2001, work accident given the passage of time between the accident and the first report of symptoms. He said that it was “possible” or “conceivable” that the back problems were related to the fall at work but that such a long time between injury and symptoms would be “very unusual.”

In November 2001, GM terminated Hall as a reduction in force, and Hall has not done any work since that time. In December 2001, Hall went to LSU Medical Center for an evaluation of his complaints of pain. A January 2002 MRI study revealed disc protrusion at L4-5 and disc extrusion at L5-S1. In May 2002, he saw an orthopedic surgeon, Dr. Edward Morgan, who recommended anti-inflammatory medication. Hall’s back pain continued, and he was evaluated by an orthopedic surgeon at LSU, Dr. Kalia |7Sadasivan. Dr. Sadasi-van related that Hall said that his back problems commenced after his fall at work, and the doctor concluded that the work accident caused the back injury based on this history, the physical, and the treatment plan. Dr. Sadasivan recommended surgery, and in July 2002, Hall underwent back surgery, specifically a laminectomy at L5 and discectomy at L5-S1, performed by Dr. Sadasivan and Dr. Timothy Talbert. Dr. Sadasivan reported that Hall made good progress after the surgery and that his complaints of pain subsided by his last visit in September 2002. Hall also said that his pain had been relieved by the surgery but that his back now felt “loose” all the time and he could no longer do heavy work. He also said that GM had not paid for any of the therapy related to his back.

The workers’ compensation judge found that Hall’s back injury was not caused by his October 16, 2001, work accident and denied his claim. The judge did not offer written reasons for this finding. This appeal ensued.

DISCUSSION

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more ^probable than not. Thompson v. Dillard’s Department Store, 32,974 (La.App.2d Cir.5/10/00), 759 So.2d 1074.

The causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling condition. Id. However, an employee’s pre-existing condition does not disqualify his claim if the work-related injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. When the claimant proves that he had no disabling symptoms before the accident, but that commencing with the accident, the disabling symptoms appeared, and there is medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, a claimant’s work injury is presumed to have aggravated a pre-exist-ing infirmity to produce his disability. Id.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Harris v. Coushatta Industrial Sand, Inc., 31,977 (La.App.2d Cir.6/16/99), 741 So.2d 143. Factual findings in workers’ compensation cases are subject to the manifest error rule. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Harris, supra. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. 9 Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, supra. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

In this case we conclude that there were two permissible views of the evidence presented. The employer presented the testimony of three persons who claimed to have heard Mr. Hall say that his back problems commenced after he tripped and fell while feeding his dog. In addition, Hall’s doctor, Dr. Holman, believed that Hall had confirmed this story with him. The claimant flatly denied that these conversations took place and only admitted that he “almost fell” while feeding his dog due to the instability of his knee after the accident. In addition to his own testimony, the claimant presented testimony from his wife, neighbor and co-worker confirming that he had complaints of back pain shortly after the incident at work. The medical evidence concerning the causation of Hall’s back problem was equivocal and was based in large measure on the history given by Mr. Hall. Dr. Holman was of the opinion that it was unlikely that Hall’s back problems were caused by the October 16, 2001, accident, and Dr. Sadasivan believed that the work accident could have caused the back injury based on the history from Mr. Hall, the physical, and the treatment plan.

^CONCLUSION

With two permissible views of the evidence, one of which being that Hall injured his back at work, and the other being that he hurt himself while feeding his dog and not at work, we find no justification for reversal of the judgment of the OWC. In the absence of manifest error, the judgment of the OWC is affirmed at appellant’s cost.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

_JjBROWN, C.J.,

dissenting.

There was an accident with injuries. Claimant said that he hurt his knee and back. The company paramedic claims that claimant did not complain of back pain until six days after the accident. The company doctor recorded back pain three weeks post-accident. Two months after the accident an MRI performed at LSU Medical Center revealed disc protrusion and extrusion. The LSU doctors performed a laminectomy and discectomy nine months later. The company doctor was equivocal on causation of claimant’s back injury. The LSU doctors were not, however, and related claimant’s disc problems to his accident at work.

This court attributes claimant’s back problems to having tripped and fallen while feeding his dog. This is based on the testimony of the company’s paramedic that six days after the work accident, claimant said “that his knee gave way” and he fell while in the back yard feeding his dog. Claimant denies that he fell and testified that his back injury occurred as a result of the work-related accident.

The WCJ gave no reasons for denying the claim. Such a denial is contrary to a reasonable evaluation of the evidence. I would reverse.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY, and LOLLEY, JJ.

Rehearing denied.

BROWN and WILLIAMS, JJ., would grant rehearing.

STEWART, J., recused.


author: |-, EDWIN A. LOMBARD, Judge.

text:
    Joseph RIZZUTO and Neal Sartalamacchia v. The STATE of Louisiana Through the Louisiana Department of Transportation and Development.
    No. 2002-CA-1687.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2004.

      Frank D. Ippolito, Law Offices of Frank D. Ippolito, Chalmette, LA, for Plaintiff/Appellee.
    Caleb H. Didriksen, III, Diane R. Co-senza, the Didriksen Law Firm, New Orleans, LA, and Anthony J. Angelette, Jr., Special Assistant Attorney General Berri-gan, Litchfield, Schonekas, Mann, Traína & Thompson, L.L.C., Metairie, LA, and E. John Litchfield Special Assistant Attorney General, Berrigan, Litchfield, Schonekas, Mann, Traína & Thompson, LLC, New Orleans, LA, and Richard P. Ieyoub, Attorney General, Gregory G. D’Angelo, Special Assistant Attorney General, William David Coffey, Special Assistant Attorney General, Panzeca & D’Angelo, L.L.C., Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   |-, EDWIN A. LOMBARD, Judge.

This case involves a single vehicle accident in which the driver, Joseph Rizzuto, and his passenger, Neal Sartalamacchia, were injured. Rizzuto and Sartalamacchia filed suit on May 5, 1999, against only one defendant, the State of Louisiana, through the Department of Transportation and Development (“DOTD”), alleging that the accident was caused by the unreasonably dangerous roadway and shoulder of East Louisiana Highway 46.

Sartalamacchia stipulated that his damages did not exceed $50,000.00, exclusive of interests and costs and, accordingly, his case was tried concurrently to the court with the jury trial of Rizzuto’s claims. After a three-day trial, both the judge and jury rendered a verdict in favor of the plaintiffs and against the DOTD. However, whereas the jury apportioned fault at 40% to DOTD, 3% to Rizzuto, and 57% to “any other source,” the trial judge found the DOTD to be 100% at fault for the accident.

On appeal, the DOTD challenges only the finding of liability and does not contest the amount of damages. Specifically, the DOTD contends that the triers of Rfact erred (1) in concluding that (a) the highway was unreasonably dangerous; (b) the shoulder of the highway was the cause of the accident; and (c) the accident occurred anywhere other than 9/10 of a mile from the intersection of Florrisant Highway and La. 625; and (2) in apportioning fault to the DOTD. After reviewing the record evidence in light of the applicable law and the arguments of the parties, we affirm the judgment in favor of plaintiff Rizzuto. We vacate and amend the judgment in favor of plaintiff Sartalamacchia with regard to the apportionment of fault and, as amended, affirm the judgment.

Pertinent Facts

The following pertinent evidence was adduced at trial. At approximately 11 p.m. on May 11, 1998, the plaintiffs were returning home after a day of fishing in Delacroix on East Louisiana Highway 46, also known as Florrisant Highway, in St. Bernard Parish. Rizzuto, driving a tow truck owned by his employer, swerved off the paved surface of Highway 46 and into the adjacent bayou at some point between log mile 2.9 and 3.2 of Highway 46, purportedly to avoid an oncoming vehicle which swerved into his travel lane. The truck, which had been traveling at a speed between 45 and 55 miles per hour, stopped abruptly when it hit the water in the bayou, causing Rizzuto to hit the steering wheel with his chest and go over the steering wheel and his passenger’s head to hit the windshield.

|3The officer responding to the accident, Sergeant David Estaves of the St. Bernard’s Sheriffs Office, noted the odometer distance from the intersection of Louisiana Highway 625 to the accident site as .9 miles. Sgt. Estaves also noted a 25-foot skid mark in the soft soil on the side of the road leading from the roadway into the bayou. He found no other vehicles at the accident site and issued no citations. At trial, Sgt. Estaves identified the plaintiffs’ photographic exhibits of the accident site.

The roadway now designated as Louisiana Highway 46 has been in existence since at least 1917 and is located on a floodplain with wetlands to the south of the roadway and Bayou LaLoutre, a once navigable natural body of water, bordering a portion of the north side of the roadway. The roadway was incorporated into the state highway system in the nineteen-thirties prior to the adoption in 1943 of design standards for new construction and reconstruction of state highway facilities. The standards were not retroactively applicable and, accordingly, there is no requirement for the DOTD to bring existing roadways into compliance.

Over the years, the DOTD has implemented a number of projects to maintain the roadway. In 1944, the DOTD raised the elevation of the highway by adding clamshells to the roadbed to restore it as a public travel way because the roadway was subject to water tides on both its bayou side and its southern side. The roadway continued to erode, however, requiring further maintenance projects. [4In the early nineteen-fifties, the DOTD graded the existing ditch on the south side of the roadway, added more shell to increase the elevation of the roadway another seven inches, and put a bituminous surface treatment on the roadway. In the early nineteen-seventies, the DOTD raised the elevation of the roadway 3 % inches with clamshells, put an asphalted concrete overlay on the existing travel lanes of the roadway, and raised the existing shoulders of the roadway to match the elevations at the edge of the travel lane. Because the average daily traffic on the roadway reached 1540 vehicles per day in the early nineteen-eighties, the DOTD widened the roadway base by two feet and three inches to accommodate an eleven-foot wide overlay in each travel lane within the existing overall crown width of the roadway and raised the shoulder to the elevation of the new roadway. After completion of this maintenance project, the shoulder width of the roadway averaged two and a half feet and the slope of the shoulder on the roadway was between 8 and 10 degrees.

In support of their claim that the roadway was unreasonably dangerous and the cause of the accident, the plaintiffs presented testimony by two expert witnesses, Dr. Frank Griffith, an expert in physics in accident reconstruction, and Robert Can-field, an expert in traffic and transportation. Dr. Griffith testified that the shoulders and foreslope of the bank of the bayou were too steep to recover when, as in this case, a driver drove off the highway to avoid an oncoming vehicle. Dr. Griffith reviewed the as-built drawings of that segment of the highway | ¡^following maintenance work done in the early 1980’s which specified a 5-8% slope or a 2.8-4.6 degree angle of slope and compared those specifications to the measurements he made at the scene of the accident which revealed a 10.5 degree slope next to the roadway and, beyond 4 feet, a slope transitioning to 22 degrees. Accordingly, because the highway was not maintained to preserve the shallower slopes specified by the DOTD in resurfacing the highway, Dr. Griffith opined that the slopes were unacceptably unsafe. In addition, Dr. Griffith noted that the frictional characteristics of the loose soil on the bank of the bayou also contributed to the vehicle sliding into the bayou.

Mr. Canfield testified that one of the functions of roadway shoulders is to provide a recovery area for drivers who inadvertently leave the roadway and that the maximum reasonable foreslope is a 1:3 drop, i.e., one foot drop in three lateral feet. Mr. Canfield testified that the roadway shoulder, which rounded from the edge of the roadway down to the bayou, was no greater than 2.5 feet within 500 feet of the accident and, as such provided very little shoulder to accommodate a vehi-ele leaving the roadway. Mr. Canfield opined that the foreslope, which at the accident site was 1:1, was too steep and contributed to the accident in this case.

The DOTD presented expert testimony by David Wayne Hall, an engineer and expert in highway design, who testified that given Rizzuto’s speed and reaction time, the accident would have occurred even if the roadway shoulders had complied with the specifications relied upon by plaintiffs’ experts to conclude that the roadway was unreasonably dangerous.

Based on the evidence presented at trial, the jury determined that the highway and shoulders of Highway 46 at the site of the accident was in unreasonably dangerous condition and that this unreasonably dangerous condition 1 ^caused or contributed to the accident. Likewise, the trial judge found that Highway 46 “was unreasonably dangerous on May 11, 1998, and caused the accident made basis of instant case.” Accordingly, the jury rendered a verdict in favor of Rizzuto and the trial judge rendered a verdict in favor of Sartalamacchia. Plaintiff Rizzuto was awarded $269,000.00 for damages in addition to his stipulated medical expenses and plaintiff Sartala-macchia was awarded $15,651.52, which included $2,151.52 for past medical expenses.

On appeal, the defendant challenges only the determination of liability and does not contest the damages amounts.

Standard of Review and Applicable Law

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error of unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a factfin-der’s determination, the appellate court must find from that record that a reasonable factual basis does not exist for the finding of the trial court and the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Cormier v. Comeaux, 98-2878, p. 6 (La.7/7/99), 748 So.2d 1123, 1126-1127(citation omitted). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transportation and Development, 617 So.2d 880, 883 (La.1993). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. at 882.

|7The reviewing court may not disturb reasonable evaluations of credibility and reasonable inferences of fact when viewed in light of the record in its entirety even though it feels its evaluations are more reasonable. Petre v. State ex rel. DOTD, 2001-0876, p. 8 (La.4/3/02) 817 So.2d 1107, 1111 (citation omitted). The credibility determinations of the trial court are accorded great deference and, unless documents or objective evidence so contradict the witness’s story or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witnesses story, the appellate court may not find a trial court’s finding which is based upon a credibility determination to be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d at 844-845.

In order for the DOTD to be held liable, the plaintiffs must prove that (1) the DOTD had custody of the thing which caused plaintiffs damages, (2) the thing was defective because it had a condition which created an unreasonable risk of harm, (3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs’ injuries. Cormier, 748 So.2d at 1127.

Appellant’s Assignment of Error No. 1

First, the DOTD argues that there is no basis for DOTD liability because under the cause-in-fact analysis applicable in this case, which is basically a “but-for” inquiry, Boteler v. Rivera, 96-1507, p. 5 (La.App. 4 Cir. 9/17/97), 700 So.2d 913, 916 (citation omitted), there is no basis for finding the roadway was the proximate cause of the accident because based on the expert testimony they presented at trial, even if the roadway shoulder had been wider and the slope less steep, the truck driven by Rizzuto would still have struck the bayou.

|sThe jury was presented with differing expert opinions as to whether the width and the slope of the roadway shoulder was the cause of the accident. Although Mr. Hall opined that the accident would have occurred regardless of the width and slope of the roadway, it can be reasonably inferred from Dr. Griffith’s testimony that Mr. Rizzuto could have recovered when he drove off the highway to avoid an oncoming car but for the defective roadway shoulder. Accordingly, there is sufficient evidence in the record to support a finding that the roadway was a cause-in-fact of the accident, see Cormier v. Comeaux, 748 So.2d at 1126-1127, and, therefore, giving due deference to the factfinder’s credibility determinations, we cannot find that the factfinders were manifestly erroneous in determining that the condition of the roadway was a cause-in-fact of the accident. This assignment of error is without merit.

Appellant’s Assignment of Error No. 2

Next, the DOTD argues that the triers of fact erred in their conclusion regarding the scene of the accident. At trial, the DOTD disputed the location of the accident site, presenting expert testimony that the plaintiffs’ exhibits and testimony indicating that the accident occurred on a curve in the road marked with solid yellow lines did not correspond to police report specification that the accident site was located .9 miles west of La. 625 and that the roadway was straight with dashed yellow lines. The appellant’s expert testified, however, that although the road is straight at .9 miles west of La. 625, there is a definite curve to the left in the road at 1.2 miles west of La. 625. In addition, appellant’s expert noted that, although it was undisputed that at the time of trial the speed limit on Highway 46 was 55 miles per hour, the police report indicated that the speed limit was 30 miles per hour.

[9The jury made no specific finding with regard to the discrepancies between the police report and the plaintiffs’ testimony and exhibits regarding the accident site, indicating in the jury interrogatories only that the roadway was unreasonably dangerous at the site of the accident. In his reasons for judgment, the trial judge stated in pertinent part:

At trial, the court heard live testimony of Sgt. David Estaves of the St. Bernard Parish Sheriffs Office who had responded to the accident and was the investigating officer at the scene of the accident. Sgt. Estaves testified where the accident had taken place in addition to all other relevant factors contained in a written police report by him. Sgt. Es-taves’ testimony was credible in that he positively identified the accident scene when shown photographs of same by counsel for plaintiff. The court, however, rejects the testimony of Sgt. Estaves as to the distance from Hwy. 625 as indicated in the police report locating the accident scene. The court further rejects the defense’s position that the accident scene was not the same site as depicted in the Plaintiffs Exhibit No. 1, the same photos shown to Sgt. Estaves, the site of the accident.

Thus, the trial judge concluded that the police report, based on an odometer reading, was incorrect as to the specific mileage point of the accident site and that Sgt. Estaves’ identification of the plaintiffs’ photographic exhibits as the accident site was credible.

Thus, even though the specific mileage point of the accident site on Highway 46 is problematic, there is sufficient evidence in the record to support the trial judge’s specific finding that the accident site as depicted in the plaintiffs’ photographic exhibit and identified by the plaintiffs and Sgt. Estaves was correct. The jury made no specific determination as to whether the police report correctly pinpointed the mileage point of the accident but, inherent in the jury finding that the roadway was unreasonably dangerous and the cause of the accident is a determination that the accident occurred at the location described by the plaintiffs, depicted in plaintiffs’ exhibits, and identified by Sgt. Estaves. Accordingly, giving |indue deference to the factfinders’ credibility determinations, we do not find that the trial judge or the jury were manifestly erroneous with regard to this issue. This assignment of error is without merit.

Appellant’s Assignment of Error No. 3

Third, the DOTD argues that the testimony and evidence adduced at trial do not support the conclusion that roadway and shoulder were unreasonably dangerous. Whether the condition of a road is unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong. Petre 817 So.2d at 1111; Ledoux v. Dep’t of Transp. And Dev., 98-0024, p. 3 (La.9/18/98), 719 So.2d 43, 44-45.

The jury found that “the highway and shoulders of E. LA Hwy, 46, the site of the accident on May 11, 1998, is in an unreasonably dangerous condition.” The trial judge also concluded that the roadway was unreasonably dangerous on the day of the accident and caused the accident, stating in his reasons for judgment that his conclusion was based on the testimony of Mr. Canfield, whose testimony “centered around the width of the shoulder and the slope of the shoulder at the accident scene” and “indicated that the width of the shoulder was so narrow and the slope of the shoulder was so great as to create an unreasonably dangerous condition on E. La. Hwy. 46 at the accident site depicted in Plaintiffs Exhibit No. 1” and on the testimony of Dr. Franklin Griffith, whose testimony centered around “the inability of the Rizzuto vehicle to recover back onto the roadway and avoid going into the bayou” and whose “opinions were well grounded in the laws of physics.”

The DOTD specifically argues that the trial court erred in finding the roadway unreasonably dangerous because (1) the roadway shoulders, even if defective, were not the cause of the accident; (2) the roadway shoulder at the l^mileage point reported in the police report (.9 miles from Highway 625) fully complied with the design standards cited by Mr. Canfield; and (3) modern highway standards are not applicable to the roadway and therefore the trial court finding that the highway is dangerous is necessarily erroneous because it is based on expert testimony regarding the defective roadway design which is based on modern design standards.

These arguments are without merit. First, as previously discussed, the trial court’s finding that the roadway conditions were a cause-in-faet of the accident is not manifestly erroneous. Second, as the trial judge concluded that the police report was incorrect in designating the accident site as .9 mile from the intersection of Highway 625 and the jury concluded that roadway conditions at the accident site were unreasonably dangerous, the conditions of the roadway at .9 miles from the intersection with Highway 625 are irrelevant.

Finally, the DOTD’s third contention, that modern design standards may not be a factor underlying the determination that a roadway is unreasonably dangerous has already been rejected by the Louisiana Supreme Court in Petre, supra, and Aucoin v. State Through the Dept. of Transp. And Dev., 97-1938, p. 8 (La.4/24/98), 712 So.2d 62, 66-67. The DOTD’s failure to reconstruct a state highway to conform to modern standards does not establish the existence of a hazardous defect, but neither is the DOTD shielded from liability merely because it has no duty to update roads to present standards. Petre, 817 So.2d at 1113. ‘‘[WJhile the failure to adhere to [American Association of State Highway and Transportation Officials (AASHTO) ] standards may not alone attach liability, DOTD’s conformance to these standards or not is a relevant factor in determining whether the roadway is unreasonably dangerous.” Id. (citing Au-coin, 712 So.2d at 66). | ^Accordingly, the trial court’s finding that the roadway was unreasonably dangerous is not undermined even if based in part on expert testimony which included a comparison of the roadway design with modern design standards.

Appellant’s Assignment of Error No. 4; Appellee’s Cross-Assignment of Error

Finally, the DOTD argues that the triers of fact erred in their assignment of liability. Specifically, appellant contends that the jury was clearly wrong in assigning only a small proportion of the fault to Mr. Rizzuto and the trial court was clearly wrong in not assigning any liability to Mr. Rizzuto because the evidence indicates that a substantially greater percentage of fault should have been attributed to him. In response, the plaintiffs argue that the jury’s apportionment of 40% fault to the DOTD was excessively low and the trial court’s attribution of all fault to the DOTD was reasonable.

In reviewing comparative fault determination, the trier of fact is owed some deference in allocating fault because the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119, p. 6-7 (La.1/16/96), 666 So.2d 607, 609-610 (citations omitted). Accordingly, the trier of fact’s allocation of fault should only be disturbed on appeal when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Id. The allocation of fault is neither an exact science nor a search for one precise ratio, but rather it is an 113acceptable range and any allocation by the jury within that range cannot be clearly wrong. Id.

The following factors may be considered in determining whether the trial court was manifestly erroneous in its allocation of fault: (1) the awareness of the danger; (2) how great a risk was created by the conduct in question; (3) the significance of what was being sought by the conduct in question; (4) the relative capacities of the actors; and (5) any extenuating circumstances. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

With regard to the jury allocation of fault, the DOTD contends specifically that a substantially greater percentage of fault should have been attributed to plaintiff Rizzuto because (1) the accident report prepared by Sgt. Estaves established that the accident occurred in a straight section of the roadway; (2) the accident report established that the posted speed limit was 30 miles per hour and based on Rizzuto’s testimony that he was driving 45-55 miles per hour, the plaintiff was traveling in excess of the posted speed limit which impacted the time in which he had to respond to the oncoming motorist; (3) the plaintiff was not faced with an unavoidable accident because based on the plaintiffs admission that he saw the oncoming headlights 10 to 15 seconds before he ran into the bayou, the plaintiff could have avoided the accident by simply stopping his vehicle. The jury allocated 40 % of fault to the DOTD, 57% of the fault to the phantom driver, and only 3% of the fault to Rizzuto. We cannot say, however, that based on a review of the record as a whole, a reasonable fact finder could not conclude that the greater fault lay with the phantom driver who forced Mr. Rizzuto to take |uevasive action than with Mr. Rizzuto or that a portion of the fault lay with the DOTD for the unreasonably dangerous condition of the highway. Although the police report indicated that the posted speed was 30 miles per hour, it was undisputed that the posted speed at the time of the trial was 55 miles per hour and no evidence was presented which indicated that any change had taken place in the posted speed limit since the accident. Finally, although the appellants expert opined that Mr. Rizzuto could have stopped to avoid the oncoming vehicle rather than driving off on the shoulder of the roadway, a reasonable fact finder could infer that maneuvering onto the shoulder of the road to avoid an oncoming vehicle was a reasonable reaction and that a contributing cause of the accident was the narrow shoulder and extreme slope into the bayou. In the instant case, Mr. Rizzuto’s version of the accident is not so internally inconsistent or unbelievable that we can say that the jury was manifestly erroneous or clearly wrong in choosing to credit Mr. Rizzuto’s version in whole or in part. This is a credibility call the jury is entitled to make with the advantage of being able to observe the demeanor of the live witnesses. The testimony of the witnesses is not so contradicted by objective or documentary evidence and is not so internally inconsistent that a reasonable fact finder is compelled to disbelieve a particular witness or the reasonable inferences to be drawn from the evidence. The record as a whole permits the jury to reach any number of reasonable conclusions concerning fault and we cannot say that the allocation of fault as determined by the jury is beyond the jury’s broad discretion. Accordingly, we find no merit in the DOTDs assignment of error or in the plaintiffs cross-assignment of error with regard to the jury’s allocation of fault with regard to plaintiff Rizzuto’s claim.

hsWe do, however, find the trial judges allocation of 100 of the fault to the DOTD to be manifestly erroneous. Although the appropriate apportionment of fault between the phantom driver and Mr. Rizzuto is problematic, a finding that they are totally without fault is unreasonable. Under the circumstances of this case, Mr. Rizzuto and the phantom driver must be at least partially responsible for the accident and, accordingly, to assign fault solely to the DOTD is clearly wrong. Based on our review of the record as a whole, we find the allocation of fault for the accident as determined by the jury to be within an acceptable range and therefore lower the trial judges allocation of fault to reflect that of the jury. Accordingly, we amend the judgment of the trial court in favor of Sartalamacchia to allocate 40 of fault to the DOTD, 8 of fault to Rizzuto and 57 to the phantom driver.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of plaintiff Joseph Rizzuto is affirmed and the judgment of the trial court in favor of plaintiff Neal Sartalamacchia is amended and, as amended, affirmed.

AMENDED AND AFFIRMED.

      . Specifically, plaintiffs alleged that the negative slope of the shoulder and the bank of Bayou LaLoutre cause Rizzuto’s truck to be drawn into the bayou after he steered his truck to the shoulder of the highway to avoid an oncoming vehicle which crossed over into his travel lane on a curve.

      . In the judgment based on the jury verdict, 57% of fault was cast to "others”.

      . The truck, a Ford F-450 tow truck, weighed approximately 3000 pounds and had dual rear wheels.

      . There is some confusion as to the exact location of the accident site. The position as indicated by the police report is .9 miles west of La. 625, but photographs taken by the plaintiff indicate that the accident occurred 1.2 miles west of La. 625. Notably, the road is straight at .9 miles west of La. 625, but curves to the left at 1.2 miles west of La. 625.

      . Rizzuto stated that he did not know the posted legal speed on the highway. The police report of the incident indicated that the speed limit was 30 miles per hour and that Rizzuto's estimated speed was 30 miles per hour.

      . The plaintiffs were not questioned as to whether they were wearing seatbelts but it could be surmised from the driver going up over the steering wheel and the passenger hitting the windshield that they were not wearing seatbelts.

      . These design standards were applicable only to totally new roadways built from the ground up.

      . The State has no duty to bring old highways up to current safety standards, unless the highway has undergone major reconstruction, but does have a duty to correct conditions existing on old highways that are unreasonably dangerous. Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123, 1131.

      . Specifically, 4000 cubic yards of clamshells were placed on top of the old roadway and graded to a average depth of 2% inches and width of 14 feet. Currently, the hard surface of the roadway is 22 feet.

      . Liquid asphalt with gravel rolled into it, which creates a hard surface road.

      . The project plans indicate that the travel lanes at this point in time were nine feet wide.

      . The crown width is the outside of the shoulder to outside of the shoulder where the slope starts to break and go into the ditch. The ditch alongside the roadway is outside the crown of the roadway.

      .Pursuant to current standards and adopted standards formulated by the American Association of State Highway and Transportation Officials (AASHTO) and adopted by the State in the nineteen-sixties, roadway shoulders should be a minimum 5 feet and the slope should be between 2.8 and 4.6 degrees.

      . The jury responded in the affirmative to the following two interrogatories: (1) Do you find that the highway and shoulders of E. LA Hwy. 46, the site of the accident on May 11, 1998, is[sic] in unreasonably dangerous condition; and (2)[d]id the unreasonably dangerous condition of E. LA Hwy. 46 cause or contribute to the accident?

      . In Clement, the Supreme Court held that any allocation of fault falling between a ratio of 50/50 and 75/25 would be reasonable.

      . We note that from the evidence that Mr. Sartalamacchia hit the windshield upon impact it can be surmised that he was not wearing a seatbelt.