author: LMAX N. TOBIAS, JR., Judge.

text:
    Cheryl MOORE, Kim Wattigney and Henry Martin v. KENILWORTH/KAILAS PROPERTIES and Colony Insurance Company.
    No. 2003-CA-0738.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2004.

      Leonard J. Cline, Jr., and Thomas A. Gennusa, II, Gennusa Law Firm, Metairie, LA, for PlaintifflAppellee.
    Andre’ C. Gaudin, Charles W. Farr, Burglass & Tankersley, L.L.C., Metairie, LA, and Patrick M. Schott, New Orleans, LA, for DefendanVAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).
   LMAX N. TOBIAS, JR., Judge.

This case involves personal injury claims brought by three plaintiffs who were injured when acoustical ceiling tiles fell on them in a doctor’s office.

On 3 June 1998, Kim Wattigney and Cheryl Moore were working in the medical office of Dr. Dion L. Armstrong d/b/a Armstrong Family Clinic (“Dr.Armstrong”). Henry Martin, a patient of Dr. Armstrong’s, arrived for an appointment that morning and was escorted to an examination room by Ms. Mooi’e. Because the office had been experiencing water intrusion through the ceiling for a couple of months, Ms. Moore and Ms. Wattigney had arrived at work early to mop up any water on the floor and place towels around the baseboards in an attempt to keep the floor as dry as possible. They also placed fans in the area of the leaks to dry the floor. In their efforts to clean up the water, Ms. Moore and Ms. Wattigney had to move some office furniture in the area of the leak, which blocked the usual ingress to the examination area of the office. As a consequence, Ms. Moore escorted Mr. Martin through Dr. Armstrong’s office at the time of his appointment. As they were progressing down a hall toward the examination room, they entered the area of the leaks when the ceiling suddenly gave way, causing acoustical ceiling tiles to fall on Mr. Martin and Ms. Moore, knocking them to the | ground. Ms. Wattigney, who was tending to a hot wax machine used in therapy by the office, was also knocked down when Ms. Moore fell into her and spilled hot wax down her side; she sustained burns to her side and leg.

Dr. Armstrong’s office had been dealing with the water intrusion, which was caused by a leaking air conditioning unit in the ceiling, for about two months. During that time, Dr. Armstrong and his staff complained numerous times to the owner of the building, Kailas Management, L.L.C. (“Kailas”), and had asked that the air conditioning unit be repaired. Ms. Moore complained by telephone to Kailas’ office manager on 15 April 1998 and again just five days before the accident. Ms. Wattigney complained to Kailas at least five times during the month before the accident. Dr. Armstrong himself wrote two letters to Kailas asking that the problem be fixed. In his letter to Kailas dated 1 June 1998, Dr. Armstrong complained that he had been reporting the problem to Kai-las since the beginning of May 1998 and that water was leaking through the ceiling to the point that “ceiling tiles have busted through.” He further stated that “[t]his is a very serious hazard in that: 1. Spilled water can cause patients to slip and fall....”

The testimony at trial established that Kailas had received complaints from Dr. Armstrong’s office regarding the leaking air conditioning unit, although the policy regarding recording maintenance complaints by tenants was never consistently followed. Kailas apparently did dispatch on at least a couple of occasions the building handymen, who attempted to fix the unit, but who were obviously not qualified to either diagnose or remedy the problem. Kailas did not have an established inspection procedure for the units or a service contract with any contractor. A licensed air conditioner repairman was eventually called after the accident occurred and the unit was fixed.

|3The plaintiffs filed suit against Kailas and its liability insurer, Colony Insurance Company (“Colony”), who in turn filed a third party demand against Dr. Armstrong and his insurer on 3 November 1998. Kai-las and Colony asserted that Dr. Armstrong, who was clearly aware of the leak and the dangers it posed, bore some liability for failing to protect his patients from the danger. Kailas and Colony further maintained that the plaintiffs, Ms. Wattig-ney and Ms. Moore, were also aware of the leak and that their knowledge of the leak should make them contributorily at fault and reduce their damages.

The matter was tried before a jury in September 2002. The jury returned a verdict in favor of the plaintiffs, found Kailas to be 90% at fault for the plaintiffs’ damages, and found Dr. Armstrong at fault for the remaining 10% of the damages. Mr. Martin was awarded $600,000.00 for pain and suffering; $200,000.00 for mental anguish; $60,000.00 in past medical damages; $70,000.00 in future medical damages; $12,000.00 in past lost earnings; and $30,000.00 in future lost earnings. Ms. Moore was awarded $75,000.00 for pain and suffering and $6,142.00 in past medical damages. Ms. Wattigney was awarded $20,000.00 for pain and suffering; $3,223.00 in past medical damages; and $125.00 in past lost earnings.

On appeal, the appellants, Kailas and Colony, assign six errors to the trial court. First, they argue that the jury erred in assigning only 10% of the fault to Dr. Armstrong. Next, they assert that the general damage award to Mr. Martin of $800,000.00 was an abuse of discretion and that the past and future lost wage awards are not supported by the evidence at trial. They also take issue with the award of future medical damages to Mr. Martin on the grounds that they are not supported by any objective evidence at trial. Finally, they assert that the general damage award to Ms. Moore is excessive in light of her injuries and that both she Land Ms. Wat-tigney should have their awards reduced by a percentage of fault as they also knew of the dangerous condition prior to the accident and are comparatively at fault.

The plaintiffs, collectively and individually, assign three errors to the trial court. First, they contend that the trial court erred in assigning any degree of fault to Dr. Armstrong. Second, Ms. Moore asserts that the trial court erred in awarding her only $75,000.00 in general damages, with no award for future medical expenses. Finally, Ms. Wattigney asserts that the trial court erred in awarding her only $20,000.00 in general damages.

1. Fault of Dr. Armstrong:

Kailas and Colony argue that the court erred in only finding Dr. Armstrong 10% at fault for the accident, while the plaintiffs argue that Dr. Armstrong should not have been held liable for any fault, as the injuries sustained by the plaintiffs were caused solely by the negligence of Kailas.

A trier of fact’s apportionment of fault may not be overturned by an appellate court, even if an appellate court would have apportioned fault differently, unless it is found to be manifestly erroneous or clearly wrong. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002.

Kailas and Colony argue that Dr. Armstrong had actual knowledge of the leaking air conditioner unit and the dangerous condition it presented to both his staff and his patients and that he breached his duty to protect them from the known hazard. In fact, Kailas views the letter written by Dr. Armstrong on 1 June 1998 as an admission of fault.

The plaintiffs argue that the maintenance of the air conditioning unit was not the responsibility of Dr. Armstrong and that both the status as a tenant under J^Louisiana law and the terms of the lease agreement hold Kailas, as lessor, fully responsible for the damages caused by the faulty air conditioner. The lease agreement in effect on 5 June 1998, signed both by Dr. Armstrong and Gowri S. Kailas on behalf of Kailas Management, L.L.C., provides, in pertinent part, the following:

MAINTENANCE:
(c) The Tenant shall give the Landlord prompt notice of any needed repairs to plumbing, heating or air conditioning, or electrical lines located in, servicing or passing through the Leased Premises. Following the notice, the Landlord shall make the appropriate repairs with due diligence and at its expense, unless the repairs were necessitated by damage or injury attributable to the Tenant, its servants, agents, employees, invitees or licensees. In that event, the Tenant shall bear the expense of the repairs.

It is clear from a reading of the lease agreement, and this provision in particular, that Dr. Armstrong’s duty with regard to the broken air conditioning unit was to notify Kailas and that Kailas, as lessor, contractually accepted responsibility to repair the unit with due diligence. The evidence in the record makes it clear that Dr. Armstrong fulfilled his duty under the lease by notifying Kailas several times, both by phone, which Kailas employee Tina Kovacks testified was the procedure established by Kailas, and later by correspondence, when no effort was made by Kailas to remedy the situation.

| ^However, as Kailas and Colony point out, Dr. Armstrong’s duty to take further action may not be rooted in the lease agreement, but rather in Louisiana tort law. They point to the factors outlined in Watson v. State Farm Fire Cas. Ins. Co., 469 So.2d 967 (La.1985) where our Supreme Court has held that which may influence the apportionment of fault assigned by a trier of fact. These influences include (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. In this case, Kailas and Colony assert, Dr. Armstrong clearly knew of the dangers posed by the leaking unit, as evidenced by the letters written to Kailas prior to the accident, and even described the leaking ceiling as a very serious hazard. Further, although he did not have the primary responsibility of maintaining the air conditioning unit in his office, he had the option and legal right to call an air conditioning repair contractor and deduct the cost of the repair from the monthly rent he paid Kailas.

Kailas and Colony pursue their point further by suggesting that Dr. Armstrong had a greater duty than Kailas to guard the plaintiffs against harm from the leaking unit under a theory of privity; that is, his duty to the invitees in his office was a stronger duty than the duty of Kailas as building owner. Kailas and its 17insurer cite Billups v. Lyons, 2001-1654, 2001-1655 (La.App. 4 Cir. 5/29/02), 821 So.2d 499 and Arbon v. Charbonnet, D.D.S., 99-852 (La.App. 5 Cir. 1/25/00), 761 So.2d 20, in support of their position that Dr. Armstrong should be held liable for at least 50% of the damages caused by the falling ceiling tiles.

In Billups, the plaintiff brought an action in redhibition shortly after purchasing a termite-infested home from the Lyonses, who were named as defendants in the action. The Lyonses brought a third party action against their termite contractor, which had conducted an inspection prior to the sale and which certified that there was no evidence of termite infestation. The termite contractor had sent an unlicensed employee to inspect the property, although the certificate of compliance required by the mortgage company was signed by a licensed termite inspector also employed by the contractor. This court noted that although the sellers of the property were at fault for failing to disclose the termite damage, the termite inspector “owed a heightened degree of responsibility” to the purchaser, insofar as he was fully aware of the effect of the termite inspection on the sale and the financing options of the purchaser.

Although Kailas and Colony submit that Dr. Armstrong had a similar “heightened degree of responsibility” to his employees and patients, the holding in Billups is not applicable to the case sub judice. In Bill-ups, the termite inspector was found to have been in the best position to know of the termite infestation and further was found to have misled both the buyer and sellers with a false certificate [8and by failing to disclose that an unlicensed employee had actually made the inspection.

In Arbon, an orthodontist who owned a building was sued by his tenants who rented office space below his office after a pipe in his office burst, causing a water leak that damaged the plaintiffs’ office spaces. The leak was caused by a solenoid valve improperly used as a safety shut-off that was sold and installed by a dental supply company. The solenoid valve was found to have been installed in an improper manner, with the water filter downstream from the valve. Although the trial court dismissed the supplier of the valve because it did not design the valve and therefore could not be held liable for a faulty design, the court of appeal reversed, and found that “by installing the system in a manner contrary to the accompanying instructions and warnings and without notifying Dr. Charbonnet of the problem, it inserted itself into the equation of fault when the system malfunctioned....” Id. at 10-11, 761 So.2d at 26. Kailas and Colony argue that Dr. Armstrong similarly inserted himself into the “equation of fault” by failing to remedy the leaking air conditioning system. Thus, although Kailas had a contractual duty (as well as a duty under La. C.C. arts. 2822 and 2692 et seq.) to remedy the known defect in the property before anyone was injured, Dr. Armstrong also had a duty, under a duty-risk analysis, to protect the licensees and invitees at his office from what he perceived as a very serious hazard. See, Foggin v. General Guaranty Ins. Co., 250 La. 347, 195 So.2d 636 (1967); Mosley v. Methodist Health System Foundation, Inc., 99-3116, p. 3 (La.App. 4 Cir. 11/15/00), 776 So.2d 21, 23. We do, however, find that Kailas had the greater duty to act and that that failure to act was a greater breach than any committed by Dr. Armstrong, who did himself and through his employees contact Kailas repeatedly |flto make the necessary repairs and who did not just ignore the problem. Therefore, we find no manifest error in the apportionment of fault made by the jury.

2.GeneraI Damage Award to Mr. Martin

Kailas and Colony next assert that the jury abused its discretion in awarding $800,000.00 in general damages to Mr. Martin to compensate him for a cervical spine injury. An award for damages must be reviewed in a light most favorable to the party who prevailed at trial. Harvey v. State, Dept. of Transportation and Development, 2000-1877, p. 10 (La.App. 4 Cir. 9/26/01), 799 So.2d 569, 576, writ denied, 2002-0003 (La.3/15/02), 811 So.2d 910. An appellate court may not overturn an award for damages unless it is so out of proportion to the injury, complained of that it shocks the conscience. Id. at 11, 799 So.2d at 577. In fact, the fact-finder has vast discretion in determining a general damages award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

Mr. Martin was a 50-year-old veteran of the Viet Nam war at the time of this accident. While in Viet Nam, he sustained gunshot wounds and underwent surgery to his right forearm and lower back. He spent 35 months in hospitals following his injuries and, in 1973, determined that he could no longer meet the physical demands of active duty with the Marine Corps. Mr. Martin received an honorable medical discharge in 1974 and the Veterans’ Administration (“VA”) assigned him a 50% disability rating. Following his discharge, he worked at the VA hospital in housekeeping and became a nurse’s aide in a psychiatric hospital. Because the job involved lifting patients, residual pain from his war injuries compelled him to resign. In 1976, he received a 40% disability pension. In 1982, Mr. Martin moved to New Orleans to live with his brother and work as a handyman, picking up odd jobs, and working approximately five hours per day. He subsequently worked Imdeaning and painting apartments in the apartment complex in which he resided, and washing cars on the weekend. Although he had received a disability rating from the VA during these years, Mr. Martin testified that a veteran is allowed to make a certain amount of money by working and still receive disability benefits from the VA.

Mr. Martin’s more recent medical history revealed a slip and fall accident in his kitchen in which he injured his left elbow and lower back for which surgery was never recommended. Mr. Martin points out that at no time prior to the accident at issue in this litigation did Mr. Martin ever receive treatment for any injury to his neck.

Mr. Martin began treating with Dr. Armstrong in 1995 for pain management resulting from the fall in his home. He treated a total of seventeen times with Dr. Armstrong prior to the subject accident. Dr. Armstrong prescribed Lortabs and Soma for pain on 5 May 1998. On every visit to Dr. Armstrong prior to June 1998, Mr. Martin had rated his pain level as ten out of ten, indicating that he was experiencing significant pain from his prior injuries.

Dr. Edward H. Shwery, a clinical psychologist, began treating Mr. Martin on or about 8 June 1999, for chronic pain, depression, and anxiety. Dr. Shwery testified that he interviewed Mr. Martin regarding his symptoms and that he reviewed his medical records from the VA. Dr. Shwery testified that he was aware of Mr. Martin’s past history of post-traumatic stress disorder. He stated that it was not Mr. Martin’s post-traumatic stress disorder that was causing his anxiety, depression, sleep problems, and sexual dysfunction. He testified that Mr. Martin will need individual counseling for three years and another two years of pain | nmanagement, at a cost of $70,000.00 (hence the award for future medical damages, discussed infra.)

Kailas and Colony argue that the only injury sustained by Mr. Martin was a cervical injury that necessitated a two level fusion. Further, although they acknowledge the long-standing premise that a tort-feasor takes his victim as he finds him, they assert that that legal rule does not apply to the facts of this case. It is uncontested that Mr. Martin has never sustained a neck injury prior to this accident, and there is no contention that any of his previous physical ailments were exacerbated or aggravated by the subject incident. Further, Kailas and Colony make much of the contention that Mr. Martin was a mental and physical wreck before the accident in question, and therefore the pain and suffering he endured as a result of the neck injury must pale in comparison to the pain and discomfort he had been experiencing for some time; that is, Mr. Martin’s quality of life was demonstrably poor according to his own testimony and medical records. They reason that this injury could not have had a very dramatic effect on his life or lifestyle. We find this particular argument specious and note that no legal authority is cited in support of it.

Mr. Martin contends, however, that the award is neither excessive nor unreasonable. He views his past medical history as leaving him particularly vulnerable to this injury and argues that given his previous disability status, this injury has essentially deprived him of the few activities and pleasures he could enjoy prior to the accident. He notes that he has suffered from depression, extreme h?pain in his neck, and sexual dysfunction as a result of this injury, and that the few small jobs he could previously do to earn money he can no longer perform. Mr. Martin cites a number of cases with similarly high awards, but we note that the cases he cites often involve multiple injuries.

Kailas and Colony likewise cite a number of eases they feel offer guidance to a proper award in this case. Interestingly, both Kailas and Colony on one hand and Mr. Martin on the other cite the case of Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/28/02), 808 So.2d 771, each party referencing awards to different plaintiffs in that case. Mr. Martin points to the general damage award of $1,000,000.00 to one plaintiff for a cervical herniated disc and torn lateral meniscus, as well as an injury to his back requiring lumbar fusion surgery, while Appellants point to the award to another plaintiff in the same case whose neck injuries required an anterior cervical fusion similar to the one Mr. Martin underwent, and who was awarded $300,000.00.

Given that the physical and psychological injuries caused by the incident, we do not find that an award of $800,000.00 shocks the conscience such that it cannot be sustained as a matter of law. Although the award is high on the quantum scale, and if we were sitting as the trier of fact might have awarded a somewhat lesser amount, we do not find that the jurors exceeded their vast discretion by their award. We acknowledge that Mr. Martin has experienced significant pain and [ 7Sanguish and do not wish to minimize his experience. We cannot say to a certainty within our constitutional mandate to review the law and the facts from the record that the jury in this matter attempted to award Mr. Martin for conditions/ailments that were not caused by the conduct of Kailas. While we reject the argument that his fragile health prior to the accident should serve to diminish what a healthy person might be awarded for pain and suffering for the same injury, we agree that the defendants/appellants should not bear the cost of compensating Mr. Martin for injuries that pre-dated the accident in question. Therefore we affirm the award of $800,000.00 for pain, suffering, and mental anguish.

B.The award to Mr. Martin for future medical expenses.

Kailas and Colony contest the award to Mr. Martin for future medical expenses on the grounds that much of the future medical treatment, especially the palliative measures, that he will need was needed prior to the accident in question. As such, they contend that they should not be held liable for the full extent of his future medical treatment. They note that the only basis for a future medical expense award is the testimony of Dr. Shwery, who opined that Mr. Martin would require pain management and treatment for a six-year period, totaling approximately $70,000.00. Further, they argue that even Dr. Shwery could not quantify the amount and offered little explanation for the figure.

Any computation of a future medical damage award is by its nature a creature of speculation. Therefore, all a finder of fact is able to do is use the testimony and evidence presented at trial to determine, to the extent that it can be determined, what the costs for future medical treatment might be for a complainedjofj4 injury. Dr. Shwery did not link Mr. Martin’s pain, anxiety, and depression to the pre-existing post-traumatic stress disorder, but rather to pain from the neck injury. Although experts may disagree as to the exact source of his pain and mental trauma, especially in light of his complicated medical and psychological history, we do not find that the jury was manifestly erroneous or clearly wrong in relying on Dr. Shwery’s testimony and awarding $70,000.00 in future medicals.

4.The award to Mr. Martin for lost earnings.

Kailas and Colony take issue with the award of $12,000.00 for past lost earnings and $30,000.00 for future lost earnings to Mr. Martin on the grounds that he applied for full disability benefits from the VA prior to the accident and who was declared 100 disabled by the VA for reasons having nothing to do with this accident. We agree.

Mr. Martin has not had steady employment since the 1970s, when he had to leave his employ at the psychiatric hospital due to health considerations. He testified that he worked four or five hours per day with his brother during the 1980s, performing handyman work and odd jobs. During the 1990s, Mr. Martin testified that he cleaned out and painted vacant apartments in his apartment complex and that he did maybe two a month. Further, he testified that he washed ears on some weekends, but did not specify how many cars he washed or how often he was able to perform this work. Randolph Rice, Ph.D., an economist, testified at trial that he would estimate that Mr. Martin had lost wages of approximately $28,596.00 and that he would lose $55,997.00 in future wages as a result of his neck injury. He based these figures on the assumption that Mr. Martin would have otherwise worked four or five hours per day at minimum wage. There |inis nothing in the record except for Mr. Martin’s testimony to support this assumption.

What is more striking in this case is not the amount of the lost wage award, but the fact that one was made. Mr. Martin received his first disability rating of 40, later raised to 50, in 1974. He applied for an increase in his disability pension and began receiving full benefits on or about 26 January 1998, several months prior to the incident in question. His disability rating was based upon his assertion and a showing that he was not able to work at all. Records from the VA indicate that if Mr. Martin was working at all prior to the June 1998 accident, the VA was completely unaware of it. He was examined on 11 June 1998 for an evaluation of his post-traumatic stress disorder by the VA and the examiner made the following report: The patient has not worked since 1974. He says that he was 50 service connected until 1990 and has been 100 since 1990. Further, although Mr. Martin offered general testimony regarding his recent work history, he did not substantiate his testimony with any documentation. Although he contends that a veteran is allowed to work to make extra money while on full disability, we can surmise that he did not report any of his earnings income to the VA or to the Internal Revenue Service, further eroding his claim for lost wages.

Mr. Martin counters that a plaintiff may establish a lost wage claim on the basis of his testimony alone and that a lost future earnings award is not meant to compensate for actual lost work in the future, but for the loss of the ability to earn wages in the future as a result of an accident. See, Carter v. Baham, 95-2126 (La.App. 4 Cir. 10/9/96), 683 So.2d 299, 307, citing Folse v. Fakouri, 371 So.2d 1120, 1123 (La.1979). We agree with this assessment of the law. However, what is problematic with Mr. Martin’s claim for lost wages, both past and future, is that the 1 ^evidence preponderates to show that he was not able to work prior to this accident and further, that he would not be able to work in the future, even if he had not been injured on that fateful day in June 1998. At least, that appears to be what Mr. Martin represented to the VA. We find that, given these particular and unusual circumstances, an award for lost wages, past and future, is an abuse of discretion. Therefore, we reverse the award of $12,000.00 for past-lost earnings and $30,000.00 for future lost earnings to Mr. Martin.

5. The general damage award to Ms. Moore.

Kailas and Colony assert that the $75,000.00 general damages award to Ms. Moore is excessive given that her only complained-of injury is a soft tissue injury. As we have noted above, a trial courts discretion in determining an award for general damages is vast and an award should not be disturbed unless it shocks the conscience. See, Harvey v. Cole, supra.

When the ceiling tiles fell on Ms. Moore, she fell to the ground, landing on her .buttocks, and striking her head on the floor. She suffered from blurred vision, dizziness, ringing in her ears, tingling in her arms, and burning in her legs later that night. The dizziness and ringing in her ears persisted for a couple of months. Ms. Moore treated with a chiropractor for a soft tissue injury at the Spine Soft Tissue Center, but did not find any relief for her back pain. She subsequently began treatment with James J. Mulvey, M.D., a specialist in emergency medicine. He diagnosed cervical and lumbar strains, and she was treated with medication and therapy. Because Ms. Moore’s symptoms persisted longer than anticipated by Dr. Mul-vey, he ordered neck and lower back MRIs, which revealed what the physician _Jjjperforming the MRI diagnosed as either haemangioma or a compression fracture at the LI vertebra. Dr. Mulvey indicated that he suspected a compression fracture based upon Ms. Moore’s complaints of pain. He ordered a further MRI and a bone scan, but neither diagnostic procedure was performed.

Kailas and Colony assert that absent any type of further confirmation of Ms. Moore’s condition, Dr. Mulvey’s conclusion that she sustained a compression fracture is merely supposition and not sufficient to establish by a preponderance of the evidence that she indeed did sustain a compression fracture in the accident. They further argue that Ms. Moore’s complaints of back pain, which apparently led Dr. Mulvey to determine that she had a compression fracture, are simply not credible, and that the jury committed manifest error in believing her testimony.

Kailas and Colony point to Ms. Moore’s medical records relating to a subsequent accident and note that she was examined by another orthopedist, J.O. Trice, M.D., in May 1999, and given a full orthopedic evaluation. His notes reflect no complaints of back pain and that the orthopedic evaluation performed at that time revealed no low back radicu-lopathy, spasmophilia, or lumbar disc herniation. Further, they note that Dr. Trice treated her once a month until October 1999 and that there is no indication that she ever told him about any back pain, while she was complaining of back pain to Dr. Mulvey during the same time period. As such, Kailas and Colony argue that her testimony is not credible and that general damages should be limited to treatment of a soft-tissue injury and suggest $20,000.00 as a more appropriate award.

|1sMs. Moore contends that her award is, in fact, insufficient to compensate her for what has been diagnosed as a fractured vertebra and notes that her soft tissue injury is separately compensable. She insists that Dr. Mulvey’s opinion that she sustained a compression fracture is uncon-troverted by that of any other physician and that she should be fully compensated for her injuries in the range of $135,000.00 in general damages.

It is axiomatic that credibility determinations are the province of the fact-finder at trial. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990), citing, Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); and Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). We recognize that there may be some inconsistencies in Ms. Moore’s testimony and her medical records, but Dr. Trice was not called as a witness in this case, and there is no expert opinion that she did not suffer a compression fracture. As such, we find no manifest error in the award to Ms. Moore of $75,000.00, which essentially “splits the baby” between Ms. Moore on the one hand and Kailas and Colony on the other.

6.The comparative fault of Ms. Moore and Ms. Wattigney.

Finally, Kailas and Colony contend that, like Dr. Armstrong, Ms. Moore, and Ms. Wattigney knew of the leak in the air conditioning unit and its potential for danger and consequently bear some liability for their own injuries. We disagree.

Ms. Moore and Ms. Wattigney were employees of Dr. Armstrong. While Dr. Armstrong had a duty to protect invitees and his employees from a known risk, that duty does not extend to Ms. Moore and Ms. Wattigney. In fact, this court has held that an employee is not answerable for any degree of fault from a known hazard in |19the execution of his or her work duties, unless there was a reasonable alternative to his or her conduct. Although they obviously knew of the leaking water, it is clear that they did everything reasonably within their power and discretion to mitigate what they perceived as the real hazard: the presence of water on the floor. Although it seems reasonable now to surmise that the water leaking from the air conditioning unit might cause the ceiling tiles to cave in, we are mindful that hindsight is generally 20/20. There is no reason to assign any degree of negligence to their failure to prognosticate that the ceiling would fall in and injure either themselves or a patient. Our Supreme Court has held that where an employee takes actions pursuant to the discharge of his employment duties in the face of a known risk, which actions are reasonable in relation to those duties, then the employee is not comparatively negligent. Joseph v. Broussard Rice Mill, Inc., 2000-0628, p. 6 (La.10/30/00), 772 So.2d 94, 99, citing Feurtado v. Zapata Gulf Marine Corp., 99-1510, p. 7 (La.App. 4 Cir. 1/12/00), 751 So.2d 379, 383. (Emphasis added.) We find that Ms. Moore’s and Ms. Wattigney’s handling of the situation was entirely reasonable: they arrived at work early to mop the floors (for which reason a desk had to be moved to block the normal ingress to the examination rooms), they placed towels along the baseboards to catch the leaking water, and they placed fans in the hallway. It is unclear what further actions they could reasonably have been expected to take in the exercise of their jobs. The responsibility of calling an air conditioner repairman rested with Kailas and Dr. Armstrong. One might surmise that calling a repairman and authorizing the cost of a repair was a decision neither Ms. Wattigney nor Ms. Moore had the authority to make.

[ 20As such, we find that the jury was in part manifestly erroneous in the award to Mr. Martin and decrease his award accordingly. The remainder of the judgment is neither manifestly erroneous nor clearly wrong and we do not find that the jury abused its discretion either in the apportionment of fault or the awards to Ms. Moore and Ms. Wattigney. For the foregoing reasons, the judgment of the trial court is reversed in part, affirmed in part, and rendered.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . We have not been asked to determine, and do not conclude, whether Kailas breached the lease agreement with Armstrong in its failure to fix, in a reasonably prompt manner, the air conditioning unit and in allowing the situation to deteriorate to the point that the ceiling tiles were saturated and fell.

      . We note La. C.C. art. 2694, which provides:
      If the lessor do [sic] not make necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse [sic] or neglect [sic]to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.
      Although the parties do not cite the article and the jury charge does not specifically include the language of the article, we find that the duty-risk analysis charge to the jury implicitly covers the balancing of duties as set forth in the article.

      . Dr. Shwery has a Ph.D. in clinical psychology and is not a licensed physician.

      . Kailas and Colony point to the fact that Mr. Martin had been treating with Dr. Armstrong for pain management for several months and that he had consistently rated his own pain level as 10 out of 10 prior to this accident.

        . Tracy v. Jefferson Parish, 523 So.2d 266 (La.App. 5 Cir.1988) ($600,000.00 for wrenched back and neck with an unsuccessful lumbar fusion, likely future surgery, traumatic anxiety condition, sexual dysfunction); Cooper v. Lacorte, 99-1726 (La.App. 4 Cir. 5/17/00), 775 So.2d 4, on reh'g., 99-1726 (La.App. 4 Cir. 1/31/01), 775 So.2d 704 ($1,200,000.00 for three-level disc damage, two-level cervical fusion, and two-level lumbar fusion).

      . See, Harvey v. State, Dept. of Transportation and Development, 2000-1877 (La.App. 4 Cir. 9/26/01), 799 So.2d 569, writ denied, 2002-0003 (La.3/15/02), 811 So.2d 910 (general damage award of $350,000.00 to plaintiff sustained spinal injury with immediate right-sided weakness, an umbilical hernia, left abdominal lesion and required a two-level cervical fusion with extensive hospitalization.)

      . A haemangioma is an abnormal collection of blood vessels in one location. It is a congenital condition and is typically asymptomatic.


source: Caselaw Access Project

author: |,MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Roosevelt CLAYTON v. ILLINOIS CENTRAL RAILROAD COMPANY, et als.
    No. 03-CA-972.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Rehearing Denied Feb. 20, 2004.

      Edmond R. Eberle, New Orleans, LA, for Appellant.
    David S. Kelly, Lisa A. Easterling, Robert S. Emmett, New Orleans, LA, for Ap-pellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   |,MARION F. EDWARDS, Judge.

Plaintiff/appellant Roosevelt Clayton appeals a directed verdict in favor of the defendants Illinois Central Railroad Company, d/b/a Canadian National/Illinois Central Railroad Company (hereinafter “CN/IC”), train engineer Harold Woodall, conductor Clyde Cutrer, Jr., and brakeman Curtis Eugene, dismissing his lawsuit with prejudice. We affirm.

Mr. Clayton filed suit in the 24th Judicial District Court, alleging that on September 5, 1997, he was struck by a train owned by CN/IC and operated by the Cut-rer, and that as a result he sustained serious injuries. He alleged, among other things, that the crew was negligent in speeding; in failing to have the train equipped with proper brakes or omitting to apply such brakes after seeing him in a perilous position; in failing to keep a proper lookout; in failing to continuously sound the horn; and in failing to stop the train in time to avoid the accident. The petition was later amended to add that the crew was negligent in operating the locomotive with the long nose forward, since it was safer to use the engine with the |sshort hood in the lead because of (1) increased visibility due to the existence of ditch lights and running lights, all of which would have increased illumination of the tracks; (2) the placement of the horn on the short hood nearer the front of the engine; and (3) the position of the engineer nearer the front of the short engine.

Prior to trial, CN/IC filed a Motion for Partial Summary Judgment, which was granted, dismissing Mr. Clayton’s claims regarding train speed, braking and ditch lights as being preempted by federal law. The court also granted judgment dismissing the claim that CN/IC failed to light the right of way, but denied summary judgment relative to the operation of the locomotive with its long-nose forward. A Motion in Limine to exclude the testimony of Mr. Clayton’s proposed expert, Ronald Williams, was also granted. Writs on the latter judgment were denied by this court, and by the Supreme Court.

The matter was tried to a jury. At the close of Mr. Clayton’s presentation of evidence, CN/IC and the other defendants moved for a directed verdict on the grounds that Mr. Clayton had failed to establish breach of duty and causation. The trial court granted the directed verdict, finding that Mr. Clayton failed to offer any evidence that CN/IC and the other defendants deviated from the applicable standards of care “in any manner legally causative of plaintiffs September 5, 1997 accident and injuries.” Mr. Clayton appeals, urging that the court erred in granting the directed verdict as well as in excluding certain evidence.

The facts of the case are, essentially, that on the evening of the accident, the train crew was returning to Mays Yard in Harahan, its point of origin, after traveling that day to Destrehan and switching freight cars. Mr. Clayton was returning home on foot on the evening in question, utilizing an ungraded footpath some 750 feet from the nearest graded crossing at Filmore Avenue, in Kenner. For some reason, he sat on the tracks at this point, and when the CN/IC train 14approached, the conductor Cutrer saw what he believed was a pile of leaves or rags, then thought it was perhaps a dog, on the tracks. The engineer Woodall tooted the horn to scare away (what was thought to be) the dog. As the train approached, Cutrer realized that the object was a human being, and yelled for the engineer to “plug them” or go into emergency brake mode. Although the engineer did apply the brakes, unfortunately, Mr. Clayton was hit and seriously injured.

Mr. Clayton testified that he did not remember how long ago the accident occurred. He denied being an alcoholic. He does not remember anything about the accident, what he was doing when he was hit, how many drinks he may have had on the night of the accident, or where he had been just before. He did not have any idea how he came to be on the railroad tracks, but he often used the pedestrian paths to visit a friend. Sometimes he forgets and goes blank, but he was truthful in everything that he told to his doctor.

At trial, Woodall testified that at the time of the accident, he had been a certified engineer for just over two years. On the day in question, the train was to leave the Mays yard, go to Destrehan and Good Hope and switch cars, then return. On leaving Mays, the short nose of the engine proceeded forward; that is, the cab of the locomotive was in front of the engine compartment. In that configuration, the engineer sits near the side window, facing the control stand, at a forty-five degree angle from the window. Operating with the long nose forward, that is, with the locomotive’s cab behind the engine compartment, he would be about ninety degrees from facing forward, and his back would be against the window. In this position, he would probably not look out the side window when going over the crossings. The headlights on the long end were possibly a little higher than on the short end, but this would not compromise the ability of the crew to see a person on the track.

|ROn the night of the accident, the engine was pulling twenty-nine cars, some of which carried hazardous materials. As the train passed through Kenner, it was going 20-25 miles per hour. Before the crossings, the engineer blows the horn and rings the bell until the train occupies the crossing, and he did so that evening. After the grade crossing at Filmore Street, Woodall did not blow the horn or ring the bell again before the locomotive struck Mr. Clayton.

East of the Filmore crossing, the track curves to the south and then back to the east. Woodall did not see Mr. Clayton, because it was night, and because of the curvature of the track. The track curved to the right and the lights were shining straight ahead, and did not illuminate the area where Mr. Clayton was. Either the conductor or the brakeman can put the train in emergency braking. Woodall used the automatic brake for Mr. Clayton, because using the emergency brake could have caused the train to jack-knife and derail the hazardous materials. At the time of the accident, the brakeman would have been positioned facing in the opposite direction.

No roads intersect the track east of Filmore for another two miles, although Woodall knew of the existence of a paved pedestrian crossway at Richards Avenue, two or three blocks from the scene of the accident. At this intersection, he blows the horn 900 feet, as required by law, before the crossing. However, he had never seen anyone crossing at that point.

Clyde Cutrer Jr. was the conductor on the night of the accident. When the locomotive goes long nose first, he looks out of a window in the right side back panel of the cab, from which one can see on the left of the engine until very close to an object, about 150-200 feet away. In his opinion, the engineer did not see Mr. Clayton because of the curve in the track. On that night, the train had blown its whistle and horn for all crossings, including at Fil-more, until the engine had occupied that crossing for about 20-30 feet. With the headlights on at night, one |ficould see three or four hundred feet in the curve. Cutrer saw something in the track, but at first, thought it was a pile of leaves. It was about two or three hundred feet in front of the train. A fraction of a second later, he yelled .is this a German Shepherd dog or what the heck is that..” He thought that Woodall tooted twice to alert whatever it was, and then Cutrer stood up quickly, realizing it wasn’t a dog when he saw the yellow bill of a football cap. He yelled for Woodall to “plug them,” a common term for putting the train in emergency. When Cutrer realized it was a person, the train was very close. According to the transcript, the court clarified the position in which Mr. Clayton was sitting for the record, which had been demonstrated by the witness, as sitting on the floor “Indian-style, with his legs folded up beneath him, with his head down as far as his[sic] could go ... elbows on his knees.” His head was in his lap, and he did not move. Photos show that the train horn faces in four directions.

Cutrer did not see the engine strike Mr. Clayton, who was right in the curve of the tracks when the engine hit. The horn was not sounded. Mr. Clayton was found five or six cars behind the engine at a forty-five degree angle to the main line and he was unconscious. Cutrer was familiar with the concrete walkway used to cross the tracks at that point. The railroad regularly put up no trespassing signs, which were generally torn down within twenty-four hours.

Curtis Eugene, the brakeman, testified that it was not customary to turn the locomotive around because it can run either long nose or short nose. On the night of the accident, he could not see the track ahead as he sits in back of the conductor. He did hear the conductor tell the engineer to “plug it.”

Robert J. McCormick, a risk manager at CN/IC, investigated the accident. He spoke with the conductor on the night of the accident, but not with the engineer, who remained in the locomotive. The conductor told him that the train approached Filmore, blowing the horn, and that he saw an object on the tracks. At first, he did |7not know what it was, but it never moved. McCormick does not record statements, but the crew fills out certain forms. He gets his information from the crews as well as from the police officers on the scene. Using information from the police report, he estimated that Mr. Clayton was found 550 feet from the front of the train. Prior to the accident, he was not aware of a pedestrian crossing at that point. When he investigated the scene, he found a well worn path with a piece of wood across a ditch, but he did not know who built that crossing. The footpaths described by the witnesses were not created by the railroad. Because the railroad is private property, it attempts to discourage people from taking makeshift short cuts.

When the train comes from Kenner, as it passes over Filmore the track begins to curve to the north, around Bengal and Wilker Neal Streets, or from the crew’s perspective, to the right. According to the records of the railroad, no special instructions were issued for the train with regard to the tracks between Filmore and Little Farms Avenue, the area where the accident occurred.

Tammy Minor, James Sledge, and Bobby Buckner knew Mr. Clayton and lived in the vicinity. They all testified that the crosswalk where Mr. Clayton was injured had been used for years. Sledge and Buckner still use the pathway. Sledge testified that the train horn can be hear a quarter of a mile away, and at night, he can see the train coming from about two blocks away.

Deputy Ray Bedwell investigated the accident for the Jefferson Parish Sheriffs Office. He testified that he spoke with, and statements were taken from, the conductor and the engineer. Mr. Clayton was no longer at the scene when he arrived. Some approximate measurements were taken at the scene, and the distance between blood found on the tracks and engine was 540 feet. Although Bedwell determined that Mr. Clayton was on the railroad tracks, near a cross tie, he did not know the exact point of impact. He was not, according to the deputy, near |sthe paved crossway, which was about two blocks down. He did not see the informal pathway used by the neighborhood residents.

Mrs. Estella Munson testified that she and her husband used to work with Mr. Clayton, and on the night of the accident, he had been at them house, drinking. According to Mrs. Munson, he had about three drinks and was not drunk when he left her house.

Dr. Mary Mathai examined Mr. Clayton for a Social Security evaluation four months after the accident. Mr. Clayton told her that he had been hit by a train and dragged, and did not remember anything else about the incident. After discussing his many serious injuries, Dr. Ma-thai, who was not his treating physician, disclosed that the medical history which she reviewed indicated that an hour following the accident, Mr. Clayton’s blood alcohol level was 0.337. Dr. Mathai opined that at the time of the accident, the blood alcohol level would have been higher. The hospital records themselves were admitted into evidence.

In the Motion For Directed Verdict, CN/IC argued that there was no credible evidence presented to suggest negligence on the part of any member of the crew, and no evidence to prove a deviation from the applicable standard of care owed by any of the three individuals. There was no evidence to suggest that the crew could have seen Mr. Clayton earlier, and blown the whistle, and no evidence to suggest that anything they could have done after they saw him could have prevented the accident. With respect to CN/IC itself, it was argued that there was no evidence of any negligence or deviation from care by the railroad in the operation of the train, including the speed, the manner of operation or the configuration of the engine. According to CN/IC, there was no negligence issue to take to the jury, and no evidence that any possible negligence contributed to, or legally caused, the accident.

[¡/The court declared that without knowing the duties of each crew member, it could not be determined what the standard of care was, and that it heard no testimony on this issue. Although some measurements were taken, the court did not know, from the evidence, what happened to Mr. Clayton, where he was at the moment he was hit, or how far his body was carried. It was not shown how soon the brakes would have to have been applied to avert the accident, or how much the long nose configuration played in the situation. The court stated:

... the conductor, it is my remembrance, is the person who has to look out, and he was, and he saw, and as soon as he saw he did. This is at midnight I mean, the paths were there, but, you know — and again, I undid [sic] the speed because they were only going twenty to twenty-five miles and hour, when the could have been going sixty to seventy— sixty-five to seventy is my remembrance. The horn was blown at Filmore Street, which is just a brief — a short distance from this. One of the witnesses, one of plaintiffs witnesses said that you can hear that horn all the way down to Jackson Street, which is a distance past Filmore Street ...

The standard applicable to motions for directed verdicts has been set forth by this court as follows:

A motion for a directed verdict is a procedural device available in trials by jury with an eye toward judicial economy. The motion is appropriately made at the close of the evidence offered by the opposing party and should be granted when, after considering all of the evidence in the light and with all reasonable inferences most favorable to the movant’s opponent, it is clear that the facts and inferences point so overwhelmingly in favor of granting the verdict, that reasonable jurors could not arrive at a contrary result. However, if there is evidence produced in opposition to the motion that has such quality and weight that reasonable and fair-minded men, exercising impartial judgment, might reach different conclusions, then the motion should be denied and the case should be submitted to the jury.
The trial court has much discretion in determining whether or not a motion for a directed verdict should be granted. (Cites omitted.)

Mr. Clayton points out that in denying his Motion For New Trial, the court stated that it granted the directed verdict “based upon the Plaintiffs failure to prove the Defendant’s negligence and the Plaintiffs failure to prove a strict liability claim.” Mr. Clayton argues that this wording proves that the court used |inthe wrong legal standard, that of preponderance of the evidence, when it considered the Motion for Directed Verdict.

Under the duty-risk analysis, plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Whether a duty is owed is a question of law. The inquiry is whether the plaintiff has any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim.

The duty of the railroad crew regarding pedestrians on the tracks has been described as follows:

Except for those areas designated for the public to cross the railway, a pedestrian has no right to be on the right-of-way, which is essentially private property ... There is a long line of jurisprudence in this State to the effect that an engineer, when sighting a person or a vehicle on the track, can presume that he or it will move from the position of danger upon the sounding of the train’s bell or the blowing of its whistle or horn; and, that it is only when the engineer realizes that the warnings are not going to be heeded that he should make an effort to stop the train.

As CN/IC points out, the court noted that aside from the missing links in Mr. Clayton’s case, some of the evidence presented showed that the warning signals were properly blown at the designated intersections, according to law, that the conductor kept a lookout as he was required to do, that at the moment he recognized the danger he warned the engineer, and the engineer promptly applied the brakes. The oral reasons given at the time the Motion was granted show clearly that the trial court recognized that Mr. Clayton presented no evidence to show any action or inaction on the part of the CN/IC defendants which contributed to or caused the accident. There was no testimony or other evidence, that given the Intime of night, the curvature of the tracks, and his inert position on the cross tie, that Mr. Clayton’s perilous position should have been recognized by the crew prior to the moment he was noticed. There was no evidence that the crew should have been able to stop the train in sufficient time to avoid the accident. There was no evidence to conclude where Mr. Clayton was on the track when struck, or how far away the engine was from him when he was recognized as a human being in a dangerous place. Thus, Mr. Clayton failed to produce a case that CN/IC failed to conform its conduct to an applicable standard of care, and that any such failure was a cause-in-fact of his injuries.

Mr. Clayton avers that despite the denial of summary judgment on the locomotive long nose/short nose issue, at trial the court upheld objections by CN/IC to questions regarding ditch lights on the long nose configuration. Thus he asserts that he was prevented from developing his contention that the availability of ditch lights on the short nose end made the choice to proceed with the long nose end “unsafe and unnecessarily hazardous to a man who was sitting motionless in a crosstie and allegedly not seen until it was too late.” Mr. Clayton argues that at the time of the accident, ditch lights were not required by federal law, but were voluntarily placed on the short nose end. Thus he argues the underlying principle of preemption does not apply. We find this to be a distinction without a difference. In the partial summary judgment, the trial court correctly determined that the ditch light issue was pre-empted by federal law, and questions on the point were properly excluded.

Mr. Clayton made no showing that simply utilizing the long nose configuration was in any way negligent. Federal law specifically recognizes that operation of the engine in either configuration is permitted. Further, although Mr. | ^Clayton attempted to elicit testimony that the view from the long nose end is diminished, the crew testified that one could see on both sides until very near an object, 150-200 feet. There was no expert opinion or other evidence that this configuration in and of itself was dangerous, and the engine was designed to operate in either direction. The conductor kept a lookout on the track ahead, and as the trial court noted, there was no testimony as to the duties of the crew, or more precisely, who had the responsibility to keep lookout. Thus no basis was established on which to make a finding that someone on the crew breached a duty. There was no evidence that the train itself had defective brakes, lights, or other accoutrements, or was traveling at an excessive speed.

Mr. Clayton contends that the court made credibility determinations which are improper in a Motion for Directed Verdict. He avers that the court “blindly” accepted the testimony of the conductor as his sighting of the object on the tracks, and the point at which he determined it was a person. Acceptance of this testimony is not a credibility determination in that it was not refuted. There was no evidence that the conductor did, could, or should have seen Mr. Clayton earlier.

Finally, Mr. Clayton argues that the court failed to consider the unimpeachable evidence revealed by the event recorder. Although the data was admitted, no testimony or interpretation of the data was offered by Mr. Clayton. Our examination of the data shows that this evidence must be interpreted by a witness with the expertise to do so in order to be intelligible to the non-professional. Thus the court could only consider the evidence as presented, and as presented in that form, had little if any probative value.

The evidence presented at trial, considered in a light most favorable to Mr. Clayton, point so overwhelmingly in favor of granting the motion that reasonable jurors could not arrive at a contrary result. He did not provide evidence of any breach of duty on the part of CN/IC or its crew. He did not prove that any action 113or inaction on the part of the defendants was a cause-in-fact of his injuries. Failure to produce evidence on these crucial factors, and failure to produce any law, statutory, jurisprudential, or arising from general principles of fault, to support his claim was fatal to his case. The trial court did not err in granting the Motion for a Directed Verdict.

For the above reasons, the judgment is affirmed. Costs are assessed to Mr. Clayton.

AFFIRMED

      . Clayton v. Illinois Central Railroad Co. et al., 01-00625, (6/25/01).

      . Clayton v. Illinois Central Railroad Co. et al., 2001-CC-2086, 797 So.2d 50 (La.9/14/01).

        .Reed v. Columbia/HCA Information Systems, Inc., 00-18 (La.App. 5 Cir. 4/11/01), 786 So.2d 142, writ denied 2001-1384 (La.6/22/01),794 So.2d 796.

      . Hardy v. Bowie, 1998-2821 (La.9/8/99), 744 So.2d 606.

      . Id.

      . Kaplan v. Missouri-Pacific R. Co. 409 So.2d 298, (La.App. 3 Cir., 1981), writ denied 411 So2d 464 (La.1982), citations omitted; see also Robinson v. Norfolk Southern Corp., 2003 WL 21638245 (E.D.La., Jul 11, 2003).

      . See La. R.S. 32:168.

      . See Furlough v. Union Pacific R.R. Co. 33-762, 33,658 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, writ denied 2000-2929 (La.1/12/01), 781 So.2d 556.

      . See e.g. 29 C.F.R. 229.125.


text:
    LIFEMARK HOSPITALS OF LOUISIANA, INC. d/b/a Kenner Regional Medical Center v. GULF SOUTH MEDICAL AND SURGICAL INSTITUTE, INC.
    No. 03-CA-1122.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Rehearing Denied Feb. 20, 2004.

      Daniel A. Ranson, Glenn D. Price, Jr., Windhorst, Gaudry, Ranson, Higgins and Gremillion, L.L.C., Oakwood Corporate Center, Gretna, LA, for Plaintiff-Appellee.
    Richard J. Tomeny, Jr., Metairie, LA, for Defendanb-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   | .EDWARD A. DUFRESNE, Jr., Chief Judge.

This is an appeal by Gulf South Medical and Surgical Institute, Inc. and Dr. George A. Farber, Sr., defendants-appellants, from a judgment awarding back rent, liquidated damages and attorney fees totaling $273,240.26 under a lease agreement to Lifemark Hospitals of Louisiana, Inc. d/b/a Kenner Regional Medical Center, plaintiff-appellee. For the following reasons we amend the judgment to eliminate the award of liquidated damages equal to one year’s rent in the amount of $123,125.52. In all other respects, the judgment is affirmed.

The basic facts are not disputed. In 1993, Gulf South entered into a five year lease for a building then owned by The Travelers Insurance Co. The building was acquired by Lifemark and the lease was amended several times to extend its term until May 4, 2000. As that date approached, Lifemark notified Gulf South that it intended to take possession of the premises at the end of the term. Gulf South requested and was granted a two month extension to July 4, 2000 so that it could move out in an orderly fashion. As of July 5, Gulf South was still in the premises, so Lifemark instituted an eviction proceeding. However, it was discovered that Lifemark had accepted rents for at least July, and that suit was dropped. Gulf IsSouth also paid rent for August and September, which rents were also apparently accepted by Lifemark.

Lifemark then filed a second eviction proceeding on October 12, 2002, and subsequently amended this petition to seek liquidated damages and attorney fees as well. Because Gulf South had in the interim filed for bankruptcy protection, the eviction action was delayed until December 20, 2000, at which point this claim had apparently been dismissed from the bankruptcy action. On that latter date a judgment of eviction was entered, but the issues of damages and attorney fees were not taken up at the hearing. Gulf South suspensively appealed, and remained on the premises until April 9, 2001. During that period it continued to pay the basic monthly rent. Upon vacating, Gulf South also dismissed its appeal of the judgment of eviction.

Lifemark then moved to set the issues of damages and attorney fees for trial. That trial was held on January 29 and February 24, 2003, and judgment was rendered on May 8. That judgment was for liquidated damages of one year’s base rent of $123,125.52, holdover rent of $123,125.52, and attorney fees of $22,287.00, all bearing interest at 18%. Gulf South now appeals.

The first issue raised here is procedural. Gulf South asserts that the first judgment of eviction, which was silent as to damages, is a bar to the second trial for damages on grounds of res judicata. We reject this argument. In Friedman v. Hofchar, Inc., 424 So.2d 496 (La.App. 5th Cir.1982) this court pointed out that an action for eviction is a summary proceeding which only results in recovery of the leased premises. If a lessor seeks further relief, it must do so via an ordinary proceeding. In the present case, Lifemark sued for eviction in a summary proceeding, and recovery of damages was not available in that action. That suit could not, therefore, have preclusive effect as to the damages proceeding at issue here.

14Gulf South also raises issues as to whether Lifemark can recover both liquidated damages of one year’s rent, as well as holdover rentals of two and one-half the basic monthly rentals. The provisions of the lease agreement applicable to these questions are as follows.

25. Remedies of Lessor
(a) If a default occurs, Lessor is entitled, at Lessor’s sole option, to exercise any one or more of the following remedies:
(i) Lessor may terminate this Lease and immediately expel Lessee without, however, waiving Lessor’s right to collect all installments of Rent for the period up to the time Lessor regains possession of the Leased Premises, together with liquidated damages (not as a penalty) in the amount of one year of Basic Annual Rent and one year of Additional Rent, each calculated at the rate payable under this Lease at the time of default, Lessee hereby assenting thereto and expressly waiving all legal notice to vacate the Leased Premises, including without limitation the notice requirements of Louisiana Code of Civil Procedure article 4701....
(b) If Lessor employs one or more attorneys to enforce the payment of rent, or the obligations of Lessee or rights of Lessor under this Lease, then Lessee hereby agrees to pay the fees of such attorney or attorneys, and Lessee further agrees to pay all court costs and other related expenses, and such fees, costs, and expenses will be deemed to be Rent payable by Lessee upon demand of Lessor. Any one or more installments of Rent(including any such installments that may become due and payable pursuant to Lessor’s right to accelerate the Rent as provided hereinabove) not paid within seven (7) days after the date on which it is due will bear interest at the rate of eighteen percent (18%) per an-num or the highest rate permitted by law, whichever is less (as well after as before judgment), beginning with the date any such installment is due and ending with the date Lessee pays any such installment to Lessor....
27. Holdover. If, upon the Expiration Date or the date of earlier termination of this Lease, Lessee fails to vacate or deliver possession of the Leased Premises to Lessor, then this Lease shall become a month to month tenancy, subject to all terms and conditions set forth herein; provided, however, that the Lessee shall pay to Lessor, by way of liquidated damages, and not as a penalty, two and one-half (2/£) times the monthly Basic Annual Rent at the then current rate (such sum being hereafter referred to as the “Holdover Rent”) for each month Lessee occupies any part of the Leased Premises together with Additional Rent and any other sums payable hereunder, commencing with the Expiration Date or the date of any earlier termination of this Lease and ending with the date that Lessee vacates or delivers possession of the Leased Premises to Lessor. The Holdover Rent shall be payable monthly in advance on the first day of each month. The Holdover Rent shall not be prorated for partial months, and Lessee hereby acknowledges and agrees that the Holdover Rent shall be paid in monthly increments, even if Lessee remains in possession of the Leased Premises for |Rless than a complete month. Notwithstanding anything to the contrary herein, Lessor expressly reserves all rights under applicable law to evict Lessee from the Leased Premises if Lessee fails to vacate or deliver possession of the Leased Premises to Lessor upon the Expiration Date or the date of any earlier termination of this Lease, and Lessee expressly waives all legal notice to vacate the Leased Premises, including without limitation the notice requirements of Louisiana Code of Civil Procedure article 4701.

The trial judge ruled that the lease had terminated on July 4, 2000, and that Gulf South’s continued occupancy of the premises was a breach of the lease thus subjecting it to liquidated damages of one year’s basic rent, or $123,125.52, as per Paragraph 25(a)(i), as well as the holdover rent of two and one-half times the base rent of Paragraph 27. He further found that Gulf South had remained on the premises for an additional eight months after termination, during which time it paid the base rent, thus leaving a sum owing of only one and one-half times the eight months rent, or $123,125.52.

The finding that Gulf South breached the lease by remaining on the premises beyond the termination date of July 4, 2000 was error. The lease specifically provides in Paragraph 27 that failure of the lessee to vacate the premises at the end of the term converts the lease to a month to month tenancy at an increased rental of two and one half times the base rent. Thus Gulf South’s continued occupancy of the premises was not in contravention of the lease and the trial judge erred in finding otherwise.

Lifemark asserts here that to interpret the lease in this way would be to give Gulf South an unlimited right to occupy the premises. While this argument has some force, it points out the apparent ambiguity in the agreement as to what happens when the term of the lease has run. Article 2056 of the La. Civ.Code provides that in cases of ambiguity a contract is to be construed against the party providing the text. Thus, we find that upon expiration of the term the lease was automatically converted to a month to month lease and Gulf South’s continued occupancy was not a breach of that agreement. In this circumstance, the award of | ^damages amounting to one year’s rent under Paragraph 25(a)(i) for failure to vacate at the expiration of the term must be set aside.

We also note that Paragraph 25(b) provides that rent not paid promptly bears interest at 18% from date due until paid. We interpret this clause to mean that the lease anticipated that rent might be late and provided an interest penalty rather than an automatic termination. While Gulf South was paying only the base rent during its continuing occupancy, rather than two and one-half times the base rent, this unpaid rent accrued with interest. Therefore that portion of the judgment awarding Lifemark the additional one and on-half the base rent plus 18% interest for the holdover period is correct and we so hold.

Gulf South next argues that it was error to reject its claim that Lifemark had itself breached the lease by failing to pay for damages occasioned by a broken water pipe. We reject this argument. Paragraph 5 of the lease specifically provides that the lessee shall be responsible for water lines and thus Lifemark was not under any obligation to pay for the damage occasioned by the leak.

The final issue here concerns attorney fees of $22,287. Paragraph 25(b) provides that if the lessor is required to employ counsel to enforce any of its rights relating to the lease, then lessee shall be liable for payment of those fees. As shown above, Lifemark was entitled to additional unpaid rents and employed counsel to enforce this right. The trial judge found the fee to be reasonable in light of the extent of this litigation, and we find no error in that conclusion. We therefore affirm the portion of the judgment awarding attorney fees.

For the foregoing reasons the judgment is amended to vacate that portion of the award for one year’s rent of $123,125.52. In all other respects the judgment is affirmed.

JUDGMENT AMENDED TO VACATE AWARD OF RENT; IN ALL OTHER RESPECTS, AFFIRMED.


author: 1, STEWART, J.

text:
    Teresa Cooper WILLIAMS, et al., Plaintiffs-Appellants, v. STATE of Louisiana through the DEPARTMENT OF SOCIAL SERVICES, et al., Defendants-Appellees.
    No. 37,923-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      The Singleton Law Firm by Curtis R. Joseph, Jr., Counsel for Appellant Reshon-da L. Bradford.
    Richard P. Ieyoub, Attorney General, Counsel for Appellees State of Louisiana, Doss, Quiller Capers and Beverly Wilson.
    Mark E. Posey, Assistant Attorney General, Abrams & Lafargue by Julie M. La-fargue, Shreveport, Counsel for Appellee Bettie Adger.
    Before STEWART, GASKINS and CARAWAY, JJ.
   1, STEWART, J.

Plaintiff, Teresa Cooper Williams (“Williams”), appeals the jury’s finding of no negligence on the part of defendants, State of Louisiana through the Department of Social Services (“DSS”) and Bettie Adger (“Adger”), in the death of her daughter, Jessie Cooper (“Jessie”), and the trial court’s denial of her JNOV. For the reasons expressed herein, we affirm.

FACTS

This wrongful death action followed the drowning death of fourteen year old Jessie on May 29, 2000. Jessie had been in the custody of DSS since April 6, 1999, after she was temporarily removed from the custody of her mother, Teresa Williams. In early May 2000, Jessie had an accident on the school bus when she suddenly lost control of her muscles and fell down. She was hospitalized at LSU Medical Center and diagnosed with Myasthenia Gravis, a disease similar to muscular dystrophy which causes a weakness in the muscles. This condition caused Jessie several problems, including fatigue and occasional difficulty putting on her clothes and combing her hair. Jessie was under the care of Dr. Amanda Fernandez of LSU. After the initial hospitalization Jessie had a follow up visit on May 24, 2000, where Dr. Fernandez prescribed medication and warned her to avoid excessive fatigue and exposure to heat. Adger, Jessie’s foster mother, sought further clarification of Jessie’s condition, but she did not receive the information until after the accident.

On the day of the accident, Adger had taken Jessie and three other girls, ranging from fourteen to sixteen years of age who also were in her | ¡¡custody, to Cypress Lake to have a Memorial Day picnic as a reward for good behavior. When they arrived at the lake, Adger began to set up the picnic area and allowed Jessie to accompany the other girls while they waded in the water. Apparently, the girls thought the water was too dirty and nasty to actually swim. Her only stipulation to Jessie was that she return within the hour to receive her scheduled dose of medicine. Within fifteen minutes of the girls going to the lake, Jessie was found unconscious in the water. She later died. No one observed what happened or how she drowned.

Williams filed suit against DSS, Adger, the DSS supervisor, Quiller Capers (“Capers”), and DSS case worker, Beverly Wilson (“Wilson”). Trial was held on March 3 and 4, 2003. At the close of trial Williams voluntarily dismissed her claims against Wilson and Capers individually. The jury returned a unanimous verdict for the defendants, answering “no” to the question, “Do you find that Bettie Adger was negligent and that her negligence was the legal cause of the accident?” Williams then filed a Motion for Judgment Notwithstanding the Verdict (“JNOV”) or Motion for New Trial, which were denied by the trial court on May 24, 2003. This appeal ensued.

DISCUSSION

Standard of Review

A court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reversal of findings of fact on appeal requires that (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Where there is conflict in the testimony reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra; Rosell, supra.

Our review of the record leads us to the conclusion that the jury’s findings were not manifestly erroneous and the trial court did not err in not granting the Motion for JNOV or Motion for New Trial. The evidence shows that Adger was a caring and conscientious person who was genuinely concerned about the welfare of those entrusted to her care. Quiller Capers testified of Adger’s exemplary record as a foster mother. When confronted with the added difficulty of Jessie’s disease, she attempted to ascertain the nature of Jessie’s condition from Dr. Fernandez and give Jessie the best care possible. Adger stringently adhered to the medication schedule. Adger also testified that Dr. Fernandez never gave her anything in writing specifically detailing the limits on Jessie’s physical activities. In fact, Adger sent a facsimile to Dr. Fernandez on May 26, 2000, asking for further guidance in Jjher treatment of Jessie. Dr. Fernandez claimed that she specifically warned Jessie on May 24, 2000, that she was not to swim. However, the only documentation given by Dr. Fernandez on the limits on Jessie’s physical activities was given in a letter dated June 2, 2000, in response to the facsimile of May 26, after the accident, and after Dr. Fernandez was made aware of the accident. The jury apparently made a credibility determination that Adger did all that she could to protect Jessie, and that Dr. Fernandez’s letter was an attempt to cover her bases after the fact.

The record shows that the children went down to the lake to wade in the water. No one witnessed what happened to Jessie. It is not known whether she had a seizure from the myasthenia gravis or some other accident. Adger testified that the medicine had been working well for Jessie and that she had no problems with her motor skills. Adger testified that had she known of a restriction against being in a pool or lake, she would not have allowed Jessie to get in the water. The wading activity was not prohibited by Dr. Fernandez, who actually testified that wading would have been acceptable if Jessie had been watched.

Assuming arguendo that Adger was negligent in taking Jessie to the lake, it is impossible to determine if that negligence can be said to be the cause in fact of the injury. Of critical importance is the fact that Dr. Fernandez testified that he could not say that the reason Jessie had an accident was because of her Myasthenia Gravis. Consequently, there is a critical issue of whether her condition was even the cause in fact of her death.

IsAs a result, we cannot say that the jury’s determination of no negligence on the part of Adger was manifestly erroneous.

JNOV

A JNOV is a procedural device authorized by La. C.C.P. art. 1811 whereby the trial court may correct a legally erroneous verdict by modifying fault or damages, or both, that the jury may have assessed. Matthews v. Arkla Lubricants, Inc., 32,121 (La.App.2d Cir.8/18/99), 740 So.2d 787; Greene v. Fox Crossing, Inc., 32,774 (La.App.2d Cir.3/1/00), 754 So.2d 339, writ denied, 2000-0944 (La.5/26/00), 762 So.2d 1108. If the opposing evidence is of such quality and weight that reasonable men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. To determine that the evidence was insufficient as a matter of law requires a finding that no valid line of reasoning and permissible inferences could possibly lead rational persons to the conclusions reached by the jury. Matthews, supra. The JNOV should not be granted merely when there is a preponderance of evidence for the mover. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Craighead v. Preferred Risk Mutual Insurance Company, 33,731 (La.App.2d Cir.8/25/00), 769 So.2d 112, writ denied, 2000-2946 (La.12/15/00), 777 So.2d 1230.

As noted by this court in Gibson v. Bossier City General Hosp., 594 So.2d 1332 (La.App. 2d Cir.1991), the scales are clearly tilted in favor of | fithe survival of the jury’s verdict, but the trial court is left with a breadth of discretion which varies with the facts and events of each case. What the appellate court reviews is the decision of the trial judge, who has attempted to balance the great deference afforded to the jury’s verdict against his obligation to insure that substantial justice was accomplished. Thus, in reviewing the trial court’s determination regarding whether to grant a JNOV or new trial, the appellate court’s review is limited to whether the trial court committed manifest error in its denial of the motions. Gibson, supra.

We conclude that the trial court was not manifestly erroneous in denying the Motion for JNOV. The evidence is of such quality and weight that reasonable persons might reach differing conclusions. Thus, a reasonable basis exits for the jury’s verdict. The standard of review demands deference to the trier of fact.

CONCLUSION

For the reasons expressed above, we affirm the decision of the trial court. Costs to appellants.

AFFIRMED.

      . We do not know whether the jury decided that Adger was simply not negligent, or whether the jury determined that even if any negligence occurred, it was not the cause in fact of the accident.


author: | WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Walter BLACKBURN, Jr., Appellant.
    No. 37,918-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Shenequa L. Grey, Assistant District Attorney, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   | WILLIAMS, J.

The defendant, Walter Blackburn, Jr., was charged by bill of information with DWI, 4th offense, a violation of LSA-R.S. 14:98. The state subsequently amended the bill of information to charge the defendant with DWI, 3rd offense. After a bench trial, the defendant was found guilty as charged. The trial court sentenced the defendant to serve one year at hard labor and to pay a fine of $2,000 and court costs, or in default of payment, to serve six months in the parish jail. The fine and all but thirty days of the defendant’s sentence were suspended and the defendant was placed on supervised probation for two years with special conditions, including home incarceration for eleven months. The trial court denied the defendant’s motions for judgment of acquittal and for new trial. Defendant now appeals. We affirm.

FACTS

On March 8, 2002, Caddo Parish Deputy Sheriff Rick Anderson was working patrol in the south sector of Caddo Parish. At 5:37 p.m., Deputy Anderson observed the defendant’s grey Nissan pick-up truck approaching his vehicle at a high rate of speed at the 1100 block of Sparks Davis Road. Deputy Anderson used his radar to confirm that the defendant was speeding. He clocked defendant’s speed at 69 m.p.h. in a 45 m.p.h. speed zone. According to Deputy Anderson, he turned his patrol car around and stopped the defendant’s pickup. A female juvenile was in the vehicle with the defendant.

Deputy Anderson testified that the defendant got out of the driver’s side of the pick-up truck. When Deputy Anderson asked the defendant for phis driver’s license, defendant responded that his license had been suspended. Deputy Anderson testified that he immediately observed a strong odor of an alcoholic beverage on defendant. He testified that the defendant’s eyes were “glossy over, and that’s normal with someone who had been impaired.” Deputy Anderson further testified that when defendant began talking to him, the defendant informed him that he had prior DWI arrests and “didn’t need this type of stuff.” Because of the odor of alcohol on defendant’s breath, his gestures and his posture, Deputy Anderson felt defendant was alcohol-impaired. He then advised the defendant of his Miranda rights. Deputy Anderson administered the defendant field sobriety tests, which he failed to pass.

Defendant informed Deputy Anderson that he could not perform the field sobriety tests “even if he was dead sober.” The defendant informed the deputy that he had drunk quite a bit and that he had been drinking less than twenty minutes before the traffic stop. The defendant admitted that he had drunk a six-pack over an unspecified period of time. Defendant also admitted that he should not have been driving. Deputy Anderson placed the defendant under arrest and transported him to the Caddo Correctional Center. Defendant refused to take the Intoxilyzer 5000 test.

DISCUSSION

By his sole assignment of error, the defendant contends the evidence was insufficient to sustain his conviction for driving while intoxicated, 3rd offense. Defendant does not challenge the sufficiency of the evidence ^presented to support the two predicate offenses. Rather, he specifically challenges the evidence presented to support the instant DWI conviction.

LSA-R.S. 14:98 provides, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood....

Since Blackburn refused to take the breath test which would measure his blood alcohol level, the state relied on subsection (A)(1)(a) of the statute.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for the sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict by viewing that evidence in the light most favorable to the prosecution. When the evidence is thus viewed, the facts established by the direct evidence or inferred from the | circumstances must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

In order to convict the accused of driving while intoxicated, the prosecution need only prove that defendant was under the influence of alcohol or drugs. State v. Minnifield, 31,527 (La.App.2d Cir.1/20/99), 727 So.2d 1207; State v. Courtney, 30,629 (La.App.2d Cir.5/13/98), 714 So.2d 176; State v. Edwards, 591 So.2d 748 (La.App. 1st Cir.1991), writ denied, 94-0452 (La.6/21/96), 675 So.2d 1072; State v. Iles, 96-256 (La.App. 3d Cir.11/6/96), 684 So.2d 38. Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. Courtney, supra; State v. Neilson, 27,239 (La.App.2d Cir.8/23/95), 660 So.2d 130; State v. Pitre, 532 So.2d 424 (La.App. 1st Cir.1988), writ denied, 538 So.2d 590 (La.1989). It is not necessary that a conviction of DWI be based upon a blood or breath alcohol test, and the observations of an arresting officer may be sufficient to establish defendant’s guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983).

A defendant’s refusal to take the breath test is admissible at a DWI prosecution; the weight of the evidence is left to the trier of fact. LSA-R.S. 32:666 A(3); State v. Dugas, 252 La. 345, 211 So.2d 285 (1968); State v. Washington, 498 So.2d 136 (La.App. 5th Cir.1986).

|fiDeputy Anderson testified that defendant had all three clues in both eyes on the horizontal gaze nystagmus (“HGN”) test. When defendant performed the one-legged stand test, he swayed while balancing, failed to count properly and stopped one second early. When the defendant performed the walk-and-turn test, he could not keep his balance while listening to Deputy Anderson’s instructions, stepped off the line twice before the turn, turned incorrectly, stepped off the line twice after the turn and did not walk heel to toe. According to Deputy Anderson, if a defendant steps off the line three times, he is considered as having failed the test. Based on all these events, Deputy Anderson determined the defendant was impaired [by alcohol] and “placed him in custody.”

On cross examination, Deputy Anderson testified that the only traffic violation he observed was the defendant speeding. Although the police car’s roof rack was on during the HGN test, the results of the tests performed are not affected during the daytime. As stated above, defendant had informed Anderson that he could not have performed the field sobriety tests “even if he was dead sober.” Defendant “immediately started begging” Deputy Anderson not to arrest him for DWI even before the officer informed him that he was under arrest. According to Deputy Anderson, defendant never refused to take the field sobriety tests, and never said he had any medical problems. While defendant was performing the HGN test he was not facing the lights of the deputy’s vehicle and the road was level where the defendant was asked to perform the field sobriety tests.

1 ^Kathryn LeBlanc, Deputy Clerk of Court, testified with regard to her duties and established the foundation for the introduction of the defendant’s prior convictions for DWI in October 1999 and October 2000. Sergeant Owen McDonnell testified that the fingerprints from the prior bills of information and defendant’s known fingerprints were from the same person.

The defense presented the testimony of Ruby Blackburn, defendant’s mother. She testified that defendant has emphysema and is disabled because of the disease. She said the area of the road where defendant was arrested was “hilly, but not a big hill, you know. But it is an incline, a little.”

During closing arguments, the prosecutor and defense counsel recounted incidents from the videotape. While performing the walk-and-turn test, the defendant stated, “I am wobbling” and he was unable to perform the test. As stated above, the defendant admitted, on the tape and after the Miranda warning, that he had drunk “quite a bit” and that he had been drinking as little as 20 minutes before the traffic stop. He admitted having drunk a six-pack over an unspecified period of time. Defendant also said he should not have been driving. Defense counsel noted that, on the videotape, defendant was distressed and repeatedly asked the officer to give him a break. — “that he wouldn’t be doing this normally, but he was just trying to do the girl that he was driving with a favor.”

We find the record contained ample evidence to support the defendant’s conviction. Thus, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the 17state proved, beyond a reasonable doubt, the essential elements necessary to convict the defendant of DWI, 3rd offense.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.