author: I PEATROSS, J.

text:
    Debra SENSLEY, Plaintiff-Appellant v. GLENWOOD REGIONAL MEDICAL CENTER & Dr. Charles Hand, Defendant-Appellee.
    No. 38,519-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Moore, Walters, Thompson, Thomas, Pa-pillion & Cullens by Edward J. Walters, Jr., Baton Rouge, Darrel J. Papillion, for Appellant.
    Watson, Blanche, Wilson & Porter by René J. Pfefferle, Baton Rouge, for Appel-lee.
    Before CARAWAY, PEATROSS & LOLLEY, JJ.
   I PEATROSS, J.

This medical malpractice action arises out of the tragic death of eleven-year-old Dontrelle Tucker (“Donnie”) following surgery to repair a minor hip defect performed at Glenwood Regional Medical Center (“Glenwood”) in Monroe. A unanimous jury found that there was no breach of the standard of care regarding Donnie’s care at Glenwood. Debra Sensley, Donnie’s mother, appeals. For the reasons stated herein, we affirm.

FACTS

Donnie was diagnosed by Dr. Charles Hand, an orthopedic surgeon, with a “slipped capital femoral epiphysis” on Donnie’s right hip. This condition occurs when the femur head slips slightly off of the femur. Dr. Hand recommended and subsequently performed a procedure commonly referred to as a “hip pinning” on Donnie’s right hip. This procedure entails drilling a hole in the femur and placing guide pins in the femur into which screws are inserted. After the screws are in place, the guide pins are removed.

The surgery was performed at 12:00 p.m. on February 15, 1996, at Glenwood. Donnie’s family was told that he would probably be discharged the same day of the surgery. After the surgery was complete (the surgery lasted approximately two hours), Donnie was taken off the ventilator and was breathing on his own for approximately 30 minutes post-surgery. Donnie was then taken from the operating room to recovery by Nurse Anesthetist Diana Gentry and was extubated, i.e., the endotracheal breathing tube was removed, without difficulty. After ensuring that Donnie’s condition was stable, Nurse Gentry transferred Donnie to the care of Nurse RRebecca Brown. At that point, Donnie had remained stable and there were no complications. At 2:08 p.m., Donnie’s vital signs were stable with blood pressure of 143/39, pulse 67, respiration 16 and oxygen saturation of 93 percent and he was breathing normally. Nurse Brown recorded in her notes that, at 2:08 p.m., Donnie’s respirations were even and unla-bored, he was moving air adequately and she could hear him breathing. At 2:10 p.m., Donnie’s heart rate had slowed to 62. At this time, Donnie’s respirations and pulse began slowing and his blood pressure was falling. Nurse Brown performed a “jaw lift” on him, which is a painful maneuvering of the jaw forward to see if a patient responds. Donnie did not. By 2.T4 p.m., his vital signs were dangerously low and Nurse Brown paged Dr. Joe Travis, the anesthesiologist, to the recovery room. Nurse Brown testified that she did not leave Donnie unattended at any time during his recovery.

Dr. Travis was in attendance at Donnie’s bedside at 2:15 p.m. At that time, his vital signs were blood pressure of 57/41, pulse 56 and respiration 19. Dr. Travis testified that he used an ambu bag and mask to supply artificial respiration to Donnie and that air flowed freely into Donnie’s lungs. According to Dr. Travis, Donnie ventilated very easily, meaning that there was no obstruction of the airway and no collapsed airway. Donnie, however, did not respond to the resuscitation efforts. His heart rate and blood pressure continued to drop and his heart did not respond to medications administered to increase his heart rate, nor did he respond to a nerve stimulator. Dr. Travis intubated Donnie, i.e., replaced the endotracheal breathing tube, and began heart compressions. A blood gas latest revealed that Donnie was acidotic and his oxygen level was very low. A cardiologist was summoned and ultrasounds of the heart and lungs were performed and an external pacemaker was attempted. Extensive resuscitative and diagnostic measures were performed on Donnie until approximately 4:00 p.m. at which time Donnie, who was then in a coma, was transferred to pediatric intensive care and put on a ventilator. After two days of being comatose, tests revealed no brain activity and, after discussion with Mrs. Sensley, Donnie’s life support was discontinued. Donnie died at 7:50 p.m. on February 17,1996.

The physicians who were involved with Donnie’s post-surgical care opined that Donnie’s death was the result of a fat embolism which occurs when fat is released into the circulatory system and travels to the major organs. Fat emboli causing death are rare and occur from fatty tissue being released from the bone into the blood during orthopedic surgeries. The fatty tissue lodges in the organs and can cause death. Dr. George McCormick performed an autopsy on Donnie and found multiple fat emboli in the brain, kidneys and lungs. Dr. McCormick concluded that “these emboli caused multiple organ failure and death, with the most severely affected organ being the brain.”

Mrs. Sensley filed this medical malpractice complaint against several of the health care providers who cared for Donnie. Pursuant to La. R.S. 40:1299.39 et seq., the matter was presented to a Medical Review Panel composed of Percy A. Ford, Jr., Austin Gleason, M.D., Scott McClellan, M.D. and Larry M. Allen, M.D. The panel rendered its opinion |4on November 18, 1998, unanimously holding that the evidence did not support the conclusion that the defendants failed to meet the applicable standard of care as charged in the complaint. The Medical Review Panel’s opinion stated:

It was a tragic event that occurred with this child. As pointed out, fat embolism is not an occurrence that arises very often and when it does, it is an overwhelming surgical complication that oftentimes leads to catastrophic results such as those found here. Even though we have made many advances in medicine, the predictability of fat embolism is not yet well defined and the ability to cope with and treat such an event is still beyond our reach. There was no medical malpractice which occurred in the care delivered to Dontrell Tucker.

Mrs. Sensley then filed a civil suit naming only Dr. Hand and Glenwood as defendants. Summary judgment was subsequently granted in favor of Dr. Hand and the matter proceeded to trial against Glen-wood alone. As previously stated, the jury unanimously found no breach of the standard of care. This appeal ensued.

APPLICABLE LAW FOR MEDICAL MALPRACTICE

In a medical malpractice action against a hospital, the plaintiff must prove, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved, that the defendant breached that duty, that the plaintiff suffered an injury and that the defendant’s actions were a substantial cause in fact of the injury. Gordon v. Willis Knighton Medical Center, 27,044 (La.App.2d Cir.6/21/95), 661 So.2d 991, writs denied, 95-2776 and 95-2783 (La.1/26/96), 666 So.2d 679. A determination of whether a hospital has breached those duties depends upon the facts and circumstances of each particular case. Id.; Smith v. State through Dept. Health and Human Resources Admin., 523 So.2d 815 (La.1988); Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974). Resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Smith, supra.

If the jury’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. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.

It is the sole province of the fact finder to evaluate the credibility of such experts and their testimony. Arceneaux, supra; Cox v. Willis-Knighton Medical Center, 28,632 (La.App.2d Cir.9/25/96), 680 So.2d 1309, writ denied, 96-2831 (La.1/10/97), 685 So.2d 147. When the expert opinions contradict concerning compliance with the applicable standard of care, the fact finder’s conclusions on this issue will be granted great deference. Shahine v. Louisiana State University Medical Center in Shreveport, 28,691 (La.App.2d Cir.9/27/96), 680 So.2d 1352, writ denied, 96-2624 (La.12/13/96), 692 So.2d 1066. Such expert opinions are necessary sources of proof whose views are persuasive, although not controlling, and any weight assigned to their testimony by the jury is dependent upon the expert’s | [^qualifications and experience. Cox, supra; Davis v. Sonnier, 96-515 (La.App. 3rd Cir.11/6/96), 682 So.2d 910.

In summary, if the record, when read in its entirety, supports the fact finder’s conclusions and those conclusions are reasonable, an appellate court cannot reverse or modify the trial court’s judgment which is based on those factual conclusions. An appellate court can only reverse a fact finder’s determinations when: (1) it finds from the record that a reasonable factual basis does not exist for the findings of the trial court, and (2) it further determines that the record establishes that the findings are manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

DISCUSSION

Mrs. Sensley argues that the record in this case does not support the jury’s finding that Glenwood did not breach the standard of care with respect to Donnie’s care. Specifically, Mrs. Sensley urges that the jury failed to consider the testimony of Dr. Einstein, who provided expert testimony on her behalf.

Dr. Einstein’s testimony is summarized as follows. Dr. Einstein testified that the most likely cause of Donnie’s death was airway obstruction and not a fat embolus. He further testified that, not long after Donnie entered the recovery room, Donnie became “hypoxic.” Hypoxia is a lack of oxygen to the brain, which can be caused by an airway obstruction. Lack of oxygen from such obstruction can cause brain death. Anesthesia increases the risk of airway obstruction, usually from relaxation of the tongue — which ^becomes the ob-straction. Other airway tissues can also relax and create an obstruction. Dr. Einstein testified that Donnie was still under anesthesia when his endotracheal tube was removed and that, within a short time of the removal, he became critically ill. The most logical cause of this, according to Dr. Einstein, was an airway obstruction. Further, Dr. Einstein opined that Nurse Brown must have left Donnie unattended for some period and did not notice his deteriorating condition.

Dr. Einstein found it troubling that Donnie did not respond at all to Nurse Brown’s “jaw lift” which, according to Dr. Einstein, indicated that Donnie was still heavily anesthetized. He opined that Donnie was probably still paralyzed from the anesthesia and unable to breathe on his own when he left the operating room and Nurse Brown failed to recognize this. Despite his testimony that Donnie was likely paralyzed when he went into crisis, Dr. Einstein also testified that the pulmonary edema was “negative” edema, which occurs when a patient aggressively or strongly inhales against an airway obstruction and draws fluid down into the lungs.

Dr. Einstein further testified that a fat embolus is an extremely rare event and Dr. Thomas Grogan, an orthopedic surgeon who also testified on behalf of Mrs. Sensley, corroborated Dr. Einstein’s testimony in this regard. In Dr. Grogan’s opinion, it would be very unusual for a fat embolus to result from a hip pinning procedure; rather, according to Dr. Grogan, fat emboli are seen only in major trauma to the long bones or multiple broken bones.

In addition to the above-described testimony, the jury heard the testimony of Dr. Travis, the anesthesiologist attending Donnie’s postjsurgeryg care and testified on behalf of Glenwood. Dr. Travis acknowledged that it is a rare occurrence that usually presents in cases of trauma to large bones, but he consistently and decisively stated that it was his opinion that Donnie’s death was due to fat emboli. He stated his conclusion as follows:

Yes, I think the drilling with that nail in and out of the femur shaft, the femur shaft being in this case closed more or less acted as a piston to force the fatty cells * * * disrupted the fatty cells and forced the fatty tissue out and that fat accumulated either in the veins of the leg or lower abdomen and when he was moved to the stretcher that basically triggered it’s (sic) movement to the heart and to the lungs.

Significantly, Dr. Travis testified that people may suffer fat emboli that do not result in death; and, because there are no tests available to confirm this and there is no “cure,” the fat emboli go undiagnosed. The only confirmation of a fat embolus is found in pathology tests done on tissues of the deceased during autopsy.

Dr. Travis testified that Donnie’s rapid decline and specific symptoms caused him to initially consider the possibility of a pulmonary embolus (blood clot), with which Dr. Travis has had considerable experience. He testified that a pulmonary embolus and a fat embolus would produce similar symptomology. When Donnie began exhibiting pulmonary edema, however, Dr. Travis suspected a fat embolus. Pulmonary edema is a buildup of secretions in the lungs. He explained that edema results from the toxic nature of the fat, which causes damage to the lining of the blood vessels and lungs. Dr. Travis testified that they were constantly suctioning out fluid that was backing up into Donnie’s endotracheal tube from his lungs. He noted that the secretions should contain water and saliva, but he |flnoticed “a fatty substance floating on top of the secretions”; and, therefore, he collected a sample of the secretions for testing. These tests revealed fat and fat cells. Dr. Travis farther testified that fat globules were detected in Donnie’s urinary catheter. According to Dr. Travis, both of these findings support the diagnosis of fat emoboli.

Dr. Travis also testified that a fat embo-lus could produce hypoxia and a drop in heart rate. He refuted Dr. Einstein’s theory of airway obstruction, describing how the air flowed freely into Donnie’s lungs when he used the ambu bag to assist in his breathing. Donnie was completely unresponsive to the breathing assistance. Dr. Travis stated that children are very resilient and respond very quickly to appropriate treatment, which means that, had Donnie had an obstructed or collapsed airway, he would have responded quickly to the breathing assistance. Instead, his heart rate continued to drop and his condition worsened.

As further refutation of the obstructed or collapsed airway theory, Dr. Travis noted that he re-intubated Donnie, or reinserted the endotracheal breathing tube, with no difficulty. After he was re-intu-bated, blood gas levels were drawn revealing that Donnie’s oxygen level was very low and that he was acidotic, which Dr. Travis opined to be consistent with a fat embolus. He explained that, as the fat clogs the arteries, it causes damage to the tissues and fluid develops in the lungs which interferes with the flow of oxygen into the blood vessels.

In addition, Dr. Travis testified that Donnie was not paralyzed from the anesthesia when his condition started to deteriorate. Donnie had been | inbreathing on his own by that time for approximately 30 minutes. On this point, the jury also heard the testimony of Nurse Gentry who testified that, at 2:08 p.m., when she transferred Donnie to Nurse Brown, there was no obstruction of Donnie’s airway and he was breathing on his own. She further testified that Donnie was not paralyzed, stating “you can’t be paralyzed and breathe.”

Finally, Dr. Travis disagreed with Dr. Einstein’s assertion that Donnie suffered from negative pulmonary edema, which occurs when a patient tries to breathe vigorously against the obstructed airway. He explained that this situation occurs when there are secretions present in the vocal chords and the vocal chords snap shut in a protective manner against the vigorous inhalations. If the patient is strong enough, this can actually draw the secretions from the vocal chords into the lungs. Dr. Travis stated that this was not the case with Donnie; rather, this type of edema is seen in young athletes because one has to be very strong to breathe in against your vocal chords hard enough to damage the lungs. Dr. Travis stated that “it takes a tremendous force to do that” and “generally the patient will be coughing and bucking and sit up and start fighting you” when they are creating negative pulmonary edema.

Next, Nurse Brown, a peri-anesthesia nurse, testified on behalf of Glenwood and was qualified as an expert in the field of nursing. Nurse Brown corroborated Nurse Gentry’s testimony that Donnie’s condition was stable at 2:08 p.m. when he came into her care. She described Donnie’s | t 1 deterioration in detail during her testimony and stated that she never left him unattended between 2:08 p.m. and 2:15 p.m. when Dr. Travis arrived at Donnie’s bedside. Her testimony and her recorded notes indicate that Donnie was breathing on his own, his chest rising and falling, and she could feel breath at his nose and mouth at 2:08 p.m., 2:10 p.m. and 2:12 p.m. At 2:14 p.m. she paged Dr. Travis and a respiratory therapist. Nurse Brown testified that there was no airway obstruction, stating “I know without a doubt there was no airway problem.”

Dr. McCormick also testified regarding his findings from the autopsy. His most significant finding was fat cells in the brain, lungs and kidneys, which led him to conclude that Donnie’s severe cerebral hypoxia was caused by fat emboli. He explained to the jury that he does “fat stains” to detect fat emboli in persons with trauma to long bones who have been fairly stable during a clinical course of treatment, but who suddenly become hypoxic and go into congestive heart failure. Dr. McCormick could not definitively say where the fat originated, but opined that it was either from cutting through the subcutaneous fat to get to the femur or from fat released from the marrow of the bone. He acknowledged that fat emboli can be caused by aggressive chest compressions during resuscitation where ribs are broken, but Dr. McCormick opined that this was not such a case because Donnie suffered no broken ribs.

Finally, Dr. Allen testified on behalf of Glenwood, confirming and restating the conclusion and reasons therefor of the Medical Review Panel. He testified that there was no breach of the standard of care in the actions of 1 ^Glenwood’s healthcare professionals involved in Donnie’s care. Dr. Allen specifically commented that he was impressed with Nurse Brown’s ability to care for the patient and keep detailed and complete notes of his condition during the crisis minutes.

Mrs. Sensley also argues that the hospital records of Donnie’s care were contaminated and unreliable. Specifically, she contends that the resuscitation record was completely rewritten. In addition, she claims that monitor sheets from the machines used in the recovery room were either discarded or lost and the “jot sheet,” a set of handwritten notes by a nurse, was “lost,” but was actually filed away in the hospital’s risk management office for six years. We find no merit in this argument. Nurse Brown testified regarding the hospital’s procedure in gathering all documentation, notations and monitor sheets and using those items to create a comprehensive record of the resuscitation events. This final resuscitation record was contained in the hospital records and was available to the jury.

After hearing and evaluating all of the above-described evidence, the jury accepted the testimony of Drs. Travis, Allen and McCormick and Nurses Gentry and Brown and found that there was no breach of the standard of care. There is ample testimony in this record to support this conclusion. The jury made credibility determinations regarding the experts who testified; and, granting these determinations great deference, we will not disturb them on appeal. This is indeed an extremely unfortunate and tragic case; however, finding the jury’s conclusion to be reasonable and supported by the record, we can find no manifest error in its verdict.

|13In addition, the jury was satisfied with the records introduced and the testimony of the healthcare professionals concerning the creation of the records and procedures followed during the resuscitation efforts in this case. We find no manifest error in this regard.

CONCLUSION

For the foregoing reasons, the judgment in favor of Glenwood Regional Medical Center is affirmed. Costs are assessed to Plaintiff/Appellant, Debra Sensley.

AFFIRMED.

      . Nurse Brown testified that a peri-anesthesia nurse is one who works primarily with preoperative, intra-operative and post-operative anesthesia patients.


source: Caselaw Access Project

author: hPEATROSS, J.

license: Public Domain

text:
    Gracie Gail DURMON and James Wesley Durmon, Plaintiffs-Appellants, v. Michael BILLINGS, et al., Defendants-Appellees.
    No. 38,514-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Rehearing Denied June 17, 2004.

      Cady & Cady by W. Michael Cady, Shreveport, for Appellants.
    Mayer, Smith & Roberts, L.L.P. by Kim Purdy Thomas, Shreveport, for Appellees.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   hPEATROSS, J.

This personal injury action arises out of Plaintiff Gracie Gail Durmon’s injury sustained when she fell while going through the corn field “MaiZE” on Sentell Road in Dixie, Louisiana, in 2002. The trial court granted summary judgment in favor of Defendants, Michael and Lei Lani Billings (“the Billingses”), the owners of the MaiZE, and Western World Insurance Company (“Western”), insurer of the MaiZE. In addition, the trial court denied Plaintiffs’ motion for partial summary judgment on the issue of Western’s alleged bad faith in failing to disclose the existence of a policy of insurance it had issued to the MaiZE that possibly provided coverage for Mrs. Durmon’s injuries. Plaintiffs appeal both rulings. For the reasons stated herein, we affirm.

FACTS

The following facts are undisputed. In 2002, Michael and Lei Lani Billings leased a parcel of land on Sentell Road in Dixie and bought a franchise for a corn field maze called the “MaiZE.” The MaiZE consists of paths cut in a corn field where people pay admission to attempt to find their way out of the maze of paths. Mr. Billings constructed the MaiZE and opened for business at the beginning of the Fall/Halloween season. The MaiZE totaled five miles of pathways and had three separate phases: (1) a short and easy maze; (2) a longer, more difficult haunted maze; and (3) the longest and most complicated maze. During the second phase of the MaiZE, among other scary exhibits, a man dressed in costume as “Jason” from the movie Friday the Thirteenth (wearing an orange jumpsuit and | ¿white hockey mask) scares participants with a chainsaw (from which the chain had been removed).

One could purchase tickets for admission to one or more phases of the MaiZE. There are employees of the MaiZE called “corn cops” stationed throughout the maze to assist patrons when necessary. The rules of the MaiZE are told to all patrons before entering — running, pushing and shoving are specifically prohibited.

On October 11, 2002, Plaintiff Gracie Durmon accompanied the youth group from her church to the MaiZE. It had been raining over the last several days in Caddo Parish and the church group had called to verify that the MaiZE would be open that night. The group paid for admission to phases one and two (the haunted phase) of the MaiZE. Separate fees were charged for admission to each phase of the MaiZE; in other words, an additional fee was paid for admission to phase two. The group began its adventure through phase one of the MaiZE at approximately 7:00 p.m. While venturing through phase one of the MaiZE, Mrs. Durmon noticed that the paths were muddy, but did not complain to anyone about the condition of the paths. After reaching the end of phase one, despite her knowledge of the muddy paths, Mrs. Durmon chose to continue into the haunted phase two of the MaiZE. Mrs. Durmon was aware before entering phase two that the aim of this phase was to scare the participant. Mrs. Durmon heard the chainsaw during her adventure through phase one, so she was aware that a chainsaw was used in the haunting of phase two. Around 9:15 p.m., as Mrs. Durmon was nearing the exit of phase two, “Jason” approached her laholding the running chainsaw over his head. Mrs. Durmon attempted to turn and run when she fell and broke her leg in the area of her ankle. There was no physical contact between “Jason” and Mrs. Durmon.

Mrs. Durmon and her husband filed suit against the Billingses and Brett Herbst, from whom the Billingses purchased the franchise, for damages resulting from her injury. In the petition, Mrs. Durmon alleged that her injuries were a direct result of the negligence of the owners of the MaiZE and that the cornfield presented an unreasonably dangerous condition on the night of her fall, i.e., the paths were muddy from recent rain, and the Billingses knew of the dangerous condition and failed to correct it or warn her of the same. Mrs. Durmon subsequently amended her petition, adding Western as a defendant. Defendants Billingses and Western filed a motion for summary judgment alleging that the undisputed facts of this ease do not allow recovery for Mrs. Durmon as a matter of law. Plaintiffs filed a motion for partial summary judgment on the issue of the alleged bad faith of Western under La. R.S. 22:1220.

|4The trial court granted the Billingses’ and Western’s motion for summary judgment, finding that, while there was evidence that the paths were muddy, the evidence did not support the conclusion-that the paths presented an unreasonably dangerous condition: The trial court further stated that the muddy conditions would have been equally visible and apparent to Mrs. Durmon as to Mr. Billings and further stated that the evidence did not support that Mr. Billings or any of his employees were negligent in causing Mrs. Durmon’s accident. Finally, the trial court denied Mrs. Durmon’s motion for partial summary judgment on the issue of the alleged bad faith of Western.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

|RThe burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on-the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then.shifts to the non-moving party to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. Once the burden has shifted, the opponent must produce factual support to avert the summary judgment. If the opponent fails to produce such evidence, summary judgment is mandated. La. C.C.P. art. 966 C(2); Racine, supra; Garsee v. Bowie, 37,444 (La.App.2d Cir.8/20/03), 852 So.2d 1156.

Appellate review of the grant or denial of summary judgment is de novo. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546.

The Billingses’ and Western’s Motion for Summary Judgment

The Billingses’ and Western’s motion for summary judgment alleged, and they assert on appeal, that none of the material facts in this case are in dispute. They argue that, based on the undisputed facts, there was no duty owed to Mrs. Durmon to protect her from her reactions as she ventured through the haunted maze, nor was there any duty on the part of the Billingses to correct or warn of any alleged unreasonably dangerous (muddy) conditions at the MaiZE. We agree.

| ^Attached to the motion for summary judgment were excerpts from the deposition of Mr. Billings, Mrs. Durmon and Joshua Johnson. These items do not contradict the factual statements enumerated earlier in this opinion. In opposition to the motion for summary judgment, Mrs. Durmon submitted the affidavit of Dr. Wayne Hudnall summarizing his findings from a “Soil Investigation Report” he completed on the soil at the MaiZE. The affidavit states that there were heavy rains “in Caddo Parish” the two days prior to the accident and that the pathways of the MaiZE were slippery on the day Mrs. Durmon fell. There were several low, muddy spots leading up to the area where she fell. The affidavit also mentions sharp rocks protruding from the pathways. Dr. Hudnall opined that these factors created an unreasonably dangerous condition that caused Mrs. Durmon’s fall. According to Dr. Hudnall, the spreading of sand along the pathways and the removal of the rocks were inexpensive, economical ways to improve the condition and eliminate the hazards.

Approximately 1500 patrons went through the MaiZE on the night of the accident and there were no other reported falls. The only other reported accident or fall during the entire season was a fall sustained by a lady with only one leg — and she was not injured.

Liability under La. C.C. article 2317 and 2317.1

Art. 2317. Acts of others and of things in custody
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
l7Art. 2317.1. Damage caused by ruin, vice, or defect in things
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

There is no dispute that the Bill-ingses had garde of the MaiZE and that the paths were muddy the night Mrs. Dur-mon fell and was injured. The fact that an accident occurred as a result of a defect, however, does not elevate the condition of the thing to that of an unreasonably dangerous defect. Alexander v. City of Baton Rouge, 98-1293 (La.App. 1st Cir.6/25/99), 739 So.2d 262, writ denied, 99-2205 (La.11/5/99), 750 So.2d 188, citing Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). The past accident history of the defect in question is a factor to be taken into consideration in determining the relative risk of injury. The degree to which a danger may be observed by a potential victim is another factor considered in the determination of whether a condition is unreasonably dangerous. Alexander, supra, citing Wallace v. Slidell Memorial Hosp., 509 So.2d 69 (La.App. 1st Cir.1987).

In determining whether a defect or unreasonable risk of harm is present, the jurisprudence notes that the defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Jackson v. Gardiner, 34,643 (La.App.2d Cir.4/4/01), 785 So.2d 981, citing Penton v. Schuster, 98-1068 (La.App. 5th Cir.3/30/99), 732 So.2d 597. The duty which a landowner owes to persons entering his property is governed by a standard of reasonableness, and a potentially dangerous condition that should be obvious to all is not unreasonably dangerous. Thornton v. Board of Supervisors of Louisiana State University, 29,898 (La.App.2d Cir.10/29/97), 702 So.2d 72, citing Butzman v. Louisiana Power and Light Co., Inc., 96-2073 (La.App. 4th Cir.4/30/97), 694 So.2d 514. This court and other circuits have consistently held that, where a risk of harm is obvious, universally known and easily avoidable, the risk is not unreasonable. Carroll v. Holt, 36,615 (La.App.2d Cir.12/11/02), 833 So.2d 1194; Robertson v. State ex rel. Department of Planning and Control, 32,309 (La.App.2d Cir.12/10/99), 747 So.2d 1276, writ denied, 00-0041 (La.2/25/00), 755 So.2d 882; Tucker v. American States Insurance, 31,970 (La.App.2d Cir.9/22/99), 747 So.2d 620; Thornton, supra; Butzman, supra; Henshaw v. Audubon Park Com’n, 605 So.2d 640 (La.App. 4th Cir.1992), writ denied, 607 So.2d 570 (La.1992).

In Thornton, supra, this court affirmed summary judgment in favor of the owner of a concrete walkway. The plaintiff, Mrs. Thornton, was injured when she slipped and fell on leaves that had accumulated on the walkway. This court concluded that summary judgment was proper because Mrs. Thornton admitted in her deposition that she was aware of the leaves on the walkway and the possible danger they could pose. Despite this knowledge, Mrs. Thornton chose to walk over the leaves. Likewise, in the |flcase sub judice, Mrs. Durmon’s deposition testimony establishes that she was aware of the muddy condition of the paths of the MaiZE from her adventure through phase one. She testified that there were “corn cops” who had flashlights stationed throughout the MaiZE to assist patrons. Mrs. Durmon acknowledged the possible danger of walking on the muddy paths, but did not complain of or report the condition to anyone. Despite her knowledge of the mud, Mrs. Durmon chose to continue into phase two of the MaiZE. Specifically, Mrs. Durmon testified as follows:

Q: Did [the mud] cause you any concern?
A: As far as what aspects?
Q: That you were unsteady, unstable on your feet. It was so slippery you thought you were going to fall, that you thought your foot would become lodged in the mud, that you were going to ruin your shoes? I mean, did it give you any cause for concern?
A: Not actually.
* * :!:
Q: Whatever happened to you in phase 1 when you encountered the slippery or muddy condition did not affect your decision to go into phase 2, is that right?
A: No.
í¡í íjí
Q: You were aware then that the mud posed a potential problem for you in terms of your ambulation, walking?
A: Yes.

In addition, Mrs. Durmon admitted that there was “probably not” any difference between the terrain of phase one and phase two. This testimony establishes that the condition of the paths of the MaiZE were as obvious to | inMrs. Durmon as to the landowner and any other patron present that night. “If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff.” Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. This is such a case. Finding no duty owed by the Bill-ingses to Mrs. Durmon regarding the muddy condition of the paths, we conclude that summary judgment was properly granted in favor of the Billingses and Western.

Negligence

Negligence is examined under a duty/risk analysis. The duty/risk analysis consists of four parts: (1) eause-in-fact, (2) existence of a duty, (3) breach of duty, and (4) whether the risk, and harm caused, was within the scope of protection afforded by the duty breached. Pitre v. Louisiana Tech University, 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996); Roberts v. Benoit, 605 So.2d 1032 (La.1991). The existence of a duty is a question of law. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993); Roberts, supra.

In the instant case, the trial court found no evidence suggesting that the Billingses or any of their employees were “negligent or at fault in In causing this accident.” Mrs. Durmon argues that there are material facts at issue and that the trial court improperly engaged in credibility determinations at the summary judgment stage of the proceedings. We disagree. While our de novo review of the evidence submitted in support of and in opposition to the motion for summary judgment reveals some discrepancy in how close “Jason” came to Mrs. Durmon and his actions after her fall and in the amount of rain that had fallen in the days prior to the night of Mrs. Durmon’s accident, these are not material facts bearing on any of the elements of negligence in this case. Even accepting Mrs. Durmon’s version of events as true for purposes of our review, we conclude that there was no duty owed to Mrs. Dur-mon under the circumstances of this case.

All persons have a general duty to act in a reasonable fashion so as to avoid harming others. La. C.C. art. 2316. The proper test to determine landowner liability is whether in the management of his property, he has acted as a reasonable man in view of the probability of injury to others. Tucker, supra. More specifically, the question of what duty is owed to patrons of a haunted event has been summarized by the fifth circuit as follows:

It is well settled that assumption of the risk is no longer a valid defense under Louisiana law and that the plaintiffs knowledge and conduct are considered only to determine the extent of his comparative negligence. Thus, as set forth in Murray [v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988) ], a duty/risk analysis is first used to determine if the defendant is liable to plaintiff. Where there is no duty on the part of the defendant to protect the plaintiff from the risk involved, there can be no liability under a duty/risk analysis. The scope of the duty is a question of law and based on policy questions as to whether the particular risk falls within the scope of the duty. The key to a finding of no liability is not the plaintiff’s subjective awareness | 1?.of the risk, but the determination that the defendant did not act unreasonably vis-a-vis the plaintiff, or injure the plaintiff through the instrumentality of an unreasonably dangerous thing in his custody. As in premises used for athletic events, the owner or occupier of a Halloween haunted house is not the insurer of those participating in the event nor is he required to eliminate every source of the possibility of danger. A party’s obligation to participants is to maintain the premises in a fashion commensurate with ordinary and reasonably care. (Emphasis in original.)

Galan v. Covenant House of New Orleans, 96-1006 (La.App. 5th Cir.5/14/97), 695 So.2d 1007, citing Mays v. Gretna Athletic Boosters, Inc., 95-717 (La.App. 5th Cir.1/17/96), 668 So.2d 1207.

In Galan, a patron of a haunted house who had exited the house and thought that the “haunting” was over, was approached by “Jason” with a chainsaw and reacted to the point of injuring herself. The court found that the fact that the patron did not expect the last exhibit (“Jason”) did not make the exhibit unreasonable. Significantly, the plaintiff in Galan admitted that the purpose of the haunted house was to frighten and that she was in a visqueen covered “alleyway” exiting the house when the “Jason” scared her. For these reasons, the fifth circuit ultimately found that the operator of the haunted house had no duty to guard against the patron’s reactions to being frightened at any point while at the haunted house.

The case sub judice is strikingly similar to Galan. Mrs. Durmon was nearing completion, but had not yet exited, phase two of the MaiZE. She admitted that the purpose of phase two of the MaiZE was to scare, surprise and startle the patrons and she expected to be frightened. In addition, Mrs. Durmon testified that she heard the chainsaw before entering phase |13two and, therefore, knew that a chainsaw was used in the haunting. The fact that the haunting in this case was done in a cornfield as opposed to a house is a distinction without import. Likewise, we are not persuaded to discount the instruction of Galan because it involved a charitable function as opposed to a private business venture. In all cases, as the Galan court noted, patrons at a haunted event “are expected to be surprised, startled and scared by the exhibits and the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways.” Accordingly, we find that no duty was owed by the Billingses to Mrs. Durmon in this case to warn or protect her from her reaction to being frightened by “Jason,” an experience she expected to have and for which she paid an additional admission fee. The trial court properly granted summary judgment in favor of the Billingses and Western.

In light of our conclusion upholding the trial court’s grant of the Billingses’ and Western’s Motion for Summary Judgment, the propriety of its ruling on Plaintiffs’ Motion for Partial Summary Judgment is moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Defendants Michael and Lei Lani Billings and Western World Insurance Company is affirmed. This conclusion renders Plaintiffs’ Motion for Partial Summary Judgment moot. Costs are assessed to Plaintiffs, Gracie Gail Durmon and James Wesley Durmon.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY, and PEATROSS, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.

      . Mrs. Durmon fractured her tibia and fibula requiring surgery to repair the injury.

      . La. R.S. 22:1220 provides as follows:
      A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty-to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.

        B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
      (1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.

      (3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
      * * *

      C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings

      . We note that Mrs. Durmon argues on appeal that the presence of rocks in the paths contributed to the alleged unreasonably dangerous condition of the paths. While there seems to be no dispute that rocks were present, there was no evidence presented that Mrs. Durmon's fall was in any way caused by her stepping or slipping on or tripping over a rock of any sort. In addition, Mrs. Durmon argues on appeal that the allegedly defective chainsaw was an unreasonably dangerous thing in the custody of defendants that "could” have caused her injury, either alone or in combination with the muddy condition of the paths. The undisputed fact, however, is that there was no physical contact between Jason or the chainsaw and Mrs. Durmon. There is no evidence that the chainsaw itself contributed to or caused Mrs. Durmon’s injury-


author: JjLOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Dominique Dewayne DEARBONE, Appellant.
    No. 38,497-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Jr., Assistant District Attorney, Tommy J. Johnson, Assistant District Attorney, for appellee.
    Before CARAWAY, PEATROSS AND LOLLEY, JJ.
   JjLOLLEY, J.

After his trial commenced, defendant Dominique Dewayne Dearbone (“Dear-bone”) pled guilty as charged to two counts of robbery while armed with a firearm (La. R.S. 14:64 and 14:64.3) and one count of second degree kidnapping (La. R.S. 14:44.1). For each armed robbery count, the trial court imposed sentences of 55 years at hard labor without benefit of parole, probation or suspension of sentence, to run concurrently, plus the 5-year consecutive enhancement on each count for use of a firearm. Additionally, Dearbone was sentenced to a 30-year sentence for the kidnapping offense, without benefit of parole, probation or suspension of sentence, to run concurrently with the armed robbery sentences. Following the denial of his timely motion for reconsideration, Dearbone appealed the sentence as excessive. For the following reasons, we affirm.

Facts

The defendant herein was involved in a series of vicious armed robberies in Shreveport, Louisiana. Specifically, the matters of record show that on June 1, 2002, Dearbone and an accomplice, while armed with a revolver, forced entry to the room of an elderly couple at a Shreveport motel. They demanded and received $200 from the couple and struck the man in the mouth with the firearm, causing him to lose consciousness and to sustain permanent injury. One week later, on June 8, 2002, Dearbone accosted a handicapped woman in the parking lot of a different Shreveport motel and, at gunpoint, while threatening to kill her, forced her to drive to an ATM to withdraw cash. In addition to taking $700 in cash, Dearbone also took the victim’s ID, jewelry, a camcorder and a portable CD player.

| ¡.Subsequently, all the victims made positive identifications of Dearbone. Additionally, he made admissible inculpatory statements to various individuals, sold the stolen goods to other persons in the neighborhood and, after questioning, made a confession to both robberies.. He later pled guilty to the crimes, for which he was sentenced as stated herein. On appeal, Dearbone argues that his sentence is excessive and that the trial court did not give adequate consideration to the mitigating factors of his young age and that he had a “harsh” upbringing without parental guidance or supervision.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that she adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. Here, the instant record shows an adequate factual basis and adequate articulation of the reasons for the sentence imposed.

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is [¡¡considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864. Moreover, there is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.02/26/97), 690 So.2d 864, writ denied, 97-0705 (La.09/26/97), 701 So.2d 979.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158.

In this case, prior to imposing sentence, the trial court considered a PSI report, as well as extensive testimony from the vie-tims concerning the facts of the offenses. The trial court also heard testimony from Dearbone and his mother regarding his background.

So considering, the trial court found there was overwhelming evidence of guilt of all offenses, noting that Dearbone exhibited extreme and deliberate cruelty to his three victims, all of whom were particularly vulnerable due to age or handicap. Furthermore, the trial court noted that Dearbone had lied on several occasions, including when he once named his accomplice then recanted. The trial court found there was an undue risk of the commission of other offenses unless defendant was given a lengthy [ ¿prison sentence, and that he was in need of custodial treatment — a lesser sentence would deprecate the seriousness of the offenses. The court further noted that defendant had used threats of violence and actual violence in the commission of the offenses. Dearbone’s crime had resulted in significant permanent physical injury to the male victim of the first robbery. Finally, the only mitigating factors the trial court found were Dear-bone’s age, a lack of parental guidance, and the absence of any prior felony convictions. In making its final determination regarding Dearbone’s sentence, the trial court noted that defendant was 19 at the time of sentencing and had quit school after the eighth grade. He was single and had no dependents. Dearbone blamed his mother, crack cocaine, and his girlfriend for the offenses.

On this record and considering the applicable jurisprudence, we do not find constitutional error. The sentences imposed are lawful. The evidence shows Dearbone selected vulnerable victims whom he terrorized with his deliberate and manifest cruelty, including threats of death and the infliction of a permanent physical injury in the commission of his offenses. The trial court extended great lenience in ordering the sentences to be served concurrently, even though they involved different victims and occurred on different dates. Moreover, the trial court did not err in failing to place more emphasis on Dearbone’s background. Sadly, many people in our society share similar childhood backgrounds as Dearbone, but do not resort to the same vicious and cowardly criminal actions as he. Dearbone argues, in effect, that he should be shown leniency because society failed 1 shim; however, in this case, Dear-bone utterly failed society, and his particular sentence appropriately fits the crimes and his circumstances.

Thus, considering the totality of the circumstances of defendant’s background and the facts of the case, the cumulative sentence imposed is neither grossly disproportionate to the severity of the offense of conviction, nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s broad discretion in the imposition of this sentence, which is not constitutionally excessive. See State v. Sanborne, 02-257 (La.App. 5th Cir.10/16/02), 831 So.2d 320, writ denied, 2002-3130 (La.09/26/03), 854 So.2d 346. The convictions for armed robbery and second degree kidnapping and the sentences imposed thereon are affirmed.

AFFIRMED.


author: | .WILLIAMS, J.

text:
    Mace HITCHENS, Plaintiff-Appellant, v. Tami HITCHENS, Defendant-Appellee.
    No. 38,339-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Tommy J. Johnson, Shreveport, for Appellant.
    Gary A. Bowers, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   | .WILLIAMS, J.

The plaintiff, Emil Mace Hitchens, appeals a trial court judgment in favor of the defendant, Tami Diane Denzy Hitchens, awarding defendant interim spousal support of $2,988 per month. For the following reasons, we amend the judgment of the trial court and affirm as amended.

FACTS

Emil Mace Hitchens (“Mace”) and Tami Denzy Hitchens (“Tami”) were married on December 16, 2000, and established their matrimonial domicile in Caddo Parish. Tami has a daughter from a previous marriage, who is now fourteen years old. No children were born of the marriage. On March 5, 2003, Mace filed a petition for divorce under LSA-C.C. art. 102. On May 28, 2003, Tami filed an answer, reconven-tional demand and rule to determine incidental matters, including interim spousal support.

At the time of trial, all issues between the parties had been resolved except the issue of interim spousal support. The trial court was faced with the issue of whether to consider Tami’s earning capacity in assessing interim spousal support. After reviewing the submissions by counsel and hearing arguments, the trial court awarded Tami interim spousal support in the amount of $2,988 per month, retroactive to the date of demand. This award was subject to a credit in favor of Mace for payments he previously had made to Tami in the amount of $462 for twenty-six weeks after their physical separation. The trial court also ordered Mace to maintain medical insurance coverage for Tami until the final judgment of divorce. Mace | {.appeals the judgment.

DISCUSSION

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that spouse, the ability of the other party to pay and the standard of living of the parties during the marriage. LSA-C.C. art. 113.

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Defatta v. Defatta, 32,636, 32,637 (La.App.2d Cir.2/1/00), 750 So.2d 503; Reeves v. Reeves, 36,259 (La.App.2d Cir.7/24/02), 823 So.2d 1023. A spouse’s right to claim interim periodic support is based on the statutorily-imposed duty of the spouses to support each other during their marriage. McAlpine v. McAlpine, 94-1594 (La.09/05/96), 679 So.2d 85.

The needs of the wife have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband’s ability to pay. Whatley v. Whatley, 430 So.2d 129 (La.App. 2d Cir.1983); Braswell v. Braswell, 494 So.2d 1333 (La.App. 2d Cir.1986). In order to demonstrate the need for interim periodic spousal support, the claimant has the burden of proving that he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the parties’ marriage. Clark v. Clark, 34,314 (La.App.2d Cir. 11/1/00), 779 So.2d 822; Thomey v. Thomey, 33,000 (La.App.2d Cir.4/7/00), 756 So.2d 698; Hollowell v. Hollowell, 437 So.2d 908 (La.App. 2d Cir.1983).

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of that discretion. Clark v. Clark, supra; Thomey v. Thomey, supra. Encompassed in the trial court’s discretion is the ability of the court to examine the spouses’ entire financial condition, which is not limited to income, but also includes any resource from which his or her needs can be supplied, including a spouse’s earning capacity. Bagwell v. Bagwell, 35,728 (La.App.2d Cir.3/8/02), 812 So.2d 854, citing, Smoloski v. Smoloski, 01-0485 (La.App. 3d Cir.10/03/01), 799 So.2d 599; Goldberg v. Goldberg, 96-2145 (La.App. 4th Cir.07/23/97), 698 So.2d 63.

In his assignments of error numbers one and two, the plaintiff makes the same argument, therefore we will review them jointly. In his first assignment of error, Mace contends the trial court erred when it failed to consider Tami’s need in awarding interim support. Alternatively, by assignment of error number two, he argues that the trial court committed manifest error in failing to consider Tami’s earning capacity in determining the amount of interim spousal support to which she was entitled. Mace argues that the trial court should have subtracted Tami’s earning capacity of $1503.06 from her total monthly expenses of $2,977.11.

The trial court considered the factors required by LSA-C.C. art. 113, governing interim spousal support. In its “Reasons for Judgment,” the trial |4court considered Tami’s expenses, the ability of Mace to pay and the parties’ standard of living during the marriage. The court considered the financial condition of both spouses and discussed Tami’s earning capacity. The court noted that in 2002 Mace earned $118,643.08 and Tami earned $10,422.63. The court also noted that from January 1, 2003 through June 8, 2003, Mace had worked 1,387.1 hours and grossed $70,591.03, for an average rate of $51.00 per hour. In determining the amount of interim periodic spousal support to be awarded to Tami, the trial court computed seventy-five percent of Tami’s average monthly wage for the period of February 1998 to May 2002, when she stopped working. The court found that Tami’s average monthly wage for that period was $2,004.08, and that seventy-five percent of her monthly wages amounted to $1,503.06. The court explained that it was considering seventy-five percent of Tami’s earning capacity because she had terminated her employment “with the acquiescence of her husband” and she must have “some reasonable time to ... reach her previous earning capacity.”

The trial court accepted into evidence Mace’s June 12, 2003 “Statement of Earnings and Deductions.” From that document, the trial court calculated Mace’s monthly net income as $7,479.46. The court next subtracted the figure it had reached as Tami’s reasonable monthly earning capacity from Mace’s monthly net income and arrived at the amount of $5,976.40. The court then divided this amount by one-half to arrive at a figure of $2,988.20. The trial court noted in its “Reasons for Judgment” that | Rthe Hitch-ens enjoyed “a substantial standard of living, albeit the marriage was of short duration.” The court then awarded Tami $2,988 per month in interim spousal support.

After a thorough review of this record, we conclude that the trial court properly considered both Tami’s earning capacity and her needs or expenses in arriving at the award for interim spousal support. We find no abuse of the trial court’s discretion here. These assignments are without merit.

Mace also contends that the trial court erred in ordering him to maintain medical insurance coverage for Tami through his employer until the divorce, while at the same time considering the $307.55 medical insurance cost as one of her monthly expenses. We find that this assignment of error has merit. While we do not find that the court abused its discretion in ordering Mace to maintain medical insurance for Tami, we find that it erred in including the $307.55 cost for medical insurance as one of her monthly expenses. Therefore, we shall amend the judgment to reduce the interim spousal support awarded to Tami to the sum of $2,681. This amount reflects a deduction for the cost of medical insurance ordered to be maintained by Mace.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to reduce the interim spousal support awarded to Tami Hitchens from $2,988 to $2,681 per month. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are assessed one-half to Emil Mace Hitchens Land one-half to Tami Diane Denzy Hitch-ens.

AMENDED, AND AS AMENDED, AFFIRMED.

      . In its “Written Reasons for Judgment,” the trial court calculated the interim spousal support as $2,988.20; however, the final judgment awarded Tami $2,988 for inlerim spousal support.

      . The record supports the trial court’s finding that Tami had terminated her employment to travel with Mace.


author: It STEWART, J.

text:
    Debra W. LINOSKI and Alex M. Linoski, Plaintiffs-Appellants v. FLEETWOOD HOMES OF TEXAS, #12, Fleetwood Enterprises, Inc., and Brewer’s Quality Homes, Inc., Defendants-Appellees.
    No. 38,338-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Mills, Turansky & Cox by David C. Tu-ransky, Shreveport, for Appellants.
    Gold, Weems, Bruser, Sues & Rundell by Robert G. Nida, Alexandria, for Appel-lees, Fleetwood Homes of Texas, # 12 and Fleetwood Enterprises, Inc.
    Joseph M. Clark, Sr., for Appellee, Brewer’s Quality Homes, Inc.
    Before STEWART, GASKINS and DREW, JJ.
   It STEWART, J.

At issue in this appeal is whether an award of attorney’s fees in a successful redhibition action should be increased. Finding that the trial court abused its discretion in awarding only $2,500.00 in attorney’s fees, we amend the judgment to increase the award as set forth herein.

FACTS

In this appeal, the plaintiffs, Debra and Alex Linoski, seek an increase in the award of attorney’s fees granted in their successful redhibition action against the defendant, Brewer’s Quality Homes, Inc., (Brewer’s). The plaintiffs’ suit stems from their purchase of a mobile home from Brewer’s. The manufacturer of the mobile home, Fleetwood Homes of Texas, #12, and its parent corporation, Fleetwood Enterprises, Inc., were also named as defendants in the suit.

In a written ruling following a bench trial, the trial court denied the plaintiffs’ redhibition claim against the two Fleet-wood defendants. However, the trial court granted the plaintiffs’ redhibition claim against Brewer’s and ordered Brewer’s to refund the entire purchase price minus rental value for the period of the plaintiffs’ possession of the home. Judgment was rendered in favor of the plaintiffs and against Brewer’s for the sum of $39,010.00, less a credit of $7,950.00 representing the rental value. Plaintiffs were also awarded attorney’s fees of $2,500.00 and costs of the proceedings.

Seeking an increase in the amount of attorney’s fees and an award for legal interest, the plaintiffs filed a motion for new trial and rule to tax costs. The claim for an increase in attorney’s fees was supported by billing records 12and the affidavit of Sarah U. Richardson, office manager for Mills, Turansky, & Cox, the firm of plaintiffs’ counsel, David C. Turansky. In her affidavit, Richardson attested to the correctness of Turansky’s billing records showing total fees of $11,850.00 billed for 79 hours of attorney time at $150.00 an hour and expenses of $1,160.25. The trial court granted the motion to award legal interest on the judgment but denied an increase in attorney’s fees. This appeal followed.

DISCUSSION

The plaintiffs argue that the trial court abused its discretion in awarding only $2,500.00 in attorney’s fees and in failing to award expenses. They further argue that the trial court failed to consider evidence concerning the amount of time and expense incurred by plaintiffs’ counsel in litigating this matter. The plaintiffs admit that they did not introduce evidence regarding attorney’s fees at trial, other than the fact that they obtained legal counsel at $150 per hour, because they believed it inappropriate to address the issue until the trial court determined that an award of attorney’s fees would be appropriate. They expected that the amount of attorney’s fees, once such an award was determined to be appropriate, would be triable by a rule to show cause as provided by La. C.C.P. art. 2592(1). Plaintiffs assert that the amount of attorney’s fees is not sufficient to meet the goal of such an award in a redhibition case, i.e., restoring the purchaser to the condition 13he or she enjoyed prior to the sale. Brewer’s neither answered the appeal nor filed a brief.

A successful plaintiff in an action for redhibition may recover reasonable attorney’s fees incurred in bringing the action if the seller knew or should have known of the defect in the object or thing that was the subject of the sale. La. C.C. art. 2545; Dailey v. The Home Furnishings Store, 2002-1225 (La.App. 4th Cir.9/17/03), 857 So.2d 1051. However, a trial court has great discretion in awarding attorney’s fees in a redhibition case. Philippe v. Browning Arms Company, 395 So.2d 310 (La.1980).

An award of attorney’s fees must be reasonable, based upon the degree of skill and work involved in the case, the number of court appearances, the depositions, and the office work involved. Gaston v. Bobby Johnson Equipment Co., Inc., 34,028 (La.App.2d Cir.11/03/00), 771 So.2d 848; Frentress v. Howard, 31,609 (La.App.2d Cir.2/24/99), 728 So.2d 1019. Reasonableness of attorney’s fees is determined by the factors set forth in Rule 1.5(a) of the Rules or Professional Conduct, which include: (1) the time and labor required, the novelty or difficulty of the issues, and the skill required to properly perform the legal services; (2) the likelihood, if apparent to the client, that the matter will preclude other employment; (3)the fee customarily charged in the locality for similar services; (4) the amount involved and results obtained; (5) the time limitations involved by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, | reputation, and ability of the lawyer; and (8) whether the fee is fixed or contingent.

Evidence to be considered in awarding attorney’s fees is addressed in La. R.S. 13:3738, which provides as follows:

In any claim for attorney fees, whether by main, incidental demand, or rule nisi, or otherwise, the court shall allow the introduction of all admissible evidence, in accordance with law, including real and documentary evidence and testimony, and shall allow oral and written argument in support thereof, and such evidence, testimony and argument shall be considered by the court in rendering judgment on the demand.

The trial testimony of Alex Linoski established that the plaintiffs contracted with counsel for legal services at a rate of $150 an hour, discounted from $165 an hour. The contract was introduced into evidence and shows the agreed upon hourly fee. Specifics regarding the services provided were not addressed at trial. The trial court’s ruling does not provide any guidance as to why the court set the award at $2,500.00, an amount we find to be unreasonably low on the basis of this record. Review of the record reveals the substantial time and labor expended by counsel in representing the plaintiffs and litigating this matter. In addition to preparing the petition and filing the suit, counsel successfully asserted a motion to strike an affirmative defense, prepared interrogatories, took depositions of witnesses, attended an inspection of the mobile home, tried the case, and prepared a post-trial brief. The billing records also show that counsel was diligent in maintaining contact with his clients about the case.

In the motion for new trial, the plaintiffs offered the billing records of their counsel supported by the affidavit of the office manager to verify that |ficounsel expended 79 hours of work for a total fee of $11,850.00 and incurred expenses in the amount of $1,160.25. There is nothing in the record to suggest that this fee is unreasonable or to question the services performed and time expended by counsel on behalf of the plaintiffs. Moreover, Brewer’s has not opposed this matter on appeal by either answering the appeal or filing a brief.

A trial court has great discretion in ruling on a motion for a new trial, and its decision will not be disturbed absent an abuse of that discretion. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La.11/28/00), 774 So.2d 84, rehearing denied, 2000-0445 (La.6/1/01), 785 So.2d 819. In this instance, we find that the trial court abused its discretion in denying the motion for a new trial and in failing to increase the amount of attorney’s fees awarded. An award of only $2,500.00 is not sufficient to compensate counsel for the time and expertise expended on this matter. The record demonstrates the sound quality of legal services provided on behalf of the plaintiffs, the thoroughness of counsel’s preparation, and the good outcome obtained through counsel’s efforts. In a red-hibition action, reasonable attorney’s fees should be awarded to justly compensate plaintiffs who succeed in establishing liability on the part of the seller or manufacturer under La. C.C. art. 2545. An award of attorney’s fees encourages both plaintiffs to pursue meritorious redhibition actions and attorneys to represent plaintiffs with solid claims. Moreover, an award of attorney’s fees in addition to damages discourages sellers and manufacturers from selling shoddy, defective products in the marketplace.

1 (¡Based on this record, we find that plaintiffs established the amount of attorney’s fees incurred, and we find that amount to be reasonable. For these reasons, we award attorney’s fees ($11,850.00) and expenses ($1,160.25) totaling $13,010.25. Also, as requested by plaintiffs and considering the additional effort and time expended in the appeal of this matter, we award an additional $1,000.00 in attorney’s fees. Accordingly, the trial court’s judgment is amended to award total attorney’s fees and expenses of fourteen thousand ten dollars and twenty-five cents ($14,010.25). Costs assessed to the defendant, Brewer’s Quality Homes, Inc.

AMENDED.

      . La. C.C.P. art. 2592(1) provides as follows:
      Summary proceedings may be used for trial or disposition of the following matters only:
      (1) An incidental question arising in the course of judicial proceedings, including the award of and the determination of reasonableness of attorney’s fees.