author: JOHNSON, Justice.

text:
    Yolanda Griffin Henderson, wife of/and Fred HENDERSON, LeRoy Griffin and Edna Poydras v. NISSAN MOTOR CORPORATION U.S.A. and/or Nissan Motor Company, Ltd., State of Louisiana Department of Transportation and Development, Christian K. Schwartz, John S. Schwartz, CNA Insurance Group and United Service Automobile Association.
    No. 2003-C-606.
    Supreme Court of Louisiana.
    Feb. 6, 2004.
    Rehearing Denied April 23, 2004.

      Charles C. Foti, Jr., Attorney General, Gerard S. Vezina, Kathi V. Logan, Vezina & Gattuso, for applicant.
    Michael P. Ciaccio, Vincent J. Glorioso, Jr., New Orleans, Thomas G. Wilkinson, Gretna, Jay M. Napolitano, New Orleans, for respondent.
   JOHNSON, Justice.

The Louisiana Department of Transportation and Development (DOTD) filed this writ application, and we granted certiorari in order to determine whether the Court of Appeal applied the correct standard of review when it found that the jury was clearly wrong or manifestly erroneous in its apportionment of 5% of the fault for a motor vehicle accident to the DOTD and reassigned the DOTD 50% fault. For the following reasons, we conclude that the Court of Appeal misapplied the manifest error-clearly wrong standard, and reinstate the original jury verdict.

FACTS AND PROCEDURAL HISTORY

This case arises out of a two-vehicle accident involving Fred Henderson and his then-fiancé Yolanda Griffin Henderson, and Christiane Schwartz, who was traveling in a separate vehicle. On July 26, 1993, the Hendersons were traveling eastbound in the left lane of Interstate 10 in Mr. Henderson’s 1988 Nissan 2000 SX. Mrs. Henderson was sitting in the passenger seat and wearing a seat belt. Ms. Schwartz was operating a 1992 Honda Accord on I — 10 eastbound in the right lane. Mr. Henderson testified that he was traveling approximately 55 miles per hour and was reducing speed in anticipation of crossing the “Three Mile Bridge” just north of Laplace, Louisiana. Ms. Schwartz, according to her testimony, was traveling between 55 and 65 miles per hour. The speed limit at the time of the accident was 65 miles per hour. At trial, Mr. Henderson testified that the weather had been slightly misty earlier in the day, although it was not raining at the time of the accident. Neither Mrs. Henderson, Ms. Schwartz, or Deputy Blaine Wear, who investigated the accident for the St. John the Baptist Sheriffs Office, testified as to the weather conditions present at the time of the accident.

As she approached the bridge, Ms. Schwartz crossed a portion of the roadway that had been repaired by the DOTD four months earlier. This stretch of roadway at mile marker 201.9 was repaired by Bar-riere Construction Company, which had successfully bid to repair the buckling concrete which had become cracked and uneven. The concrete patch was approximately 20 ft. long by 12 ft. wide in the eastbound right lane of the roadway. At trial, Ms. Schwartz testified that she felt as though her vehicle had either been struck from behind or she had run over something in the roadway. She then lost control of her vehicle and veered into the left lane. Ms. Schwartz struck the right rear bumper of the Hendersons’ car, causing it to strike the | ..guardrail and ricochet back into the path of her vehicle. Ms. Schwartz then struck the Henderson vehicle for the second time, and Mrs. Henderson was ejected from the vehicle. Mrs. Henderson was transported by ambulance to River Parishes Hospital, where she stayed for several days, and was subsequently transferred to University Hospital in New Orleans where she was hospitalized for a month and a half. As a result of the accident, Mrs. Henderson sustained serious, life threatening injuries, including a traumatic near amputation of her lower left leg below the knee. As a result of her extensive injuries, Mrs. Henderson underwent multiple reconstructive surgeries, which included grafting muscles, arteries and skin from her back in order to reattach her leg. Consequently, Mrs. Henderson suffered extensive scarring, disfigurement and deformity in several areas of her body, especially her left leg. She experienced a long period of rehabilitation following re-attachment of the limb and her recovery was wrought with anxiety and depression.

The Hendersons filed a petition for damages naming Nissan Motor Corporation, Schwartz, Schwartz’s father as the owner of the vehicle, USAA Insurance Company and CNA Insurance Group, and the DOTD as defendants. In January of 1999, the Hendersons added Barriere Construction Company, which provided the labor, equipment, materials, and supervision for the repair work on the patch as an additional defendant. Barriere filed a motion for summary judgment, which was granted by the trial court, arguing it had no liability because the work was performed in accordance with plans and specifications furnished by the DOTD, and the DOTD supervised and accepted the work. With the exception of the DOTD, all other parties settled with the plaintiffs prior to trial.

Trial before a jury was then held from April 9 through April 12, 2001, with the jury returning a verdict in favor of the Hendersons. After denial of plaintiffs’ motion |4for a judgment notwithstanding the verdict (JNOY) and alternative motion for new trial, on the issues of the apportionment of fault and failure to award damages for proven elements of plaintiffs’ claims; the trial court entered judgment in accordance with the jury’s verdict.

Both DOTD and the Hendersons timely appealed the trial court’s judgment to the Louisiana Court of Appeal for the Fifth Circuit. DOTD appealed the jury’s apportionment of fault and the quantum of damages awarded by the jury. Plaintiffs appealed the jury’s finding of fault on the part of Ms. Schwartz, and alternatively, the jury’s mis-apportionment of fault, as well as the failure of the jury to make awards for specific items of damage that were proven at trial. The Court of Appeal, after reviewing the evidence presented at trial, found that the jury was clearly wrong and committed manifest error in apportioning only 5% of the fault to the DOTD and reapportioned fault equally between Schwartz and the DOTD. The Court of Appeal also found manifest error on the part of the jury with respect to several of the damage awards, and modified those awards. The DOTD applied for rehearing from the First Circuit Court of Appeal, which denied their application.

DOTD timely sought a writ of certiorari from this Court to review the Fifth Circuit’s modification of the apportionment of fault, which this Court granted. The DOTD did not seek review of the quantum awarded to either plaintiff, therefore, the Court of Appeal’s decision is final on the issue of quantum.

DISCUSSION

In its second assignment of error, which we discuss first, the DOTD alleges that the jury erred in assigning even nominal fault to the DOTD for its role in | ^designing and executing the patch. Therefore, we must determine whether the DOTD has any liability to the plaintiffs under the theories of strict liability or negligence.

Strict Liability

Under La. Civ.Code Art. 2317 “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 theory of strict liability is applicable where damages are caused by instrumentalities in one’s custody or control. Petre v. State ex rel. Dept. of Transp. and Dev., 01-0876 (La.4/3/02) 817 So.2d 1107, 1110. Generally, in claims alleging strict liability, as opposed to claims of negligence, the plaintiff is relieved of proving that the owner or custodian of the thing that caused the damages knew or should have known of the risk involved. Petre, 817 So.2d at 1110. In Petre, this Court found that La. Rev.Stat. 9:2800 limited the liability of public entities for the damage caused by things in their custody, and public entities will only be held liable when they had actual or constructive knowledge of the defect and a reasonable opportunity to remedy the defect yet failed to do so. Id. As a State agency the DOTD is subject to limited liability under Art. 2317 as a result of La. R.S. 9:2800. Since La. R.S. 9:2800 limits the liability of State agencies with regard to strict liability, the duty owed by the IfiDOTD under the theories of strict liability and negligence is the same. Id.

Negligence

Under a theory of negligence, liability hinges on whether the defendant has breached a duty which he owes to the plaintiff. See Lockett v. State, Dept. of Transp. and Dev. 02-0651 (La.App. 1 Cir. 4/2/03), 844 So.2d 949, 954. Generally, the DOTD’s duty to its travelers is to keep the state’s highways in a reasonably safe condition for persons exercising ordinary care. Id. An unreasonably dangerous condition in a roadway results in a breach of duty by the DOTD. Id. To establish a breach of the DOTD’s duty, the following requirements must be met:

(1) the thing which caused the damage must be in the care or custody of the defendant;
(2) a hazardous condition existed;
(3) DOTD must have actual or constructive knowledge of said condition and;
(4) DOTD must fail to take corrective action within a reasonable period of time.

See Graves v. Page, 96-2201(La.11/7/97), 703 So.2d 566, 571.

The jury found, considering the evidence as a whole, that the plaintiffs met their burden of proving the four elements of a negligence claim. First, with regard to custody, plaintiffs proved that the highway was constructed, maintained, and inspected by the DOTD. Second, regarding the defectiveness of the patch, plaintiffs offered testimony from two experts to prove their theory of the case. Plaintiffs called expert witness James Clary, a civil engineer and land surveyor who had been qualified several hundred times as an expert in highway safety, design, maintenance, signing and surveying. The survey prepared by Clary showed that from the highest point to the lowest point in a 10 foot section of roadway, there was a dip or depression of 5/£ inches. In Clary’s opinion, such a deep depression could lead to a loss of control when a vehicle was traveling at high speeds in wet weather. ^Specifically, Clary testified that traveling through the depression created “bouncing” that could frighten a driver and cause him to lose control of a vehicle. Clary testified that the patch did not meet the safety specifications outlined by the DOTD in their own “gold book,” which contains the “Standard Specifications for Roads and Bridges.” According to Clary, the patch was unequivocally unsafe.

Plaintiffs second expert, accident recon-structionist Dale Moore, died before the case went to trial and therefore his testimony was presented by deposition. Moore opined that the patch caused lateral instability (side to side movement) in some vehicles, and that lateral instability could result in driver over-correction with a resulting loss of control of the vehicle. Moore testified that a vehicle traveling 60 mph is traveling 88 feet per second, and therefore, Schwartz traveled the 112 feet between where she initially encountered the patch and the Henderson vehicle too quickly to avoid the accident. Moore concluded that it was “more probable than not” that the patch caused the accident.

Finally, plaintiffs examined several DOTD employees to satisfy the notice requirement. They testified that the department was aware that the patch was a problem, but budgetary constraints prevented the DOTD from repairing a larger section of the roadway, which plaintiffs argued would have prevented the accident. Stephen Perilloux, an engineer with the DOTD, testified that there were dips all over this roadway. He further testified that the patches were not intended to take the dips out. The bid specifications required repair only where the concrete had failed.. Maurice Jordan, DOTD district administrator, testified that he was informed by the Secretary of the DOTD that this area was a problem. Jordan further testified that prior to the crash he was aware that a section of the road much larger than the 20' ft. patch needed to be resurfaced, however, the DOTD did not have the funds necessary lsto do the complete job. It is important to note that this repair project came in under budget and therefore, the DOTD did not spend all of the allocated funds available to pay Barriere Construction Co. to repair this portion of the highway. Based upon the evidence presented, the jury found that the DOTD violated its duty to insure that the highway was reasonably safe for persons exercising ordinary care and reasonable prudence.

II.

In its first assignment of error, which we now address, the DOTD alleges that the court of appeal erred by misapplying the manifest error rule when it found the jury’s original apportionment of fault clearly wrong. We agree, and find that the Court of Appeal did commit error in modifying the original apportionment of fault assigned by the jury. The facts of this ease clearly show that the conclusions reached by the jury were reasonable based upon the evidence.

The Standard of Review

An appellate court may not set aside a jury or trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State, Dept. of Tramp, and Dev., 617 So.2d 880, 882 (La.1993). The facts in Stobart are analogous to those present in the instant case, therefore it is beneficial to review the facts considered by this Court while deciding Stobart. While crossing a bridge, Mrs. Stobart attempted to traverse from the left to the right lane, and as she exited the bridge, lost control of her vehicle. Id. at 881. Her vehicle rolled over several times before coming to a stop and Mrs. Stobart was seriously injured. Id. Mrs. Stobart, along with her husband, filed suit against the DOTD, claiming that a defect in the road caused her to lose control of her truck. Id. The trial judge apportioned fault at 50% to the DOTD and 50% to Mrs. Stobart. Id. The court of appeal reversed, finding 19that the “sole reason for the accident was Stobart’s failure to maintain control of her vehicle”, the evidence presented at trial failed to establish that a defect existed in the roadway, and further, if a defect did exist, that plaintiffs failed to prove by a preponderance of the evidence that the DOTD had actual or constructive notice of the defect. Id. at 881-82. This Court reversed and reinstated the findings of the trial court, and further, articulated the now well-established doctrine that a trial court’s factual findings should not be reversed on appeal absent manifest error. Id. at 882. In Mart v. Hill, 505 So.2d 1120 (La.1987) this Court articulated a two-part test to guide the lower courts when contemplating the reversal of a trial court’s factual determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d at 1127.

The test articulated in Mart v. Hill which guided this Court’s findings in Stobart requires that even where the reviewing court may believe that its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal where the record merely demonstrates conflicting testimony as to the facts at issue, and the fact finder chooses to believe one version, rather than the other. Stobart, 617 So.2d at 882.

There is no legitimate conflict in testimony where documents or objective evidence so contradict the witness’s story, or the story presented by the witness is so internally inconsistent or implausible on its face, that a reasonable fact-finder could not give credence to the witness’s testimony. Id. Faced with such circumstances, the |incourt of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id. However, where a conflict exists in the testimony, the issue to be resolved by the reviewing court is not whether the trier was right or wrong, but whether the decision reached by the trier was reasonable. Id at 882-83.

The manifest error-clearly wrong standard of review is based upon the recognition of “the trial court’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, but also upon the proper allocation of trial and appellate functions between the respective courts.” Id. at 883. See also Canter v. Koehring Co., 283 So.2d 716 (La.1973). Accordingly, where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Finally, the trial court need not choose between competing expert testimony in forming its opinion where “the facts alone provide a basis for the trial court’s decision.” See Theriot v. Lasseigne, 93-2661, (La.7/5/94) 640 So.2d 1305, 1313.

We first address the jury’s finding that the patch placed by the DOTD contributed to Ms. Schwartz losing control of her vehicle. Ms. Schwartz testified that she lost control of her car as a result of traveling through the patch. According to Ms. Schwartz, she was traveling at 60 to 65 mph, was not under the influence of drugs or alcohol, and was not overly tired while on the road that day. She also testified that her 1992 Honda Accord was only one year old and she had never experienced problems with her suspension or front end. In addition, Ms. Schwartz described her experience as she traversed the patch, and testified “as my car was traveling it went down through the dip and as it came up my car started to wobble and shake and it felt like almost my tires could have possibly come off the ground briefly.” She then |-n testified that even though she attempted to maintain control of her car, the accident took place in a manner of seconds and she did not have time to veer, swerve, or brake to prevent the accident.

Further, the jury heard testimony from Deputy Wear, who testified that he cited Ms. Schwartz for a failure to maintain control of her vehicle and for careless operation. He listed the patch in the roadway as a contributing factor in causing the accident. Deputy Wear testified as to his impressions of the patch, “In the patch work itself, there was an indentation, which I call a dip, and then came up to a slight lip going onto the regular I — 10 that had not been touched.” He concluded that the patch “could have contributed to her [Ms. Schwartz] losing control of her vehicle.” Deputy Wear also testified that he met with James Black, an independent claims adjuster, some months after the accident. Black was assigned by the DOTD to interview Deputy Wear and photograph the scene. Deputy Wear testified that as the two men watched cars traverse the patch, they both noticed that cars were dipping significantly as they traveled over the patch. Mr. Black told Deputy Wear that he would mention the dipping in his report to the State.

The testimony presented by Ms. Schwartz and Deputy Wear is similar to that considered by the trial court in Sto-bart. In Stobart, both Mrs. Stobart and Officer Horton, who investigated the accident, testified regarding the presence of potholes in the road. Stobart, 617 So.2d at 883. This Court determined that the testimony heard by the trial court in Stobart was enough to constitute a “reasonable factual basis for the finding of the trial court” that a defect existed in the road. Id. at 884.

In addition to hearing testimony from the parties involved, the jury also reached its conclusions after considering the testimony of the plaintiffs expert witnesses, Clary and Moore, that the patch was a significant factor in contributing to [12the accident.

On cross examination, the DOTD challenged the survey conducted by the plaintiffs’ experts as inherently flawed and unworthy of credence because the two men failed to secure a police escort while conducting their survey. As a result, their measurements were taken during uninterrupted interstate traffic flow, with the two men darting in and out of traffic. The DOTD argued that performing the survey under these conditions resulted in a flawed survey with unreliable results. The survey conducted by defense expert Darvin Ferguson of Ferris Engineering found a maximum deviation of Vk inches within the patch. Further, DOTD argued that the ultimate fact established by the plaintiffs’ expert was that the accident was caused by driver error, because Schwartz became unreasonably startled when she encountered the patch and over-corrected her steering wheel, resulting in her vehicle crossing over to the adjoining lane and striking the Henderson vehicle.

DOTD argued that their use of a police escort to re-route traffic resulted in a more accurate and therefore, more credible survey. The major challenge to Ferguson’s testimony was the fact that the survey was conducted in August of 2000, seven years after the accident occurred.

The jury also considered testimony from David Wayne Hall, DOTD expert in the fields of highway maintenance, design, safety, signing, and accident reconstruction. Hall testified that the patch’s effect on cars traveling across it was not severe enough to result in a loss of control and therefore be considered an unreasonably dangerous condition. Additionally, Hall relied upon a study conducted by the Traffic Institute at Northwestern University, which concluded that bumps and potholes in the road do not result in lateral instability, which Dale Moore concluded was a factor in Ms. Schwartz’s loss of control. Hall further testified that “at highway |13speeds the forces acting on a vehicle as a result of striking an isolated bump are vertical and longitudinal,” which means that a vehicle will experience up and down movement, but will not veer from its path.

Plaintiffs also argued that the failure of the DOTD to erect a “bump” or “dip” sign led to the patch being an unreasonably dangerous condition. Hall testified that a sign was not necessary. Hall stated that a warning regarding impending surface irregularities is only necessary where vehicles “bottom out” and the undercarriage of the car strikes the pavement. Hall testified that vehicles were not bottoming out upon encountering the patch, and presented a videotape that he filmed as evidence that the vehicles were bouncing up and down, but were not veering from left to right. Thus, according to DOTD expert Hall, the patch was not a contributing factor to Ms. Schwartz losing control of her vehicle and striking plaintiffs. We note that this videotape of the accident scene was filmed five years after the incident occurred.

Thus, in reaching its conclusions regarding the unreasonably dangerous nature of the patch, the jury considered the testimony of the parties involved in the accident, as well as experts from both sides. The jury also viewed photographs of the patch, surveys of its depth, and the videotape of vehicles traversing through it. While the surveys conducted resulted in different measurements, plausible explanations were given for the variations. The determination of which evidence is more credible is most appropriately decided by the trier of fact.

In Stobart, this Court held that the reliance of the trial court upon the testimony of Mrs. Stobart and Officer Horton that a defect existed, even where the defect was not apparent in photographs and on a videotape was not manifest error. (See also Matlock v. State, Through Dept. of Transp. and Dev., 00-0350 (La.App. 4 Cir., 2/21/01), 782 So.2d 100, 105; Updegraff v. State, Through Dept. of Transp. and Dev., 01-1048 (La.App. 4 Cir., 10/2/02), 828 So.2d 693, 700). Where, as here, a conflict in the evidence exists and neither party presents evidence that is wholly inconsistent, implausible on its face or unbelievable in light of objective evidence, the appellate court must defer to the fact-finder’s decision unless that decision is manifestly erroneous or clearly wrong. In this case, the fact-finder was faced with two permissible views of the evidence and decided that the patch minimally contributed to Ms. Schwartz losing control of her vehicle and striking the plaintiff. Accordingly, the jury’s decision was not manifestly erroneous or clearly wrong and we therefore reinstate the original apportionment of fault assigned by the trial court.

DECREE

For the foregoing reasons, we reverse the decision of the Court of Appeal and reinstate the allocation of fault assigned by the jury.

      . Henderson v. Nissan Motor Corp., 02-337 (La.App. 5 Cir. 1/14/03), 835 So.2d 919.

      . Id. (reh’g denied 2/3/03).

      . Henderson v. Nissan Motor Coip., 03-0606 (La.5/9/03), 843 So.2d 383.

      . A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
      B.Except as provided in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence and the public entity has a reasonable opportunity to remedy the defect and has failed to do so.
      C. Constructive notice shall mean the existence of facts which infer actual knowledge.
      D. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
      E. "Public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials and employees of such political subdivisions. Added by Acts 1985, No. 454 Sec 1 eff. July 12, 1985.


source: Caselaw Access Project

author: VICTORY, J. KIMBALL, J.,

license: Public Domain

text:
    Gabriel OUBRE v. Azmi ESLAIH, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Company Melanie Eslaih, Wife of/and Azmi Eslaih v. Marc D. Williams, Allstate Insurance Company, and Louisiana Department of Transportation and Development Martin Mongrue c v. Azmi Eslaih, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Company.
    No. 2003-C-1133.
    Supreme Court of Louisiana.
    Feb. 6, 2004.
    Rehearing Denied April 23, 2004.

      Sherry S. Landry, City Attorney, Albert A. Thibodeaux, Deputy City Attorney, Frank B. Hayne, III, for applicant.
    Charles R. Ward, Jr., Gretna, Stephen B. Murray, New Orleans, for respondent.
   VICTORY, J.

We granted the City of New Orleans’ writ application to determine whether the trial court’s finding of liability on the part of the New Orleans Police Department (“NOPD”) in this case was manifestly erroneous. After reviewing the facts and the applicable law, we find that the plaintiff failed to present evidence that the NOPD was aware of a dangerous traffic situation which would have given rise to an | ^affirmative duty to see that motorists were not subjected to unreasonable risks of harm. Thus, we reverse the judgments of the lower courts.

FACTS AND PROCEDURAL HISTORY

At around midnight, on November 3, 1995, the plaintiff, Azmi Eslaih (“Eslaih”), was traveling westbound on I — 10 approaching the Westbank Expressway/South Claiborne Avenue exit, when the taxi cab he was driving stalled over the elevated portion of the interstate. At this point of the interstate, the Westbank Expressway/South Claiborne Avenue exit goes off to the left and the I — 10 veers to the right continuing towards Baton Rouge. Eslaih’s cab initially stalled at the point where the two roads split and the rear of his car was in the lane of traffic going towards Baton Rouge. He then pushed his car across several lanes of traffic to the emergency lane on the left-hand side of the Westbank Expressway/South Claiborne exit. The weather conditions were rainy and the road was wet. Eslaih managed to position his car entirely in the emergency lane but facing east-bound, towards the oncoming traffic. He put on his flashing lights and attempted to restart his engine with no success. After approximately 45 minutes, he flagged down another cab driver who drove Eslaih home to Metairie. While at home, Eslaih ate a snack and called AAA to request a tow truck. AAA reported that they would be there in one hour. Eslaih then drove his wife’s van back to the scene to wait for the tow truck and to retrieve some items out of his cab. He arrived at approximately 2:00 a.m. and parked his van in the emergency lane three feet in front of his cab, so that the trunk of the cab was facing the back of his van. He then stood between the two vehicles and began loading things from his cab into his van. At approximately 3:00 a.m., an automobile driven by Marc Williams, proceeding west on 1-10, struck the stalled taxicab, pinning Eslaih between it and the van. As a result of the accident, Eslaih suffered severe injuries.

IsEslaih sued Williams, Allstate Insurance, and the State of Louisiana, DOTD. Four years later, after his new attorney noticed prior deposition testimony wherein Eslaih stated he saw a NOPD cruiser pass the scene without rendering assistance, he added AAA and the City of New Orleans as additional defendants. AAA was dismissed on summary judgment, the State was voluntarily dismissed, and Eslaih settled with Williams and Allstate, leaving the City as the only defendant at trial. Eslaih alleged that the City was liable for his accident because, while at the scene of the accident, he saw two NOPD cruisers drive past the scene without rendering assistance.

At trial, Eslaih testified about seeing two police cruisers passing his broken down cab in the emergency lane as follows:

Q. What did you do as you as you were waiting there?
A. First I start trying to look at my car and see if I can start it, try many times until the battery went down when I kept trying. So after that, I just, you know, sit on the side of the road and wait.
Q. Did you see any vehicles pass by at the time?
A. Yeah. Vehicle was passing by.
Q. There was traffic on the road; is that right?
A. That was traffic.
Q. Did you see any law enforcement vehicles pass you by?
A. Yeah, saw police car.
Q. Could you tell us what kind of police car that you saw pass by?
A. New Orleans police.
Q. NOPD marked cruiser, is that correct?
A. Yeah.
|4Q. And are you familiar with the NOPD marked cruisers?
A. Yeah, been driving a cab in the New Orleans and in the French Quarter all the time. I see them all over.
Q. So you’re able to distinguish the NOPD cruisers from other law enforcement vehicles; is that correct?
A. Yes.
Q. Did that cruiser stop?
A. No.
Q. What was — What were the weather conditions at the time?
A. It was raining.
Q. And your flashers were still on?
A. The flashers were still on.

He also testified that he saw another NOPD cruiser pass after he returned to the scene with his wife’s van:

Q. As I understand what you’re telling us, the reason that you placed your wife’s van where it was is so that you could unload your personal things from your cab to your wife’s van?
A. Yes, sir.
Q. While waiting and while doing this, did you notice law enforcement vehicles pass at that time?
A. Yeah.
Q. WTiat type of law enforcement vehicle did you notice pass the second time you were out there?
A. New Orleans.
Q. New Orleans Police Department cruiser?
A. New Orleans Police.
Q. Was it a marked vehicle?
|sA. Yes, sir.
Q. Did it stop?
A. No.
Q. WTiat were the weather conditions at that time?
A. Still the same thing. It was, like, drizzling, wet.
Q. The ground was wet?
A. Start rain and stop rain continuously-
Q. Did you put the flashers on for your wife’s van?
A. Yes, sir.
Q. So both vehicles that were on the side of the road had their emergency flashers on; is that correct?
A. Yes, sir.
Q. Were both vehicles out of the lane of through traffic?
A. Yes, sir.

On cross-examination, he further testified:

Q. I believe you told us that during that first hour, you saw one police car go by?
A. Yes, sir.
Q. Could you see inside the police car? A. Inside?
Q. Uh-hum.
A. No, not can see inside. It’s dark.
Q. Do you know where the police car was going?
A. It was going, driving the highway on I — 10.1 don’t know where.
Q. You don’t know what its mission was?
A. No.
|fiQ. And the — You saw a second police car after you came back; is that correct?
A. Yes, sir.
Q. Could you see inside that car?
A. No.
Q. Do you know what type of mission it was on?
A. No.
Q. Did you signal either ear?
A. No, ‘cause, you know, when I see it’s a police car, it was by my side— cannot — was night, 3 o’clock in the morning, dark. So I’m looking at every car, ‘cause I’m looking — I know it’s a police car or another cab driver is the one who stop for me. So I’m looking at every car.
Q. Why didn’t you call the Police Department and report your broken-down car?
A. ‘Cause I went home. I called AAA and asked them to tow my car, and I thought this is the end of the problem.

He further testified on cross that both vehicles were in the emergency lane and neither was blocking traffic. On redirect, he testified that neither of the police cars had their emergency lights or sirens on'.

New Orleans Police Officer James Sea-berry, Jr., who investigated the accident that night, testified that as a First District Officer, he never has occasion to travel on the raised portion of the interstate where the accident occurred because the First District is small enough so that interstate travel is not necessary to get around the district and the crime areas that need patrolling are located below on the streets, not the interstate. He' further testified that a car parked the wrong way on an emergency lane on the interstate late at night with a pedestrian outside creates a potentially hazardous situation and any prudent officer would have stopped if they |7had observed such a circumstance. He further stated that a prudent officer would have placed his car behind the vehicle and turned his overhead lights on to secure that area so he could be visible to oncoming traffic.

Sergeant Orwin J. Walters, Jr., whose duties with the New Orleans Police Department included formulating and writing rules and regulations for the NOPD, testified that the NOPD had the responsibility, relative to other state agencies, for patrolling the portion of the interstate where the accident occurred, that although no written policy existed in this regard in 1995, any prudent officer would have stopped had he observed a motorist stranded on the side of the road which creates a hazardous situation, unless he had been dispatched on an emergency mission.

The trial court found liability on the part of the City based on the plaintiffs testimony that he saw two NOPD cruisers pass the scene without offering assistance, as follows:

The evidence presented at trial established that the taxicab was stranded on the shoulder of-1 — 10, in rainy conditions and facing oncoming traffic from midnight until 3:00 a.m. During this time Mr. Eslaih testified that two New Orleans Police Department (NOPD) cruisers drove pass him and his stranded taxicab without stopping to offer assistance. No evidence was presented at trial to suggest that the cruisers were responding to an emergency. This Court finds it troublesome that the NOPD cruisers would fail to recognize the potential hazard created by the vehicles on the shoulder of I — 10 especially given the inclement weather conditions. This Court’s opinion is that at the very least the cruisers should have reported the hazardous condition via radio, anything less than that was clearly negligent.
According to Louisiana law, when a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that the public is not subjected to unreasonable risk of harm. Furthermore, the City’s witness at trial, Sergeant Orman Walters of the NOPD set forth the customary duty and responsibility owed by the NOPD to stop and render assistance to stranded motorists. Sergeant Orman testified that there was no written rule or regulation in place within the department, but proper policy for a New Orleans police officer would be to stop and render assistance to a stranded motorist.
IsThe NOPD neglected to offer any assistance to Mr. Esliah. The accident that resulted from the hazard of the vehicles being on the side of the road caused Mr. Esliah to suffer severe injuries.

The trial court found the City of New Orleans liable for 30% of Eslaih’s damages: $250,000.00 in general damages; $70,768.33 in medical special damages; and $36,000.00 in past lost wages. The trial court judgment further held that “all other defendants be held liable for the remaining 70% fault.” The court of appeal affirmed, but amended the judgment to make the City 50% liable as a solidary obligor. Oubre v. Eslaih, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Co., 02-1386, c/w Eslaih v. Marc. D. Williams, Allstate Insurance Company and Louisiana Department of Transportation and Development, 02-1387, c/w Martin Mongrue v. Azmi Eslaih, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Company. 02-1388 (La.App. 4 Cir. 2/26/03), 840 So.2d 54. We granted the City’s writ application. Oubre v. Eslaih, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Co., c/w Eslaih v. Marc. D. Williams, Allstate Insurance Company and Louisiana Department of Transportation and Development, c/w Martin Mongrue v. Azmi Eslaih, Reassurance of New York, Nighthawk Cab Company, Marc Williams and Allstate Insurance Company, 03-1133 (La.6/27/03), 847 So.2d 1281.

DISCUSSION

An appellate court should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Dominigue, 365 So.2d 1330 (La.1978). However, if a court finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain lathe facts de novo from the record and render a judgment on the merits. Le-Blanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord deference to the fact-finder, they nonetheless have a constitutional duty to review facts. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court verdict was clearly wrong based on the evidence or clearly without evidentiary support. Id. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880, 882 (La.4/12/93).

Whether liability exists under the facts of this particular case is determined by conducting a duty-risk analysis. Under this 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 the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty. Berry v. State Through Dept. of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412, 414. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 638 So.2d 1075.

The duty of a police officer relative to the facts of this case is as follows. The legislature has given law enforcement officers the exclusive power to regulate traffic and the public has a corresponding obligation to follow traffic regulations. Law enforcement officers are duty-bound to exercise this power reasonably to linprotect life and limb and to refrain from causing injury or harm. When a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that motorists are not subjected to unreasonable risks of harm. Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119, 1127; Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173; Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3 Cir.1991). Thus, the first issue to be determined in this case is whether or not a New Orleans police officer became aware of a dangerous traffic situation.

The plaintiff testified that he saw two New Orleans police cruisers pass the scene, once while his cab was parked in the emergency lane, and once when his cab and his van were parked in the emergency lane. However, the plaintiff must do more than simply prove that he saw a police officer pass by. He must prove that in passing by, the police officers became aware of a dangerous traffic situation that presented an unreasonable risk of harm. As we stated in Davis, “our courts have not imposed a heightened duty on police officers unless the officer has actual knowledge that a dangerous traffic situation exists.” Davis, supra at 1128 (cites omitted). “Secondly, absent special knowledge of driver disability or impairment, we do not require police officers to anticipate the driving proclivities of people on the highway.” Id. (Cites omitted.) As we noted in Davis, it is for these reasons that cases which have upheld liability on the part of a police department are distinguishable. Id. at 1128, n. 15. In Edwards v. Daugherty, wherein liability was imposed on law enforcement officers, five witnesses testified that two sheriffs deputies drove through the accident scene without rendering assistance after clearly seeing and waving at the people at the accident scene. 97-1542 (La.App. 3 Cir. 3/10/99), 729 So.2d 1112, 1128, unit denied, 99-1393, 99-1434 (La.9/7/99), 747 So.2d 1105. Also, in that case, the vehicles involved in the accident were partially in the two-lane roadway, with neighbors using strobe lights to direct traffic around the accident scene, and the officers saw that the victim had placed himself in a peculiarly dangerous situation. Similarly, in Duvemay v. State, through Dept. of Public Safety, liability was imposed on the Sheriffs Office because it was made aware that a traffic light was malfunctioning. 433 So.2d 254 (La.App. 1 Cir.), unit denied, 440 So.2d 150 (La.1983).

In this case, we find that the plaintiff did not meet his burden of proof that in driving down I — 10, the officers became aware of a dangerous traffic situation that presented an unreasonable risk of harm. The evidence was clear that plaintiffs cab was parked entirely in the emergency lane of traffic not protruding at all in the travel lane of the highway. Further, there was no proof that the officers in the cruisers were looking that way as they drove by, or that he could sufficiently see Eslaih’s cab in the emergency lane of the Westbank Expressway/Claiborne Avenue exit to the extent necessary to determine whether a dangerous traffic situation existed. The plaintiff testified that after he tried to start his car a few times, “the battery went down,” and he just sat on the side of the road and waited. In order for plaintiff to get a cab to stop for him, he had to actually flag down the cab. There was no evidence that a passing police car would have been able to tell that a person was in or near the car at the time, given the late hour, and the rainy conditions. We note that although plaintiff testified his flashers were activated, he also testified he had previously drained his battery attempting to restart his vehicle. The record does not establish whether the flashers were fully illuminated. After plaintiff returned with the van and parked it entirely in the emergency lane with the headlights on, even if a police officer had noticed the situation, he or she could have correctly assumed that h¡>a motorist was no longer stranded and already had assistance. Although police officers testified that a car parked in an emergency lane facing the wrong direction on a rainy night with a stranded motorist may present a potentially hazardous situation such that a prudent police officer would stop and render assistance, there was no evidence an officer observed such a situation.

CONCLUSION

The law in our state is clear that an officer has an affirmative duty to protect life and limb and see that motorists and pedestrians are not subjected to unreasonable risks of harm, from the moment a law enforcement officer becomes aware of a dangerous traffic situation. Syrie, supra at 1173. A plaintiff must do much more than testify that he saw police cars pass him by in order to prove liability against the City. An entity would have no way to defend itself against such an assertion. At a minimum, a plaintiff must prove that the police officers, as they passed, became aware of a dangerous traffic situation which presented an unreasonable risk of harm to motorists, and failed to act. Plaintiff failed to meet that burden in this case. Thus, we find that the trial court judgment imposing liability on the City based solely on Eslaih’s assertion that he saw two NOPD cruisers pass the scene of his stalled vehicle without rendering assistance to be manifestly erroneous.

113DECREE

For the reasons stated herein, the judgments of the trial court and court of appeal are reversed, and suit against the City of New Orleans is dismissed with prejudice.

REVERSED.

KIMBALL, J., dissents and assigns reasons.

KIMBALL, J.,

dissenting.

I respectfully dissent. In this case, the plaintiff testified that while awaiting the ai’rival of a tow truck in the emergency lane on the westbound 1-10 with his vehicle’s indicator lights on, he observed two NOPD cruisers drive past him without stopping to render assistance. The trial court, as the finder of fact, had the opportunity to observe the credibility of the plaintiff, review the evidence, including photographs of the scene and location of plaintiffs vehicle, and rendered judgment in his favor. Such a determination that the police vehicles in question could not have passed 1 ^plaintiffs vehicle without observing him is reasonable on the record and should not be overturned absent manifest error.

The majority’s decision charges plaintiff with too onerous a burden. Under the majority’s analysis, a plaintiff would have to record the license number of the police vehicles and provide independent witnesses who could testify that the police officer(s) observed plaintiff in an emergency situation and failed to render assistance. Thus, the majority seeks to raise plaintiffs burden from a preponderance of the evidence to that of clear and convincing which is clearly inappropriate under our law.

For these reasons, I respectfully dissent.

      . Indeed, the plaintiff did not think that the placement of his cab in the emergency lane posed a dangerous traffic situation, as he never made any attempt to flag down a police car and he did not even call the police when he got home although he had ample time to do so. In fact, the plaintiff testified that after he went home and called AAA and asked them to tow his car, he thought that was the end of the problem.


author: PER CURIAM.

text:
    James A. MARTIN v. Joe A. MORGAN, M.D., Crawford & Co., Strategic Case Management, L.L.C., Turner Industries, Ltd., ABC Insurance Co., DEF Insurance Co. & GHI Insurance Co.
    No. 2003-C-1715.
    Supreme Court of Louisiana.
    Feb. 20, 2004.
    Rehearing Denied April 23, 2004.
    Maughan, Maughan & Lormand, LLC, Bobby R. Lormand, Jr., Baton Rouge, Gregory J. Miller, East Baton Rouge, for applicant.
    Breazeale, Sachse & Wilson, LLP, Douglas K. Williams, Baton Rouge, Lauren S. Coenen, East Baton Rouge, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, Vance A. Gibbs, Baton Rouge, for respondent.
   PER CURIAM.

WRIT RECALLED. IMPROVIDENTLY GRANTED. WRIT DENIED.


author: PER CURIAM. CALOGERO, C.J., JOHNSON, Justice

text:
    In re Ermence DEBOSE-PARENT.
    No. 2003-B-2422.
    Supreme Court of Louisiana.
    Feb. 20, 2004.
    Rehearing Denied April 23, 2004.
    Charles B. Plattsmier, Chief Disciplinary Counsel, James T. Daly, Deputy Disciplinary Counsel, for applicant.
    Ronald L. Wilson, Ermence Debose-Parent, New Orleans, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

This attorney disciplinary proceeding involves two counts of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Ermence DeBose-Parent, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Medical Provider Matter

In March 1998, respondent settled a personal injury case on behalf of Jamall DeBose. Respondent withheld $2,244 from her client’s share of the settlement for payment to Uptown Physical Medicine and Rehabilitation (“Uptown”), a third party medical provider.

In June 1999, over fifteen months after the settlement, Robert Helferstay, an administrative support representative for Uptown, filed a complaint with the ODC indicating that respondent failed to pay Uptown for the medical services rendered to her client.

The ODC forwarded this complaint to respondent. When respondent did not reply, the ODC made a subsequent request for information. In light of respondent’s [^failure to respond to one of the letters, the ODC issued a subpoena compelling her attendance and production of documents at a scheduled deposition.

In the meanwhile, approximately one month after the complaint was filed, respondent issued a check to Uptown in the amount of $2,244, the amount she had previously withheld from her client’s settlement. The check was drawn on respondent’s operating account rather than her trust account. Subsequent investigation revealed her client trust account was overdrawn $700 at the time.

In her sworn statement to the ODC, respondent alleged her failure to pay Uptown was a “first-time mistake.” She claimed the matter “fell through the crack” because she had several clients with the same last name that had been treated by Uptown. While she admitted the check to Uptown was written on her operating account, she contended she did so in error. She expressed remorse for her financial mismanagement and testified as to her efforts to rectify the problem.

The ODC alleged respondent’s actions violated Rules 1.15(a) (failure to keep client and third party funds separate from the lawyer’s own property — commingling), 1.15(b) (failure to promptly deliver funds or property owed to a client or third party and failure to render a full accounting upon request — conversion), 8.1(c) (failure to cooperate with the ODC) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct.

Becnel Matter

Respondent represented the defendant in connection with a lawsuit instituted by Lawanda Becnel, who was represented by attorney Donald Hyatt, II. On September 19, 1999, respondent, who was a candidate for public office at the time, was distributing campaign election flyers in a church parking lot. Ms. Becnel approached | ¡¡respondent and told her she looked familiar. Respondent told Ms. Becnel that she had seen her in court and reminded her she was representing the defendant in the litigation instituted by Ms. Becnel. According to Ms. Becnel, respondent then began discussing the litigation, telling Ms. Becnel that she was not going to win her case and questioning the quality of Mr. Hyatt’s representation. Respondent then suggested Ms. Becnel visit with respondent at her office to talk about the case, and gave Ms. Becnel her office telephone number. The conversation lasted approximately five minutes.

Immediately thereafter, Ms. Becnel contacted Mr. Hyatt and told him about her conversation with respondent. Mr. Hyatt in turn contacted the ODC, which advised him that ex parte communication was generally difficult to prove in the absence of objective evidence.

Subsequently, Ms. Becnel agreed to make the telephone call to respondent, utilizing a recording device provided by Mr. Hyatt. On September 21, 1999, Ms. Bec-nel spoke to respondent, who scheduled a meeting with Ms. Becnel at her office on September 27, 1999. In this recorded conversation, respondent advised Ms. Becnel she did not think Ms. Becnel’s case was being handled in Ms. Becnel’s best interest, and that this was what they had discussed in their earlier conversation in the parking lot. She did not tell Ms. Becnel to advise Mr. Hyatt of their conversations or I ¿scheduled meeting. Rather, respondent told Ms. Becnel she was simply going to have to waive her client-attorney privilege “if any crap hit the fan.”

The following day, Mr. Hyatt advised the ODC of the September 27, 1999 scheduled meeting between Ms. Becnel. Additionally, Mr. Hyatt provided a transcribed copy of the recorded conversation to the ODC.

On September 27, 1999, Ms. Becnel met respondent at respondent’s law office. At the beginning of the meeting, respondent had Ms. Becnel sign a document entitled, “Affidavit Waiving Attorney-Client Privilege.” The parties then discussed settling Ms. Becnel’s lawsuit against the defendant. The meeting lasted approximately eight minutes. The next day, September 28, 1999, Mr. Hyatt filed a formal complaint with the ODC, alleging respondent engaged in ex parte communication with his client.

The ODC alleges respondent’s actions are a violation of Rule 4.2 (ex parte communication with a party represented by counsel) of the Rules of Professional Conduct. Respondent filed a general denial to the allegations of misconduct.

DISCIPLINARY PROCEEDINGS

Formal Charges

Following its investigation, the ODC filed against respondent the two counts of formal charges subject of these proceedings based on the medical provider matter and the Becnel matter. Respondent filed an answer generally denying the charges. Accordingly, the matter proceeded to a formal hearing.

Formal Hearing

At the formal hearing, respondent stipulated that she violated Rule 1.15(a) and Rule 1.15(b) in connection with the medical provider matter. As to the failure to cooperate allegations, respondent testified she received the ODC’s original request and the subsequent letter on the same day. She maintained she replied to one of the letters, but mistakenly failed to respond to the other letter.

As to the Becnel matter, the ODC presented the testimony of Mr. Hyatt and Ms. Becnel to establish that respondent engaged in ex parte communication with Ms. Becnel, while she was represented by counsel without obtaining her counsel’s consent. Respondent testified on her own behalf. According to respondent, she was unaware of the requirement that she had to get consent from an attorney prior to communicating with his client. She observed that her relationship with Mr. Hyatt was contentious at all times and it was impossible for them to discuss settlement of the litigation. Respondent stated that she had made no effort to communicate with Ms. Becnel, and that Ms. Becnel had called her on numerous occasions to speak to her about scheduling a meeting. She insisted that she advised Ms. Becnel to tell Mr. Hyatt they were communicating, and Ms. Becnel assured her she had done so. Moreover, [ ^respondent pointed out that Mr. Hyatt had never contacted her after the parking lot incident to ask her not to speak to his client.

Recommendation of the Hearing Committee

As to the medical provider matter, the hearing committee determined respondent’s actions were a one-time mistake. As a result, it found insufficient evidence of commingling and conversion of funds in violation of Rules 1.15(a) and 1.15(b), respectively. Additionally, it determined there was insufficient evidence that respondent failed to cooperate with the ODC in violation of Rules 8.1(c). In support, it observed, that although respondent failed to reply to one or two requests from the ODC, she immediately responded to the ODC’s other requests.

As to the Becnel matter, the committee concluded the ODC proved by clear and convincing evidence respondent violated Rule 4.2. The committee determined respondent desired to meet with Ms. Becnel in the absence of her attorney, noting respondent did not ask Ms. Becnel on the tape whether she had permission from her attorney to speak to respondent. It found respondent could have avoided the entire matter by simply faxing a letter to Mr. Hyatt requesting his permission to meet ex 'parte with Ms. Becnel to discuss settlement of their case.

|7Finding only a Rule 4.2 violation based on the ex parte communications, the committee concluded the baseline sanction was a short suspension or a reprimand. It recognized prior discipline as the only aggravating factor. In mitigation, the committee noted the absence of dishonest or selfish motive, character and reputation, and accountability for misconduct. Accordingly, the hearing committee recommended imposition of a fully-deferred three month suspension, subject to additional continuing legal education.

Recommendation of the Disciplinary Board

As to the medical provider matter, the disciplinary board found the hearing committee committed legal error when it failed to find respondent violated Rules 1.15(a) and 1.15(b). In addition to respondent’s stipulation that she violated these rules, the board observed that the evidence in the record demonstrated respondent’s client trust account was overdrawn $700 at the time she owed the funds to Uptown. However, the board found no error in the hearing committee’s finding that respondent did not fail to cooperate with the ODC.

As to the Becnel matter, the board agreed with the committee that respondent violated Rule 4.2 when she engaged in ex paHe communications with Mr. Hyatt’s client. Although respondent objected to the committee’s finding in this regard, the board noted respondent “did not dispute the accuracy of the transcription submitted by ODC.” Further, it pointed out that “[although not determinative, the transcript of Ms. Becnel and Respondent’s telephone conversation of September 21, 1999, doesj^lend some credence to Ms. Becnel’s version of the parking lot encounter.” The board also recognized that Mr. Hyatt had knowledge of the meeting between his client and respondent at respondent’s office. However, it pointed out respondent inappropriately discussed Ms. Becnel’s legal matter with her in the church parking lot and, at that time, respondent “clearly did not have the consent of Mr. Hyatt.”

Addressing the issue of sanctions, the board agreed with the committee’s finding that respondent’s failure t'o pay Uptown stemmed from a one-time mistake, but concluded her actions caused actual harm to Uptown. It found respondent’s misconduct in the Becnel matter also stemmed from negligence and had the potential to cause injury to the legal system. It recognized prior discipline as the only aggravating factor, and absence of dishonest or selfish motive as the only mitigating factor.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the board recommended that respondent be suspended from the practice of law for a period of six months, with all but two months deferred.

One board member filed a partial dissent to the board’s findings that respondent’s violation of Rule 4.2 was merely negligent.

Respondent filed an objection to the recommendation of the disciplinary board. Based on such, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. . La. Const, art. Y, § 5(B). Consequently, we act as triers of fact and conduct an 1 independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

We conclude the record supports the conclusion of the disciplinary board in the medical provider matter. Respondent’s stipulations, as well as the evidence introduced by the ODC, clearly demonstrate that respondent failed to safeguard funds belonging to a third party in violation of Rules 1.15(a) and (b). However, we agree with the conclusion that respondent did not fail to cooperate with the ODC in its investigation of this matter.

As the Becnel matter, the record clearly supports the finding of the hearing committee and the disciplinary board that respondent violated Rule 4.2 by engaging in ex parte communication with a person represented by counsel without first obtaining permission of the counsel. Although respondent asserts she was unaware of this prohibition, her lack of knowledge of the disciplinary rules do not provide a defense to her actions. Louisiana State Bar Ass’n v. Thalheim, 504 So.2d 822 (La.1987).

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

We conclude respondent’s actions in the medical provider matter were largely negligent. Her actions caused actual harm to Uptown by depriving it of its funds for a lengthy period of time. In the Becnel matter, we find respondent’s actions were negligent in the sense that she did not believe she was violating the professional rules. No actual harm resulted from her actions, but there was a potential for harm to both Ms. Becnel and to the legal system as a whole.

As an aggravating factor, we recognize respondent’s prior disciplinary record. In mitigation, we find respondent’s misconduct was not the product of a dishonest or selfish motive.

Considering the facts of this case, we conclude the appropriate sanction for respondent’s misconduct is a suspension from the practice of law for a period of six months. We will defer all but two months of that suspension. Following completion of the active portion of her suspension, we shall place respondent on probation for a period of one year, with the condition that she attend Louisiana State Bar Association’s Ethics School program.

|nDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Ermence De-Bose-Parent, Louisiana Bar Roll number 20534, is suspended from the practice of law for a period of six months. All but two months of this suspension shall be deferred. Following the completion of the active portion of her suspension, respondent shall be placed on probation for a period of one year, during which time she shall be required to attend the Louisiana State Bar Association’s Ethics School program. Any violation of this condition or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension ex-ecutory or imposing other discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CALOGERO, C.J., and JOHNSON, J., dissent and assign reasons.

CALOGERO, C.J.,

dissenting.

I dissent from the sanction imposed in this case. I would impose a suspension of three months, fully deferred, which I consider a sufficient penalty for this respondent’s conduct.

JOHNSON, Justice

dissenting.

I dissent from the discipline imposed in this case. What I find reprehensible in this case is the conduct of attorney Donald Hyatt, II, who went to great lengths to assist his client, Ms. Lawanda Becnel in creating a complaint against respondent, following a chance encounter between the two in a parking lot while respondent was campaigning.

After Ms. Becnel’s initial conversation with Ms. Debose Parent, Mr. Hyatt consulted with Mr. Plattsmier, Chief Disciplinary Counsel, Office of Disciplinary Counsel (“ODC”), who advised him that he did not have a substantiated ex parte communication. Thereafter, Mr. Hyatt and his client, Ms. Becnel, set out to create a case against respondent. Mr. Hyatt met with Ms. Bec-nel at his office and the two set up an elaborate scheme to document an ex parte communication. Ms. Becnel telephoned respondent several times from Mr. Hyatt’s office before successfully scheduling an appointment with respondent. Further, Mr. Hyatt supplied the recording device which she used to tape the phone conversations and the subsequent meeting.

I fail to see how any of this contact can be ex parte, when the documented exchange between respondent and Ms. Bec-nel took place with the advice and consent of Ms. Becnel’s counsel, Mr. Hyatt. Mr. Hyatt apparently kept the ODC advised of his progress, as he notified that office pri- or to the scheduled meeting between respondent and Ms. Becnel. The record shows that respondent notified Ms. Becnel 1 ¡¡that she would need to waive her attorney-client privilege with Mr. Hyatt before the consultation, and Ms. Becnel signed an “Affidavit Waiving Attorney Client Privilege.”

In my view, the ODC has a duty to investigate the actions of Mr. Hyatt under LSA-S.Ct. Disc.R. 19 § 11(A), which provides in relevant part:

The disciplinary counsel shall evaluate all information coming to his or her attention by complaint or from other sources alleging lawyer misconduct or incapacity.... If the lawyer is subject to the jurisdiction of the court and the information alleges facts which, if true, would constitute misconduct or incapacity, counsel shall conduct an investigation unless in the discretion of disciplinary counsel the matter qualifies for referral to the Practice Assistance and Improvement Program.

Emphasis added. It shall be a ground for discipline for a lawyer to violate or attempt to violate the Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers. LSA-S.Ct. Disc.R. 19 § 9(a). It is misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “prejudicial to the administration of justice.” Rule 8.4(b) and (c) of the Rules of Professional Conduct.

This court should not tolerate unscrupulous conduct from members of the bar. We should discipline an attorney who conspires with his client to create a case against another lawyer.

      . The ODC initially filed three counts of formal charges against respondent. The hearing committee and disciplinary board found insufficient evidence to support the first count of the formal charges. The ODC did not file an objection to the board’s recommendation that this charge be dismissed. Accordingly, we will make no further reference to this charge.

      . It is unclear from the record whether Mr. DeBose is related to respondent.

      . In her affidavit, Ms. Becnel stated:
      [Respondent] told me that she helps "little people” and that I should meet with ... one of the defendants in this lawsuit and [respondent] in her office in order to resolve the matter. She also questioned whether I was paying my attorney any fees and stated that I was not receiving good representation. Finally, [respondent] stated to me that she could not talk to my counsel, Mr. Donald L. Hyatt, II, to obtain consent for an ex parte communication.

      . According to Mr. Hyatt's complaint and formal hearing testimony, he discussed with his client the risks involved, such as signing any settlement documents and an attorney-client waiver, prior to her making the decision to call respondent. However, Ms. Becnel testified she was unable to recall if Mr. Hyatt discussed such issues with her prior to her deciding to call respondent.

      . Mr. Hyatt later admitted that he had planned to tape the meeting, but it “proved impossible to do so."

      . After the meeting, Ms. Becnel executed an affidavit which stated:
      As the meeting continued, [respondent] discussed the merits of the case (including informing me that I was not fired in violation of the Whistleblower Act), its settlement value, and the attorney-client relationship between myself and Mr. Hyatt. Throughout the discussion she repeated views that I could not succeed in this lawsuit and that my attorney was only going to continue this litigation so he could charge me fees. She told me that she might be able to convince ... [defendant] to pay a Five Thousand Dollar ($5,000.00) settlement which would be paid directly to me without any notice to my attorney. [Respondent] stated that she would like to meet with me again on a later date, and she specifically requested that I bring a copy of the attorney-client contract between myself and Mr. Hyatt to any later meeting. [Respondent] told me that she would review the contract between myself and Mr. Hyatt to determine if Mr. Hyatt, as my attorney, was going to cheat me.

      . When questioned by her own counsel at the formal hearing, respondent testified as to her belief Ms. Becnel told Mr. Hyatt they were communicating:

        Respondent’s counsel: Did you think [Ms. Becnel] had [Mr. Hyatt's] permission to talk to you?

        Respondent: Yes.

        Respondent’s counsel: What led you to that conclusion?

        Respondent: Well, for one thing was, I told her to call her attorney the first time I spoke to her, okay. She kept calling thereafter, and I think in one of the conversations I asked her if she spoke to him, and she told me yes.

      . The hearing committee made no reference to the allegation respondent failed to cooperate in violation of Rule 8.4(g), although we assume it rejected this rule violation as well.

      . The record only includes evidence of respondent’s June 1997 admonishment stemming from her neglect of a legal matter. However, we also take judicial notice that, on September 26, 2003, the disciplinary board imposed a public reprimand on respondent by consent arising from her admission that she failed to properly supervise a non-attorney employee, who filed by facsimile an improperly prepared petition, which resulted in the dismissal of a client’s case.

      . Unlike the committee, the board declined to find as a mitigating factor respondent’s good character or reputation, noting there was insufficient evidence on this point in the record.

      . Despite our finding of misconduct on the part of respondent, we question Mr. Hyatt's conduct in this matter. Although respondent's initial decision to discuss the litigation with Ms. Becnel was improper, Mr. Hyatt could have quickly rectified the situation by simply instructing respondent to refrain from speaking with his client. Instead, he involved his client in an elaborate “sting operation” designed to “catch” respondent in misconduct.


author: KNOLL, Justice. VICTORY J.,

text:
    Nancy LOCKETT and Ronny Lockett, Husband and Wife v. The STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003-C-1767.
    Supreme Court of Louisiana.
    Feb. 25, 2004.
    Rehearing Denied April 23, 2004.

      Charles C. Foti, Jr., Attorney General, Shows, Cali & Berthelot, Ronnie J. Ber-thelot, Edmond W. Shows, Carlos A. Ro-manach, Special Assistant Attorneys General, for applicant.
    Cardenas Law Firm, Leonard Cardenas, III, Baton Rouge, for respondent.
    Kean, Miller, Hawthorne, D’Armand, McCowan & Jarman, John F. Jakuback, Bradley C. Myers, Donna V. Yelverton, Baton Rouge, for amicus curiae.
   KNOLL, Justice.

This civil case addresses the legal question of whether multiple $500,000 caps are allowed under La. R.S. 13:5106(B)(2) in wrongful death actions brought against the State. Plaintiffs’ brought a wrongful death action against the State through the Department of Transportation & Development (“DOTD”) for their daughter’s death as a result, of an automobile accident that happened at a DOTD controlled intersection. The district court found DOTD partially liable and awarded each parent $500,000 in general damages. The court of appeal affirmed. We granted writ primarily to resolve a split among the circuits over whether the cap for wrongful death damages provided in La. R.S. 13:5106(B)(2) is applied “per death victim” or “per plaintiff.” We further address whether the district court’s finding of partial liability against DOTD constituted manifest error. Lockett v. State, Dept. of Tramp. and Development, 03-1767 (La.10/17/03), 855 So.2d 745. For the following reasons, we find the cap is to be applied “per plaintiff’ for the wrongful death of any one person and affirm the decisions of the lower courts finding DOTD partially liable for the accident.

| .FACTS AND PROCEDURAL HISTORY

This case arises out of an automobile accident which occurred on July 18, 1998, at the intersection of Louisiana Highway 19 and Groom Road in the City of Baker. Katy Lockett, the daughter of Nancy and Ronny Lockett, was a passenger in a vehicle driven by Miranda Britt Rupnarian (“Miranda”). As the vehicle proceeded in a southerly direction along Louisiana Highway 19, a four lane undivided highway, Miranda attempted to negotiate a left turn from the southbound lane of Louisiana Highway 19 eastbound onto Groom Road. The traffic signal at the intersection facing Miranda provided for a protected left turn on the “green arrow” with a permissive turn on the “green globe.” As Miranda approached the intersection, the signal facing her was a green globe.

Miranda was in the process of executing the left turn at the intersection when another vehicle, traveling in the outside lane of traffic in a northerly direction along Louisiana Highway 19, collided with her vehicle. Katy Lockett died as a result of the accident, and her parents, Nancy and Ronny Lockett, brought the instant lawsuit against DOTD, alleging DOTD was responsible for the existence of an unreasonably dangerous condition at the intersection which caused the accident.

Following a trial on the merits, the jury returned a verdict in favor of the plaintiffs, assessing Miranda with thirty-five percent (35%) liability and DOTD with sixty-five percent (65%). The jury also awarded general damages in the sum of $500,000 to each plaintiff, as well as $100,000.00 for medical expenses and $10,000 in funeral expenses. Although the district court denied both parties’ motions for judgment notwithstanding the verdict to set aside and modify the jury’s apportionment of fault, it did grant DOTD’s motion for re-mittitur, reducing the funeral expenses award to $7,991.24 and the medical expenses to $27,106.37.

| aDOTD suspensively appealed the judgment. The First Circuit Court of Appeal found no manifest error in the jury’s factual findings and affirmed the judgment finding DOTD liable and the allocations of fault. Lockett v. State, Dept. of Transp. and Development, 02-0651 (La.App. 1 Cir. 4/2/03), 844 So.2d 949. The Court of Appeal also affirmed the jury’s award of general damages in the amount of $500,000 to each plaintiff, finding these awards did not violate the statutory cap set by La. R.S. 13:5106(B)(2). DOTD sought rehearing, which the Court of Appeal denied. This Court granted DOTD’s writ application to review the issue of liability and to resolve the split among the circuits over the statutory cap on wrongful death damages.

LAW AND ANALYSIS

La. R.S. 13:5106(B)(2)

The amount of general damage awards for wrongful death actions brought against a State entity are controlled by La. R.S. 1S:6106(B)(2). Because La. R.S. 13:5106 limits the damages of the State in derogation of the general rights of tort victims, any ambiguities in the statute should be strictly construed against coverage. See David v. Our Lady of the Lake Hosp., Inc., 02-2675, p. 11 (La.7/2/03), 849 So.2d 38, 47 (interpreting La. R.S. 9:5628); Conerly v. State, 97-0871, p. 3 (La.7/8/98), 714 So.2d 709, 710 (interpreting La. R.S. 40:1299.39). On the other hand, legislation is the solemn expression of legislative will, and therefore, interpretation of a law involves primarily a search for the Legislature’s intent. La.Rev.Stat. § 1:4 (2004); La. Civ.Code art. 2 (2004); Conerly, 97-0871 at p. 3, 714 So.2d at 710; Ruiz v. Oniate, 97-2412, p. 4 (La.5/19/98), 713 So.2d 442, 444.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. La. Civ.Code art. 9 (2004); Conerly, 97-0871 at p. 3-4, 714 So.2d at 710-11; Ruiz, 97-2412 at p. 4, 713 So.2d at 444. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La. Civ. Code arts. 10 and 11 (2004); Conerly, 97-0871 at p. 4, 714 So.2d at 711; Ruiz, 97-2412 at p. 4, 713 So.2d at 444. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. La.Rev.Stat. § 1:3 (2004); La. Civ.Code. arts. 12 and 13; Conerly, 97-0871 at p. 4, 714 So.2d at 711; Ruiz, 97-2412 at p. 4-5, 713 So.2d at 444. If application of the foregoing rules of interpretation fails to definitively illuminate the Legislature’s intent, only then should the rule of strict construction apply to the interpretation of laws in derogation of common rights such as La. R.S. 13:5106(B)(2). See Conerly, 97-0871 at p. 4, 714 So.2d at 711; Ruiz, 97-2412 at p. 5, 713 So.2d at 444-45.

La. R.S. 13:5106(B)(2) provides:

In all suits for wrongful death of any one person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars. (Emphasis added).

The use of the word “all” in this limitation of recovery section renders this provision susceptible of several meanings. On the one hand, the pertinent phrase can be read as providing a single cap for each individual action for wrongful death of any one person. On the other hand, the pertinent phrase can be read as providing a single cap for all actions for wrongful death of any one person. For example, Section B can be read as providing that the total amount recoverable in connection with any one individual claim for wrongful death of any one person shall not exceed $500,000, or | Kthat the total amount recoverable in connection with all claims for wrongful death of any one person shall not exceed $500,000. Finding the language of the statute is ambiguous, we must endeav- or to ascertain the Legislature’s intent and purpose in enacting La. R.S. 13:5106(B)(2).

One particularly helpful guide in ascertaining the intent of the Legislature is the legislative history of the statute in question and related legislation. Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La.5/20/97), 694 So.2d 184, 186. Moreover, the Legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the Legislature is presumed to have intended to change the law. Travelers Ins. Co. v. Joseph, 95-0200, p. 5 (La.6/30/95), 656 So.2d 1000, 1002-03. Thus, when the Legislature amends a statute that has been subject to interpretation by the courts, a court interpreting the amended statute must take into consideration the entire history of the amended statute, including its original form, the court decisions interpreting the statute in its original and amended forms, and any subsequent amendments.

The ceiling on general damages assessed against the State for wrongful death actions was first enacted in 1985. See 1985 La. Acts 452. This act was one of six separate statutory measures the Legislature enacted in 1985 to relieve the State of some of the ordinary burdens of tort liability. Chamberlain v. State Through Dept. of Transp. and Development, 624 So.2d 874, 878 (La.1993), superceded by 1995 La. Acts 1328 (constitutional amendment to Article XII, § 10(C) of the Louisiana Constitution). Upon its original enactment, La. R.S. 13:5106(B)(2) provided:

In any suit for wrongful death, the total amount recoverable, exclusive of medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars.

JsLa.Rev.Stat. § 13:5106(B)(2)(1986).

Delineating its perceived good reasons prompting the enactment of the ceiling on general damages, the Legislature in La. R.S. 13:5106(E) found and recited:

(1) That judgments against public entities have exceeded ability to pay on current basis.
(2) That the public fisc is threatened by these judgments to the extent that the general health, safety, and welfare of the citizenry may be threatened.
(3) That the limitations set forth in this Section are needed to curb the trend of governmental liability abuses, to balance an individual’s claim against the needs of the public interests and the common good of the whole society, and to avoid overburdening Louisiana’s economy and its taxpaying citizens with even more new and/or increased taxes than are already needed for essential programs.
(4) That the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the constitution.

La.Rev.Stat. § 13:5106(E) (1986); see also, Chamberlain, 624 So.2d at 878. In short, the legislative goal prompting the enactment of the statutory ceiling was to protect the public fisc. Chamberlain, 624 So.2d at 878; see also, Linda J. McKinnis, Comment, Limiting Strict Liability of Governmental Defendants: The Notice Requirement of the. 1985 Legislation, 46 La. L.Rev. 1197 (1986).

In Chamberlain v. State Through Dept, of Transp. and Development, 624 So.2d 874 (La.1993), this Court declared La. R.S. 13:5106(B)(1) unconstitutional, finding the provision contravened the proscription against sovereign immunity from substantive tort liability provided in Article XII, Section 10(A) of the Louisiana Constitution. Chamberlain, 624 So.2d at 881.

In response to Chamberlain in 1995, the Legislature passed Act 1328 which proposed an amendment to Article XII, Section 10(C) of the Louisiana Constitution to allow the Legislature to “limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving |7rise to liability and the kinds and amounts of recoverable damages.” See 1995 La. Acts 1328; Castille v. State ex rel. Dept. of Transp. & Development, 99-1334, p. 1 (La.App. 3 Cir. 2/2/00), 758 So.2d 823, 825, unit denied, 00-0711 (La.4/28/00), 760 So.2d 1177. Louisiana voters approved Act 1328, and the act became effective on November 23, 1995. Castille, 99-1334 at p. 1, 758 So.2d at 825. In anticipation of such approval, the Legislature amended La. R.S. 13:5106 “in accordance with and based upon the legislative authority provided for in the proposed constitutional amendment to Article XII, Section 10 of the Constitution of Louisiana.” See Digest, 1995 House Bill No.1936.

As amended, La. R.S. 13:5106(B)(2) provided:

In any suit for wrongful death, the total amount recoverable, exclusive of medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed the limit of liability in effect at the time of judicial demand. On the effective date of this Subsection, the limit of liability shall be seven hundred fifty thousand dollars. Beginning January 1, 1997, and on that date every year thereafter, the limit of liability shall be the limit established annually by the commissioner of financial institutions as set forth in Paragraph (3) of this Subsection.

La.Rev.Stat. § 13:5106(B)(2)(1996). Accordingly, the 1995 amendments to this subsection increased the maximum liability for the State in wrongful death actions to $750,00.00. The Legislature retained the language set forth in Subsection E as its statement of purpose and intent.

Interestingly, the Legislature again amended La. R.S. 13:5106 in 1996 “to change the limitation in suits against the state, a state agency, or political subdivision for personal injury or death from $750,000 ... to $500,000 limitation on general damages.” See Digest, 1996 House Bill 239. Prior to its enrollment as 1996 La. Acts 63 of the First Extraordinary Session, House Bill 239 underwent multiple | ^amendments during the First Extraordinary Session of the 1996 Legislature. While in the Senate, the phrase “any suits for wrongful death,” which appeared in all other versions of Subsection B(2), was substituted with the phrase “all suits for wrongful death of any one person.” See 1996 La. Legis. J. & Calendar 437, April 18, 1996 (Senate). As amended in 1996, La. R.S. 13:5106(B)(2) now provides:

In all suits for wrongful death of any one person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars.

In this case, DOTD asserts that a “per death victim” construction of La. R.S. 13:5106(B)(2) is entirely in keeping with the Legislature’s intention in enacting La. R.S. 13:5106 in the first place, and further, that the Legislature intentionally changed the phrase “any suit” to “all suits” for this purpose.

After reviewing the legislative history of this statute, we find the Legislature’s intent does not clearly require a “per death victim” construction over a “per plaintiff’ construction, especially given the conflicting interpretations of this provision in the circuit courts. Ryland v. Liberty Lloyds Ins. Co., 617 So.2d 583, 590 (La.App. 3d Cir.1993)(applying a “per plaintiff’ construction to La. R.S. 13:5106(B)(2)), rev’d on other grounds, 93-1712 (La. 1/14/94), 630 So.2d 1289; Ly v. State Through Dept, of Public Safety and Corrections, 633 So.2d 197, 207 (La.App. 1st Cir.1993) (applying a “per plaintiff’ construction to La. R.S. 13:5106(B)(2)), writ denied, 93-3134 (La.2/25/94), 634 So.2d 835; Vallien v. State ex rel. Dept. of Transp. and Development, 01-0566, p. 9-13 (La.App. 3 Cir. 3/27/02), 812 So.2d 894, 901-03 (applying a “per victim” construction to La. R.S. 13:5106(B)(2)), writ denied, 02-1184 (La.6/14/02), 818 So.2d 785.

Moreover, we note with significance that when the Legislature amended this statute in 1996, the Ly and Ryland decisions applying the wrongful death cap to each plaintiff had been rendered and were final in 1994. Keeping in mind that the Legislature is presumed to be aware of these court decisions construing this statute, if the Legislature disagreed with these court decisions when it subsequently amended the statute it could have said so and could have changed the wording of the statute to restrict the total amount recoverable to one cap for all claims. It did not. While the amendment addresses all suits for wrongful death of any one person, it does not restrict the application of the cap for all claims.

We further note that the first phrase of La. R.S. 13:5106(B)(2) addresses the State’s potential exposure to liability for the wrongful death of any one person: “In all suits for wrongful death of any one person.” The wording of the statute then goes on to cap the total amount recoverable to $500,000, but does not restrict the cap for all claims: “the total amount recoverable ... shall not exceed five hundred thousand dollars.”

Most importantly, we note La. C.C. art. 2315.2 governs Louisiana’s wrongful death action and sets forth a hierarchy of classes of beneficiaries entitled to bring such actions for the wrongful death of another. La. C.C. art. 2315.2 clearly contemplates and allows for multiple beneficiaries in each of its four classes. All beneficiaries in the same dominant class have the right to bring their own individual wrongful death action even though all the beneficiaries seek recovery for the damages they individually sustained as a result of the death of the same person, e.g. the |insurviving spouse and children of a deceased person may all bring separate actions to recover the damages they sustained as a result of the" wrongful death of that person. Each party’s demand for enforcement of this legal right is regarded as a separate action which may be cumulated in a single suit where there is a community of interest, each of the actions is within the jurisdiction of the court and at the proper venue, and all actions are mutually consistent and employ the same form of procedure. La.Code Civ. Proc. art. 463 (2004); Ly, 633 So.2d at 207; Ryland, 617 So.2d at 590. In their individual actions, each plaintiff could recover damages far exceeding $500,000 in general damages. Thus, the Legislature’s primary intent of protecting the public fisc would be met by capping each plaintiffs general damage award at $500,000.

In short, both the “per death victim” and “per plaintiff’ construction of the provisions of La. R.S. 13:5106(B)(2) are arguably equally plausible. Because the application of the rules of interpretation failed to illuminate definitively the Legislature’s intent, the rule of strict construction must apply to the interpretation of laws in derogation of common rights. See Conerly, 97-0871 at p. 4, 714 So.2d at 711; Ruiz, 97-2412 at p. 5, 713 So.2d at 444-45. Because La. R.S. 13:5106(B)(2) provides a statutory cap on damages in derogation of the rights of La. C.C. art. 2315.2 beneficiaries, we must construe its provisions strictly in favor of the beneficiaries. Accordingly, we find La. R.S. 13:5106(B)(2) allows for multiple $500,000 caps in wrongful death actions in accordance with a “per plaintiff’ construction.

Liability of DOTD

A plaintiff may proceed against the State through DOTD under either a theory of negligence or a theory of strict liability. Netecke v. State ex rel. DOTD, 98-1182, p. 7 (La.10/19/99), 747 So.2d 489, 494. In order for DOTD to be held liable, the |nburden of proof is the same under either theory, and the plaintiff bears the burden of showing that:

(1) DOTD had custody of the thing that caused the plaintiffs injuries or damages;
(2) the thing was defective because it had a condition that created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect in the thing was a cause-in-fact of the plaintiffs injuries.

Id.

Whether the condition of a road is unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong. Petre v. State ex rel. Dept. of Tramp, and Development, 01-0876, p. 7 (La.4/3/02), 817 So.2d 1107, 1111; Ledoux v. State Through Dept. of Tramp, and Development, 98-0024, p. 3 (La.9/18/98), 719 So.2d 43, 44-45. “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring, Co., 283 So.2d 716, 724 (La.1973). “Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and 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.” Id.

In this case, the jury found an unreasonably dangerous condition existed at the intersection that was a substantial factor in causing plaintiffs’ damages, and, as a result, DOTD was partially liable to the plaintiffs. We find, as did the court of appeal, that this determination by the jury was not manifestly erroneous or clearly wrong.

haDOTD argues it proved it had discharged its duty of care to the motoring public because the uncontroverted evidence at trial showed Louisiana Highway 19 and the intersection at issue, with its signs, signage and road markings, met the AASHTO and MUTCD standards or requirements. Therefore, DOTD was presumed to be without fault and the plaintiffs failed to rebut this presumption. DOTD further contends the accident could have been prevented had Miranda merely waited sixty seconds for the protected green arrow.

DOTD has a duty to its travelers to keep the State’s highways in a reasonably safe condition for persons exercising ordinary care. See Petre, 01-0876 at p. 8, 817 So.2d at 1112. As the court of appeal noted in this case, it is not disputed that a blind spot was created at the intersection in the outside lanes when, as in this instance, two opposing vehicles were each stopped at the intersection and waiting to make left turns onto Groom Road from the north and south inside lanes. Lockett, 02-0651 at p. 7, 844 So.2d at 954. This “cone of obscurement” coupled with the permissive green globe lulled the left-turning driver into a false sense of being able to safely negotiate the left turn when in fact it is a perilous maneuver. Moreover, the evidence at trial revealed that DOTD had been aware of the flawed condition of the intersection and the history of a high accident rate at the intersection as a result of the blind spot.

Additionally, Dr. Olin K. Dart, a traffic engineer with a specialty in highway design, safety, and accident reconstruction, testified that the addition of a fifth lane would have resolved the unreasonably dangerous condition created by the blind spot. In the absence of adding a fifth lane which would have admittedly involved substantial capital outlay, an expense which DOTD contends prevented it from constructing the lane, the State could have feasibly provided a “turn on arrow only” signal to prevent accidents such as the one at issue.

| ^Accordingly, after viewing all the evidence, we find no manifest error in the jury’s finding DOTD negligent and its allocation of sixty-five percent fault to DOTD.

DECREE

For the foregoing reasons, we affirm the judgments of the trial court and court of appeal.

AFFIRMED.

VICTORY, J., dissents and assigns reasons.

VICTORY J.,

dissenting.

I dissent from the majority’s interpretation of La. R.S. 13:5106(B)(2). In relevant part, the statute says, “In all suits for wrongful death of any one person, the total amount recoverable ... shall not exceed $500,000.” The first rule of statutory construction states that “when a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written and no further interpretation may be made in search of legislative intent.” La. Civ.Code art. 9; Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128-1129. Since the words “any one person” modify the “wrongful death” which has occurred, it is clear the legislature intended for the $500,000 limit to be applied regardless of the number of claimants. In fact, that is what the statute says: only a total of $500,000 can be recovered for the wrongful death of any one person in all lawsuits for the death of that person.

Yet, the majority states La. R.S. 13:5106(B)(2) can be read, “... as providing a single cap for each individual action for the wrongful death of any one person.” [emphasis added] This is simply not correct. There is nothing in the language of La. R.S. 13:5106(B)(2) that speaks of an “action” at all, much less an “individual action.” | ¡¡Only by adding language that is not in the statute can the majority reach the conclusion that the statute can plausibly be construed in this way. The majority’s opinion violates the first rule of statutory construction.

Further, one would wonder why, in 1985, the Legislature, in an effort to protect the public fisc, would bother to place a $500,000 cap on an individual action when the awards given prior to that time for a wrongful death action were rarely, if ever, in excess of half that amount.

      . "Effective upon passage by voters of Louisiana of proposed constitutional amendment to Art. XII, Sec. 10 which originated as H.B. No. -of the 1995 R.S.” See Digest, supra.

        . Also by this date, the Senate, by floor amendment, deleted the phrase ‘'including all derivative claims” from Subsection B(2) at the behest of Troy Bain, Past President of the Louisiana Trial Lawyers, because "there are no derivative claims in wrongful death actions.” Minutes of Senate Comm, of Judiciary A, April 16, 1996, p. 11.

      . In 2000, the Legislature once again amended La. R.S. 13:5106. See 2000 La. Acts 1st Ex.Sess. 20, § 1. However, the amendment provided no substantive changes to Subsection B(2).