author: JjBILLY HOWARD EZELL, Judge.

text:
    Marty FLAGG v. HIXSON FUNERAL HOME.
    No. 02-878.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for PlaintiffAppellee, Marty Flagg.
    Mesonie Terrence Halley Jr., Pitre Halley & Sikich, Lake Charles, LA, for Defendant/Appellant, Hixson Funeral Home.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   JjBILLY HOWARD EZELL, Judge.

Both the employer and employee have appealed the judgment of the Office of Workers’ Compensation. The issues are whether Marty Flagg is entitled to continuing medical and compensation benefits, should the judgment have included the amount and period of compensation benefits, whether Hixson Funeral Home mailed Flagg a letter offering him a job, and penalties and attorney’s fees.

FACTS

The facts surrounding Flagg’s accident and resulting disability are not in dispute. On March 4, 1996, Marty Flagg went to work for Hixson Funeral Home in Lake Charles. On May 8, 1996, Flagg was lifting and putting caskets away when he twisted his back, resulting in a herniated disk. Surgery was performed on Flagg’s back. In addition to medical benefits, Flagg received compensation benefits at the rate of $330 a week from Hixson, which was self-insured.

On July 18, 1997, Flagg’s compensation benefits were terminated because he was released to return to work at light or moderate activities by Dr. William Foster. Hixson purportedly sent a letter to Flagg at his new residence in Memphis, Tennessee, offering him a job at a modified position, but he never showed up.

On October 8, 1998, Flagg injured his back when he stepped up on a curb while working for Interface Security Systems in Missouri. After learning of the new injury, Hixson terminated Flagg’s medical benefits on November 11, 1998. Hixson did pay for Flagg’s prescriptions through December 4,1998.

On January 14, 2000, Flagg filed a disputed claim for compensation. A hearing was held on October 10, 2001. The workers’ compensation judge (WCJ) found that Flagg was capable of performing light-duty work. However, the WCJ held that Hixson faded to prove that Flagg actually received the letter offering employment, | ¡^therefore, Hixson owed supplemental earnings benefits. The WCJ further found that Hixson was not relieved from any further obligation to pay compensation benefits due to the October 8, 1998 accident and that Hixson failed to properly investigate the matter. Therefore, the WCJ awarded penalties in the amount of $2,000 and attorney’s fees in the amount of $3,000. Both parties appeal the judgment.

BENEFITS

Hixson claims the WCJ erred in finding that Flagg’s current condition is related to his accident with Hixson in 1996 and not related to the October 8, 1998 accident. Hixson argues that not only is there an absence of any serious medical evidence relating Flagg’s disability to the 1996 accident, but there are also numerous circumstances which discredit or cast serious doubt on Flagg’s testimony and credibility. One discrediting fact alleged by Hixson is the fact that Flagg made a claim for workers’ compensation benefits in Missouri for the 1998 accident but failed to mention the 1996 accident so he could collect benefits in Missouri, yet now seeks benefits in Louisiana for the 1996 accident. Hixson also directs this court’s attention to the fact that Flagg failed to notify the adjuster that he was working while collecting benefits.

We are mindful that factual findings of a WCJ are subject to the manifest error standard of review. Johnson v. Tránseme, 01-1170 (La.App. 3 Cir. 2/27/02), 809 So.2d 1179. The issue to be resolved by this court is not whether the trial court was right or wrong but rather its conclusions were reasonable. Id. Furthermore, deference is due to the trial court’s credibility determinations. Id.

In finding that Flagg was still disabled as a result of the 1996 accident, the WCJ relied on a report from Dr. Jaime Henderson, a neurosurgeon in St. Louis who treated Flagg following the 1998 accident. In an October 19, 1998, report Dr. | oHenderson stated that, “Mr. Flagg is suffering from neuropathic pain secondary to scar tissue at the prior sites of lumbar surgery. Therefore, I cannot link his current difficulty with the event he experienced at work on October 8th.” Hixson introduced a letter into evidence written by Dr. Henderson on November 25, 1998, to the Missouri workers’ compensation insurer in which he stated that, “I believe that the more recent trauma, coupled with the prior surgery probably contributed to his present symptoms.” However, this letter still indicates that previous problems were continuing to cause Flagg problems.

Additionally, other evidence indicates that just three days prior to the Missouri accident, Flagg went to see Dr. Kevin Gorin who had been treating Flagg for pain management after the 1996 accident. Dr. Gorin observed that Flagg was continuing to complain of lower back pain with radiation of symptoms into the right, lower extremity. Dr. Gorin noted that at that time, Flagg continued with a permanent partial disability but was able to be released to light-to-medium-duty employment.

While we agree that it appears that Flagg was not forthcoming about his current employment and that he failed to report the 1996 incident in Missouri, we find that the WCJ was within her discretion in finding that his current problems are related to the 1996 incident.

OFFER OF EMPLOYMENT

Hixson argues that the WCJ erred in finding that it failed to prove that it offered employment to Flagg within his restrictions, which would relieve it of its obligations for supplemental earnings benefits. La.R.S. 23:1221(3); Daigle v. Sher-win-Williams Co., 545 So.2d 1005 (La. 1989).

Hixson introduced a letter dated May 5, 1997, addressed to Flagg in Memphis, Tennessee, offering him a job in a modified-duty position. Flagg testified that he | ¿never received the letter. The WCJ found that Hixson was unable to prove that Flagg actually received the letter because it was not sent by certified mail and it was unknown who sent it or even when the letter was actually mailed.

Hixson argues that there is no requirement that an offer of employment be sent by certified mail for it to be valid. While we agree, we also find that it was Hixson’s responsibility to prove that an offer of employment was made to Flagg. Daigle, 545 So.2d 1005; Johnson, 809 So.2d 1179.

Obviously, the WCJ found Flagg’s testimony credible. It is apparent that the WCJ recognized that there was no requirement that the letter be sent by certified mail but was suggesting certification would provide proof that Flagg had received the letter offering employment. There is no proof in the record that the letter was actually mailed or received by Flagg. We cannot say that the WCJ’s finding in this regard was in error since she obviously believed Flagg’s testimony that he did not receive the letter. Therefore, we find no error in the WCJ’s finding that Hixson failed to prove that a job was offered to Flagg.

PENALTIES AND ATTORNEY’S FEES

The WCJ found that Hixson failed to reasonably controvert or investigate the medical issue prior to termination of Flagg’s benefits following the October 8, 1998 incident and awarded penalties and attorney’s fees. Hixson argues that the award of penalties and attorney’s fees was improper because its actions were justified when it learned that Flagg was receiving benefits from other sources after the 1998 incident. Flagg also appealed and argued that the WCJ should have found that termination of weekly benefits were also improper and awarded attorney’s fee for the work done on this issue. In addition to claiming that attorney’s fees and penalties were properly awarded, Flagg also claims he is entitled to an increase in attorney’s fees for the work |Bperformed on appeal.

Louisiana Revised Statute 23:1201 provides for penalties and attorney’s fees when “payment of compensation benefits is not commenced timely, if continued benefits are not paid timely, or if medical benefits are not paid timely, unless ‘the claim is reasonably controverted’ (or the nonpayment results from conditions over which the employer and insurer have no control).” Williams v. Rush Masonry, Inc., 98-2271, p. 7 (La.6/29/99), 737 So.2d 41, 45. Louisiana Revised Statutes 23:1201.2 “governs the discontinuance of payment of claims due and arising under the Act, with an award of attorney’s fees authorized when the discontinuance is arbitrary, capricious or without probable cause, as well as penalties only against the insurer in limited situations.” Id. (footnote omitted). Thus, Flagg would be entitled to only attorney’s fees for the discontinuance of benefits.

In City of Eunice v. Credeur, 99-302 (La.App. 3 Cir. 10/13/99), 746 So.2d 146, this court held that the City acted arbitrarily and capriciously in terminating claimant’s benefits and medical compensation and awarded both penalties and attorney fees. The supreme court denied writs on the issues presented but reversed this court’s award of penalties, finding that La. R.S. 23:1201.2 governed the case because benefits were discontinued, which only allows for an award of attorney fees. City of Eunice v. Credeur, 99-3249 (La.1/28/00), 753 So.2d 226. Obviously, La.R.S. 23:1201.2 applies to the discontinuance of both compensation and medical benefits. Also see Ins. Co. of N. Am. v. Labit, 99-2448, 99-2449 (La.App. 1 Cir. 11/15/00), 772 So.2d 385.

Therefore, we agree with Hix-son that it was improper to award penalties in this case because both Flagg’s compensation and medical benefits were discontinued. The law provides that only attorney’s fees are a proper award when benefits are | (¡discontinued. Both Flagg’s compensation and medical benefits were discontinued. Therefore, the issue is whether Hixson acted arbitrarily, capriciously, and without probable cause in discontinuing the payment of compensation and medical benefits so as to warrant the imposition of attorney’s fees under La. R.S. 23:1201.2.

“Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.”
Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.
The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim.... The employer must adequately investigate the clam, and the crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action.

Williams, 737 So.2d at 45-46 (citations omitted).

We are also mindful that the determination of whether an employer should be cast with penalties and attorney’s fees is essentially a question of fact which will not be reversed absent evidence of manifest error. Ardoin v. Kipling Komer Grocery, 01-1596 (La.App. 3 Cir. 4/17/02), 824 So.2d 371.

Gloria Husser was the adjuster who started working on Flagg’s file in May 1997. She testified that she terminated benefits on July 18,1997, based on Flagg’s release to return to work and the offer of employment by Hixson. Husser never personally notified Flagg of the offer of employment. However, medical benefits continued to be paid. It was after the 1998 incident that Husser determined that medical benefits were no longer owed because she received information that Flagg was claiming that he had a new compensa-ble injury. Husser admitted that she never | investigated the details about the 1998 incident.

Regarding termination of Hixson’s compensation benefits, we initially observe that there was no testimony or evidence that Hixson followed up with Flagg to ensure that he received the offer of employment. Hixson relied on the offer of employment letter requiring Flagg to appear at Hixson Funeral Home in Lake Charles by May 19, 1997, at 8 a.m., or he was rejecting the offer. We find that this was insufficient as a legitimate tender of employment. Before benefits were terminated, Hixson should have ensured that Flagg received and was rejecting the offer of employment.

Furthermore, as observed by Flagg, Dr. Gorin did not approve the job until July 11, 1997, after the offer was considered rejected by Hixson. We do note that benefits were not terminated until July 18, 1997, when Hixson had knowledge that Dr. Gorin approved the job that had been offered.

While this may be a close case, we cannot say that the WCJ’s failure to find that Hixson was arbitrary and capricious in terminating compensation benefits was in error. Flagg’s compensation benefits were only terminated after he was released to return to work by his doctor with the doctor approving the job that Hixson attempted to offer to Flagg.

However, the discontinuance of Flagg’s medical benefits is a different matter. Flagg was continuing to receive medical treatment for this accident at Hixson just three days before the 1998 incident. The adjuster heard about the incident and admitted that she never bothered to investigate the matter. She just made the decision to terminate medical benefits because there was a new injury. The adjuster never made a determination that Flagg had recovered from his previous injury.

The record is clear that the adjuster failed to properly investigate the 1998 incident and its relation to the 1996 injury. The WCJ was correct in awarding | ^attorney’s fees for Hixson’s discontinuance of medical benefits.

Flagg contests the amount of attorney’s fees awarded. “The factors usually taken into account when fixing the amount of attorney fees to be awarded in workers’ compensation cases are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case.” Langley v. Petro Star Corp. of La., 01-198, p. 11 (La.6/29/01), 792 So.2d 721, 727. We do not find that an award of $3,000 for the prosecution of the medical benefits aspect of this case was abusively low.

Flagg did file an appeal seeking attorney’s fees for the work done on appeal. We find that he is entitled to additional attorney’s fees since we uphold the finding that medical benefits were improperly discontinued. We award $1,000 in attorney’s fees for the work performed on appeal.

JUDGMENT

Flagg claims that the WCJ erred in failing to state that Flagg’s weekly compensation rate was $330 per week in the judgment. He also claims that the WCJ erred in failing to indicate in the judgment a period for which weekly compensation benefits were due.

At trial the parties stipulated that Flagg was paid benefits in the amount of $330 a week prior to the discontinuance of benefits. Therefore, we will amend the judgment accordingly.

In oral reasons for the judgment the trial court stated that, “WHILE THE DEFENDANT IS NOT RELIEVED OF ITS RESPONSIBILITY TO PAY, A CREDIT MAY BE DUE FOR WORKERS’ COMPENSATION BENEFITS PAID TO THE CLAIMANT IN MISSOURI.”

Louisiana Revised Statutes 23:1225(C)(d) provides that a worker’s | ncompensation benefits shall be reduced when he receives any other workers’ compensation benefits. The employer must prove entitlement to this credit for benefits by a preponderance of the evidence. LeStage v. Town of Chatham, 26,676 (La. App. 2 Cir. 3/1/95), 651 So.2d 329.

It does not appear that Hixson made a request for any credits and has not appealed the issue. Therefore, we agree with Flagg that the judgment should be amended, purposes of clarity, to provide that Flagg’s supplemental earnings benefits should be reinstated effective July 18, 1997, the date that benefits were terminated, until further notice.

For the foregoing reasons, we reverse that part of the judgment which awarded penalties in the amount of $2,000. We amend the judgment to include an additional award of $2,000 in attorney’s fees for the work performed on the appeal. We also amend the judgment to provide that Flagg is entitled to supplemental earnings benefits in the amount of $330 per week from July 18, 1997, until he is no longer eligible. We affirm the judgment in all other respects. All costs of this appeal are assessed to Hixson Funeral Home.

REVERSED IN PART AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: LTHIBODEAUX, Judge. | AMY, J.,

license: Public Domain

text:
    William D. WOODWARD, et al. v. William Kent CUTRER and Linda Arnold Cutrer, et al.
    No. 02-423.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Writ Denied May 2, 2003.

      Karl E. Boellert, Kenneth Michael Wright, Lake Charles, LA, for Plaintiff/Appellee, William D. Woodward.
    Allen L. Smith, Jr., Plauche, Smith & Nieset, Milo Nickel, Lake Charles, LA, for Defendants/Appellants, William Kent Cut-rer and Linda Arnold Cutrer.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   LTHIBODEAUX, Judge.

The defendants, William Kent Cutrer and Linda Arnold Cutrer, et al., contest a judgment from the trial court ordering the removal of a pier and boathouse from the lake adjacent to their property. The order was rendered upon the complaint of the plaintiffs, William D. Woodward and Elizabeth S. Woodward, et al., and the trial court’s determination was that the construction was in violation of a subdivision’s building restrictions. For the following reasons, we affirm the judgment of the trial court and enter judgment in favor of the plaintiffs.

I.

ISSUES

We have determined that the following issue encompasses defendants-appellants’ assignments of error on appeal:

1. whether building restrictions applicable to a waterside subdivision are inapplicable to construction of a wharf on an adjacent state-owned water bottom;
2. whether the amendments to the Cy-prien Estates Subdivision Restrictions were properly enacted by the defendants, William and Linda Cut-rer?

II.

FACTS

This matter stems from building restrictions of a subdivision on Prien Lake in Calcasieu Parish. The area now comprising the subdivision was at one time owned, in its entirety, by Elizabeth S. Woodward. In 1990, Mrs. Woodward divided the acreage into twelve individual lots, naming the development Cyprien Estates. In October 1990, Mrs. Woodward filed the Cyprien Estates Subdivision Restrictions into the public record. The building restrictions, relevant portions of which will be set [¡.forth below, provided that Mrs. Woodward retain approval rights to any plans for construction on the subdivision’s lots. It also provided for amendment of the restrictions by a majority of the property owners.

Mrs. Woodward continued living at Cy-prien Estates, retaining Lot 5. Karl and Kathleen Boellert are residents of the home situated on Lot 6 and have lived in the subdivision since 1991. Lot 7 was sold to Kent and Linda Cutrer in October 1991. Each of these adjoining lots are on the waterfront of Prien Lake.

This matter arose when the Cutrers sought approval for the construction of a pier and boathouse in 1996. As is required by the building restrictions, the Cutrers applied for a permit for the construction from the Corps of Engineers. During the permitting process, Mrs. Woodward became aware of the Cutrers’ plans and indicated her disapproval of the proposed construction. According to the affidavit of Mrs. Woodward’s husband, William Woodward, he informed the Cutrers that the location of the proposed construction would interfere with the lakefront views of Lots 5 and 6. A new location was suggested for placement of the pier and boathouse.

In May 1996, the Cutrers attempted to amend the building restrictions, removing that portion of the restriction requiring Mrs. Woodward’s prior approval of construction plans. As is provided for in the restrictions, the amendment was approved by a majority of the subdivision’s property owners. The amendment was filed into the public record. The Woodwards and Boellerts contend they were not apprized of the amendment at the time the Cutrers were gathering support from the other residents.

The petition instituting this matter was filed in June 1996 by the Woodwards and Boellerts. The Cutrers, along with other residents signing the amended building restrictions, were named as defendants. Initially, the plaintiffs ^sought a declaration that the original building restrictions were in effect and a declaration that the amended restrictions were null. They further sought a permanent injunction against actions to deprive them of their property rights and damages they contend were associated with the conflict over the building of the boathouse and pier.

In May 1997, the plaintiffs filed a supplemental petition, asserting that the pier and boathouse had been completed. Due to the construction, the plaintiff amended their plea, seeking a mandatory injunction and an order to move or remove the pier. They again asked to be compensated for injuries and damages related to the construction.

Both parties filed motions for summary judgment and supported the motions with documents related to the amendment of the restrictions and the planning and construction process. Following a hearing, the trial court granted the plaintiffs’ motion for summary judgment, finding that the building restrictions constituted real rights that required notice to the plaintiffs prior to amendment. The trial court ordered that the pier be removed or moved to the location originally suggested by the Woodwards.

Jin.

LAW AND DISCUSSION

Restrictions’ Applicability to Adjacent, Government-Owned Water Bottoms

The defendants-appellants assert that the building restrictions are inapplicable to constructions on adjacent, government-owned water bottoms such as Prien Lake. They contend that Lieber v. Rust, 398 So.2d 519 (La.1981), stands for this proposition. In Lieber, the Louisiana Supreme Court considered a dispute over placement of a pier and boathouse on Cross Lake, a shoreline and water bottom controlled by the City of Shreveport. The property in the subdivision at issue in Lie-ber was controlled by title restrictions, one of which required approval of an architectural control committee prior to construction of piers and boathouses. The plaintiff filed suit against the defendant landowner due to construction of a pier and boathouse that he alleged obstructed his view. The defendant failed to seek prior approval by the architectural control committee. Although the opinion dealt primarily with the question of whether an adjacent property owner is entitled to an unobstructed view of the water, the supreme court also concluded that the defendant’s failure to follow the subdivision’s building restrictions did not require removal of the structure. Contrary to the assertion that Lieber stands for the proposition that building restrictions are inapplicable to adjacent government-owned water bottoms, the supreme court merely observed that the restrictions were concerned with the committee’s approval with the aesthetics and craftsmanship of proposed constructions. As the plaintiffs suit concerned only the placement of the structure, not its quality or appearance, the supreme court determined that the issue was not one over which the architectural control committee had control. Therefore, the court determined that the defendant’s “failure to obtain approval of the committee is 1 simmaterial.” Id. at 523. The supreme court did not indicate that agreements made between the property owners and memorialized in building restrictions cannot provide certain agreed-upon standards for the structures separately permitted and controlled by the relevant government entity. Therefore, we do not find the building restrictions in this case are, on their face, inapplicable to the adjacent government-owned water bottom.

Amendment of the Restrictions

Appellants, William and Linda Cut-rer, et al., assert that they properly amended the building restriction, as required by the provisions of the Cyprien Estates Subdivision Restrictions, by obtaining majority approval of the property owners. We disagree.

The developer, Elizabeth Woodward, wholly owned the property known as Cyprien Estates, prior to dividing the property into several lots for residential purposes. Mrs. Woodward established several restrictive covenants on the property, which were to “run with the land and shall be binding on all parties and all persons claiming under them for a period of 25 years from [the] date these covenants [were] recorded, after which time said covenants shall be automatically extended for successive periods of 25 years, unless revised as provided in [the Restrictions].” In the Subdivision Restrictions, there are a number of provisions that require the developer’s approval:

14. No used materials shall be used in the construction of-the exterior or any budding other than used brick, without the written approval of Mrs. Elizabeth Shutts Woodward or her agent,
| fi24. Plans for construction of said boathouse will be only with the United Corp of Engineers permit and the developer’s approval,
27. Prior to construction of any nature, be it dwelling, out-building, fencing, boat houses, wharves or any re-modeling which tends to change the exterior appearance of any structure [sic]. Approval of said proposed construction shall be submitted to Mrs. Elizabeth S. Woodward, or her designee, by use of preliminary plans for approval. Said approval or rejection shall be given in a timely manner. Should said approval not be rendered within thirty (30) days, construction may commence.

Specifically, at issue in this case is Restriction No. 24, which prohibits the construction of a boathouse without Mrs. Woodward’s approval.

Defendants assert that Paragraph 4 of Restriction No. 38 permits amendment of any provision contained in the restrictions as long as a majority of the homeowners agree. Paragraph 4 of Restriction No. 38 states the following:

The above restrictive covenants may be modified, extended, amended, changed or altered at any time by and with the written consent of the record owners of a majority in number of lots in this subdivision.

Utilizing this provision, the Cutrers convinced the majority of the property owners in the subdivision to amend the Restrictions so that the disputed amendment reads as follows:

NOW THEREFORE, appears [sic] do hereby amend the restrictive covenants affecting Cyprien Estates, recorded in Conveyance Book 2216 at page 15, so as to delete therefrom paragraph 14 and 27 and to amend Paragraph 24 to read as follows:
24. Construction of said boathouse will be with the United States Corps of Engineers permit only.

We agree with the defendants that a majority vote of the homeowners, with written consent, may “modify, extend, amend, change, or alter” the restrictive |7covenants. However, this provision does not permit termination of restrictions. We find that defendants’ “amendment,” deleting completely paragraphs 14 and 27 and eliminating Mrs. Woodward’s approval for boathouse construction in paragraph 24 serves to terminate, rather than merely modify, the restrictive covenant.

Throughout the Restrictions, Mrs. Woodward requires her approval for various changes or additions to the property as demonstrated above. We find it difficult to believe that the developer, once she received notice of the proposed amendment, would permit an amendment that would altogether eliminate her approval of houseboat construction, having the effect of terminating the restriction. We find that in eliminating her approval, defendants have circumvented the whole intent of creating building restrictions. “Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of a general plan.” La.Civ.Code. art. 778. (Emphasis added).

Termination of a restrictive covenant is not provided anywhere in the Cyprien Estates Subdivision Restrictions. Since we are provided no guidance on the issue of termination in the act, we must refer to the Louisiana Civil Code for resolution of this matter.

Under Louisiana Civil Code article 780, “Amendment and Termination of Building Restrictions,” [b]uilding restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them. In the absence of such a provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land |sarea affected by the restrictions, ... “if the restrictions have been in effect for at least fifteen years,.... ” (Emphasis added).

As previously stated, we find no provision that permits termination of the restrictions. Defendants may argue that the modification provision is inclusive of termination; however, “[tjermination and amendment of building restrictions are generally different and distinct matters.” Mackey v. Armstrong, 30,054, p. 2 (La. App. 2 Cir. 12/30/97); 705 So.2d 1198, 1199. Nevertheless, even if this court could find support for such termination, the restrictions have not been in existence for at least fifteen years.

The Cyprien Subdivision Restrictions were established on October 9, 1990. Commencement of this action began on July 17, 1996, when plaintiffs sought declaratory judgment requesting the court to declare the original Subdivision Restrictions as applicable and the amendments null and void. In 1996, the Restrictions had not been in effect for fifteen years. Furthermore, fifteen years has not passed to this date. Therefore, we find that defendants were not entitled under the Subdivision Restrictions to terminate the provision requiring developer’s approval for construction of a boathouse. Article 780 of the Civil Code prevents termination of building restrictions, which have not existed at least fifteen years.

Plaintiff, Elizabeth Woodward, established in the Subdivision Restrictions that the restrictive covenants run with the land for twenty-five years, in successive twenty-five year periods, unless it has been revised. This court cannot ignore the clear intentions of the developer as outlined in the Restrictions. Further, we find that defendant’s sought to remove the prior approval provision because defendants believed that Mrs. Woodward not approve the construction. Although Mrs. Woodward disagreed with the construction of the boathouse at its current | location, she did propose another possible site on the Cutrers’ property for the pier and boathouse. Thus, we find that Mrs. Woodward was not unreasonable as to defendant’s construction of the boathouse.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed at appellants’, William Cutrer and Linda Arnold Cutrer, et al, costs.

AFFIRMED.

AMY, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

| AMY, J.,

dissenting.

I respectfully dissent from the majority opinion. My approach to the issue involved in this case fundamentally differs from that of the majority. First, I do not view the action taken by the defendants as a termination of the building restrictions, but an amendment to the provisions. Further, even if the action is to be characterized a termination, or partial termination, I find that the building restrictions indicate that they may be “modified, extended, amended, changed or altered” by consent of a majority of the landowners. I conclude that this description is sufficiently broad to encompass the type of partial “termination” at issue here. As set forth below, La.Civ.Code art. 780 makes initial provision for amendment or termination of building restrictions by the terms of the “act that establishes them.” Having stated that I disagree with the majority’s resolution of the issue, I turn to the analysis I find appropriate for this case, a case which arrived at the trial court on cross motions for summary judgment.

The defendants’ primary contention is that the amendments were made pursuant to the requirements of the original building restrictions. The plaintiffs argue that the amendments to the building restrictions were correctly viewed by the trial court as null. They contend that the original building restrictions are real rights, ones that should be viewed as requiring notice and the right to be heard prior to amendment. As notice and an opportunity to be heard were not provided to the [{.plaintiffs prior to the amendment, they contend that the amendment must be found to be null.

Title V of Book II of the Louisiana Civil Code addresses building restrictions. Insofar as is relevant to the present case, the Civil Code provides:

Art. 775. Building restrictions
Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.
Art. 776. Establishment
Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables. Once established, building restrictions may be amended or terminated as provided in this Title.
Art. 777. Nature and regulation
Building restrictions are incorporeal immovables and real rights likened to predial servitudes. They are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions.

As can be seen by reference to the above Articles, the plaintiffs correctly contend that the building restrictions are real rights akin to predial servitudes. See also La.Civ.Code art. 777. See also a.n. yianno-POULOS, LOUISIANA CIVIL LAW TREATISES, PREDIAL servitudes § 192 (1997). However, they further contend that notice and a right to be heard should be viewed as a prerequisite to amendment. This type of requirement of notice is absent from the Cyprien Estates building restrictions, which provide, in pertinent part:

14. No used materials shall be used in the construction of the exterior or any building other than used brick, without the written approval of Mrs. Elizabeth Shutts Woodward or her agent.
22. Any boathouses are to be for the personal use of the contiguous lot owner, only.
|o23. All boat houses are to be constructed so as to be closed in on three (3) sides, and of material compatible with the dwelling of said lot.
24. Plans for construction of said boathouse will be only with the United Corp of Engineers permit and the developer’s approval.
25. Access to water frontage is proposed for Lots 9 and 10 by means of extending the existing boat canal; same shall be used only by owners of Lots 8, 9 and 10.
26. They shall be cooperative in their use and in no manner whatsoever block said waterway.
27. Prior to construction of any nature, be it dwelling, out-building, fencing, boat houses, wharves or any remodeling which tends to change the exterior appearance of any structure[sic]. Approval of said proposed construction shall be submitted to Mrs. Elizabeth S. Woodward, or her designee, by use of preliminary plans for approval. Said approval or rejection shall be given in a timely manner. Should said approval not be rendered within thirty (30) days, construction may commence.
38. The invalidation of any one of the foregoing restrictions or covenants by final judgment of any competent court shall in no way affect the validity of any other restrictions or covenant which shall remain in full force and effect.
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 25 years from date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of 25 years, unless revised as provided in paragraph 20 below [sic]. The breach of any of the foregoing covenants shall not defeat or render invalid any title, hen, mortgage or deed of trust made in good faith for value as to the said land, residence, outbuilding or garage located as hereinabove provided. The breach of any of said covenants or the continuance of any such breach may be enjoined, abandoned or remedied by appropriate proceedings and each of the foregoing covenant shall remain at all times in full force and effect, as against any breach thereof by any such owner, whether such ownership is acquired by purchase, foreclosure, devise, inheritance or any other manner.
Invalidation of any one of these covenants by judgement of court order shall in no way affect any of the other provisions which shall remain in full force and effect.
|4The above restrictive covenants may be modified, extended, amended, changed or altered at any time by and with the written consent of the record owners of a majority in number of lots in this subdivision.

With the majority of the property owners in the subdivision signing the document, the amendment at issue reads as follows:

NOW THEREFORE, appears do hereby amend the restrictive covenants affecting Cyprien Estates, recorded in Conveyance Book 2216 at Page 15, so as to delete therefrom paragraphs 14 and 27 and to amend Paragraph 24 to read as follows:
24. Construction of said boathouse will be with the United States Corps of Engineers permit only.

My review of the building restrictions, the amendment, and applicable legislative and jurisprudential authority reveals no fatal flaw in the amendment. Article 780 of the Louisiana Civil Code provides:

Building restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them. In the absence of such provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for at least fifteen years, or by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for more than ten years.

Although this provision was enacted by Acts 1999, No. 309, § 1, and became effective June 16, 1999, Section 4 of No. 309 provides that “the provisions of this Act legislatively overrule the case of Brier Lake, Inc. v. Jones, 97-C-2413 (La.4/14/98); 710 So.2d 1054, are remedial, and shall apply both prospectively and retroactively.” Reference to Brier Lake, a case advanced by the plaintiffs, indicates that the Louisiana Supreme Court determined in that case that unanimous consent of a subdivision’s owners was required to make a provision of existing budding restrictions more restrictive. However, the supreme court did not address the type of 1 ^amendment before the court in the instant matter, ie., one that makes the restrictions less onerous.

As seen above, Article 780 provides that amendment may be made in accordance with the method set forth in the act establishing the restrictions. The original building restrictions provide for amendment “by and with a majority in number of lots in this subdivision.” Nothing in the Cyprien Estates building restrictions requires a unanimous vote. Neither do the building restrictions provide any indication that notice is required to be provided to all property owners.

Although La.Civ.Code art. 777 provides that building restrictions are real rights, there is no authority to suggest that notice is required prior to amendment. The plaintiffs advance Bruce v. Simonson Investments, Inc., 251 La. 893, 207 So.2d 360 (1968) as a case in which notice to property owners was found to be a prerequisite to amendment of building restrictions. However, the following, detailed notice requirement is contained in the original building restrictions at issue in Brace:

Any change in the above restrictions and covenants may be made only upon the affirmative vote in writing of the owners of a majority of the lots in Squares 9 through 18, both inclusive, above described, and then only after a written notice of a meeting to consider such changes shall have been given to all of the owners of said lot. This notice shall state the nature of the change, the time, date and place of the meeting.

Bruce, 207 So.2d at 362. No such requirement is contained in the Cyprien Estates building restrictions. Although a requirement of notice could have been included at the time Mrs. Woodward created the subdivision, it was not. No provision for notice and an opportunity to be heard can now be read into the restrictions.

Following de novo review of the record, I conclude that the summary judgment entered in favor of the plaintiffs declaring the amendments to the Cyprien Estates building restrictions null, was in error. As I would reverse the summary judgment | fientered in favor of the plaintiffs and would enter summary judgment in favor of the defendants, I dissent.

      . The defendants responded to the petition with a Peremptory Exception of No Cause of Action, Failure to Join an Indispensable Party, and Declaratory Exception of Lack of Subject Matter Jurisdiction. The trial court granted the exception of peremptory exception of no cause of action in part, but denied the exception insofar as it related to claims of interference with drainage and issues related to restrictive covenants. The granting of the partial exception of no cause of action was later reversed on appeal, with a panel of this court recognizing that, at that time, no action existed for partial exception of no cause of action. Woodward, v. Cutrer, an unpublished writ dated January 24, 1997 and bearing the docket number W96-1670.

      . Mrs. Woodward asserted at trial that she, as the developer and a resident, was never given notice of the proposed amendment.


author: JjBROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Kevin E. EPPINETTE, Appellant.
    No. 36,825-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 11, 2003.

      Charles Blaylock, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, William R. Coenen, Jr., District Attorney, Penny Douciere, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   JjBROWN, C.J.

Defendant, Kevin Eppinette, pled guilty to driving while intoxicated, third offense, a violation of La.R.S. 14:98, with an agreed upon sentence; however, he reserved his right to appeal the denial of his pretrial motion to suppress in accord with State v. Crosby, 338 So.2d 584 (La.1976). For the reasons set forth below, defendant’s conviction is affirmed, but we are constrained to vacate the sentence and remand to the trial court for resentencing in accordance with the amendment to La.R.S. 14:98(D). See State v. Mayeux, 01-3195 (La.06/21/02), 820 So.2d 526.

Factual Background

On May 28, 2001, agents with the Louisiana Department of Wildlife and Fisheries stopped defendant while he was operating a jet ski on Woolen Lake in Richland Parish. He was stopped for a routine boating safety check pursuant to La.R.S. 34:851.29. Because of his appearance and smell, Eppinette was given and failed a field sobriety test. He was arrested and later registered .118 on a breath Intoxilyzer. Having two previous D.W.I. convictions, Eppinette was charged with driving while intoxicated, third offense.

Defendant filed a motion to suppress the breath test results, urging that the initial stop was without probable cause. On the date of the hearing, defendant’s attorney orally amended the motion to include a request to quash the bill of information because it charged Eppinette under the general driving while intoxicated statute under which third offense D.W.I. is a felony, rather than under the boating safety statutes under which multiple D.W.I. offenses are misdemeanors. The trial court denied the motion.

|?On May 8, 2002, defendant, with a Crosby reservation, pled guilty to DWI third offense and was sentenced to five years at hard labor with four and one-half years suspended, active probation for five years, completion of alcohol abuse counseling and treatment, abstinence from alcohol and controlled dangerous substances, and random drug screens. A $2,000 fine was also imposed, together with costs to defray the expenses of drug screens and probation. This appeal ensued.

Discussion

Defendant objects to what he describes as a discretionary, suspiciousless stop and seizure. Alternatively, he asserts that because the stop was authorized by the boating safety act, he must also be charged under that act.

Validity of Stop and Seizure

The Fourth Amendment to the United States Constitution protects the right to be secure “against unreasonable searches and seizures.” Ordinarily, reasonableness focuses on an individualized suspicion of wrongdoing; however, the supreme court has recognized limited circumstances where the usual rule does not apply. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

In certain instances, the government’s need to discover latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify an intrusion without any measure of individualized suspicion. The court in: Vemonia School District 17J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) upheld random, suspicionless |3drug testing of school athletes; in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002), the court expanded Vemonia to allow random, suspicionless drug testing of middle and high school students participating in any extracurricular activity including choir and the Academic Team.

More pertinent to the present case, brief, standardized, discretionless, checkpoints of automobiles have been upheld as serving significant interests in safety. Specifically, the following were found valid: United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), a highway checkpoint for detecting illegal aliens; Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), use of highway sobriety checkpoint; Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), although the court invalidated this particular stop because it utilized “stan-dardless and unconstrained discretion,” the court acknowledged the state’s interest in checking drivers’ licenses and registration.

Wildlife and Fisheries agents have the specific right to make investigatory stops of watercraft under La.R.S. 34:851.29, which provides:

It shall be the duty and responsibility of every wildlife agent and peace officer of this state and its subdivisions to enforce the provisions of this Part, and in the exercise thereof, they are hereby authorized to stop and board any vessel for the purpose of addressing inquiries to those on board, requiring appropriate proof | Aof identiñcation therefrom, examining the certifícate of numbers issued under this Part or in the absence of such certificate requiring appropriate proof of identification of the owner or operator of the vessel, and in addition, examining such vessel for compliance with this Part. Officers so boarding any vessel shall first identify themselves and such officer in the performance of his duties shall be without liability for trespass. (Emphasis added).

This statute is not designed to detect general criminal activity, which is prohibited under recent Supreme Court interpretations, but rather is for the specific purpose of insuring safety on Louisiana waterways. Both federal and state jurisprudence has made it clear that when an identifiable public safety reason exists, states can make laws that allow for suspi-cionless stops. Safety on the water is a compelling reason for Louisiana to authorize wildlife and fisheries agents to stop and inspect watercraft. These stops are permitted any time a person is on the water. Lakes and waterways are different than 60-foot highway right-of-ways and do not easily lend themselves to stationary checkpoints. In this case, the only evidence of the circumstances of this stop was the stipulation that it was a routine boating safety check pursuant to La.R.S. 34:851.29. Thus, we find no “unconstrained discretion.”

Since a suspicionless stop under the circumstances presented in this case is allowable, any information learned during the stop can be acted upon by the officers. Once the wildlife agents lawfully stopped defendant’s jet ski to perform a safety check, it became apparent to them that he might be intoxicated. This observation gave them probable cause to investigate further. See State v. Benoit, 01-2712 (La.05/14/02), 817 So.2d 11.

|KWe find that the initial stop was valid and the resulting investigation and search were lawful. Therefore, any evidence obtained could be used.

Applicable Statute

Defendant’s argument that the evidence can be used only to convict him under La.R.S. 34:851.8 is meritless. Both La.R.S. 34:851.8 and La.R.S. 14:98 prohibit the operation of watercraft while intoxicated. If the legislature had intended to limit operation of a watercraft while intoxicated to the provisions in the safe boating statutes, it would not have included watercraft in La.R.S. 14:98.

Defendant argues that because the Wildlife and Fisheries agents used the authorization of the boating safety act to stop and inspect defendant’s jet ski then D.W.I. charges must be brought under the same statute. This argument is without merit.

The framework of our law anticipates situations in which a suspect could be charged under more than one statute; the problem is addressed by La.R.S. 14:4, which reads:

Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender’s conduct is:
(1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
(2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute or some constitutional provision.

| ,,Error Patent Review

In accordance with La.C.Cr.P. art. 920, we review all appeals for errors patent on the face of the record. In doing so, we have found such an error in sentencing.

During the 2001 Regular Session, the Louisiana Legislature amended the sentencing provisions of La.R.S. 14:98(D), specifically providing that a third offender would face only 30 days of mandatory jail time. The effective date of the amendment, August 15, 2001, was after the date of the offense but before the date defendant pled guilty, May 28, 2002. Under State v. Mayeux, supra, the trial court should have imposed sentence as amended. We therefore are constrained to vacate defendant’s sentence and remand the case to the district court for sentencing in conformity with the supreme court’s ruling in Mayeux. See State v. Nelson, 36,266 (La. App.2d Cir.08/14/02), 823 So.2d 1112.

We further note that the trial court failed to advise defendant at sentencing of the time period within which to apply for post-conviction relief. By this opinion, defendant is hereby advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under La.C.Cr.P. art. 914 or 922.

| ^Conclusion

For the reasons set forth above, defendant’s conviction is affirmed. His sentence is hereby vacated and the matter is remanded to the trial court for resentencing under La.R.S. 14:98(D) as amended by the legislature in 2001.

      . "Vessel" is defined by La.R.S. 34:851.2(1) as watercraft and air boats of every description, other than a seaplane on the water, used or capable of being used as a means of transportation on water. Defendant concedes that a jet ski is such a vessel.

      . The trial court sentenced defendant under the statute as read on the date of his offense which required at least six months to be served without benefit of parole, probation or suspension of sentence.


author: LCLARENCE E. McMANUS, Judge.

text:
    Phillip A. CERMINARO v. The JEFFERSON PARISH ZONING APPEALS BOARD.
    No. 02-CA-1041.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.
    Rehearing Denied March 10, 2003.

      Thomas J. Capella, Capella Law Firm, Metairie, LA, for plaintiff-appellee.
    Thomas G. Wilkinson, Parish Attorney, Philip A. Gattuso, Assistant Parish Attorney, Gretna, LA, for defendant-appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   LCLARENCE E. McMANUS, Judge.

This is an appeal by the Parish of Jefferson from a judgment reversing a Zoning Appeals Board order which denied a property owner’s request for a zoning variance. For the following reasons, we reverse and reinstate the Board’s ruling.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Philip Cerminaro, purchased his home located at 318 Midway Drive in River Ridge, in June 2001. However, he and his family did not immediately move into the home. Shortly after purchase, plaintiff hired a contractor to construct a six (6) foot cedar fence all the way around his property with a cedar gate located on the driveway. He did not apply for a permit prior to construction. Rather, he relied on his contractor to determine whether a permit was necessary and if so, obtain one. A permit was not obtained. After being citing with a violation of Jefferson Parish Comprehensive Zoning Ordinances 20434 and 20783, plaintiff applied for a zoning variance to the Zoning Appeals Board (“ZAB”) for Jefferson Parish. The citation stated that plaintiff was constructing a fence without a permit and was doing so in the required front yard area without setting his fence back thirty (30) feet from the front property line. Plaintiffs options were to obtain a permit, make an application to the ZAB or comply with zoning district property line setback requirements for fences.

| aIn response, plaintiff made a request to the ZAB for a variance. His “Property Hardship Statement” cited the special needs of his nineteen year old son who has Down’s Syndrome and the need for secure outdoor space away from their swimming pool for his son, as well as, his four year old daughter, new born baby and the family’s two dogs. Plaintiff further noted that the front yard space is necessary because the house was built ninety-two feet back from the front property line and the swimming pool encompasses the open side yard space on his property. Plaintiff asserted that his property value would be diminished if he is required to reduce the amount of usable front yard space by thirty feet. Additionally, his parking space will be diminished and certain landscaping and lighting will be located outside the fence subjecting him to great expense to move and reconfigure these things within the fence. He pointed out that he obtained permission from one neighbor living at 314 Midway Drive. Moreover, he followed the fence line of his neighbors at 314 Midway Drive and 9600 Garden Oak Drive when constructing the fence to the outer limits of his property. Several of plaintiffs neighbors signed a petition opposing the variance. The River Ridge Community Association also opposed plaintiffs fence variance.

Plaintiffs most vocal adversary was his neighbor, William Becker, who resides at 323 Midway Drive. Mr. Becker maintained that there are no front yard fences in the immediate area of 318 Midway Drive and that that address never had a front yard fence. Mr. Becker requested that the existing six foot fence be removed; that the new fence be setback no less than thirty feet from the front property line; that the new fence be a decorative, open type fence up to forty-two inches high (not a chain link fence); and that plaintiff submit a drawing of the proposed fence to the ZAB prior to permit issuance.

After a hearing, ZAB denied plaintiffs request for a variance. Excerpts from the hearing indicate that the variance was denied essentially because plaintiff |4did not apply for and receive a permit prior to construction. The ZAB’s written reasons for denial state:

Board Members agreed, with the opposition, that if they were to allow a six-foot (6') high wooden fence to exist with none of the thirty-foot (30') front yard setback required, they would certainly set an undesirable legal precedent in which the adjoining property values will be negatively effected and the variance will not preserve the general welfare and prosperity of the neighborhood.

Thereafter, plaintiff filed suit against the Parish seeking to reverse the ZAB’s decision denying him a variance. Plaintiff presented letters from his son’s treating physician and special education teacher, a recent appraisal of his property and photographs of his property and other fences in the neighborhood to the district court in support of his request for a variance. After trial of this matter, Judge Robert Pitre apparently found the ZAB’s decision was arbitrary and capricious. The trial court granted the variance in open court, stating:

I’m looking at Lot 318 compared to the other lots in that particular area. The lot itself appears to be different in that there seems to be .a heavy growth of trees and shrubbery and all sorts of other vegetation that’s not apparent on the other photographs of the other properties. The only thing that’s clearly visible of the wooden fence on 318 is the ... gate itself ...
Now, one of the problems we have is that if the fence was set back 30 feet, because of the configuration of the lot with this vegetation, we’d have 30 feet by the width of the lot that would be completely dead space. All that he could do would be to cut the grass on it, and it would be like a little park in front of his house and in front of his fence.
Based on that, plus the testimony of the witnesses and taking into consideration the special circumstances [of] his child with Down’s Syndrome, I’m going to go ahead and grant a variance to the extent that I’m going to require that Mr. Cer-minaro change the gate to a wrought iron type gate. Other than that, I’m going to grant the variance.
The Parish now appeals this ruling.

DISCUSSION

The Parish argues that the ZAB’s ruling was not arbitrary and capricious. Therefore, the trial court erred in reversing its decision and granting the variance. At trial, plaintiff opposed the ZAB’s decision and, thus, bore the burden of proving its decision was arbitrary and capricious. Our Court recognizes that a prima facie presumption of validity attaches to zoning board actions. Parish of Jefferson v. Davis, 97-1200 (La.App. 5 Cir. 6/30/98), 716 So.2d 428. A reviewing court cannot substitute its own judgment or interfere absent a showing by the appellant or relator that the'ZAB was arbitrary and capricious or abused its discretion. Id. In determining whether it should grant a variance or not, a zoning board has no general rule to follow as to what constitutes a hardship or unusual and practical difficulties sufficient to authorize a variance. Prescott v. Parish of Jefferson, 96-1058 (La.App. 5 Cir. 4/9/97), 694 So.2d 468. It must determine each case on its own merits and consider all relevant factors. Id.

The Jefferson Parish Comprehensive Zoning Ordinances at issue [Ordinance Number 20783 § 3(XX(7)) and § 3(VII-C(4)) ], state that front yard areas may not be fenced or otherwise enclosed unless a variance is granted. However, if a variance is granted, open design durable material fences are permitted in the front yard if they are set back three (3) feet from the front property line. The fence may not obscure view of the adjacent property. Wood, metal and decorative fencing may be used in conjunction with masonry, brick or similar opaque material as long as the solid opaque material does not extend more than three (3) feet above the ground and columns are not higher than six (6) feet or wider than eighteen (18) inches. There are also minimum yard requirements. Those requirements are as follows: front yard thirty (30) feet; rear yard twenty (20) feet; and side yard ten (10) feet per side.

lfiIn deciding whether to grant or deny the variance, the ZAB may consider how the proposed fence conforms to the characteristics of existing fences in the immediate area. Under the ordinances, fences which do not meet the above criteria are not permitted in the required front yard but may be permitted in the side and rear yards. Plaintiffs front yard fence is at issue for its cited violation of the ordinance prohibiting front yard fences not set back thirty (30) feet from the front property line and because it is a solid wood fence.

The Board determined that the variance should not be granted because it would set an undesirable legal precedent and would not preserve the general welfare and prosperity of the neighborhood. While we empathize with plaintiffs special needs, we tend to agree with the ZAB’s determination. Thus, we conclude the trial court erroneously granted the variance. We do not find, however, that plaintiff should be penalized because his property is not characteristic of his neighboring properties. Nor do we do find that he must make his property look like those neighboring properties.

Under the Jefferson Parish Comprehensive Zoning Ordinance (CZO), Section XXII 3.B, the Board has the power to grant variances in certain circumstances:

1. Surrounding property values will not be negatively affected; and
2. The variance will positively affect neighborhood prosperity and welfare; and
3. The variance will not impair light and air, increase traffic congestion or parking problems, overburden fire protection or sewerage and water services, or produce other nuisances such as odors, dust, fumes, noise or glare; and either
4. Circumstances special to the property create a demonstrable hardship for the property owner; or
5. The property owner would be deprived of rights enjoyed by neighboring property owners were the 17variance not be granted, but would not thereby simply be granted special privileges, nor would the variance be merely for the owner’s convenience or profit.

Accordingly, before a variance may be granted, the ZAB must find that all of the first three requirements are present, plus one of the factors listed in the fourth or fifth paragraph. Barreca v. Parish of Jefferson, 95-14 (La.App. 5 Cir. 4/25/95), 655 So.2d 403. Apparently, the ZAB failed to find the appropriate requirements were met.

We note for the record that plaintiffs property is unique and by design does not resemble its neighboring properties. Plaintiffs lot is sized 100 x 150 feet and is mostly enclosed by trees and shrubbery. His house and swimming pool are set approximately twenty (20) feet forward from the back property line. Plaintiffs immediate neighbors do not have front yard fences, nor do they have trees or shrubbery enclosing their property and most of the houses are not set as far back on the lot as plaintiffs house is. We point out that pictures of plaintiffs now fenced property demonstrate that most of this front yard fence is not clearly visible to passers by because it is almost entirely concealed by the trees and shrubbery. However, certain sections of the front portion of the fence are visible through the thick vegetation.

The most visible violation of the ordinance is the solid wooden gate area which crosses plaintiffs driveway along the front property line. The ordinance does not require plaintiff to completely tear down all four sections of his fence, as the violation only applies to the front fence and the front 30 feet of plaintiffs property. It is important to note, however, that even if a variance were granted under Ordinance No. 20783 § 3(XX(7)), a front yard fence must be set back a minimum of three feet. Under the variance, if it was approved, only the base three feet of the fence could be solid or site obstructive. The upper three feet of the fence must be an open design with columns no higher than six feet and no wider |sthan 18 inches. The ordinance is quite specific, “fences not meeting the above criteria shall not be permitted.”

Because the evidence does not establish that ZAB’s action was arbitrary and capricious, we vacate the trial court’s judgment and reinstate the ZAB’s order denying plaintiffs request for a variance to keep his already constructed wooden front yard fence.

CONCLUSION

Based on the foregoing, we vacate the trial court’s judgment and reinstate the Zoning Appeal Board’s order denying plaintiffs request for a variance of the zoning ordinance.

JUDGMENT VACATED, ZONING APPEAL BOARD ORDER REINSTATED.


author: WALLER, J., for the Court. McRAE, P.J.,

text:
    Shirley Annette PINNELL v. Patsy BATES.
    No. 2001-CA-00802-SCT.
    Supreme Court of Mississippi.
    Sept. 5, 2002.
    Rehearing Denied March 6, 2003.
    Phillip David Bridges, Brandon, attorney for appellant.
    Matthew D. Miller, S. Robert Hammond, Jr., Hattiesburg, attorneys for ap-pellee.
   WALLER, J., for the Court.

¶ 1. While Patsy Bates was in the process of moving into her new house in Carson, Mississippi, she invited her friend Shirley Annette Pinnell over to visit. Pin-nell arrived between 5:00 and 5:30 p.m., and the two visited with one another, had tea and coffee, cleaned and unpacked. At approximately 9:00 p.m., Pinnell exited the front door and fell from the concrete steps onto the concrete porch, breaking a finger and her leg.

¶2. Pinnell filed a complaint against Bates in the Circuit Court of Jefferson Davis County, alleging that Bates was negligent in failing to warn her of the slippery steps, to provide a hand rail, to provide sufficient lighting, and to reduce the slipperiness of the steps. Bates filed a motion for summary judgment, alleging that Pin-nell was a licensee rather than an invitee and that Pinnell had shown no evidence of willful and wanton conduct on the part of Bates. The circuit court granted the motion, finding, as a matter of law, that Pin-nell was a licensee, and that Bates owed no duty to Pinnell as a licensee. On appeal, we refuse to abolish the common law distinctions between licensee and invitee. However, we find that a jury question was created as to whether Pinnell was a licensee or an invitee. We therefore reverse and^ remand the grant of summary judgment to Bates.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF BATES.

¶ 3. We decline to accept Pinnell’s invitation to abolish the legal distinctions between licensees and invitees. Eliminating the distinction curtails the right of unbridled use of private property. The concept that “a man’s home is his castle” is the shield of protection for the owner of the humblest one-room shack as well as the owner of a large estate.

¶ 4. Homeowners would be exposed to greater liability and would have to shoulder a heavier burden. Worse still, a jury would have the power to decide whether a homeowner has arranged the living room furniture or maintained his yard in a reasonable manner, purchased the correct “non-slip” flooring or contracted with the correct construction crew to repair the home.

¶ 5. The distinction between a business visitor, heretofore considered an invitee, and a social visitor, heretofore considered to be a licensee, would be abolished, and the duty owed to a social guest would be identical to the duty owed to a business invitee. Eliminating homeowners’ protection from liability for injuries sustained by social guests would impose on the homeowners the same standard and duty a commercial enterprise such as Wal-Mart owes to its customers. However, in reality, there are enormous differences between businesses and residences:

Businesses extend invitations to prospective customers, clients, etc., to come to their places of business for commercial purposes. Persons so coming are, for the most part, personally unknown to those extending the invitation. It is anticipated these invitees will roam freely about the public areas of businesses, and a part of the cost of doing business is providing reasonably safe premises. These establishments are, ordinarily, professionally designed, built, and equipped. Safety and convenience account for much of their sterile Uniformity-
Residences are designed to please the homeowners and meet their needs and wants. A residence reflects the homeowners’ individuality and is equipped and operated by the homeowners according to how they want to live. We live in the age of the do-it-yourselfer. Few homes would meet OSHA’s standards, and few individuals would desire to live in such a home. Modern businesses do not have polished hardwood floors, throw rugs, extension cords, rough flagstone paths, stairways without handrails, unsupervised small children, toys on the floor, pets and all the clutter of living — homes do. There are good reasons behind the old adage that most accidents occur in the home.

Jones v. Hansen, 254 Kan. 499, 867 P.2d 303, 317-18 (1994) (McFarland, J., dissenting).

¶ 6. There is no compelling reason to change our time-honored law on premises liability now. The distinctions between licensee and invitee have been developed over many years and are grounded in reality.

¶ 7. There appears to be little change in the number of states that have chosen to abolish the common law distinctions between invitees and licensees since our review made in the case of Little v. Bell, 719 So.2d 757, 762 (Miss.1998). This lack of meaningful change confirms a reversal of “the trend” of states to abandon the distinctions between invitees and licensees discussed by Professor Keeton in 1984:

[The failure of more states to join the “trend” of abolishing the distinctions] may reflect a more fundamental dissatisfaction with certain developments in accident law that accelerated during the 1960’s — reduction of whole systems of legal principles to a single, perhaps simplistic, standard of reasonable care, the sometimes blind subordination of other legitimate social objectives to the goals of accident prevention and compensation, and the commensurate shifting of the balance of power to the jury from the judge. At least it appears that the courts are ... acquiring a more healthy skepticism towards invitations to jettison years of developed jurisprudence in favor of beguiling legal panacea.

W.P. Keeton, Prosser and Keeton on the Law of Torts § 64 (5th ed.1984).

¶ 8. As of 2001, it appears that the states are at best evenly divided on whether to continue to recognize the common law distinctions. However, of those abolishing the distinctions, some states such as Louisiana still look to the traditional status distinctions in deciding cases. See, e.g., Boycher v. Livingston Parish Sch. Bd., 716 So.2d 187, 191 n. 3 (La.App.1998) (“Although the common law classifications of invitee-licensee-trespasser are not determinative of liability, the plaintiffs status has a bearing on the question of liability.”)

¶ 9. Since 1982, the following states have expressly rejected the abrogation of the traditional classifications: Alabama (federal court applying Alabama law) (1984); Arkansas (1988); Colorado (1991); Connecticut (1992); Florida (1982); Georgia (1997); Idaho (1987); Indiana (1982); Maryland (1984); Michigan (1999); Mississippi (2000); Missouri (1993); New Jersey (federal court applying New Jersey law) (1999); Ohio (1988); Oklahoma (1985); Oregon (2000); Pennsylvania (1989); Texas (1985); and Washington (1986). See Vi-tauts M. Gulbis, Annotation, Modem Status of Rules Conditioning Landowner’s Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R.4th 294 (Supp.2001).

¶ 10. The following states not mentioned in the Annotation have retained the traditional common law distinctions: Arizona (Woodty v. Weston’s Lamplighter Motels, 171 Ariz. 265, 830 P.2d 477, 480 (1992) (“In Arizona, the particular duty of care owed by a landowner to an entrant on his or her land is determined by the entrant’s status as an invitee, licensee or trespasser.”); Delaware (Kovach v. Brandywine Innkeepers Ltd. P’ship, 2000 WL 703343 (Del.Super.Ct.2000) (“In determining a given plaintiffs status, Delaware Courts utilize the classifications set forth in Restatement (Second) of Torts (1965) [: possessors, trespassers, licensees, or invitees].”); South Carolina (Sims v. Giles, 343 S.C. 708, 541 S.E.2d 857, 861 (2001) (“South Carolina recognizes four general classifications of persons who come on premises: adult trespassers, invitees, licensees and children. Different standards of care apply depending [on the status of the entrant].”); South Dakota (Musch v. H-D Elec. Coop., Inc., 460 N.W.2d 149, 151 (S.D.1990) (“South Dakota recognize[s] the traditional common law categories for those who enter onto land and are injured: trespasser, licensee and invitee.”); Virginia (Franconia Assocs. v. Clark, 250 Va.444, 463 S.E.2d 670, 672-73 (1995) (Delineating different duties to invitees, licensees and trespassers); and Vermont (Buzzell v. Jones, 151 Vt.4, 556 A.2d 106, 108 (1989) (Delineating different duties to invitees, licensees and trespassers).

¶ 11. The Little Court agreed with the Missouri Supreme Court’s finding that time-honored precedent has served us well in balancing the interests of possessors of land with those who enter thereon:

The contours of the legal relationship that result[ ] from the possessor’s invitation reflect a careful and patient effort by courts over time to balance the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish. Moreover, and despite the exceptions courts have developed to the general rules, the maintenance of the distinction between licensee and invitee creates fairly predictable rules within which entrants and possessors can determine appropriate conduct and juries can assess liability. To abandon the careful work of generations for an amorphous “reasonable care under the circumstances” standard seems — to put it kindly — improvident.

Carter v. Kinney, 896 S.W.2d 926, 930 (Mo.1995).

¶ 12. Furthermore, the legislative branch should be addressing this issue rather than the judicial branch. The legislative branch sets public policy and the judicial branch interprets tests the constitutionality of the public policy enactment. Abolishing the distinctions between invitees and licensees is a matter which involves a balancing, or a rebalancing, of the respective rights and duties of those who own, lease or occupy land or home, and of the rights and duties of those who enter on such land or home and are injured. The legislative process insures the widest possible input of individuals or groups affected or concerned in the establishment of an appropriate public policy on issues of public concern.

¶ 13. If the judiciary takes it upon itself to abolish the distinctions, an opportunity for public participation in the decision-reaching process would not be provided and the Court would be making a ruling which is based only on the briefs submitted by the parties. The result reached by the majority would determine the public policy and affects the rights and duties of very nearly all of the citizens of our state. See generally Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 12-18 (1976) (Hansen, J., dissenting).

¶ 14. Applying the licensee/invitee distinction to the case at bar, we find that a factual dispute exists as to the licensee/invitee status of Pinnell. In Hall v. Cagle, 773 So.2d 928 (Miss.2000), Hall alleged she was at the Cagles’ home to assist with moving and unpacking, a service which she performed for Cagle’s benefit. While the occasion here of Pinnell’s visit may have been social, Pinnell helped out with some housework and “putfting] some things away” because Bates was having back trouble.

¶ 15. We have held that a visitor may be an invitee where he comes to the home of the occupant, not for business purposes, but, nevertheless, for the occupant’s benefit. Id. at 929 (citing Minor v. Eng’g Serv. Co., 304 So.2d 45, 48 (Miss.1974)).

1116. While the facts in the case sub judice are not precisely “on all fours” with the facts in Hall or Minor, Pinnell, once on the premises, performed services for Bates’s benefit, and a jury question was created as to the issue of whether she was an invitee or a licensee.

CONCLUSION

¶ 17. Because a jury question exists as to whether Pinnell was an invitee or a licensee, the Jefferson Davis Circuit Court’s judgment is reversed, and this matter is remanded for further proceedings in accordance with this opinion.

¶ 18. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND GRAVES, JJ.

McRAE, P.J.,

dissenting:

¶ 19. Why do we consider the status of Pinnell as she was leaving Bates’s home when these two ladies were enjoying one another’s friendship and fellowship and were helping each other? Why go through the legal maze to make the distinction and determine the standard when a reasonable person in like circumstances standard would suffice?

¶ 20. One can only wonder why there is an issue of whether Pinnell was an invitee or licensee. Pinnell was in the homeowner’s home for approximately four hours visiting Bates. She was leaving the premises when she fell and broke her finger and leg on the concrete porch. The standard should be were those steps in the proper condition under like or similar circumstances of a reasonable person, not whether if she was invited to the premises or whether the homeowner should have known the steps were in bad condition and only to warn the person who is visiting them. The issue is not a jury question of whether she was a licensee or invitee. The issue in determining negligence should simply be was there reasonable care under the circumstances just as in any other negligence case.

¶ 21. The majority states that:

If the judiciary takes it upon itself to abolish the distinctions, an opportunity for public participation in the decision-reaching process would not be provided and the Court would be making a ruling which is based only on the briefs submitted by the parties. The result reached by the majority would determine the public policy and affects the rights and duties of very nearly all of the citizens of our state. See generally Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1, 12-18 (1975) (Hansen, J., dissenting).

¶ 22. However, the majority fails to recognize that it was this Court, without the input of its citizens, which created the archaic fiction of licensee and invitee. This Court, in its process of developing its common law in this State, created this archaic fiction years ago in which it set up the licensee and invitee standards which have only caused confusion and complicated the primary issue of negligence. For a trial court to instruct a jury on the “issue of licensee or invitee” before it can reach the issue of negligence and how these standards apply in these circumstances does nothing for our legal system. This Court’s fiction creates a morass. It is time to resolve premises liability cases in a more modern and just fashion as has been done by practically the majority of the states that have abolished this same old feudalis-ts archaic fiction. We should admit our errors and correct them. Now is the time.

¶ 23. Pinnell should not be classified as either an invitee or a licensee in this case. It is evident that with the passage of time the feudal status classifications have caused much confusion throughout the legal community, especially in light of our comparative negligence standard. The circuit court has asked for clarification on the issue, but the majority does not oblige. Instead, the confusion continues. I disagree with the majority likening commercial enterprises to homeowners. Therefore, I would abolish the archaic classifications this Court created and adopt the reasonable person in like circumstances standard which we apply in any other negligence case. For these reasons, I dissent.

¶ 24. While the same standard would apply in any negligence situation, we must not forget that there are varying degrees of reasonableness. The standard that should be carried over into premises liability is that landowners, and businesses, should act as “reasonable persons in like circumstances.” What is reasonable for a homeowner is certainly different from what is expected of a business such as a Wal-Mart. “Like circumstances” is the key. Wal-Mart’s circumstances, are certainly distinct from those of a homeowner. The majority’s explanation of the differences between a business and a residence taken from Jones v. Hansen, supra, says it all. Further, Black’s Law Dictionary defines reasonable as “[flair, proper, or moderate under the circumstances ” and states that “[t]he reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions.” Black’s Law Dictionary 1018 (Abridged 7th ed.2000) (emphasis added). Implementing the reasonable person in like circumstances standard would not abrogate protections or create heavier burdens for the homeowner as the majority suggests. While the standard is the same and the application will be the same, the circumstances in negligence cases are seldom the same, especially when comparing a business to a residence. There is no longer a need for class distinctions for a jury to determine what is reasonable in a given situation.

¶ 25. We require people to behave as reasonably prudent people in almost every other area of tort law. It makes sense to require the same conduct in premises liability. The United States Supreme Court has spoken to this very issue in admiralty which is analogous to our premises liability cases. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 5.Ct. 406, 3 L.Ed.2d 550 (1959). The Court very succinctly noted the problem with the archaic distinctions.

The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create sub-classifications among traditional common-law categories, and to delineate fíne gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards imposing on owners and occupiers a single duty of reasonable care in all the circumstances.

Id. at 630-31, 79 S.Ct. 406.

¶26. In line with Kermarec, over half of the states have either completely abolished the common law distinctions or have at least abolished the invitee/licensee classifications and maintained the common law trespasser distinction. However, the majority states that there has been little change in the number of states to abolish the common law distinctions and that there is a “reversal of the trend.” I suppose that changes in the laws of over half of the states is not indicia of the movement.

¶ 27. Some of the states that have abolished the classifications altogether are as

follows: Webb v. City and Borough of Sitka, 561 P.2d 731 (Alaska 1977) (superseded in part by statute as explained in University of Alaska v. Shanti, 835 P.2d 1225, 1227 (Alaska 1992)); Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) (superseded in part by statute as explained in Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 80 Cal. Rptr.2d 506, 968 P.2d 65, 71-72 (1998)); Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Keller by Keller v. Mols, 129 Ill.App.3d 208, 84 Ill.Dec. 411, 472 N.E.2d 161 (1984) (abolishing with respect to children only); Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602 (Iowa 1998); Cates v. Beauregard Elec. Co-op., Inc., 328 So.2d 367 (La. 1976); Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985); Moody v. Manny’s Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994); Ouellette v. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976); Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976); Nelson v. Freeland, 507 S.E.2d 882, 886-87 (1998).

¶ 28. Some of the states abrogating the licensee/invitee distinction and/or implementing the reasonableness standard while maintaining the trespasser classification are: Smith v. Arhaugh’s Rest., Inc., 469 F.2d 97 (D.C.Cir.1972); Wood v. Camp, 284 So.2d 691, 696 (Fla.1973) (“eliminating] the distinction between commercial (business or public) visitors and social guests upon the premises, applying to both the single standard of reasonable care under the circumstances”); Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994); Poulin v. Colby College, 402 A.2d 846 (Me.1979); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972); Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996); Ford v. Board of County Comm’rs of the County of Dona Ana, 118 N.M. 134, 879 P.2d 766 (1994); O’Leary v. Coenen, 251 N.W.2d 746 (N.D.1977); Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056 (R.I.1994); Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984); Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975); Clarke v. Beckwith, 858 P.2d 293 (Wyo.1993).

¶ 29. Like the incoming tide, the evolution of the law cannot be denied.

¶ 30. Moreover, the majority forgets that this Court, not the Legislature, adopted these distinctions years ago. In fact, the Legislature has continually declined to address this subject. If these distinctions were created by statute, then it would be for the Legislature to address. However, these distinctions were created by this Court as a tool for interpreting and applying our negligence principles. Through our inherent powers, we created these classifications which no longer serve their intended purpose. Through our inherent powers, we can abolish them. Therefore, I would reverse the grant of summary judgment on the licensee basis and remand with instruction that the case be tried before a jury applying the reasonable person in like circumstances standard.

¶ 31. Accordingly, I dissent.

DIAZ AND GRAVES, JJ., JOIN THIS OPINION.

      . For purposes of this analysis, the term "homeowner” includes all possessors of land, including those who occupy, lease or own land.

      . Although Presiding Justice McRae's dissent characterizes the District of Columbia's treatment of premises liability as having "abolished the classifications altogether,” a closer look shows that the District of Columbia actually has adopted a "hybrid” standard. The case cited to support that characterization, Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97 (D.C.Cir.1972), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973), has no precedential value. See, e.g., Foshee v. Consol. Rail Corp., 849 F.2d 657, 660 (D.C.Cir. 1988) (Wald, C.J., dissenting) (Smith is not binding on the newly reorganized District of Columbia Court of Appeals) (A landowner is responsible only for intentional, wanton or willful injury to trespassers, but the District of Columbia has adopted a "reasonable under the circumstances” standard for invitee and licensee plaintiffs.).

      . Presiding Justice McRae’s dissent, citing Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 705 A.2d 1144 (1998), lists Maryland as a state which has "abrogated] the licensee/invitee distinction and implemented] the reasonableness standard while maintaining the trespasser classification.” However, in that case, the Maryland court states as follows:
      With regard to premises liability, this Court has "long recognized that a possessor of property owes a certain duty to a person who comes in contact with the property. The extent of this duty depends upon the person’s status while on the property.” Historically, in Maryland, four classifications have been recognized: invitee, licensee by invitation, bare licensee, and trespasser. An invitee is a person "on the property for a purpose related to the possessor’s business.” The possessor owes an invitee a duty of ordinary care to keep the possessor's property safe. A licensee by invitation is a social guest to whom the "possessor owes a duty to exercise reasonable care to warn the guest of dangerous conditions that are known to the possessor but not easily discoverable.” A bare licensee is a person on the property with permission, but for his or her own purposes; the possessor owes no duty except to refrain from willfully or wantonly injuring the licensee and from creating " 'new and undisclosed sources of danger without warning the licensee.' " "Finally, a trespasser is one who intentionally and without consent or privilege enters another’s property.” As for a trespasser, even one of tender years, no duty is owed except that the possessor may not willfully or wantonly injure or entrap the trespasser.
      705 A.2d at 688-89 (citations omitted).

      . The Annotation also listed Illinois, Kansas, Kentucky, Minnesota, Montana, North Carolina and West Virginia as having expressly rejected the abrogation of the traditional classifications, but independent research has shown to the contrary.

      . The following states have adapted some variant of reasonable care in the circumstances to a lawful visitor on property: Alaska, California, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Rhode Island, Tennessee, Utah, Wisconsin, West Virginia and Wyoming.

        . See also Hall v. Cagle, 773 So.2d at 931 (McRae, J., concurring) (citing Skelton ex rel. Roden v. Twin County Rural Elec. Ass’n, 611 So.2d 931, 940 (Miss.1992) (Banks, J„ dissenting)).

      . The invitee and licensee distinctions are rooted in the common law. For a comprehensive discussion on the history and basis of the distinctions, see Hall v. Cagle, 773 So.2d 928 (Miss.2000) (McRae, J., concurring) (citations omitted).