author: [ .THIBODEAUX, Chief Judge.

text:
    WASTE MANAGEMENT OF CENTRAL LOUISIANA, et al. v. Robert P. BEALL, et al.
    No. 2003-1710.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 2004.
    Rehearing Denied Sept. 22, 2004.

      Henry B. Bruser, III, Michael J. O’Shee, G. Trippe Hawthorne, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Intervenors/Appellees — Lloyd O. Book, Jr., Michael Green, David Miller, Scott Perry, Jr., Sanitation Service, Inc., and J. Rax Garbage Disposal Service, Inc., Individually and as Class Representatives.

      Albin Alexandre Provosty, John Dexter Ryland, John Patrick Doggett, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Secondary Defendant/Appellant — City of Alexandria.
    Allen J. Smith, Jr., Plauché, Smith & Nieset, Lake Charles, LA, Timothy Joseph Poche Taylor, Porter, Brooks, & Phillips, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellants — Waste Management of Louisiana, L.L.C. and Waste Management Holdings, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and JOHN B. SCOFIELD , Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   [ .THIBODEAUX, Chief Judge.

Waste Management of Louisiana, Inc., the defendant in this class action, appeals a judgment adverse to it on the merits. The judgment declared a 1986 public contract between the City of Alexandria and Waste Management for the operation of the Alexandria Landfill valid only for 60 days after its signing, and null and void thereafter. The judgment awarded the class members $1,775,904.30, plus interest and attorneys’ fees. The award was based on what the class claimants, as customers of Waste Management, paid Waste Management while it operated the landfill under the operating contract between 1986 and 1990, when the landfill closed. The amount of the award was a calculation of the profit from these customer payments that the trial court found Waste Management illegally obtained from a null public contract.

Procedurally, the class certification was ordered in 1998 and it arose out of incidental actions. The litigation out of which the incidental actions and the class action emerged, began in 1992 when Waste Management sued a former employee, Robert P. Beall, and a waste disposal contractor, The Omega One Company, for damages arising from the misuse of Waste Management’s commercial customer information. Beall and Omega reconvened and filed a third party demand against the City of Alexandria. The reconventional demand and | ¡..third party demand sought return of all money paid by Beall and Omega as customers of Waste Management during the approximate four-and-one-half years that Waste Management operated the Alexandria Landfill. Several more customers, including haulers of solid waste for hire, intervened and asserted the same demand. The reconventional demands and interventions grew into a class action. The class was certified and defined as all customers of the Alexandria Landfill charged by Waste Management to deposit solid waste in that landfill from February 11, 1986 until its closure in September 1990. The original demand by Waste Management against Beall and Omega is no longer an issue.

On appeal, Waste Management seeks reversal of the judgment in its entirety. The class claimants answered the appeal, and ask that we find the landfill operating contract was never valid, not even for 60 days. They also ask that we increase the award to the total of Waste Management’s receipts, not limited to its profit after expenses. For the following reasons, we find in favor of Waste Management and reverse the judgment in its entirety.

I.

ISSUES

Our decision rests on our resolution of two issues. The first is the efficacy of the 1986 Sanitary Landfill Operating and Maintenance Agreement (hereinafter “operating contract”), a public contract between the City of Alexandria and Waste Management effected under the emergency provisions of the city charter. This includes the duration of the contract, i.e., whether the term was limited by emergency ordinance to 60 days, or limited in duration only by the terms of the contract itself. The second issue is whether, under state law, the operating contract was subject to the requirement of the public bid laws.

_kIL

BACKGROUND

For many years, solid waste in Alexandria and its environs was dumped in a landfill leased by the City known as the Alexandria Landfill. It was situated on Esler Road outside the City. This landfill was operated by the City and received garbage generated or collected by the City, as well as material delivered by private citizens and local waste haulers from Rapides Parish and elsewhere.

In the early 1980’s the Louisiana Department of Environmental Quality (DEQ) began the process of enforcing mandated new standards for sanitary landfill operations across the state. The DEQ ordered the City to either upgrade its facility, which was being operated as an open dump, or close it in accordance with the new regulations. The deadline was January 20, 1986. City officials tried to get an extension of the closure order, as they had done in the past, but this time they were unsuccessful. There was no nearby alternate disposal site available. The City had neither the equipment nor the resources to haul the solid waste the considerable distance to another acceptable site. Nor did the City have the money to properly close the landfill, as it would ultimately have had to do. The DEQ made it clear that the only way the landfill would be allowed to continue in use past the deadline was if the City contracted with an established waste management company with the resources and expertise necessary to operate and close the landfill in accordance with regulatory standards. If the Alexandria Landfill had been shut down, there would have been no place for people to put their garbage.

Faced with this ultimatum, and unable to find anyone interested except Waste Management, the City Council, by Emergency Ordinance No. 18-1986 at its February 11, 1986 meeting, approved the operating contract with Waste Management. 1 Jmmediately after the emergency ordinance was passed authorizing the operating contract, the DEQ, which had a representative present at the council meeting, granted a closure extension. Under the operating contract’s provisions, the City paid Waste Management a flat monthly fee of $18,750.00. In return, Waste Management provided all equipment and personnel necessary to operate and maintain the landfill; received for disposal from the City all waste collected by the City and properly put it in the landfill; and, effected closure of the landfill in accordance with regulatory standards.

The duration of the operating contract was until closure of the Alexandria Landfill, and that event was contemplated to coincide with completion and approval of a new sanitary landfill then being created by Waste Management. Waste Management operated the landfill for about four-and-one-half years, closing it on September 30, 1990.

III.

STANDARD OF REVIEW

It is well settled that in civil cases, the appropriate standard for appellate review of factual determinations is the manifest error- — clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90. An equally well-established principle of Louisiana law is that all legal issues are subject to the de novo standard of review. Id.

| ffhe Validity and Duration of the Operating Contract

The trial court found that the Operating Contract was the result of a valid exercise of the City’s power to enact an emergency ordinance. The court found, however, that its duration was only 60 days. Our discussion of these findings will be broken down into four subjects: (a) did the City observe the formalities for passage of an emergency ordinance; (b) was there an emergency; (c) was this the grant of a franchise in violation of the city charter and La.R.S. 33:4169.1; and, (d) was the term of the contract limited to the term of the ordinance?

(a) Did the City observe the formalities for passage of the emergency ordinance?

The Alexandria Home Rule Charter, Article II, § 2-12, provided that action by the city council authorizing any contract on behalf of the City had to be by ordinance. The next section, § 2-13, sets out the regular procedure for introduction, publication, a laying over period, a public hearing, adoption, and the effective date, for ordinances in general. Another provision, § 2-14(A), authorizes the city council to adopt an emergency ordinance “[t]o meet a public emergency affecting life, health, property, or public safety,” and allowed such an ordinance to be adopted at the same meeting at which it was introduced. The trial court found that the City complied with the formal requirements of its charter in enacting the emergency ordinance. We agree.

(b) Was there an emergency?

Similarly, there is no manifest error in the trial court’s factual conclusion that the City faced an emergency. Jon Grafton, the City Clerk, testified that he was operating under the impression that the DEQ would not wait for approval of a contract by ordinary ordinance which would take 45 days or more. As pointed out |fiearlier, a DEQ representative was present at the council meeting when the City adopted the emergency ordinance. The trial judge found that emergency conditions existed that allowed entering into a contract “without the normal required notices, hearings and formalities.” In their answer to the appeal, the only serious argument that the class claimants make to overturn this factual finding is that the emergency was of the City’s own making. That does not at all appear to have been the case, but even if it were, we cannot believe that the City would lose its power to respond to emergencies that would affect the public health, property, and safety just because prior governmental inaction may have contributed to the emergency. The clear purpose of the charter provision was to protect the public, not to punish the public because public officials failed to foresee the ultimate threat to the public health, property, and safety that the garbage crisis was to become. The factual conclusion of the trial court that there was an emergency is supported by the record, and the class members have not been able to convince ns that this finding was clearly wrong.

(c) Was this a grant of a franchise in violation of the City Charter and La.R.S. 33:4169.1?

Implicit in the trial court’s finding that the city council complied with the formal procedural requirements and that an emergency existed was its finding that the operating contract was not the grant of a franchise. The same charter provision that dealt with emergencies, § 2~14(A), prohibited the use of an emergency ordinance “to grant or extend a franchise.” In the light of its ordinance, therefore, the city council could not have let the operating contract to Waste Management even for 60 days if the contract was a franchise. The trial judge’s recognition that the contract was valid for 60 days equates to a finding that it was not a franchise. We agree.

|7The definition of “franchise” in Black’s Law DICTIONARY 658 (6th Ed.1990) is:

A special privilege to do certain things conferred by government on individual or corporation, and which does not belong to citizens generally of common right; e.g., right granted to offer cable television service.

Certainly this was not the grant of an exclusive franchise. This circuit in Gordon’s Const. & Landfill, Inc. v. Iberia Parish Government, 01-1244 (La.App. 3 Cir. 2/6/02), 815 So.2d 991, dealt with the issue of whether Iberia Parish granted an exclusive franchise when it entered into a solid waste collection and disposal contract. The contract itself said it was “for a non-exclusive franchise within the territorial jurisdiction of the Owner [Iberia Parish].” Id. at 993. We found that it was not an exclusive contract because there were many reservations of rights by the parish under the general conditions of the contract. Similarly, in this case the operating contract conferred no exclusive rights and it did not prevent the City of Alexandria or any other entity from engaging in similar activity.

There is a statutory basis for upholding the City’s action in this case. Louisiana Revised Statutes 33:4169.1 is a special statute expanding the powers of municipalities and parishes and giving them specific authority to deal with garbage and trash. The statute’s language pertinent to our inquiry is:

A. The governing authority of every parish or municipality shall have the following powers:
(1) To engage in the collection and disposal of garbage and trash within its jurisdiction in cooperation with, or to the exclusion of, other garbage and trash collectors.
(2) To grant permits, licenses, exclusive or nonexclusive franchises, or any combination thereof to garbage and trash collectors and disposers. Any exclusive franchise shall be granted only after advertising for bids, reception of bids, and awarding of the contract or contracts in accordance 18with the public bid laws of the state and other provisions of law.
(3) To enter into time contracts for the collection and transportation of garbage or trash for a term of up to ten years, and for disposal of garbage or trash for a term of up to twenty-five years.

Subsection A(3) authorizing public bodies to enter into time contracts for the collection, transportation, and disposal of garbage or trash is a separately-enumerated power from the preceding subsection A(2), which empowers the same political subdivisions to grant permits, licenses, exclusive or nonexclusive franchises, or any combination thereof to garbage and trash collectors and disposers. A well-known presumption is that every word; sentence, or provision in a law is intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. La.Civ.Code art. 9. A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 01-1810 (La.App. 1 Cir.5/10/02), 818 So.2d 867. We interpret the above subsections of the statute to mean that permits, licenses, and franchises in A(2) are not the same things as time contracts in A(3). Our analysis of the terms and conditions of the operating contract at issue here convinces us, as it apparently did the trial judge, that it did not confer a franchise. In the terms of La.R.S. 33:4169.1, it granted a time contract for the collection, transportation, and disposal of garbage or trash.

We are of the opinion, as was the trial judge, that this was not a franchise. Besides never using the word “franchise” in its language, the operating contract had no territorial jurisdictional application. The Alexandria Landfill was located outside the city limits. While a franchise could conceivably be granted without calling it a franchise, it is worth mentioning that during the trial none of the witnesses for the parties to the agreement, the City and Waste Management, used the 19term “franchise” in referring to the contract. The city attorney at the time testified that he did not consider it to have been the granting of a franchise. The minutes of the city council meeting show there was no authority voted to grant a franchise and the emergency ordinance itself did not say a franchise was authorized. The essential character of the operating contract was a time contract for the collection, transportation, and disposal of garbage or trash. There is no error in the trial court’s finding that this was not a franchise.

(d) Was the term of the contract limited to the term of the ordinance?

The trial judge concluded that the ordinance was valid as an emergency ordinance but only for 60 days. This conclusion was based on the language of Charter Article II, § 2-14(C) which states that “[ejmergency ordinances shall be effective for no longer than sixty (60) days.” The trial court interpreted this time limitation to apply not only to the ordinance itself, but also to any action taken or contract executed pursuant to the ordinance. Interpreting the contract duration to be coterminous with the ordinance authorizing it, the trial court reasoned that the contract ended 60 days after the emergency ordinance was adopted. After that, concluded the court, the contract was null and void. Because Waste Management nevertheless continued to operate the landfill for four-and-one-half years before it closed it, the trial court awarded the class members the return of the profit made by Waste Management during that time on the null and void contract.

It was error to interpret the emergency ordinance as precluding the execution of a contract for a term of greater than 60 days. Both the city attorney and the city clerk testified that the city authorities interpreted the 60-day provision of the emergency ordinance as the window of time during which the city council could take action authorized by the ordinance, not as a time limitation on the action itself. In this 11 pease, the action to be taken was a time contract for the operation of the landfill. As pointed out earlier, the contract’s provisions regarding its term contained no fixed termination date, but the language quite clearly envisioned a term far longer than a mere 60 days and, by those same terms, the contract in fact lasted four-and-one-half years. The contract itself is additional evidence that the city council interpreted its ordinance to authorize a contract beyond 60 days.

The interpretation given a city ordinance by a municipal authority is entitled to great weight. A reviewing court should not overturn such a determination unless it is clearly wrong or unless a different construction is clearly required. Kneipp v. City of Shreveport, 550 So.2d 748 (La.App. 2 Cir.1989).

The City was not clearly wrong in distinguishing an emergency ordinance from a contract executed pursuant to the ordinance. Laws are to be construed as having the meaning that best conforms to the purpose of the law. La.Civ.Code art. 10. The purpose of Charter Article II, § 2-14, was to enable the city to fully and effectively respond to emergency situations. The only way that the city could respond to its waste disposal emergency was to keep its landfill in operation until it could be properly closed, and the only way that it could do that was by means of this contract. A 60-day contract, even if a contractor could have been found willing to gear up for such a short term, would not have been an effective response to the emergency; it would have merely postponed it and the City may not have received DEQ’s approval which could have resulted in immediate closure of the landfill. The interpretation given its ordinance by the City meets the test of common sense. We conclude that the City had the authority under its emergency ordinance to enter into a contract with Waste Management for the term expressed in the contract.

\uThe Application of Public Bid Laws

The trial court made an express finding that this operating contract was subject to public bid requirements to extend past 60 days from its emergency letting. In its reasons for judgment, the trial court said:

The contract was subject to public bid requirements to extend past the 60 days provided in the emergency doctrine. Those requirements were not followed. The Contract was a nullity on the 61st day.

Thus, the trial judge ruled that the contract beyond 60 days was invalid for two reasons: first, it could not outlive the emergency ordinance and, second, the letting of a longer contract required compliance with public bid laws.

We have already demonstrated that the contract was not limited to the life span of the emergency ordinance. We will now explain why the contract did not require public bids.

Louisiana Revised Statutes 38:2212(A)(l)(a) provides:

All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.

The preceding section, La.R.S. 38:2211 A(12) defines “public work:”

(12) “Public work” means the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.

This definition was added in 1991. Prior to 1991, “public work” was jurispru-dentially defined. Wallace Stevens, Inc. v. Lafourche Parish Hospital, District No. 3, 323 So.2d 794, 796 (La.1975), interpreted the term to mean “a |12building, physical improvement, or other fixed construction. It does not include telecommunication services that may be provided in a building or in connection with its use.” Using that definition, the court in Browning-Ferris, Inc. v. City of Monroe, 465 So.2d 882 (La.App. 2 Cir.), writ denied, 467 So.2d 538 (La.1985), held that an operating contract for a landfill between the City of Monroe and a waste company was a contract for services and not a public work, and that the public bid law was not applicable. The contract provided that the waste company would operate and maintain the landfill site at its sole cost and expense, including construction costs and other items necessary for the normal operation of a sanitary landfill, while the City of Monroe, in return, would deposit its trash and garbage at the landfill at a rate of $8.95 per ton. Similarly, the operating contract in our present case provided that Waste Management, at its expense, would perform the maintenance and operational services at the landfill in accordance with the Closure Order, furnish personnel and equipment necessary for the performance of these services, and receive from the City of Alexandria all waste collected by the City. For these services the City of Alexandria paid Waste Management a flat monthly fee of $18,750.00.

As it applies to the particular facts of this case, the operating contract herein was not a “public work” when tested under the 1991 statutory definition of that phrase any more so than it was under the jurisprudential definition. The landfill was a public facility on immovable property leased by the City, but the work could hardly be construed as “the erection, construction, alteration, improvement, or repair” of that facility. The words of a law must be given their generally prevailing meaning. La.Civ.Code art. 11. A public dump is an “erection” only in the sense that it will get greater in size as waste is added to it. A mound of garbage and trash is not a “construction” except in the same sense of an increase in size. In this sense, garbage | iaadded to garbage is somewhat like zero added to zero. The mass of garbage steadily increasing is perhaps an “alteration” in appearance, but not in any other way, and surely it is not an “improvement.” The generally prevailing meaning of the word “repair” does not include the maintenance, operation, or closure of a landfill.

The legislative definition of “public work” enacted in 1991 comfortably accords with “a building, physical improvement, or other fixed construction” as applied to a landfill in the process of closing under DEQ mandated rules. The jurisprudential definition was the law in effect when the operating contract was performed and the landfill was closed. Under either definition, the maintenance, operating services, and closure of the landfill was not a public work and public bids were not required.

IV.

JUDGMENT

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is rendered in favor of Waste Management of Louisiana, Inc., and Waste Management, Inc., and against the class plaintiffs dismissing the class action, all reconventional demands, and all interventions. Costs, both here and below, will be paid equally by Reconvenors and Intervenors.

REVERSED AND RENDERED; ACTION DISMISSED.

      . At the start of this litigation, this party was Waste Management of Central Louisiana, a division of American Waste & Pollution Control Company. The parent corporation later changed its name to Waste Management of Louisiana, Inc. Another party, Waste Management, Inc., became a third party. Their interests are identical. In this opinion we refer to them collectively as Waste Management.


source: Caselaw Access Project

author: I .PETTIGREW, J.

license: Public Domain

text:
    ARABIE BROTHERS TRUCKING CO. and American Interstate Insurance Company v. Patrick GAUTREAUX, Graham Neill, Individually and As Owner of A & G Tree and Stump Removal, A & G Tree and Stump Removal, and TTC, Inc.
    No. 2003 CA 0120.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 4, 2004.
    Rehearing Denied Sept. 21, 2004.

      Lawrence B. Frieman, Metairie, for Plaintiffs/Appellees Arabie Brothers Trucking Co. and American Interstate Insurance Company.
    Michael L. Hebert, Baton Rouge, for Defendant/Appellant Patrick Gautreaux.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   I .PETTIGREW, J.

In this workers’ compensation case, Patrick Gautreaux, appeals the judgment of the Office of Workers’ Compensation (OWC), in favor of Arabie Brothers Trucking Co. (Arabie) and American Interstate Insurance Company (American). The OWC judge determined that Mr. Gau-treaux was not within the course and scope of his employment with his direct employer A & G Tree and Stump Removal (A & G) at the time of his accident and injury. For the reasons that follow, we affirm in part, reverse in part, render in part, and remand.

FACTS AND PROCEDURAL HISTORY

On January 27, 2000, Mr. Gautreaux was seriously injured when a large tree, which he was cutting, fell, crushing Mr. Gau-treaux to the ground. At the time of the accident, Arabie was clearing a commercial site for Lamar Contractors in Houma, Louisiana. Mr. Gautreaux was directly employed by A & G and sub-contracted by Arabie to grind and remove two tree stumps at the site. A & G did not have workers’ compensation insurance. Following the accident, Arabie, through its workers’ compensation insurer, American, began paying workers’ compensation benefits to and medical expenses on behalf of Mr. Gautreaux. On October 5, 2000, Arabie and American filed a disputed claim for compensation and petition for declaratory judgment against Mr. Gautreaux, Graham Neill, individually and as owner of A & G, A & G, and T.T.C. Illinois, Inc., asserting that Mr. Gautreaux was not in the course and scope of his employment with A & G at the time of the accident and that the accident did not arise out of his employment. Plaintiffs sought indemnification from Mr. Neill and/or A & G, and a judgment declaring that no further workers’ compensation benefits were due to Mr. Gautreaux.

Mr. Gautreaux answered, reconvened, and filed a cross claim. In his reconven-tional demand, Mr. Gautreaux asserted that Arabie was his employer, statutory employer, or borrowing employer, or, alternatively, that he was an independent contractor engaged in manual labor, entitling him to workers’ 1 ^compensation benefits from Arabie and American. In his cross claim, Mr. Gautreaux contended that Mr. Neill, individually and as owner of A & G, was his employer or statutory employer, entitling him to workers’ compensation benefits.

Trial in the matter was held and judgment signed on December 4, 2002, in favor of plaintiffs. The OWC judge determined:

1) Mr. Gautreaux’s injuries did not occur while in the course and scope of his employment with A & G and, therefore, Mr. Gautreaux was not entitled to further workers’ compensation benefits;

2) Arabie’s claim for indemnification was granted;

3) Arabie was entitled to take advantage of all credits and offsets allowed; and

4) Neil Arabie, Gary Pitre, and Bryan Guillot did not violate La. R.S. 23:1208.

It is from this judgment that Mr. Gau-treaux has appealed, assigning the following specifications of error:

1) The OWC judge erred in finding that Mr. Gautreaux was not an employee of Arabie for purposes of workers’ compensation benefits;

2) The OWC judge erred in not finding that Neil Arabie violated La. R.S. 23:1208;

3) The OWC judge erred in not ruling that Mr. Gautreaux’s medical claims were not paid or not paid timely;

4) The OWC judge should have awarded attorney fees and penalties; and

5) Mr. Gautreaux is entitled to attorney fees for this appeal.

Arabie answered the appeal, contending that the OWC judge erred in admitting into evidence the transcribed recorded statements of Gary Pitre and 14Bryan Guil-lot and the cassette recording of statement purportedly made by Bryan Guillot.

DISCUSSION

An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect workers’ compensation from his employer. La. R.S. 23:1031(A). Thus, as a threshold requirement, a workers’ compensation claimant bears the initial burden of establishing by a preponderance of the evidence “personal injury by accident arising out of and in the course of his employment.” Hoy v. Gilbert, 98-1565, p. 3 (La.3/2/99), 754 So.2d 207, 209 (per curiam); Bruno v. Harbert Intern. Inc., 593 So.2d 357, 360 (La.1992).

The terms “arising out of’ and “in the course of’ in Section 1031 are dual requirements that cannot be considered in isolation from each other. In a close case, a strong showing with reference to one requirement may compensate for a weak showing with reference to the other requirement. When there is a weak showing with respect to both requirements, the employee is not entitled to compensation benefits. Guillory v. Interstate Gas Station, 94-1767, p. 3 (La.3/30/95), 653 So.2d 1152, 1154; Lewis v. Houma Industries, 2001-0641, p. 3 (La.App. 1 Cir. 5/10/02), 818 So.2d 956, 957-958.

To evaluate the “course of employment” requirement, the court focuses on whether the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer’s premises or at a place contemplated by employment activities. This inquiry focuses upon the time and place relationship between the injury and the employment. When considering the “arising out of employment” requirement, the court inquires into the character or origin of the risk suffered by the employee and determines whether this risk was incidental to the employment. An injury arises out of employment if the risk from which the injury resulted was |Rgreater for the employee than for a person not engaged in the employment. Mitchell v. Industrial Fill Materials, Inc., 2002-2021, p. 3 (La.App. 1 Cir. 7/2/03), 859 So.2d 36, 39; Lewis, 2001-0641 at 3-4, 818 So.2d at 958.

Furthermore, courts have consistently held that an employee is protected during work hours, despite minor deviations from instructions or place of work, if what he does could reasonably be contemplated as humanly incidental to his service as an employee and does not unreasonably increase the risk of injury. Hoy, 98-1565 at 3, 754 So.2d at 209; Robinson v. F. Strauss & Son, Inc., 481 So.2d 592, 593 (La.1986).

It is well settled that a determination regarding the course and scope of employment is subject to the manifest error standard of review. Lewis, 2001-0641 at 4, 818 So.2d at 958. Generally, the mere fact that an employee fails to follow specific instructions of his employer does not normally take him out of course and scope of his employment. Harkness v. Olcott Stone Motors, 203 La. 947, 953, 14 So.2d 773, 775 (1943); Sears v. Peytral, 151 La. 971, 975-976, 92 So. 561, 563 (1922). Moreover, the relationship of employer/employee is a contractual relationship and, therefore, resolves itself into a question of fact to be determined by evidence to be presented in a compensation case. Menard v. Brown & Cassidy Warehouse, Inc., 72 So.2d 891, 893 (La.App. 1 Cir.1954).

In the instant case, the OWC judge determined that Mr. Gautreaux’s injuries did not occur while in the course and arising out of his employment with A & G, and, therefore, he was not entitled to further workers’ compensation benefits. This finding is not in dispute. In fact, Mr. Gautreaux stipulates in brief to this court that his accident did not occur in the course and scope of his employment with A & G.

As set forth in La. Civ.Code art. 1853, “[a] judicial confession is a declaration made by a party in a judicial proceeding” and “constitutes full proof against the party who made it.” A judicial admission or confession is an express acknowledgement of adverse facts. Howard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986), cert. den., 479 U.S. 948, 107 S.Ct. 432, 93 L.Ed.2d 382 (1986). It has the effect of waiving evidence as to the subject of the admission or withdrawing the subject matter of the confession from issue. LIGA/Mortem Risk Management v. Franks, 99-0670, p. 5 (La.App. 1 Cir. 6/23/00), 768 So.2d 622, 625, writ denied, 2000-2201 (La.10/13/00), 771 So.2d 652.

The stipulation by Mr. Gautreaux that he was not in the course and scope of his employment with A & G at the time of the accident is a judicial confession of facts. Thus, although this court may not agree with same, we are bound (as is Mr. Gautreaux) to give this stipulation legal effect. Accordingly, the OWC judge’s finding concerning this issue is not subject to review by this court. La. Civ.Code art. 1853; La.Code Civ. P. art. 2164. See also Rabathaly v. Breaux, 99-244, p. 4 (La.App. 5 Cir. 7/27/99), 738 So.2d 1182, 1184; Favrot v. Bates, 1 McGl. 130 (La.App.1881).

However, our inquiry does not end here. As noted by Mr. Gautreaux, the fact that he was not in the course and scope of his employment with A & G at the time of the accident does not resolve all the potential legal issues of liability for Arabie and American. There remain several unanswered questions regarding the employer/employee relationship between Mr. Gautreaux and Arabie.

In its judgment, the OWC judge specifically delineated the issues addressed below as follows:

The issues presented to this Court at trial for consideration were: 1) whether or not the defendant, Patrick Gautreaux, was injured while in the course of and arising out of his employment with defendant, A & G Tree and Stump Removal, and if so, whether or not the defendant, Patrick Gautreaux, is entitled to workers’ compensation benefits; 2) whether or not the defendant, A & G Tree and Stump Removal, is liable for reimbursement of workers’ compensation benefits paid [by] plaintiff, Arabie Brothers Trucking Co.; 3) whether or not the plaintiff, Arabie Brothers Trucking Co., overpaid the defendant, Patrick Gautreaux, workers’ compensation benefits and are entitled to a credit pursuant to LSA-R.S. 23:1206, 23:1223, 23:1225 and/or any other section; and 4) whether or not Neil Arabie, Gary Pitre and Bryan Guillot violated LSA-R.S. 23:1208.

Nonetheless, a review of the instant record reveals other legal issues that were before the OWC judge for consideration, such as 1) was Mr. Gautreaux |7either a borrowed employee or statutory employee of Arabie; 2) was Mr. Gautreaux within the course and scope of employment with Arabie at the time of the accident; 3) and was Mr. Gautreaux either an invitee or trespasser of Arabie’s at the time.

In a worker’s compensation case, the issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. Griffin v. Wickes Lumber Co., 2002-0294, p. 7 (La.App. 1 Cir. 12/20/02), 840 So.2d 591, 596, writ denied, 2003-1338 (La.9/19/03), 853 So.2d 640. Questions of law cannot be confessed or admitted. Howard Trucking Co., Inc., 485 So.2d at 918. Based on our review of the record before us, we find that the OWC judge’s failure to either address these issues or recognize that these issues were before it was legal error.

When a trial court commits an error of law, the reviewing court is not subject to the manifest error standard and can make an independent determination of the facts from the record on appeal. As noted by the Louisiana Supreme Court in Bujol v. Entergy Services, Inc., 2003-0492, p. 17 (La.5/25/04), — So.2d —, —, 2004 WL 1157413, “[i]f the trier of fact applied the incorrect law ... and if the appellate court determines the error could have affected the outcome below, the manifest error rule does not apply, and the appellate court makes an independent determination of the facts from the record on appeal.”

As reflected in the judgment below, the OWC judge failed to address certain legal issues and, thus, could not have applied the correct law in determining the potential liability of Arabie to Mr. Gautreaux for workers’ compensation benefits. Because this legal error by the OWC judge clearly affected the outcome of this case, we will conduct a de novo review of the record and consider the issues regarding the potential liability of Arabie and American for workers’ compensation benefits.

Neil Arabie, superintendent on the project for Arabie, testified at trial that Ara-bie was hired by Lamar Contractors to remove trees and put in landfill in preparation for the construction of a video store in Houma. Arabie employees | ¡¡knocked down about twenty trees, with their stumps, using heavy equipment, with the exception of two trees that were near the highway and close to utility, drainage, and sewer lines. Mr. Arabie stated that his company was to cut down the two remaining trees but, because Arabie did not have stump grinding equipment, it was necessary to hire an outside company to grind the stumps. Arabie sub-contracted with A & G to grind the stumps.

Mr. Graham Neill, owner of A & G, testified that the night before the accident, he received a telephone call from Mr. Ara-bie. Mr. Arabie indicated to Mr. Neill that he needed to have two stumps ground the next morning because sand was going to be delivered for fill. Mr. Neill testified he asked Mr. Arabie if the trees were already cut. Mr. Neill noted he had other work for Mr. Gautreaux and could send him to the construction site later in the day if necessary. Mr. Arabie indicated that the trees would be cut. Mr. Neill then contacted Mr. Gautreaux and assigned him the job, explaining to Mr. Gau-treaux that all he had to do was grind the two stumps.

The evidence shows that Mr. Gautreaux arrived at the construction site with a stump grinder between seven and eight a.m. the next morning. Only one of the trees had been cut by Arabie. Mr. Arabie showed Mr. Gautreaux the first stump to be ground, and Mr. Gautreaux began grinding the stump. Mr. Arabie testified that they had not gotten to the second tree at that point in time. Mr. Arabie stated he was going to have another Arabie employee make a cut with a chainsaw on the other tree so the excavator could push it down. Mr. Arabie’s testimony further indicates that Mr. Gautreaux asked Mr. Ara-bie about the dirt that was being removed from the site, stating he needed some. Mr. Arabie indicated he told Mr. Gau-treaux that if he could work out a deal with one of the truck drivers, he could have the dirt. Mr. Gautreaux then left with one of the dump truck drivers to show the driver where to bring the dirt.

|flMr. Gautreaux has been in a coma since the day of the accident and, thus, was not available to give testimony concerning his understanding of the agreement about the dirt. No other person witnessed or heard this particular agreement, although Mr. Arabie does indicate by his testimony that a deal was worked out with Mr. Gautreaux. Other Arabie employees verified that Mr. Gautreaux did, in fact, get some dirt.

The next time Mr. Arabie saw Mr. Gau-treaux, Mr. Gautreaux had a chainsaw in his hand and was cutting the second tree. Mr. Arabie verified that the chainsaw was provided to the job site by Arabie. He testified that when he saw that the tree was cut half way through the trunk, he told Mr. Gautreaux to stop cutting the tree because it was too dangerous being so close to the four-lane highway. He then told Mr. Gautreaux that he was going to have the excavator push the tree down. Mr. Arabie then went to the other side of the job site. There were no other witnesses to this conversation between Mr. Arabie and Mr. Gautreaux. Mr. Arabie later heard the chainsaw start back up, and, within seconds, the tree fell. Mr. Arabie testified he did not know how Mr. Gautreaux got the chainsaw. Further, he testified that at the time he saw Mr. Gau-treaux with the chainsaw cutting on the tree, Mr. Gautreaux was alone. Mr. Ara-bie acknowledged that Mr. Gautreaux cut the tree with the chainsaw in the right place.

Bryan Guillot was working for Arabie that morning, loading dirt and operating the excavator. He testified that he was told by either Mr. Arabie or Gary Pitre, another Arabie employee, that once a cut was made in the tree, he was needed to push the tree over with the excavator. The tree was close to the road, and it was very windy that morning. When Mr. Guil-lot got to the location of the tree in the excavator, he saw Mr. Gautreaux with a chainsaw in his hand. Mr. Gautreaux waved him off, telling him he was not needed. Mr. Guillot stated he was still on the scene near the tree when it fell. He did not see Mr. Gautreaux, but heard the chainsaw. The tree fell on the edge of the excavator and then onto Mr. Gautreaux.

| mGary Pitre testified that he was an Arabie employee hired to cut trees and haul dirt. He was not aware of anybody having cut trees with a chainsaw that day. He verified that Mr. Gautreaux was already on the site when he arrived. Mr. Pitre was grinding a stump and did not see Mr. Gautreaux cutting down a tree with a chainsaw. At the time of the accident, Mr. Pitre was directing traffic on the road because dump trucks were coming in and out and the excavator was moving into the lane near the second tree. Mr. Pitre was in very close proximity to where the accident occurred. In fact, he was almost hit by the tree when it fell. However, he was not aware of Mr. Gautreaux cutting the tree with a chainsaw.

A thorough review of the testimony of Neil Arabie, superintendent on the project for Arabie, and Graham Neill, owner of A & G, proves factually that Mr. Gautreaux was not a trespasser. Both verify that Mr. Gautreaux was assigned to go to the job site and grind two tree stumps. Further, at face value it would appear that Mr. Gautreaux was not a statutory employee of Arabie, because there was no written contract between Arabie and A & G providing for such as required by La. R.S. 23:1061 A. Thus, our focus shifts to a discussion pf whether Mr. Gau-treaux was a borrowed employee of Ara-bie.

The terms “statutory employee” and “borrowed employee” are distinguishable for workers’ compensation purposes. This distinction is still recognized following the 1997 amendments to La. R.S. 23:1031 and 23:1061, which overruled the statutory employer tests as stated in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), and Kirkland v. Riverwood International USA Inc., 95-1830 (La.9/13/96), 681 So.2d 329. Moreover, the test for determining who is a borrowed employee is still applied by the courts. See Doucet v. National Maintenance Corp., 2001-1100, p. 8, n. 6 (La.App. 1 Cir. 6/21/02), 822 So.2d 60, 67, n. 6; Maddox v. Superior Steel, 2000-1539, p. 7 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 574.

|n As previously indicated, the issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. Griffin, 2002-0294 at 7, 840 So.2d at 596. There is no fixed test, nor is the existence of a contract or any other single factor determinative. However, the following should be considered in determining existence of a borrowed employee relationship: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by general employer; which employer’s work was being performed at time of question; agreement, either implied or explicit, between borrowing and lending employer; furnishing of instructions and place for performance of work in question; length of employment; and acquiescence by employee in new work situation. Id. When a general employer attempts to avoid liability for the actions of its employee by contending the employee was loaned to another employer, the general employer bears the burden of overcoming by a preponderance of the evidence the presumption that he is liable. Billeaud v. Poledore, 603 So.2d 754, 755-756 (La.App. 1 Cir.), writ denied, 608 So.2d 176 (La.1992).

It must be noted again that at the time of trial in the instant case, Mr. Gautreaux was in a coma and not available to give testimony concerning the facts and circumstances of the accident in question. Neil Arabie disputed Mr. Gautreaux’s claim for compensation benefits, but his testimony was contradicted in several aspects.

Although Mr. Arabie disclaimed particular knowledge of the deal Mr. Gautreaux worked out to remove dirt, he did aeknowl-edge Mr. Gautreaux could have dirt if he worked out a deal with the drivers. He further acknowledged that Arabie employees loaded the dirt into trucks for Mr. Gautreaux.

Mr. Arabie somewhat contradicted himself concerning whether he was planning to push the tree down with an excavator or cut the tree with chainsaws and then push it down. Mr. Arabie ultimately testified that he planned to have another Arabie employee make a cut in the tree and then push it down with the excavator.

| ^According to Mr. Arabie, he could not recall whether some of the truck drivers were Arabie employees. However, some of the other employees who testified verified that some of the truck drivers were, in fact, Arabie employees. Mr. Arabie acknowledged that Arabie had provided the chainsaw that Mr. Gautreaux was using at the time of the accident. He further testified that when he saw Mr. Gautreaux cutting the tree with the chainsaw, Mr. Gau-treaux was alone. To the contrary, other witnesses verified that Gary Pitre, another Arabie employee, was directing traffic near the site of the accident.

Mr. Arabie further testified he met with Graham Neill, owner of A & G, and an A & G employee the day before to show them the two trees. Mr. Neill disputed this, indicating his first knowledge of the job was a phone call he received from Mr. Arabie the night before the job. Mr. Neill indicated he never met with Mr. Arabie at the job site before the job.

Arabie’s business was to cut down and remove trees from the job site and to bring in dirt and sand to fill in holes created by the trees that were removed. Mr. Arabie testified he advised Mr. Gau-treaux to put the chainsaw down, but did not tell Mr. Gautreaux to remove himself from the area. Although Mr. Arabie had no power or authority to dismiss Mr. Gau-treaux from the employment of A & G, he certainly had power and control over Mr.' Gautreaux to remove him from the job site if he was interfering. It was Arabie’s work that was being done at the time of the accident. Mr. Gautreaux obviously acquiesced in assisting Arabie in cutting down the trees. According to the testimony of another Arabie employee, Bryan Guillot, he was actually taking instructions from Mr. Gautreaux just prior to the accident. Other Arabie employees were in the immediate vicinity and did not instruct Mr. Gautreaux to stop. Gary Pitre was directing traffic near Mr. Gautreaux. Bryan Guillot was standing by with the excavator to finish pushing the tree, if needed, when Mr. Gautreaux was through cutting the tree.

After review of the entire record and transcripts of this proceeding, it is our opinion that Mr. Gautreaux has met the requirements of Griffin. At the time of the accident, Mr. Gautreaux was a borrowed employee of Arabie. Thus, ha Arabie and its insurer, American, are liable to Mr. Gautreaux for any and all workers’ compensation benefits and/or medicals due him because of this accident. Moreover, pursuant to La. R.S. 23:1031 C, Mr. Gautreaux’s general or direct employer, A & G, is liable with Arabie jointly and in solido to pay those benefits, and each shall have the right to seek contributions from the other for any payments made on behalf of Mr. Gautreaux.

In answer to this appeal, Arabie assigned as error the OWC judge’s ruling that allowed the introduction of alleged tapes and transcribed statements taken from Gary Pitre and Bryan Guillot. Ara-bie alleges counsel for Mr. Gautreaux failed to comply with the requirements of La.Code Evid. art. 613 by not laying a proper foundation for the introduction of this evidence.

As set forth in La.Code Evid. art. 103 A, “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling is whether the alleged error, when compared to the entire record, had a “substantial effect” on the outcome of the case. If the effect of the outcome of the case is not substantial, reversal is not warranted. Emery v. Owens-Corporation, 2000-2144, p. 7 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 449, writ denied, 2002-0635 (La.5/10/02), 815 So.2d 842. A reviewing court is prohibited from reversing a harmless error. Preatto v. Tidewater Marine, Inc., 2000-0624, p. 11 (La.App. 4 Cir. 2/6/02), 809 So.2d 1084, 1091, writ denied, 2002-0678 (La.5/3/02), 815 So.2d 822.

We agree with Arabie that the OWC judge erred in allowing the introduction of the tapes and statements at issue. However, when compared to the entire record, the introduction of this evidence did not have a substantial effect on the outcome of this case. Arabie suffered no prejudice as a result of the OWC judge’s actions in this regard. Thus, the error was harmless and does not warrant reversal by this court.

DECREE

1 uFor the above and foregoing reasons, we reverse that portion of the judgment wherein the OWC judge found in favor of Arabie Brothers Trucking Co. and against Patrick Gautreaux. Finding that Patrick Gautreaux was a borrowed employee of Arabie Brothers Trucking Co., we render judgment in favor of Patrick Gautreaux and against Arabie Brothers Trucking Co., American Interstate Insurance Company, and A & G Tree and Stump Removal, jointly and in solido, for any and all workers’ compensation benefits and/or medicals due Patrick Gautreaux arising from the accident in this case. We remand the case to the OWC judge for determination of the amount of workers’ compensation benefits and/or medicals due.

We affirm that portion of the judgment that decrees Neil Arabie, Gary Pitre, and Bryan Guillot did not violate La. R.S. 23:1208. We also affirm the judgment below in as far as it grants the claim for indemnification filed by Arabie Brothers Trucking Co. and remand to the OWC judge for a determination of the amount of contribution due by A & G Tree and Stump Removal to Arabie Brothers Trucking Co. and American Interstate Insurance Company. We further remand for a determination of the amount of penalties and/or attorney fees due, if any, as set forth in La. R.S. 23:1201 F. Moreover, we award Mr. Gautreaux $2,500.00 in attorney fees for this appeal.

All costs associated with this appeal are assessed against Arabie Brothers Trucking Co. and American Interstate Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; RENDERED IN PART; REMANDED.

MCCLENDON, J., dissents.

      . T.T.C. Illinois, Inc., incorrectly identified in the petition as TTC, Inc., was dismissed from the suit prior to trial.

      . A judgment was originally signed on August 7, 2002, but because of the inclusion of an incorrect paragraph in the judgment, a motion for new trial for clarification of the judgment was filed and granted. The corrected judgment was signed on December 4, 2002.

      .Although not specifically addressed, all issues raised in this appeal are resolved herein.

      . Additionally, an Amicus Curiae Brief was filed in the appeal of this matter by Scottsdale Insurance Company and its insureds, T.T.C. Illinois, Inc., Neil Arabie, Gary Pitre, and Bryan Guillot.

      . Mr. Arabie testified that he hired A & G because its ad in the yellow pages of the telephone book stated it was “fully insured.” At the time of the accident in question, however, A & G did not have workers' compensation insurance.

      . We will pretermit the issue of whether a written contract is required for a manual laborer such as a stump grinder and operator as this case can be resolved without discussion of same.

      . We note that the tapes and statements are substantially the same as the live testimony of Gary Pitre and Bryan Guillot. Nonetheless, we did not consider them in rendering our decision herein.


author: | RASKINS, J.

text:
    Rhonda CLAYTON, Plaintiff-Appellee v. BEAR’S TOWING AND RECOVERY, Defendant-Appellant.
    No. 38,834-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Harvey R. Lexing, Monroe, for Appellant.
    Rhonda Clayton, In Proper Person.
    Before BROWN, GASKINS and PEATROSS, JJ.
   | RASKINS, J.

The plaintiff, Rhonda Clayton, filed suit in Monroe City Court to recover damages allegedly sustained as a result of the failure of the defendant, Bear’s Towing and Recovery (Bear’s), to repair her automobile. The trial court awarded Clayton $1,328.62, plus legal interest and costs. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

In February 2003, Clayton’s father, Foster Wilhite, Jr., went to Bear’s to purchase a used engine for Clayton’s 1994 Ford Aspire. After the used engine was purchased, it was installed by Douglas Freeman at Clayton’s home. That engine proved to be defective, and Bear’s supplied a second engine which it subsequently rebuilt. In October 2003, Clayton filed suit against Bear’s in Monroe City Court for failure to repair her ear as promised.

In a handwritten answer, Bear’s asserted that Clayton sent Wilhite to purchase an engine, that Bear’s sold him an engine, and that he made a deal with a mechanic to put the engine in at Clayton’s house. The remainder of Bear’s answer stated:

We never took the job to install the engine. When we found out the engine was bad the mechanic brought the car here. He took the engine out & we completely rebuilt the engine to satisfy the customer. We never took the job to install the engine. We did install the engine after the mechanic did not complete the job. We tried everything to make her happy, even took a big lose (sic) on the engine & we ended up installing the engine after it was left. All the time the car was here, her | ¡>stepdad was the only one ever came by about the car. He OK’d the time it took to rebuild it.

The case was tried in January 2004. Clayton testified that her father, Wilhite, went to Bear’s and purchased the used engine for her in February 2003. Greg Brown, the manager of Bear’s, told Wilhite that it would be ready “in a couple of days.” Clayton stated that Brown was supposed to do the job, but “another guy by the name of Doug” actually performed the work. When the first motor was no good, a second one was installed. Clayton did not know what happened to the second engine; she testified that Wilhite was going to Bear’s “like every other day,” but Bear’s “just kept putting the days off, off, off, and off.” Clayton stated that she was paying insurance on the car because they told her it would be ready “in a couple of days” and she did not want to be without insurance on the car.

According to Clayton, she did not receive the car until August, and, after driving it home, she returned it right away because “it was still making noise, burning bad, smoking and leaking oil and stuff.” She testified that she received the car again in September on a Thursday. She drove it to work on Friday and Saturday, and on Sunday she took her daughter to the fair. On the way back that Sunday night, the car stopped in the middle of the street near her home.

Another mechanic allegedly told her that the engine had “a real bad oil leak” and the transmission cable was not hooked up to the transmission. Clayton also testified that one of the engines installed caused the radiator “to blow out” and that she had to buy a new radiator at a cost of $170. IsAlthough the radiator was supposed to be new, a substance called “Stop-Leak” had been put into the radiator to stop a water leak.

Gregory Brown, Bear’s general manager, initially testified that Clayton purchased an engine from Bear’s in February 2003; he then stated that Clayton’s father, Wilhite, purchased the engine and that Brown never saw Clayton until August 2003. According to Brown, Wilhite wanted to know when Bear’s would install the engine. Brown indicated that because they were busy, Wilhite might talk to one of the “part-timers” at Bear’s to see if someone could do the installation. Wilhite allegedly spoke to Doug Freeman who agreed to do the installation at Clayton’s home “on his own time.”

Brown said that Freeman indicated the first engine was no good, so he installed the second engine, but failed to note that Clayton’s radiator was “busted at the bottom.” Thus, when the car was run after the second engine was installed, the engine blew a head gasket. Brown testified that he told Freeman this problem had nothing to do with Brown, and that the problem was between Freeman and Clayton. However, Wilhite drove the car to the shop and talked Brown into having the engine rebuilt there. Later, Clayton returned the vehicle because it had “a little ticking.” Clayton returned again, complaining of an oil leak, but according to Brown, too much oil had been put in the engine, causing oil to come out of the seals. According to Brown, the oil had to be drained off. Brown also indicated that Freeman had broken the shift cable when he pulled the engine out and that Bear’s had put in a new shift cable, charging for the cable but not for labor to install it.

|4Wilhite testified that Clayton told him that she wanted an engine for her car and gave him the money to purchase one. He went to Bear’s, bought the engine, and Brown told him that he could put it in for him. However, according to Wilhite, Brown turned the job over to Freeman who “kept putting it off and giving us the runaround.” When Freeman did come out and replace the engine, the new engine was no good, so they put another one in that they ended up rebuilding.

On cross-examination, Brown asked Wil-hite if he remembered Brown telling him that Freeman could install the engine “on the side on his own time.” Wilhite responded in the affirmative. He also stated that he remembered Brown telling him when the car was brought in for an oil leak that the engine had four quarts of oil too much. The court then asked Wilhite if there was a specific agreement between Wilhite and Brown in his capacity as an employee of Bear’s to fix the engine, or if Brown told him that Bear’s could not do the job, but had a guy who could do the job on the side. Wilhite responded, “Like I said, the agreement ... everybody that I deal (sic) with was with [Brown].”

On re-cross-examination, Brown asked Wilhite if he remembered Brown telling him that the job had to be done on the side and that one of the mechanics' or Brown himself would do it on the side to save Wilhite some money because Bear’s was too busy to do the installation. Wilhite then responded:

Uh ... no, I just, like I said, it’s ... like I said when I first bought the engine, I mean, that’s uh ... that’s what you told me when we bought it. You asked me uh ... you know, you said that you would put it in. So, well, you know, “I’ll put it in for 15you.” And you gave me a price and uh ... that was ... that was....

Again Brown asked Wilhite if he did not remember Brown telling him that Bear’s couldn’t do the job there because they were too busy and that was why the job was done at the house “on the side.” Wil-hite responded “No, I don’t remember.”

The court asked Clayton what receipts she had to support her claims for reimbursement for insurance premiums. When it became apparent that she was lacking such supporting evidence, the court stated it always tried to be fair to all parties, and that it would leave the record open for five days during which time either side could submit additional evidence, such as receipts or additional testimony, to support their respective positions. In the event that additional testimony was offered, the court would have a special setting at the end of the month to receive that testimony.

On January 26, 2004, the trial court rendered judgment in favor of Clayton and against Bear’s in the sum of $1,328.62, plus legal interest and costs. The trial court did not supply any reasons for judgment.

The defendant appealed, asserting numerous assignments of error. It claims that Clayton’s suit should be dismissed for nonjoinder of Wilhite, Brown, and Freeman. Bear’s also claims that Clayton’s suit should be dismissed for no right of action. It asserts that Clayton failed to show by a preponderance of the evidence that the company was liable to her and that the court erred in leaving the record open for five days to allow the plaintiff to file receipts for insurance payments.

^PEREMPTORY EXCEPTIONS

Bear’s argues that Clayton’s suit should be dismissed for nonjoinder of Wilhite, Brown, and Freeman. Bear’s also argues that Clayton’s suit should be dismissed for no right of action. These exceptions are based upon the argument that the contract for purchase and installation of the engine was not between Clayton and Bear’s, but between Wilhite, Brown, Freeman, and possibly, Bear’s.

We note that Bear’s did not raise exceptions of nonjoinder or no right of action in the trial court. Both are peremptory exceptions that may be filed for the first time in the appellate court if pleaded prior to the submission of a case for decision. La. C.C.P. art. 2163. Bear’s has made no formal filing of any peremptory exception in this court. Instead, these exceptions are urged in argument in brief.

However, nonjoinder of a party and no right of action are among the peremptory exceptions that may be noticed by the trial court or the appellate court on its own motion. La. C.C.P. art. 927. Nevertheless, we observe that Bear’s knew that Wilhite was acting on Clayton’s behalf. Under La. C.C. art. 3023, when a third person contracts with a mandatary who has not disclosed his status or the identity of his principal, the third person still is bound to the principal unless the obligation is strictly personal or the right non-assignable. Therefore, Bear’s exceptions of no right of action by Clayton and nonjoinder of Wilhite are unfounded. For the reasons that follow, we pretermit any discussion regarding the nonjoinder of Brown and Freeman as unnecessary.

I SUFFICIENCY OF THE EVIDENCE

Bear’s argues that Clayton failed to show by a preponderance of the evidence that the company was liable to her. This argument has merit, in part.

The duty of an appellate court is to review facts to determine whether the trial court’s judgment was clearly wrong based on the evidence, or clearly without eviden-tiary support, and when testimony on an issue conflicts, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Hope v. City of Shreveport, 37,759 (La.App.2d Cir.12/17/03), 862 So.2d 1139. For the following reasons, we find that the trial court erred in part in the amounts awarded to Clayton.

The record shows that Clayton purchased an engine from Bear’s in February 2003 and that engine was found not to be usable. Bear’s supplied another engine, at no cost to Clayton. This engine was installed by Freeman, on his own time, independent of his work at Bear’s. Freeman did not notice that Clayton’s radiator was damaged and the lack of water in the radiator caused a head gasket on the engine to blow out. The trial court erred in finding that Freeman was working for Bear’s when he installed the engine, in finding Bear’s to be responsible for the damage to the engine, and refunding to the plaintiff $438, the purchase price of the engine. Further, Bear’s was not responsible for the damage to the radiator. The trial court erred in awarding Clayton $170.94, the cost of a new radiator. The trial court judgment is reversed to delete those items from the plaintiffs award.

18Bear’s took the vehicle to rebuild the engine in June 2003 and returned it to Clayton in September 2003, still not in satisfactory working order. Bear’s charged Clayton $289.80 for the work, including $89.80 for a new shift cable. The trial court awarded this entire amount to Clayton. However, the record shows that the shift cable was damaged by Freeman and was replaced by Bear’s. Because Freeman’s damage was not caused while working for Bear’s, Clayton is not entitled to recover the cost of the shift cable. The trial court judgment is reversed to delete this item from the plaintiffs award. The trial court was correct in awarding the cost of the labor, $200.00.

Bear’s argues that it could not be liable for Clayton’s insurance premiums, but that if it were so liable, the time would have started in June 2003 and ended in August 2003. This argument has merit.

The insurance premiums on the inoperable vehicle were a part of Clayton’s damages. Bear’s argues that there are provisions in the law for cancellation of insurance on vehicles not in use. However, in this case, Clayton testified that she continued to pay insurance on the vehicle because she was repeatedly promised that the vehicle would be ready “in a couple of days.” Clayton was not unreasonable in continuing to make insurance premium payments on the vehicle. However, the trial court erred in awarding Clayton the cost of her insurance premiums for the entire time the vehicle was inoperable, including that time attributable to the actions of Freeman.

The record supports a finding that Bear’s failed to make repairs on the vehicle in a timely manner. The plaintiffs vehicle was inoperable for one |3month in February 2003 due to the defective engine sold by Bear’s. Then, in June 2003, Bear’s took the vehicle to rebuild the engine. A reasonable time to accomplish that task would have been one month. Therefore, we find that Clayton is entitled to recover her insurance premium of $111.00 in February 2003, for $185.14 in August 2003, and for $72.14 in October 2003. The record shows that no insurance payment was made in September. The trial court judgment is reversed insofar as it awards insurance premiums in excess of these amounts.

ADDITIONAL EVIDENCE

Bear’s contends that the trial court erred in allowing the record to remain open for five days for the receipt of additional evidence. This argument is without merit.

According to La. C.C.P. art. 1631(A), the trial court has the power to control the proceedings at trial so that justice is done. Under the provisions of La. C.C.P. art. 1632, a trial court may vary the normal order of trial when the circumstances so justify. The decision to hold open or reopen a case for production of additional evidence rests within the discretion of the trial judge, which decision will not be disturbed on appeal unless manifestly erroneous. Harris v. West Carroll Parish School Board, 605 So.2d 610 (La.App. 2d Cir.1992), writ denied, 92-2787 (La.1992), 609 So.2d 255.

According to Bear’s, the trial court left the record open for five days after the close of the case for Clayton to file receipts which she did not have at trial, even though it was her obligation to be ready for trial. Bear’s asserts that it was prejudicial for the court to leave the record open and then to use the documents to make a ruling.

|inWe observe that the trial court left the record open for both sides to supply additional evidence. We also note that Bear’s made no objection or complaint of any kind at the trial about the holding open of the record. We detect no abuse of discretion in this case.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed in part, reversed in part, and rendered. We award judgment to the plaintiff, Rhonda Clayton in the amount of $568.28. Costs are assessed one-half to the plaintiff and one-half to the defendant.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Mr. Wilhite is referred to by the plaintiff as her father and by the defendant as her stepfather.

      . This amount represents $368.28 in insurance premiums for the time the car was inoperable due to the actions of Bear’s and $200 for repairs charged by Bear's that did not remedy the problem with the car.


author: hWILLIAMS, Judge.

text:
    Troy Wayne HARPER, Plaintiff-Appellant v. ADVANTAGE GAMING COMPANY, Los Gallos, and XYZ Insurance Company, Defendant-Appellee.
    No. 38,837-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Dick D. Knadler, for Appellant.
    Kenneth Mascagni, Robert Kennedy Jr., Shreveport, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   hWILLIAMS, Judge.

The plaintiff, Troy Harper, appeals a judgment in favor of the defendants, Los Gallos Restaurant and Scottsdale Insurance Company. The district court granted defendants’ motion for summary judgment. For the following reasons, we affirm.

FACTS

On March 14, 2002, Troy Harper went to the Los Gallos Mexican Restaurant (“Los Gallos”) in Coushatta, Louisiana. While in the restaurant’s video poker room, Harper sat on a wooden stool, which immediately collapsed under his weight. Harper fell to the floor, landing on his back. Later that evening, Harper felt severe back pain and went to the emergency room at the local hospital. On March 21, 2002, Harper sought treatment for back pain at the emergency room of Christus Schumpert Hospital in Shreveport. On March 25, 2002, Harper visited Lagniappe Hospital in Shreveport complaining of lower back pain and bruising. Harper was admitted to the hospital for treatment. Harper incurred $19,634.39 in medical expenses because of the incident.

Subsequently, the plaintiff filed an original and two amended petitions for damages against the defendants, Advantage Gaming Company (“Advantage”), Four Rivers Gaming, Inc. (“FRG”), Los Gallos and its insurer, Scottsdale Insurance Company. Advantage and FRG were later dismissed from the action. The defendants filed a motion for summary judgment. The district court granted plaintiffs motion for a continuance to allow additional time for discovery. Subsequently, plaintiff filed a third amended petition, alleging that defendant possessed constructive notice of 13the dangerous condition of the stool and that res ipsa loqui-tur applied.

After a hearing, the district court granted the defendants’ motion for summary judgment, dismissing plaintiffs claims. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the district court erred in applying the burden of proof for slip and fall cases. Plaintiff argues that the district court improperly required him to show evidence that defendant possessed “constructive notice” under LSA-R.S. 9:2800.6, even though this case involved liability for a defect on the premises.

An individual is responsible for the damage caused by his own act and by things in his custody. LSA-C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such care. LSA-C.C. art. 2317.1.

In their memorandum in support of the motion for summary judgment submitted to the district court, defendants cited Article 2317.1 and stated that their lack of knowledge of a defect was a defense to plaintiffs claim. Defendants further stated that to prove liability, plaintiff was required to show that defendant possessed “actual or constructive notice” of the particular defect that caused the damage, as defined in LSA-R.S. 9:2800.6(C). In his supplemental memorandum in opposition to summary | ¡¡judgment, the plaintiff pointed out that this case was governed by LSA-C.C. arts. 2317 and 2317.1, which provide that the owner of a thing is liable for the damage it causes only upon a showing that the thing was defective and that he knew or reasonably should have known of the defect which caused the damage. Thus, the parties’ memoranda to the district court on the motion for summary judgment presented the applicable law.

In his brief to this court, plaintiff contends the district court incorrectly applied LSA-R.S. 9:2800.6 to require plaintiff to prove actual or constructive notice of a defect, rather than imposing the correct burden of proving that defendant knew or with reasonable care should have known of the defective condition. However, plaintiff has not shown that these standards are substantially different, since both require plaintiff to offer proof of defendant’s knowledge, either actual or constructive, of the dangerous condition.

In addition, although the defendants may have raised some confusion in referring to Section 2800.6, plaintiff has not shown that the district court failed to consider the applicable law in deciding the motion for summary judgment. Consequently, the assignment of error lacks merit.

Summary Judgment

The plaintiff contends the district court erred in granting the motion for summary judgment. He argues that a genuine issue of material fact exists as to whether the stool was reasonably safe for use by an obese patron and whether the restaurant provided adequate seating for its customers.

Summary judgment shall be rendered if the pleadings, depositions, | ¿answers to interrogatories, admissions on file and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. However, if the mover will not bear the burden of proof at trial on the matter, the mover is not required to negate all essential elements of the adverse party’s action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. The non-moving party must then produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

To recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Moody v. Blanchard Place Apts., 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281.

In the present case, the defendants submitted the affidavit of Jaime Chavez, an owner and operator of the Los Gallos restaurant. Chavez testified that customers used the stools in the video poker room on a continuous basis and that he had never received any previous complaints |Bthat a stool had broken or collapsed. Chavez stated that the stool which had collapsed was relatively new and appeared to be capable of supporting a “very large” person such as the plaintiff.

In the answers to plaintiffs interrogatories, the defendants stated that every chair and stool is moved during the daily cleaning of the restaurant and that the employees were instructed to look for any broken or unsteady furniture and to correct and report any such problems to the manager. The defendants responded that there had not been any accidents involving the furniture used by customers other than the incident with plaintiff. However, defendants stated that on a prior occasion in the restaurant, a metal chair leg became bent when an overweight patron sat down, the customer was re-seated and the chair was discarded.

Defendants submitted excerpts from plaintiffs transcribed deposition, wherein he testified that the stool he had used appeared to be new and that he did not see anything wrong with the stool while moving it before sitting. Plaintiff acknowledged that prior to the stool’s collapse, there was nothing visible to indicate any problem with the stool.

In opposition to the motion for summary judgment, plaintiff submitted two of his own affidavits, a list of medical expenses, a hospital document describing his injury and a copy of a photograph depicting the injured area. In his affidavits, plaintiff testified that he had never been informed that he was too heavy to sit on some types of furniture, that he had not previously broken any type of chair while sitting and that he had received medical treatment after the accident.

|fiThe plaintiff has shown that he was injured when a stool owned by the defendants collapsed under him after he sat down. In his brief, plaintiff argues that defendants should be liable for his injuries because they had gained knowledge that the restaurant’s furniture would not support the weight of an obese patron as a result of the prior incident when an overweight customer bent a chair leg.

In support of his argument, plaintiff cites Walters v. Kenner CiCi’s, 00-1372 (La.App. 5th Cir.1/23/01), 780 So.2d 467 and Saulny v. Tricou House, L.L.C., 02-1424 (La.App. 4th Cir.1/29/03), 839 So.2d 392. However, the factual situations in those cases can be distinguished from the facts of the present case. In Walters, there was evidence that the chair was defective because of a missing screw and the manager stated that he had found screws missing from chairs before. In Saulny, there was evidence that the plastic chairs used by the restaurant often broke and needed to be replaced during the two-year period in which that type of chair was used. There was no similar evidence in this case of actual knowledge of a defect in the stool used by plaintiff. Nor was there evidence of stools breaking over a period of time such that defendants should have known of a defective condition.

In any event, prior to a consideration of whether defendants knew of a dangerous condition, plaintiff has the burden of proving that the stool at issue contained a defect which presented an unreasonable risk of harm. The evidence presented shows that the wooden stool was relatively new and was discarded after the accident by someone at the restaurant. Plaintiff contends |7the defendants’ failure to preserve the stool prevented his examination of the stool for defects and that he could not examine a similar stool because defendants refused to disclose the name of the manufacturer or model number of the stool.

Contrary to plaintiffs contentions, the evidence suggests that the restaurant possessed at least one other stool of the same type as the one which broke. Even if a similar stool was not present on the premises, defendants stated in their answers to interrogatories that the stool was purchased from a store located next to the restaurant. The plaintiff has not shown that he attempted to obtain the model number or the name of the manufacturer of the stool from that store or that he filed a motion to compel defendants to provide such information. While we do not excuse the defendants’ failure to preserve the broken stool, plaintiff cannot satisfy his burden of proving a defective condition by asserting that the stool was not available and that defendants did not cooperate. Plaintiff did not present expert testimony regarding the weight-bearing capacity of a similar type of stool or request sanctions against defendants under the theory of spoliation of evidence.

Based upon this record, we must conclude that the plaintiff has failed to produce factual support which would satisfy his burden of proving that the wooden stool presented an unreasonable risk of harm. Thus, the assignment of error lacks merit.

Res Ipsa Loquitur

The plaintiff contends the district court erred in failing to address the | sdoctrine of res ipsa loquitur. He argues that the circumstances of the accident were so unusual that there is an inference of negligence by the defendants.

Res ipsa loquitur is a rule of circumstantial evidence that applies when the facts suggest that the negligence of the defendant is the most plausible explanation of the injury. Martinez v. Schumpert Medical Center, 27,000 (La.App.2d Cir.5/10/95), 655 So.2d 649. This eviden-tiary doctrine is applicable when three requirements are met: 1) the circumstances of the accident are so unusual that, in the absence of other evidence, there is an inference of negligence by defendant; 2) defendant had exclusive control over the thing causing injury; and 3) the only reasonable conclusion is that defendant’s breach of duty caused the accident. Spott v. Otis Elevator Company, 601 So.2d 1355 (La.1992).

Here, plaintiff has not demonstrated factual circumstances which would show that the only reasonable conclusion is that defendants’ breach of duty caused the accident. The testimony of the restaurant manager that the employees regularly checked the condition of the furniture during their daily cleaning and that other patrons had used the stools without any complaint that they were broken or unsteady does not support an inference that defendants were negligent.

Based upon this record, we must conclude that plaintiff has failed to produce evidence which would satisfy his burden of proving that the negligence of defendants was the most plausible explanation for his injury. Consequently, the doctrine of res ipsa loquitur is not applicable in this case. laAfter reviewing the evidence presented, we cannot say the district court erred in granting the motion for summary judgment. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting the motion for summary judgment is affirmed. Costs of this appeal are assessed to the appellant, Troy Harper.

AFFIRMED.


author: h PEATROSS, J.

text:
    Josephus BUSH, Jr., Plaintiff-Appellant v. XYZ INSURANCE COMPANY, et al, Defendant-Appellee.
    No. 38,867-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Norman R. Gordon & Associates, LLC, by Norman R. Gordon, Shreveport, for Appellant.
    Mayer, Smith & Roberts, L.L.P., by Kim Purdy Thomas, Shreveport, for Ap-pellee, Merline Computers, LLC.
    Before STEWART, PEATROSS & MOORE, JJ.
   h PEATROSS, J.

This appeal arises from a trial court judgment in favor of Defendant, Merlin Computers, LLC (“Merlin Computers”) and against Plaintiff, Josephus Bush, Jr. (“Bush”). Bush now appeals the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

On February 7, 2000, Bush visited Merlin Computers in Shreveport. During the visit, Bush sat in a steel executive upright chair, a chair reserved for customers. As soon as Bush sat down in the chair, it collapsed, causing him to strike his head on a nearby desk. In the collapse, Bush also injured his back. It was determined that the cause of the accident was fracture of the welds on the chair. The weld on the back of the chair broke into two separate pieces, causing the chair seat to separate from the base support structure.

On November 28, 2000, Bush filed a lawsuit against Merlin Computers, the owner of the chair and the chair manufacturer, True Seating Company. A trial was held on October 1, 2003. At trial, it was determined that, prior to this incident, there had been no instances where this chair or any other chair purchased from Sam’s Club had a problem similar to the one which occurred with Bush. There had never been any indication to Merlin Computers’ employees that the weld on this chair or any other chair was in the process of failing. The expert for Bush, Jamie Galis, found no | ^deficiencies in the assembly of the chair. Ms. Galis was unable to say whether anyone sitting in the chair prior to the Bush accident would have experienced anything other than normal use of the chair prior to the failure of the weld. Further, she was unable to say that, if someone turned the chair over prior to the accident to examine it for structural problems, he or she would have, more probably than not, seen the potential problems of the weld to fail.

Under La. C.C. art. 2317.1,

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

After hearing all the testimony, the trial court ruled in favor of Merlin Computers, finding that Bush had failed to show that anyone from Merlin Computers either knew or should have known that the chair was defective. Bush now appeals, raising the following assignment of error (verbatim):

The trial court erred in finding that the defendant was not negligent in maintaining the chair that caused the plaintiffs injuries.

DISCUSSION

It is well settled that a court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The reviewing court must do more than just ^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. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349 (La.1992). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)).

Bush argues that, because screws in the armrests of the chair and other similar chairs became loose from time to time and had to be tightened, this is evidence that Merlin Computers’ employees knew or should have known that the entire chair was defective. We do not agree. Occasional loose screws in the armrest alone would not be enough to give sufficient warning to Merlin Computers’ employees that the chair as a whole was defective.

Bush’s reliance on Brown v. Williams, 36,863 (La.App.2d Cir.7/31/03), 850 So.2d 1116, writ denied, 03-2445 (La.11/21/03), 860 So.2d 555, to support his argument is misplaced. In Brown, supra, a panel of this court held that an owner of a tree that caused damage to a neighbor’s house was liable to the neighbor because he knew or should have known of the tree’s rotting condition. In coming to this conclusion, the court found that|4the owner of the tree had not performed any maintenance on it or provided the minimal care to the tree required by law. This is different than the instant case because here Merlin Computers’ employees routinely checked the chair when they tightened the screws and they performed what was minimally required of them to make sure the chair was in working order. During this maintenance of the chair, Merlin Computers’ employees found no evidence of structural problems in the chair.

Ultimately, the chair failed not because of loose screws in the armrest, but, instead, because of the failure of the weld supporting the seat. There is no way Merlin Computers’ employees would have known of the defect in the chair unless they hired a metallurgist to inspect it thoroughly before it was placed into use. We find nothing in the statutes or jurisprudence that would suggest that such a great burden is on an owner of a thing to hire an expert to inspect it thoroughly before it is placed into use, and we decline to place such a burden on Merlin Computers here. Bush’s own expert witness testified that she was unable to say that, even if someone turned the chair over prior to the accident to examine it for structural problems, he or she would have seen the potential problems of the weld to fail. We find no evidence in this record that Merlin Computers’ employees knew or should have known of the defective weld in the chair. The trial court judgment is a reasonable one and we will not reverse it on appeal.

^CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff, Josephus Bush, Jr.

AFFIRMED.

      . XYZ Insurance Company ("XYZ”) is alleged to be the insurer for Merlin Computers.

      . Merlin Computers bought several of these chairs from Sam’s Club on or about August 8, 1997.

      .Trae Seating Company was later dismissed from this lawsuit.

      . After a thing has injured someone, on the other hand, it does put the owner on notice that the thing may cause a tortious injury to someone and the owner then does have a duty to inspect it closely and, if necessary, remove it from harming others.