author: I pFITZSIMMONS, J.

text:
    STONEGATE HOMEOWNERS CIVIC ASSOCIATION, et al. v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, et al.
    No. 2001 CA 2883.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied Feb. 19, 2003.

      Jeffrey S. Wittenbrink, Baton Rouge, Counsel for Plaintiffs/Appellants Stonegate Homeowners Civic Association, et al.
    James C. Percy, Baton Rouge, Counsel for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge.
    ■ Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   I pFITZSIMMONS, J.

Appellants, Stonegate Homeowners Civic Association, David Blouin, James Chet-ta, Connie S. Chetta, Harold Leone, Martha B. Miller, Mary A. O’Keefe, Barbara Richert and Fred Townsend (Stonegate), appeal a grant of an involuntary dismissal by the trial court in favor of the City of Baton Rouge/Parish of East Baton Rouge (City/Parish). The trial court held that Stonegate had not met its burden to prove the existence of a dedication of the streets within the subdivision at issue. Following a review of the law and the facts, this court reverses and remands.

ZONING CLASSIFICATION DEBACLE

The tortured and ill-founded grant by City/Parish of a hybrid form of zoning development creates the confusion related to the dedication of the streets within the Stonegate Subdivision. As ratified by the City/Parish planning commission, the Stonegate Subdivision does not comply with the City/Parish’s designated zoning classifications.

Stonegate Subdivision was originally presented for approval as a townhouse development. A townhouse development is required to conform to a distinctive set of zoning requirements established pursuant to Subdivision Regulations, Section XVI3, City of Baton Rouge/Parish of East Baton Rouge However, at the time of its approval, the planning commission ratified an alteration of the preliminary plat for the proposal from “townhouses” to “zero lot line” housing. The commission, thereafter, noted in its recorded vote of approval that “[s]treets, drainage and lot sizes are unchanged.”

A review of the final plat for Stonegate Subdivision, approved by the Planning Director of the City/Parish Planning Commission, East Baton Rouge |3Parish, Louisiana, reveals the following language, in pertinent part:

2. The right of way of streets shown hereon, if not previously dedicated is hereby dedicated to the perpetual use of the public. All areas shown as servi-tudes are granted to the public for ... other proper purpose for the general use of the public....
3. All street improvements shall be 22' wide and will be 6" concrete pavement on a compacted subgrade.
6. This proposed subdivision is located within the A2.5 (townhouse) zoning district of East Baton Rouge Parish.

The plat contains plans for passageways identified as “Stonegate Court” and “Bell-glen Lane.” There are also references to various “access drives” along the townhouse-type rows, which are not individually identified with names. These drives feed into Stonegate Court or Bellglen Lane, whose dedication City/Parish does not dispute. The “drives” form the only east-west roadways for vehicular travel from the houses across the subdivision to the nearest connecting street. The distance of the drives serving as roadways extends as far as nine hundred feet.

Stonegate claims that the plat’s designated “access drives” are dedicated streets, subject to City/Parish maintenance. City/Parish avers that the access drives were never identified as “streets” in the final plat for which the City/Parish accepted maintenance. Instead, it purports that the roadways remained “drives” or “driveways,” which were owned by the developer and not maintained by City/Parish. See Subdivision Regulations, Section XVI3. Town House Subdivision (d)(4).

James R. Clary, who was accepted as an expert in civil and consulting engineering, commented on the “inconsistencies” in the City/Parish approved plans for a single-family zero lot line development within the A2.5 (townhouse) zoning district. He noted the breach by the planning commission in its failure to comply with the directives of the A2.5 zoning, as well as the fact that a proper zoning classification did not appear to have ever been effected, either proeedurally or 14substantively. The City/Parish now leans on its blurred application of the subdivision requirements to avoid maintenance of the “drives” on which the individual homes of the approved development front.

JURISPRUDENCE

Louisiana has never formulated a comprehensive approach to dedication to public use. St. Charles Parish School Board v. P & L Investment Corporation, 95-2571, p. 4 (La.5/21/96), 674 So.2d 218, 221. However, jurisprudential recognition of four types of dedication has evolved: formal, statutory, implied, and tacit. St. Charles Parish School Board, 95-2571 at p. 5, 674 So.2d at 221. At issue herein is the existence, vel non, of a statutory dedication.

The provisions of La. R.S. 38:5051 provide for a dedication of property to public use, as follows, in pertinent part:

B. The map ... shall contain the following:
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys, and public squares or plats shown on the map to public use.
C. Formal dedication as a road, street, alley, or cul-de-sac shall impose no responsibility on the political subdivision in which the property is located until:
(1) The dedication is formally and specifically accepted by the political subdivision through a written certification that the road, street, alley, or cul-de-sac is in compliance with all standards of the political subdivision, which certification may be made directly on the map which contains the dedication; or
(2) The road, street, alley, or cul-de-sac is maintained by the political subdivision.

A statutory dedication vests ownership in the public, unless the subdivider expressly reserves ownership of streets and grants the public only a servitude of use. St. Charles Parish School Board, 95-2571, p. 5, 674 So.2d at 222; Arkansas-Louisiana Gas Company v. Parker Oil Company, Inc., 190 La. 957, 183 So. 229, 238 (1938) (on rehearing). Notwithstand ing the statutory requisites, substantial compliance has been jurisprudentially deemed to suffice to accomplish a statutory dedication. Garrett v. Pioneer Production Corporation, 390 So.2d 851, 856 (La.1980). Thus, inefficiencies in the plat alone, such as a failure to indicate some street names on the plat and the absence of a certificate of a parish surveyor or formal act of dedication, have not vitiated an intent to dedicate. Id. Nevertheless, the intention to dedicate must be clearly established. Cavaness v. Norton, 96-1411, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1174, 1177. If the fact of dedication is doubtful, the court must look to the surrounding circumstances to determine whether there existed an intent to dedicate. Id. The conduct of the parties in interest may be considered as corroborative evidence. Garrett, 390 So.2d at 857.

APPLICATION

The essence of this appeal can be narrowed down to whether the “drives” delineated on the final plat were “streets.” “Streets” and “alleys” are identified in “Section XIV. Final Plats” of the Subdivision Regulations. Section XIV does not refer to “drives” because the term “drives” falls under the portion of the subdivision regulations reserved for townhouse developments, i.e., Section XVI. Variations and Exceptions” of the Subdivision Regulations.

Looking to the surrounding circumstances and the conduct of the parties in this instance, we are painfully cognizant of City/Parish’s unorthodox melding of two diverse classifications of zoning developments. When the City/Parish elected to change the townhouse proposal to a zero lot line development, the nomenclature 1 fiof the two distinctive concepts became inextricably interwoven. The City/Parish’s acceptance of the plat as a. zero lot line development concomitantly vitiated the townhouse concept of “access drive.” We note that expert testimony at trial indicated that the “drives” conformed to the written City/Parish requirements on the subdivision plat that the street improvement be twenty-two feet wide. Moreover, Mr. Clary opined that the final plat for Stone-gate Subdivision showed the right-of-way turning from Stonegate Court and extending along the access drive. Residents testified that the drives had consistently served as public streets through the years until the maintenance issue that produced this litigation arose. Finally, the subdivision restrictions only included “driveways” as part of the individual’s maintenance requirements, rather than including the roadway area of the drives in front of the homes.

Given the afore noted unique circumstances, this court finds that the trial court manifestly erred in its grant of an involuntary dismissal. Based on the evidence submitted on behalf of Stonegate, the term “drives” should have been legally interpreted as “streets” when the planning commission ratified the development proposal. The evidence reveals an intent to dedicate the streets within the subdivision to' the City/Parish. Moreover, City/Parish demonstrated its intent to accept the dedication when it stated on the final plat: “The right of way of streets shown hereon, if not previously dedicated are hereby dedicated to the perpetual use of the public »

Accordingly, the trial court judgment granting an involuntary dismissal is reversed. The case is remanded to the trial court to allow the City/Parish the opportunity to present countervailing evidence at a full trial of this matter. All 17costs associated with this appeal in the sum of $2,076.29 are assessed to the City of Baton Rouge/Parish of East Baton Rouge.

REVERSED AND REMANDED.

GUIDRY, J., concurs.

      . City Ordinance 402 and Parish Ordinance 384

      . We are concerned that governmental planning and zoning bodies, and ultimately, the governing authority itself, disregarded the parameters of zoning. Such reckless disregard for the parameters of zoning for proposed developments deleteriously impacts the infrastructure and "the common good.” Violation of the zoning regulations may well expose such bodies and/or individual members to a cause of action for malfeasance and/or damages by an aggrieved citizen.

      . Section III of the Subdivision Regulations defines a "street” as a “right-of-way dedicated to public use which provides vehicular and pedestrian access to the back or side of properties also abutting on a street.”

      . The dedication of the streets is expressly limited to the "right of way.” There is no evidenced intent to dedicate ownership of the streets; however, ownership of property does not preclude the dedication of a street "for the public use.” Such an interpretation conforms with the plat, which contains demarcations to the center of the drives that conform with individual ownership to the middle of the drives.


source: Caselaw Access Project

author: J^FITZSIMMONS, J.

license: Public Domain

text:
    Tommy MORRISON v. The CITY OF BATON ROUGE (Baton Rouge Police Department) and Pat Englade, Chief of Police.
    No. 2002 CA 0358.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Floyd J. Falcon, Jr., Charles L. Dirks, III, Baton Rouge, Counsel for Plaintiff/Ap-pellee Tommy Morrison.
    Joseph N. Lotwick, Baton Rouge, Counsel for Defendants/Appellants The City of Baton Rouge (Baton Rouge Police Department) and Pat Englade, Chief of Police.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

The City of Baton Rouge (City of Baton Rouge Police Department) and Pat En-glade, Chief of Police (collectively “City”), appeal the trial court’s issuance of a writ of mandamus ordering appellants to “reinstate the employment of Tommy Morrison and pay him all back wages and emoluments of employment retroactive to the date of his termination on June 16, 2000 .... ” Following a review of the facts involved and the applicable law, this court affirms the trial court judgment.

On June 16, 2000, written notice was sent to Mr. Morrison by the Baton Rouge Police Department (Department) advising him that he was terminated. Prior to his termination, Mr. Morrison had been placed on “unpaid administrative leave.” An appeal by Mr. Morrison to the Municipal Fire and Police Civil Service Board (Board) resulted in a determination that the department had improperly terminated Mr. Morrison, and he should be reinstated with back pay. The Department, thereafter, returned Mr. Morrison to the status of “unpaid administrative leave.” He was not given any back pay.

Mr. Morrison filed a petition in the Nineteenth Judicial District Court. He sought, among other remedies, the' issuance of a writ of mandamus directing the City to immediately reinstate him to his former position of employment with full back pay. The trial court granted the writ of mandamus and it ordered the reinstatement and payment of all back wages.

In the instant appeal, the City points out that the Board’s decision was premised on the Department’s procedural error: failing to give Mr. Morrison adequate pre-depri-vation notice and an opportunity to be heard. It distinguishes such a determination from a decision on the merits of the cause of termination, 13noting that the Board’s action does not prohibit the Department from re-instituting termination proceedings.

This court recognizes that the City can recommence termination procedures, which could potentially result in Mr. Morrison’s ultimate termination. However, any such future action cannot be presupposed; nor can it supplant a determination of improper action taken in the past. The issue to be resolved centers around the Board’s action ordering reinstatement and back pay.

Louisiana Revised Statute 33:2501 addresses appeals by employees to the Board. Subsection C(l) pertinently states:

After the investigation provided for in Subsection B of this Section, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If they find that the action was not taken in good faith for cause under the provision of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. [Underlining supplied.]

It is not disputed by the Department that it failed to follow the proper procedural requirements to which the Department must adhere in a termination proceeding pursuant to La. R.S. 33:2501B(1) and (2). These requirements include notice and the opportunity to participate at a hearing. Given the Department’s failure to comply with the unequivocal requirements established in La. R.S. 33:2501, the Board’s reinstatement was not legally erroneous. Marcantel v. Department of Transportation and Development, 590 So.2d 1253, 1256 (La.App. 1st Cir. 1991). Reinstatement by the Department to the temporary status of “unpaid administrative leave” fails to comport with the mandatory duty to return the employee to his regular position from which he was “removed,” “suspended,” or “demoted.” Finally, the City has not demonstrated that the Board’s directive, | ¿ordering back pay, constituted an abuse of the board’s discretion. La. R.S. 33:2501C(1); Marcantel, 590 So.2d at 1255.

Pursuant to La. C.C.P. arts. 3861 and 3863, a writ of mandamus is a procedural vehicle to direct a public officer or corporation or officer thereof to perform a ministerial duty required by law. It may be issued in cases “where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice[.]” La. C.C.P. art. 3862. Applying these precepts to the case at hand, Mr. Morrison’s utilization of the mandamus proceeding to require the City to enforce the decision and directive of the Board constitutes a proper procedural course of action. Ricca v. City of Baton Rouge, 450 So.2d 1032, 1034 (La.App. 1st Cir.1984).

Accordingly, this court affirms the judgment of the trial court. All costs associated with this appeal, in the sum of $484.36, are assessed to the City of Baton Rouge (City of Baton Rouge Police Department) and Pat Englade, Chief of Police.

AFFIRMED.

GUIDRY, J., concurs.

      . Unfortunately, this court is not privy to the minutes of the formal action taken by the Board. At trial, Pat Englade testified on behalf of the City that the board voted to reinstate Mr. Morrison with full back pay; however, counsel for the City advised the court that the board minutes had not been prepared as of the time of the trial.

      . Any future action taken by the Board should not affect the board's decision for the time period made the subject of this litigation.


author: JjFITZSIMMONS, J. hPETTIGREW, J.,

text:
    STATE of Louisiana in the Interest of L.A.H.
    No. 2002 KJ 1867.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Gail S. Adkins, Assistant District Attorney, Baton Rouge, Counsel for Appellee State of Louisiana.

      Stephen Dixon, Baton Rouge, Counsel for Appellee L.A.H.
    Revettea D. Woods, Baton Rouge, Counsel for Appellant Louisiana Department of Public Safety and Corrections.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JjFITZSIMMONS, J.

L.A.H., a male child, was alleged to be delinquent by a petition based on the commission of one count of simple burglary, a violation of La. R.S. 14:62; and one count of simple arson with damage of more than $500.00, a violation of La. R.S. 14:52. At an adjudication hearing, L.A.H. admitted his guilt and was adjudged delinquent for the offenses of principal to simple burglary, in violation of La. R.S. 14:24 and 14:62, and principal to simple arson, in violation of La. R.S. 14:24 and 14:52. Following a disposition hearing, the juvenile court ordered that the juvenile be committed to the secure custody of the Department of Public Safety and Corrections (DOC) for a period of four (4) years, with credit for time served. The court recommended that the juvenile be placed in the Short Term Offender’s Program (STOP). The court further ordered that the juvenile cooperate with the DOC and abide by the rules and regulations of the placement facility/program to which he would be assigned.

On April 12, 2002, the state filed a verified complaint alleging that L.A.H. violated the conditions imposed by the court. The complaint indicated that upon being placed in DOC secure custody, L.A.H. was placed in STOP. Upon completion of STOP, L.A.H. was placed at Christian Acres. After being negatively discharged from Christian Acres, L.A.H. was placed at the Ware Youth Center (WYC). After only three months, L.A.H. was negatively discharged from WYC. The complaint requested that L.A.H be returned to the custody of the DOC.

At a dispositional review hearing held on April 15, 2002, the juvenile court rendered a modified disposition judgment ordering that L.A.H. remain in the secure custody of the DOC. The court recommended that L.A.H. be placed at the Jetson Correctional Center for Youth. The court ordered that DOC provide educational services, mental health treatment, and art therapy for L.A.H. The court | ^further ordered that the verified complaint be recalled, vacated and set aside. DOC appeals the modified disposition. Finding merit in the assigned error, we reverse and remand.

ASSIGNMENT OF ERROR

In its sole assignment of error, the DOC challenges the portion of the disposition ordering that it provide a particular type of therapy, namely, art therapy, to L.A.H. while in DOC custody. DOC argues that once the juvenile court committed the child to the custody of the DOC, the court had no authority to order any particular type of treatment. DOC avers that it has the sole authority to determine treatment and placement of a child in its custody. In response, the child concedes that the juvenile court lacked the authority to dictate the type of treatment to be provided to a child placed in the custody of the DOC. However, the child argues that the juvenile court order should not be disturbed because it is not unreasonable, is consistent with his needs and abilities, and would better serve his chances for rehabilitation, which, he argues, would better serve society.

On several occasions, this court has examined the respective roles of the juvenile court and the DOC in the treatment of delinquent juveniles committed to the custody of the DOC. See State ex rel. D.B., 98-1188 (La.App. 1 Cir. 6/25/99), 739 So.2d 918. See also State in Interest of S.T., 97-0216 (La.App. 1 Cir. 9/19/97), 699 So.2d 1128, writ denied, 97-2627 (La.2/13/98), 706 So.2d 992. This court has consistently held that the DOC has plenary authority over the care and treatment of juveniles committed to its custody. Addressing the scope of the juvenile court’s authority, we explained:

If the [juvenile] court determines the child will be committed to the custody of the Department of Public Safety and Corrections, the Department has the authority to determine where the child should be placed and the type of treatment, and the court may not order the Department to provide a particular type of treatment or placement.

1 State ex rel. D.B., 98-1188, p. 3, 739 So.2d at 920, quoting State in Interest of S.T., 97-0216, pp. 3-4, 699 So.2d at 1129.

Furthermore, La.Ch.C. art. 908A provides that the DOC “shall have sole authority over the placement, care, treatment, or any other considerations deemed necessary from the resources that are available for children judicially committed to the department.” Likewise, La. R.S. 15:901 D(l) provides, in part, that “[u]pon commitment to the Department of Public Safety and Corrections, the department shall have sole custody of the child and ... shall determine the child’s placement, care, and treatment, and the expenditures to be made therefor, through appropriate examinations, tests, or evaluations conducted under the supervision of the department.” Thus, it is clear that the DOC has plenary power to make decisions .with respect to those children committed to its custody. Therefore, the juvenile court may not commit a juvenile to the custody of the department with a specification of which services or treatment programs the department must provide. State ex rel. T.A., 2000-2560, p. 4 (La.12/7/01), 801 So.2d 351, 353-54 (per curiam).

In the instant case, the juvenile court exceeded its authority in dictating the type of treatment to be provided to L.A.H. while in the custody of the DOC. While the juvenile court may, and often does, recommend specific placement and/or treatment for a juvenile committed to the DOC, it has no authority to order such placement and/or treatment. Accordingly, the modified judgment of disposition is hereby vacated. The proceedings are remanded to the juvenile court for a disposition hearing in accordance with the views expressed herein.

MODIFIED DISPOSITION JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS.

PETTIGREW, J., concurs, and assigns • reasons.

hPETTIGREW, J.,

concurring.

I respectfully concur because the majority opinion reflects the current law of the First Circuit Court of Appeal. However, I am of the humble opinion that Juvenile Code Arts. 905, 909, 910, 911, and 912 provide authority to the juvenile court judge to modify dispositions to insure and review the conditions, supervisions, treatments, and rehabilitation programs for the children in a broader manner than which is presently defined by the First Circuit Court of Appeal. Nevertheless, since the majority’s opinion does reflect the current law of the First Circuit Court of Appeal, I am compelled to follow it.

      . The commitment order reflects concurrent commitment terms of three (3) years for the offense of principal to simple burglary, and four years for principal to simple arson.


author: J^KUHN, J. ^DOWNING, J.,

text:
    John W. PERTUIS v. ARCHITECTURAL FABRICATIONS, INC.
    No. 2001 CA 2684.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Daniel Becnel, LaPlace, Counsel for Appellant John Pertuis.
    Gregory Unger, Metairie, Counsel for Appellee Architectural Fabrications, Inc.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   J^KUHN, J.

Claimant-appellant, John W. Pertuis, appeals a judgment of the Office of Workers’ Compensation (OWC) sustaining a peremptory exception raising the objection of prescription filed by employer Architectural Fabrications, Inc. (AFI). We amend and, as amended, affirm.

FACTUAL AND PROCEDURAL HISTORY

On November 2, 2000, claimant filed u disputed compensation form, averring that on September 3, 1996, while working as a welder for AFI, he fell off a fabrication table and sustained an injury to his right elbow. He identified the failure of AFI or its workers’ compensation insurer, Kemper Insurance Company of Plantation, Florida (Kemper Insurance), to pay a doctor’s bill as the basis of his bona fide dispute. On June 15, 2001, claimant filed a pleading entitled, “RULE TO SHOW CAUSE WHY BENEFITS SHOULD NOT BE REINSTATED,” alleging his benefits were terminated on May 24, 2001, although he continued to be disabled and was receiving medical treatment.

AFI filed a peremptory exception on June 19, 2001, objecting to claimant’s entitlement to indemnity benefits on the basis of prescription and, alternatively, raising the objection of no cause of action. Attached to the exception was, among other things, claimant’s previously-filed disputed claim form, dated September 9, 1999, alleging as the basis of the bona fide dispute a denial in his choice of physicians.

On June 25, 2001, OWC held a hearing on both claimant’s rule to show cause pleading and AFI’s exception. After receiving testimonial and documentary 1 aevidence, the workers’ compensation judge (WCJ) sustained the exception of prescription. A judgment in conformity with the OWC ruling was signed. This appeal by claimant followed.

DISCUSSION

On appeal, claimant acknowledges that he is not entitled to compensation for the left elbow injury as a result of the September 3, 1996 accident. Instead he maintains that the left elbow injury is distinct from the right elbow injury. Thus, claimant concedes that he is not entitled to indemnity benefits based on a theory that the left elbow injury developed out of or as a result of the right elbow disability. Because the record shows claimant’s first disputed claim, filed on September 9, 1999, was well beyond the two years required for commencement of a proceeding under La. R.S. 23:1209 A, we agree that on the face of his claim, it is forever barred under a theory of developmental injury.

Louisiana Revised Statute 23:1021(1) defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective Rfindings of an injury which is more than simply a gradual deterioration or .progressive degeneration.” In order to recover workers’ compensation benefits, an employee must show that he received a personal injury by accident arising out of and in the course and scope of his employment and that said injury necessitated medical treatment or rendered the employee disabled, or both. Williams v. Sheridan Constr. Co., Inc., 2000-1697, p. 16 (La.App. 1st Cir.9/28/01), 811 So.2d 8, 12, writ de nied, 2001-2865 (La.1/11/02), 807 So.2d 239. And it is the employee’s burden of proof to establish a work-related accident by a preponderance of the evidence. Id.

At the hearing, claimant testified that although he injured his right elbow in the September 3, 1996 accident, he did not injure his left arm at all. Kemper Insurance paid all the medical expenses associated with the right elbow injury including two surgeries. Claimant continued working as a welding fabricator until November 26, 1998, when he was laid off due to a reduction in force. He explained that shortly after his layoff, AFI declared bankruptcy. Claimant stated that subsequent to each surgery, in order to accomplish his work duties because of the pain he experienced in his right arm when any pressure was placed on it, he had to primarily use his left arm. As a result of the overuse of his left arm, according to claimant’s testimony, he began complaining of pain in his left elbow around September of 1998.

Included in the record is claimant’s deposition testimony in which he acknowledged that between September 3, 1996, and his layoff, he was not involved in any other accidents.

[¡/The record is devoid of any evidence to support a finding that the left elbow condition was a result of a work-related accident. Without evidence of an accident, claimant simply has not proven entitlement to benefits as a result of the left elbow condition. Mindful that the claimant’s rule to show cause why benefits should not be reinstated was before the WCJ at the hearing, whether prescription accrued on a claim for which claimant is not entitled to recover indemnity benefits is of no moment. Claimant simply failed to prove entitlement to workers’ compensation benefits. But the OWC judgment only states that the exception of prescription is granted, without expressly dismissing claimant’s claims.

Even if, solely for purposes of addressing the WCJ’s grant of the exception of prescription, we were to assume a work-related accident occurred, see Daisey v. Time Warner, 98-2199, p. 5 (La.App. 1st Cir.11/5/99), 761 So.2d 564, 567, the claim nevertheless fails. Claimant asserts that indemnity benefits paid to him by Kemper Insurance, made retroactive to December 11, 1998, interrupted prescription on his claim of left elbow injury. He asserts under La. R.S. 23:1209 A, he had one year from the date Kemper Insurance ceased those payments, i.e., from May 24, 2001, to initiate his claim. Thus, he maintains that the June 19, 2001 pleading, which he designated as a rule to show cause why benefits should not be reinstated, is timely.

Claimant testified that he discussed receipt of benefits with Kemper Insurance claims adjuster, Elaine Lane, although he did not identify the date that he spoke with her. He recalled that Lane “needed the paper about my [left] arm,” which he faxed to her. Lane then requested that claimant provide her with his | r,check stubs, which he also faxed to her. Claimant said after that, compensation benefits commenced retroactive to December 11, 1998.

Kemper Insurance payment records and a document entitled, “Notice of Payment” were admitted into evidence at the hearing by AFI. The “Notice of Payment” form completed by Lane states that payment was tendered to claimant as a result of his right arm disability. The month portion of the referenced date of the accident is missing, i.e., the first digit which sets forth the month is not filled in, and the date shows “_: — 3—96,” as the day and the year of the accident that forms the basis of Kem-per Insurance’s tender of payments.

The standard of review for the factual findings of the WCJ is manifest error/clearly wrong. Doucet v. Baker Hughes Production Tools, 93-3087, p. 4 n. 3 (La.3/11/94), 635 So.2d 166, 168 n. 3; Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 709-10.

Clearly, the WCJ was free to rely on the statements set forth in the “Notice of Payment” form over claimant’s testimony to find that the December 11, 1998 tender of payments by Kemper Insurance to claimant was for the right arm disability. In light of the documentary evidence in this record, that factual conclusion by the WCJ is not clearly wrong or manifestly erroneous. Because no proceedings had begun within two years of the September 3, 1996 accident, the claim for payments arising from the right elbow injury is untimely under La. R.S. 23:1209 A. And the WCJ’s ruling sustaining AFI’s exception of prescription was correct.

Louisiana Code of Civil Procedure 934 states:

|7When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.

On his rule to show cause why benefits should not be reinstated, claimant failed to prove a work-related accident caused his left elbow injury. Thus, he is not entitled to benefits, and amendment of the pleadings cannot revive the claim. Therefore, although the OWC judgment states only, “[t]he EXCEPTION OF PRESCRIPTION IS [SUSTAINED],” under the facts of this ease, it duly effectuated a dismissal of claimant’s claim. Accordingly, we amend the judgment to expressly dismiss claimant’s claim for indemnity benefits based on the left elbow injury. See La. C.C.P. art. 2164.

CONCLUSION

For these reasons, the OWC judgment is amended to expressly state, “Claimant’s claim is dismissed.” With this modification, the judgment sustaining the exception of prescription is affirmed. Costs of this appeal are assessed to claimant-appellant, John Pertuis.

AMENDED AND, AS AMENDED, AFFIRMED.

DOWNING, J., dissents and assigns reasons.

^DOWNING, J.,

dissents and assigns reasons.

I respectfully dissent. After the injury to his right arm, Mr. Pertuis continued to work as a welder by exclusively using his left arm. The testimony demonstrated that this overcompensation caused the injury to his left arm. The employer and the workers’ compensation insurer were aware of his left arm injury and authorized payment for his medical expenses. The record indicates that Pertuis received his full paycheck when he was at home convalescing. After returning to work he continued being paid in full even when taking off several hours a day to go to his doctor and for physical therapy visits.

These payments can only be construed as wages paid in lieu of compensation. Wages in lieu of compensation are deemed applicable when the employee does not actually earn all of his pay. Ortis v. Ortco Contractors, Inc., 00-1460, p. 2 (La.App. 1 Cir. 9/28/01), 809 So.2d 300, 301. Prescription is interrupted by the payment of wages in lieu of compensation in a workers’ compensation case. Id. A claimant may prove he was lulled into a false sense of security by showing that words, actions or inaction on -the part of the employer or insurer induced him to withhold suit until his claim prescribed. Daisey v. Time Warner, 98-2199, p. 5 (La.App. 1 Cir. 11/5/99), 761 So.2d 564, 567. Accordingly, Pertuis’s claim for injury to his left arm had not prescribed when he filed for benefits. Therefore, he should be allowed to pursue his claim. Prescription statutes are to be strictly 1 ^construed in favor of maintaining rather than barring actions. Howard v. Trelles, 95-0277, p. 4 (La.App. 1 Cir. 2/23/96), 669 So.2d 605, 607.

      . The time period for filing a claim for workers' compensation benefits is governed by La. R.S. 23:1209, which states in relevant part:
      A. In case of personal injury ... all claims for payments shall be forever barred unless within one year after the accident ... the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided ... in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment .... Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.


author: 11 COOKS, Judge.

text:
    Joe CLARK, et al v. TRUS JOIST MacMILLIAN, et al.
    Nos. 02-676, 02-512.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 27, 2002.

      James P. Dore’, Gayla M. Monda, Alan J. Berteau Kean, Miller, Hawthorne, D’Ar-mond, McCowan & Jarman, L.L.P., Baton Rouge, for Appellant, James P. Dore’.
    Thomas A. Banducci, Robert R. Ball, Stoel Rives, L.L.P., Boise, Idaho, for Appellant, Robert R. Ball.
    William P. Crews, Jr., L.L.C., Natchi-toches, for Appellee, William P. Crews, Jr.
    Law Office of Sam Nelken, Natchitoch-es, for Appellee, Sam Nelken.

      Court composed of HENRY L. YELVERTON, SYLVIA R. COOKS and BILLIE C. WOODARD, Judges.
   11 COOKS, Judge.

STATEMENT OF THE CASE

Plaintiffs, several hundred in number, filed a class action claim in the 10th Judicial District Court, Parish of Natchitoches against Trus Joist McMillian. Plaintiffs allege they reside adjacent to or in the general vicinity of the Trus Joist plant and as a result have suffered physical injury and property damage resulting from toxic residue emitting from the Trus Joist facility.

Since 1985, Trus Joist has operated a plant which produces engineered wood products, including laminated veneer lumber and I-Joists used in residential and commercial construction. Laminated veneer lumber (LVL) is produced by feeding dry veneer into a laminated lumber machine which applies glue adhesives, stacks the veneer sheets, and hot, presses the sheets together with a steam-heated press. I-Joists are produced by cutting LVL strips and strand board to appropriate size and feeding both components into an I-machihe that applies glue adhesives, cuts the joist to the desired length and feeds the joists into a curing oven. Formaldehyde, phenol and methanol, volatile organic chemicals (VOC), are components of the glue used in the laminating process. These toxic chemicals are also contained in residual concentrations in any solid waste that results when the plywood is cut and shaped.

In 1985, Trus Joist obtained a Department of Environmental Quality (DEQ) permit to allow emission of VOC at 21.6 tons per year. Initially, Borden company, who supplies some of the glue used by Trus Joist, predicted the annual VOC emission would only be 9.9 tons per year. However, Borden determined that the heating process raised Methanol levels three times the predicted number to 30 tons per year.

In 1994, Trus Joist obtained a permit allowing emission of 41.24 tons per year an increase of 90% above the 1985 level. In June 1997, again Trus Joist obtained a permit allowing for 225.87 tons per year of VOC, an increase of 490% above the [21994 level. Permit levels were increased again in 1999 to 234.45 tons per year. Trus Joist contends that emission output has not significantly increased rather the new technology for measuring output is more accurate in recent years than in the past.

In addition to obtaining permits for the emission of chemical waste, Trus Joist obtained a permit for the emission of “solid” waste including sawdust. Solid waste emissions from 1985, when Trus Joist began operations, went from .84 tons per year to 168 tons per year.

Records of Trus Joist indicate frequent and repeated incidents of accidental release of emissions at the plant which were observed and recorded. Wilma ■ Subra, plaintiffs expert, after examining Trus Joist records testified: “[T]he unit had a hole in it, was leaking something, wasn’t sealed right where the sawdust or particulates, or whatever you want to call these solids, had been emitted into the air from breaks or leaks in the units.”

Several plaintiffs, residents of the area around and adjacent to the Trus Joist plant, testified that sawdust from the plant fell like snowflakes upon them, their children, their homes and their cars. Testimony established the emissions from the facility were continuous from the fall of 1997 through the time of suit on June 23, 1998. Complaints were made to Trus Joist by some of the plaintiffs. In fact, plant manager, Michael Wolff, in October and November 1997, visited the home of plaintiff Joe Clark to observe the sawdust. Joe Clark received a check from Trus Joist in the amount of $170.00 dated December 8, 1997 for the cleaning of his home.

As a result of the toxic emissions from Trus Joist, plaintiffs allege they have suffered medical problems including conjunctivitis, difficulty breathing, wheezing, coughing, bronchial pneumonia, and asthma. Dr. Margaret Wheat Carter, ophthalmologist, Dr. Olabisi Oshikanlu, pediatrician and Dr. Archie Breazeale, general practitioner, testified on behalf of plaintiffs.

|sPlaintiffs tendered Wilma Subra, as an expert in the field of chemical analysis and evaluation of chemicals in the environment. Ms. Subra testified exposure to formaldehyde can cause skin rashing, asthma-like symptoms, wheezing, coughing and bronchitis. Phenol can irritate the eyes, mouth, nose, throat and lungs causing shortness of breath. High and repeated exposure to phenol can cause liver, kidney and heart damage. Methanol irritates the eyes, can cause blurred vision or blindness, irritates the eyes, nose, mouth, throat and lungs. High concentrations can cause headaches, nausea, vomiting and dizziness. Ms. Supra opined the medical conditions associated with the chemicals used by Trus Joist are consistent with the medical conditions experienced by the community.

In 1999, Trus Joist made modifications to the plant by improving the wood handling system and replacing the relay system. In addition, a new truck dump bin was constructed and the fuel house was removed from service. Visible solid emissions from the Trus Joist plant have stopped.

In accordance with Louisiana Code of Civil Procedure 591 a class certification hearing was held on November 5-7, 2001 before the Honorable Monty L. Doggett. On March 7, 2002, the trial judge certified a class action and compelled the parties to mediate the claim. Trus Joist applied for supervisory writs and filed an appeal. We have consolidated both for hearing.

ASSIGNMENTS OF ERROR

Trus Joist asserts the following Assignments of Error:

1. The trial court erred in certifying a class in this action because plaintiffs failed to demonstrate common issues of law or fact, the predominance of common issues over individual issues, and the requirement of numerosity.
2. The trial court erred in failing to designate any class representatives for the class it certified.
|43. The trial court erred in failing to define a class using objective criteria, including, but not limited to, geographical boundaries.
4. The trial court erred in allowing Drs. Archie Breazeale, Jr., Margaret WheaNCarter, and Olabisi Oshikanlu to testify.
5. , The trial court erred in ordering Trus Joist to participate in mediation when Trus Joist had timely objected to the original mediation order in accordance with La. R.S. 9:4108(A).

ASSIGNMENTS OF ERROR NUMBERS ONE-THREE: CLASS CERTIFICATION

Louisiana’s class action statute (La.Code Civ.P. art. 591) was amended in 1997 to track the language of Federal Rule of Civil Procedure 23. The legislative revision to Article 591 was simply intended to codify existing jurisprudence and did not represent a change in the law. See, Ford v. Murphy Oil U.S.A., Inc. 96-2913 (La.9/9/97), 703 So.2d 542. Louisiana Code of Civil Procedure 591 provides in relevant part:

One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interest of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

(Emphasis added.)

In addition to meeting the five requirements of Article 591 subsection (A), Article 591 subsection (B) lists other criteria one of which must be met in order to support a class action suit.

(B) An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
ls(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

(Emphasis added.)

The court may consider the following when determining whether common questions of law or fact predominate and a class action is superior to other available legal methods:

(a) The interest of members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation;

(Emphasis added.)

Plaintiffs must establish by preponderance of the evidence that each of the elements for class certification has been met. Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-637 (La.4/27/01), 791 So.2d 637; Mayho v. Amoco Pipeline Co., 99-620 (La.App. 5 Cir. 12/15/99), 750 So.2d 278, writ denied, 00-110 (La.3/17/00); 756 So.2d 1143. The trial judge has vast discretion in allowing certification and his decision will not be reversed on appeal absent manifest error. Duhe, 779 So.2d 1070; Mayho, 750 So.2d 278; Hampton v. Illinois Central Railroad Co., 98-0430, 98-0431, 98-0432, 98-0433, 98-0434, 98-0435 (La.App. 1 Cir.4/1/99), 730 So.2d 1091; Richardson v. American Cyanamid Co., 95-898 (La.App. 5 Cir. 4/16/96), 672 So.2d 1161, writ denied, 96-1556 (La.9/27/96), 679 So.2d 1344. The court should err on the side of maintaining the class action since the judge may always modify or amend the class at any time prior to a decision on the merits. La.Code Civ. P. art.592(3)(c). Mayho, 750 So.2d 278.

Trus Joist contends plaintiffs presented no air modeling analysis to prove emissions, other than sawdust, crossed the plant’s fence line in amounts harmful to the community. Further, Trus Joist contends plaintiffs failed to demonstrate a minimal causation link between emissions from the Trus Joist plant and the injuries suffered by members of the class.

Louisiana’s class action statute is designed as a procedural device to permit the institution and management of litigation involving a large number of similarly situated plaintiffs where joinder is impracticable. In determining whether a class action is appropriate it is not necessary for plaintiff to prove liability at the certification hearing. This Court in certifying a class of royalty owners stated:

Another basic principle is that, for purposes of certification, a court is not permitted to review the claims in a case on their substantive merit.

Duhe v. Texaco, Inc. 779 So.2d at 1078.

In Andry v. Murphy Oil, U.S.A., Co., 97-793 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, the appeals court examined the propriety of certification of a class of residents of St. Bernard parish. With regard to the likelihood of plaintiffs prevailing at trial, the court stated:

A class action is no more than a procedural device; it confers no substantive rights.... The only issue to be considered by the trial court in ruling on certification, and by this Court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of a class action the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits.”

Andry, 710 So.2d at 1129.

In Mayho, 750 So.2d 278, the plaintiffs alleged that fumes from an oil spill by |7SheIl Oil caused great discomfort to the residents of the surrounding community. Additionally, plaintiffs alleged that the air quality reached hazardous levels and threatened the health and safety of the community. Shell objected to the certification asserting plaintiffs failed to state a cause of action for damages because the alleged damages did not rise above the level of nuisance. The appeals court affirmed the certification stating:

The judgment being reviewed by this Court on appeal is the class certification, not a judgment on the merits. The only issue to be considered by the trial court in ruling on certification, and by this Court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of a class action, the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits.

Mayho, 750 So.2d at 284.

Trus Joist asserts class certification is improper because plaintiffs have not established that toxic omissions came exclusively from Trus Joist. Testimony established the presence of another factory in the area which emits smoke into the area. Trus Joist may assert this argument as a defense at trial. It is not necessary for plaintiffs to prove liability at the certification hearing.

Requirements of Louisiana Code of Civil Procedure Article 591(A).

Trus Joist contends the trial court erred in ordering class certification because plaintiffs failed to meet the threshold requirements of the statute: numerosity, commonality, typicality,' designation of class representatives and definition of the class using objective criteria. La.Code Civ.P. art. 591(A). Additionally, Trus Joist contends plaintiffs failed to demonstrate questions common to the class predominate over questions affecting only individual members. La.Code Civ.P. art. 591(B)(3).

This Court in the recent case of Duhe, 779 So.2d 1070, discussed the five threshold criteria found in Article 591(A).

I. Numerosity

^Generally, this requirement is satisfied upon a showing the plaintiffs are so numerous that separate suits would unduly burden the courts and joinder of all claims is impractical. Duhe, 779 So.2d 1070; Johnson v. Orleans Parish School Board, 00-825 (La.App. 4 Cir. 6/27/01), 790 So.2d 734. Trus Joist contends plaintiffs have not sufficiently identified a definable group of aggrieved persons. We disagree. There are over 300 plaintiffs named in the petition and all live or have lived during the time period in question, in the area around Payne Subdivision, the old brickyard, or near the Trus Joist plant. The plaintiffs who testified at the hearing observed emissions coming from the Trus Joist plant and all allege as a result they have suffered bodily as well as property damage. In Andry, 710 So.2d at 1129, the court stated:

The numerosity element does not depend upon whether or not the plaintiffs can identify all potential class members. It is not essential that every member of a class can be identified prior to certification. In fact, difficulty in identifying the claimants is one of the factors that makes joinder impracticable and a class action appropriate.

We find plaintiffs in this case have satisfied the numerosity requirement.

II. Commonality

The commonality requirement is met if plaintiffs can demonstrate that there is “one issue, the resolution of which will affect all or a significant number of plaintiffs”. Duhe, 779 So.2d at 1078. In this case, the common issue for all plaintiffs is whether emissions from the Trus Joist plant during the time period in question contained toxic chemicals of such a level to cause harm to plaintiffs and whether plaintiffs were in fact harmed. We find this issue decided for one class member will be decided for all. Trus Joist contends class certification must fail because plaintiffs have differing degrees of injury and assert disparate complaints and experiences. However, it is not necessary that all plaintiffs suffer identical damage and “individual questions of quantum do not preclude a class action when predominate liability issues |flare common to the class.” McCastle v. Rollins Environmental Services of Louisiana, Inc. 456 So.2d 612, 620 (La.1984). This Court in Duhe, 779 So.2d at 1085, stated:

The mere fact that varying degrees of damage may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover, does not preclude class certification.

The Duhe court held once plaintiffs have demonstrated a course of conduct by the defendants giving rise to a “common nucleus of operative facts”, and there are common issues of liability, differences in individual damages while relevant in quantum will not defeat class certification. We find plaintiffs in this case have met the commonality requirement.

III. Class Representatives: Typicality and Adequate Representation

Typicality requires that claims of the class representatives are typical of all members. This court in Duke, 779 So.2d at 1079, stated:

It satisfies typicality if the representative plaintiffs’ claims arise out of the same event or course of conduct as the class members’ claims and are based on the same legal theory.

The court in Johnson v. Orleans Parish School Board, 790 So.2d at 742, elaborated on the requirements of typicality and adequate representation:

Louisiana jurisprudence does not require a ‘Noah-like’ tabulation of class representatives and claims. The plaintiffs are not required to produce two or even one, of every kind of claim or of every person included in the class. The law only requires that the plaintiffs “typically” and “adequately” demonstrate that they represent a cross-section of the claims asserted on behalf of the class ... Furthermore, Louisiana jurisprudence interpreting the Class Action Statute does not require that the class representatives exhibit all the different types of possible injuries; it requires only that the claims of the class representatives be “a cross-section of, or typical of, the claims of all class members.”

The test for adequate representation requires that class representatives have sufficient'interest in the outcome of the case to insure vigorous advocacy of the cause. Additionally, it must be shown that counsel for the representatives are competent and | inexperienced and will adequately represent members of the class. The record indicates class representatives were identified by letter of plaintiffs’ counsel and five representatives testified at trial. While it appears from the record plaintiffs have established typicality and adequate legal representátion, designation of the class representatives is not reflected in the certification order issued by the trial court. Also, the petition fails to identify the class representatives by name, though they were identified in the referenced letter dated May 15, 2001, which is found in the record. Considering the circumstances, we do not consider this failure fatal, nor do we find it necessary that we upset the trial court’s certification to correct this error. We remand the case for amendment of the pleadings by plaintiffs to so designate the representatives identified in the letter dated May 15, 2001, and for amendment by the trial judge of the certification order to identify by name the class representatives.

TV. Objectiveness of Class Definition

This element requires the class be defined objectively in terms of ascertainable criteria for purposes of the conclusiveness of the judgment. It appears from the record members of the class live in the area of Payne Subdivision, the old brickyard or adjacent to the Trus Joist plant. However, we hold the trial court must properly identify the class according to a geographical area for purposes of conclusiveness of the judgment and we again remand to the court for that purpose. A remand to establish geographical boundaries does not necessitate reversal on the issue of class certification. Cotton v. Gaylord Container, 96-1958, 96-2029, 96-2049 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, writ denied, 97-0800, 97-0830 (La.4/8/97), 693 So.2d 147. La.Code Civ.P. art. 592(A)(3)(c) provides:

In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

[ t ¶Requirements of Louisiana Code of Civil Procedure Article 591(B)(3).

Trus Joist contends plaintiffs failed to prove questions of law and fact common to members of the class predominate and a that class action is superior to other available methods for the fair and efficient adjudication of the claim.

McCastle v. Rollins Environmental Services of Louisiana, 456 So.2d 612 (La.1984) examined the “common character” requirement which is now codified in 591(B)(3) of the 1997 statute. Plaintiffs in McCastle brought a class action suit alleging Rollins Environmental Services’ chemical land farming operation near their homes polluted the air and caused personal and property damage. The plaintiffs requested certification of a class of 4000 residents of East Baton Rouge Parish who lived near a hazardous waste disposal facility owned by defendants. The plaintiffs alleged the land farming operations produced nauseating chemical fumes causing plaintiffs illness including burning eyes, sore throats and upset stomachs. The testimony at the certification hearing established the members of the class live in a low income area. The odors and fumes that were present on various occasions in the area were probably released from defendant’s farm. The disposal of the hazardous wastes at the land farm facility was an on-going operation and the land farm chemical waste apparently was the cause of the odors and fumes affecting the residents. The effects of the fumes on individuals included tightness of chest, difficulty in breathing, headaches and tearing of the eyes. The testimony also indicates that the fumes were present in the area on numerous occasions and that the location and density of the fumes sometimes depended on the wind conditions. The McCastle court defined the “common character” requirement:

The requirement of “common character” restricts the class action to those cases in which it would achieve economics of time, effort and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.

112McCastle, 456 So.2d at 616.

In deciding whether a common character exists the trial court may consider whether maintaining the class action will vindicate public policies or legal rights. The Court identified two ways in which use of a class action may effectuate substantive policy:

First, to the extent that they open courts to claims not ordinarily litigated, class actions enable court to enforce policies underlying cause of action in circumstances where those policies might not otherwise be effectuated. Second, to the extent that they enable courts to see the full implications of recognizing rights or remedies, class action procedures assist courts in judging precisely what outcomes of litigation would best serve the policies underlying causes of action. Class action procedures are fair because courts are more likely to see both the significance of the claims of a plaintiff and the consequences of imposing liability upon a defendant, and thus are more likely to arrive at a substantively just conclusion.

McCastle, 456 So.2d at 618.

In this case, the plaintiffs all live in a low income area. Several testified at the certification hearing. Some plaintiffs suffered substantial damage to their property and person, however, many claims appear to be relatively minor. In McCastle, the Supreme Court recognized many small claims, although valid, would not be brought as individual suits. The Court stated:

Although this fact must be considered in determining the propriety of a class action, or conclusion that most of the claims are relatively small is not intended to preclude any party from later proving a large claim. Nonetheless, since the claims do appear to be small, it is probable that a class action would open the courts to many claims which would not ordinarily be litigated because they could not be prosecuted economically as individual actions.

McCastle, 456 So.2d at 618.

The court in Andry, 710 So.2d 1126, affirmed class certification of plaintiffs who suffered damage as a result of an explosion and fire at an electrical plant. Many of the claims asserted were minor in nature. The Andry court noted:

[BJecause of the potentially large number of de minimus claims, a class | ^action would allow access to the courts for claimants who ordinarily might not be able to litigate due to the relative size of their claims when compared with the expense of litigation. We agree that the nature of the incident favors allowing this case to proceed as a class action. As explained by Justice Tate in Williams v. State, [350 So.2d 131 (1977)], when individual claims are small, disallowing a class action poses a serious threat to the loss of individual substantive rights....

Andry, 710 So.2d at 1130.

This Court in Duke, 779 So.2d at 1086, stated:

The most dominant justification for a Rule 23(b)(3) class action is the vindication of the rights of groups of persons with negative value lawsuits ... This policy is at the very core of the class action mechanism ... It is often used as the sole rationale for finding superiority.

The plaintiffs in the present case live in a low income area adjacent to and in the vicinity of the Trus Joist plant. The glue used in the treatment and processing of the wood products contains toxic chemicals. Between 1985 and 1998 the levels of emission of toxic waste increased dramatically. The system for handling the release of toxic waste failed on a number of occasions. These accidents were reported by the company. The plaintiffs testified to the presence of sawdust on their property and testified as to their medical conditions. The plant manager on two occasions visited the home of one of the plaintiffs to view the sawdust. Trus Joist paid for cleanup of plaintiff, Joe Clark’s home. Plaintiffs’ expert testified as to the effects of the toxic chemicals on the community. Plaintiffs’ doctors testified as to the affected residents’ medical conditions. Modifications were made to the Trus Joist plant in 1999 and sawdust emissions stopped. We find plaintiffs have met the elements necessary to support a class action. The evidence, when viewed as a whole, presents common issues of law and fact.

ASSIGNMENT OF ERROR NUMBER FOUR: PHYSICIAN TESTIMONY

We find no merit to Trus Joist’s argument that the trial court should have excluded the testimony of plaintiffs’ doctors. The trial court is afforded wide [ ^discretion in matters pertaining to the taking of testimony in a certification hearing. We find he did not abuse his discretion.

ASSIGNMENT OF ERROR NUMBER FIVE: MEDIATION

We reverse the trial judge’s order for mediation. La.R.S. 9:4103 states in pertinent part:

On motion of any party, a court may order the referral of a civil case for mediation. Upon filing of an objection to mediate by any party within fifteen days after receiving notice of the order, the mediation order shall be rescinded.

It is undisputed that Trus Joist did not receive a copy of the November 13, 2001 order of mediation signed by the trial judge until February 5, 2002. Trus Joist made timely written objections. Whether Trus Joist was aware that plaintiffs would submit an order for mediation is not relevant. The statute is clear that a party must receive notice of the signed order. Since Trus Joist filed a timely objection, the trial judge’s order is rescinded.

DECREE

Based on the foregoing, we affirm the class certification by the trial court. However, we remand for identification of class representatives and a designation of the geographical boundaries of the class. We rescind the trial judge’s order for mediation. All costs of this appeal are assessed against Trus Joist McMillian.

AFFIRMED AND REMANDED FOR AMENDMENT.


author: JjBROWN, C.J. | GARRISON, J. (Pro Tem),

text:
    Michael Ray BASSETT, et al., Plaintiff-Appellant, v. TOYS “R” US DELAWARE, INC., Defendant-Appellee.
    No. 36,434-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 30, 2002.
    Rehearing Denied Jan. 23, 2003.

      James D. Caldwell, Tallulah, for Plaintiff-Appellant.
    Klotz, Simmons & Brainard by Harry Simmons, Shreveport, Eron J. Brainard, for Defendant-Appellee.
    Before BROWN, GASKINS, PEATROSS, DREW and HARRISON (Pro Tempore), JJ.
   JjBROWN, C.J.

On the morning of November 29, 1996, the day after Thanksgiving and one of the busiest shopping days of the year, Patricia Bassett entered a toy store, slipped in a puddle of rain water that had accumulated on the tile floor and fell. She and her husband Michael sued Toys-“R”-Us-Delaware, Inc. (“Toys-R-Us”). A jury found the retailer, as well as Mrs. Bassett, negligent. Both defendant and plaintiffs have appealed. We affirm that part of the judgment finding the toy store liable but find the jury’s allocation of fault and damages to be erroneous and amend that portion of the judgment accordingly.

Discussion

Merchant’s Liability

There is no question that the water located in the vestibule of the store presented a hazardous condition. This appeal by Toys-R-Us hinges on whether the jury was unreasonable in finding that the merchant had actual knowledge or constructive notice of the condition prior to Mrs. Bas-sett’s accident.

La.R.S. 9:2800.6(B)(2) requires proof by plaintiff that the merchant either created the condition causing the damage or, prior to the occurrence, had actual or constructive notice of the condition. The statute defines “constructive notice” to mean that “the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(0(1).

|2The Supreme Court addressed the statute’s definition of “constructive notice” stating:

Though there is no bright line time period, a claimant must show that “the condition existed for such a period of time ...” Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden.

Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La.04/13/99), 733 So.2d 1188, 1190-91, citing White v. Wal-Mart Stores, Inc., 97-0393 (La.09/09/97), 699 So.2d 1081, 1084-85. (Emphasis added; footnote omitted).

Evidence that the hazard was there at the time of the fall is said to be insufficient to carry plaintiffs burden of proof. The store has no obligation to step up and explain; rather, an additional time period must be shown by the plaintiff. If this temporal element could be proven only by direct evidence, it would impose an impossible burden. It is unlikely that a legitimate shopper would immediately after a fall seek out other shoppers or store employees to inquire how the condition causing the fall came about or the length of time it existed. Usually the only investigation is in connection with an incident report filled out by a store employee. That the condition existed for “such a period of time” is a fact question subject to proof by circumstantial evidence. Crawford v. Ryan’s Family Steak Houses, Inc., 31,911 (La.App.2d Cir.05/05/99), 741 So.2d 96; Broussard v. Wal-Mart Stores, Inc., 98-813 (La.App. 3d Cir.01/20/99), 741 So.2d 65, writ denied, 99-0486 (La.04/01/99), 742 So.2d 562.

As noted by the court in Davenport v. Albertson’s, Inc., 00-00685 (La.App. 3d Cir.12/06/00), 774 So.2d 340, writ denied, 01-0073 (La.03/23/01), 788 So.2d 427, a plaintiff is not required to prove by eyewitness testimony that the hazardous condition existed for a certain number of minutes prior to the fall. Instead, the factfinder can reasonably infer from circumstantial evidence that it is more probable than not that the condition existed for such time prior to the accident that it should have been discovered and corrected. Broussard, supra.

In the instant case, the jury found that the hazardous condition existed for such a time that the store either knew or should have discovered it. In rejecting the JNOV motion, the trial court agreed with the jury, stating that the evidence of the retailer’s liability was “overwhelming.”

Mid-morning on November 29, 1996, the day after Thanksgiving, Mrs. Bassett and her sister, Diane Gisel, drove to the Toys-R-Us store on Mackey Lane in Shreveport, Louisiana, to shop. During that morning, heavy rain had fallen periodically but had tapered to a drizzle by the time the sisters reached the store and both ladies testified that they did not carry their umbrellas with them into the store.

At the entrance of the toy store, Mrs. Bassett and her sister walked across the permanent, electronic-sensored mats on each side of two automatic doors. Mrs. Bassett took two to three steps inside the store and slipped and fell in a puddle of rain water that had accumulated on the tile floor. Neither Mrs. Bassett nor Mrs. Gi-sel saw a warning sign or protective floor mat.

| ¿The store director, Cheryl Graves, noted that the day after Thanksgiving is the start of the Christmas rush and was a very busy shopping day. Ms. Graves arrived at work at 6:00 a.m. and the store opened at 8:00 a.m. Despite the rain, there was a constant stream of customers in and out of the store. Ms. Graves testified that she knew the floor at the store’s only entrance was slippery because it had been raining “really hard” that morning and she was aware that rain water was being tracked into the store by customers. In fact, Ms. Graves testified that she knew prior to Mrs. Bassett’s fall that the specific area in which Mrs. Bassett slipped and fell would be hazardous. Ms. Graves stated that there should have been caution, wet floor signs and a large, removable “walk off’ mat in place prior to Mrs. Bassett’s fall. The mat allowed those entering the store on rainy days to “walk off’ the water. The mat, which was made of astroturf type material, was very large and required two to four employees to move. The only time this mat was picked up was for floor care or cleaning, which may have occurred (no log or record was kept) the Wednesday before Thanksgiving.

Ms. Graves came to Mrs. Bassett’s assistance and saw a puddle of water where Mrs. Bassett had fallen. Ms. Graves had no independent recollection of whether the signs and mat were actually out the morning of Mrs. Bassett’s accident. She simply felt that they must have been because “it was company policy to do so” and, being the day after Thanksgiving, she “can’t imagine” they weren’t out. According to his time card, Marcus Ashley, head of maintenance for the toy store, the employee who was responsible for placement of the signs and mat and for mopping up rain water, did not report to work that day until 1:00 p.m. Mr. Ashley did not | ^testify and defendant did not introduce any evidence that there was another employee at the store at the time of Mrs. Bassett’s fall who undertook Ashley’s responsibilities.

Ms. Graves had Mrs. Bassett fill out an incident report and had Mrs. Gisel sign as a witness to the accident; however, this incident report was lost. Its contemporaneous reflection on whether the mat and signs were in place would have been helpful. We further note that Ms. Graves testified at trial that she saw a puddle of water, which presumably would have been “walked off’ if the mat had actually been in place.

Ms. Graves noted that there was no written policy regarding floor cleaning or inspection for rainy days. She further stated that there was no log or journal which would show when an area was cleaned or inspected. Ms. Graves claimed that employees are trained to be “extra cautious” during rainy weather and to look out for hazards.

Not only did Ms. Graves know that it was raining on one of the busiest shopping days of the year, she knew that, from the time she opened the store at 8:00 a.m., rain water would be tracked into the store and onto the floor creating a hazardous condition. Mrs. Bassett and her sister entered the store around 10:30 a.m. In the instant case, there is a reasonable factual basis for the jury’s conclusion that the hazardous condition existed for such a period of time that it would have been discovered had the merchant exercised reasonable care. In fact, Ms. Graves and thus, Toys-R-Us, knew that water was béing tracked into the store and that precautionary actions were necessary. The problem is that Ms. Graves simply “presumed” that | fisomeone put out signs and the “walk-off’ mat and made sure the area was mopped.

The next question is whether the store took reasonable actions to protect its customers. There is no direct evidence that the mat and warning signs were in place. Yet, there was direct evidence from Mrs. Bassett and her sister that they were not. Critical evidence was lost by defendant, and no store employee charged with placing out the mat and signs testified. We cannot say that the jury erred in finding that the Bassetts satisfied their burden of proving negligence on the part of Toys-R-Us. See also Hartford v. Wal-Mart Stores, Inc., 99-0753 (La.App. 1st Cir.05/16/00), 765 So.2d 1081, writ denied, 00-1758 (La.09/22/00), 768 So.2d 603; Riolo v. National Tea Company, 98-872 (La.App. 5th Cir.01/26/99), 726 So.2d 515, writ denied, 99-0525 (La.04/09/99), 740 So.2d 633; Norton v. Wal-Mart Stores, Inc., 97-1060 (La.App. 3d Cir.02/11/98), 707 So.2d 489.

Comparative Fault

Plaintiffs contend that the jury (and trial court in denying their motion for JNOV/additur/new trial) erred in assessing 58% of the fault to Mrs. Bassett and urge this court to lower the percentage assigned to her.

In Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985), the Louisiana Supreme Court set forth the following factors for comparing the fault of the parties:

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger;
(2) how great a risk was created by the conduct;
(3) the significance of what was sought by the conduct;
(4) the capacities of the actor, whether superior or inferior; and
(5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

17Allocation of fault is a factual determination subject to the manifest error rule. Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670; Theriot v. Lasseigne, 93-2661 (La.07/05/94), 640 So.2d 1305. As set forth by the supreme court in Kimble v. Wal-Mart Stores, Inc., 539 So.2d 1212 (La.1989), each slip and fall case must be evaluated upon its own particular facts and circumstances.

In the instant case, the jury obviously felt that Mrs. Bassett, who knew it was raining and should have known that the floor would probably be wet and slippery, should have taken precautions to prevent her fall. Therefore, we find no error in the jury’s assessment of some fault to Mrs. Bassett.

We do not, however, find a rational basis in the record to support the apportionment of 58% fault to plaintiff, whose failure to observe the floor conditions was inadvertent. Toys-R-Us bears the greater degree of responsibility and must therefore bear a corresponding greater degree of fault. As noted above, plaintiffs accident occurred on a rainy day which also happened to be the busiest shopping day of the year. The store director knew of the weather conditions and had knowledge that the tile floor in the store’s only entrance could be slippery and dangerous in a very short period of time given the high volume of shoppers. Notwithstanding this awareness, she did not ascertain whether the store’s rainy day preventative measures were even implemented. In fact, the only direct evidence showed that the signs and “walk-off’ mat were not in place. Defendant was in a superior position to have prevented Mrs. Bassett’s accident given its knowledge and exclusive control over the floor conditions of the store. The risk created by [sToys-R-Us’s negligence was significant, as evidenced by the serious injuries sustained by Mrs. Bassett.

Having found the jury’s assessment of fault to be manifestly erroneous and that the trial court erred in denying plaintiffs’ motion for JNOV, we are constrained to modify the assessment by reducing it to the highest percentage a reasonable fact-finder could have determined. Duncan, supra; Clement v. Frey, 95-1119 (La.01/16/96), 666 So.2d 607; Harrison v. Richardson, 35,512 (La.App.2d Cir.01/23/02), 806 So.2d 954. Under the facts of this case, we find that the highest degree of fault which could have been assessed to plaintiff is 25%.

Causal Connection between Accident and Resulting Medical Conditions

Following her fall, Mrs. Bassett and her sister continued shopping and made a toy purchase before they left the store. Mrs. Bassett noted pain in her lower back and left hip/leg but wanted to try to “walk it out.” The sisters then drove to Dillard’s Department Store, which was in the mall located less than a block away. Because of continued pain, however, Mrs. Bassett had her sister drive her home. Thereafter, Mrs. Bassett sought emergency care at the Willis Knighton South Hospital Emergency Room. Mrs. Bassett was later diagnosed with a herniated lumbar disk and a bulging lumbar disk which required disk surgery. Mrs. Bassett subsequently developed diskitis, an infection in the disk space, where the surgery had been performed. She then developed an ischemic bowel, which required a total colectomy and ileostomy. Mrs. Bassett had the ileos-tomy procedure surgically reversed, then developed an intra-abdominal abscess.

^Plaintiffs assert that the jury erred in failing to find a causal connection between Mrs. Bassett’s accident and her ischemic bowel and intra-abdominal abscess.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and any alleged injuries. American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Methvin v. Ferguson, 35,138 (La.App.2d Cir.09/26/01), 796 So.2d 712; Harper v. Garcia, 32,142 (La.App.2d Cir.08/18/99), 739 So.2d 996. The plaintiff satisfies this burden by proving through medical and lay testimony that it was more probable than not that the injury was caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.02/20/95), 650 So.2d 757; Hughes v. Scottsdale Insurance Co., 35,043 (La.App.2d Cir.08/22/01), 793 So.2d 537.

Whether the accident caused the plaintiffs injuries is a factual question which should not be reversed on appeal absent manifest error. American Motorist Insurance Co., Inc., supra; Wallace v. State Farm Mutual Automobile Insurance Co., 36,099 (La.App.2d Cir.06/14/02), 821 So.2d 704.

The evidence in this case establishes that Mrs. Bassett was not in good health prior to her accident. Furthermore, the symptoms related to her ischemic bowel and intra-abdominal abscess did not immediately manifest themselves. In fact, these were medical complications which developed after her disk surgery, the ischemic colitis in June 1997 and the intra-abdominal abscess in October 2000.

ImWhile we sympathize with Mrs. Bas-sett’s serious medical complications, in light of the testimony of her treating physicians, all of whom were unable to find a causal connection between the accident and these particular injuries, we are unable to say that the jury erred in failing to find that Mrs. Bassett’s bowel condition and infected intra-abdominal abscess were related to her slip and fall injury.

General Damages

According to plaintiffs, Mrs. Bassett’s $67,500 general damage award is inadequate. In brief, the Bassetts suggest that the minimum or low range award for a herniated disk requiring surgery is $100,000.

In assessing damages in cases of offenses, quasi-offenses and quasi-contracts, much discretion is left to the trier of fact. La.C.C. art. 2324.1. It is only when the award is in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or lower the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Killough v. Bituminous Casualty Corp., 28,329 (La.App.2d Cir.05/08/96), 674 So.2d 1091.

General damages can involve physical or mental pain or suffering, inconvenience, loss of intellectual gratification or physical enjoyment and other factors that affect the victim’s life and are by their nature damages which cannot be definitively measured in terms of money. Morrison v. Kappa Alpha Psi Fraternity, 31,-805 (La.App.2d Cir.05/07/99), 738 So.2d 1105, writs denied, 99-1607, 99-1622, 99-1668 (La.09/24/99), 749 So.2d, 634, 635, 1120; Killough, supra; Kessler v. Southmark Corporation, 25,941 (La.App.2d Cir.09/21/94), 643 So.2d 345.

As a result of her fall, Mrs. Bas-sett sustained a herniated disk and a bulging disk. Her herniated disk required surgery and a diskitis infection developed at the surgical site, requiring a second hospitalization. An anesthesiologist and pain management physician, Kathleen Majors, examined Mrs. Bassett upon her readmission into the hospital for diskitis. Dr. Majors described plaintiff as “one of the sickest patients (she had) ever admitted.” Wdiile plaintiffs leg pain has abated as a result of her disk surgery, she testified that her lower back and hip pain is constant and severe, even today, five years post-accident. We find manifest error in the trial court’s denial of JNOV on this issue and increase Mrs. Bassett’s general damage award to $100,000, which we find to be the lowest amount the jury could have reasonably awarded.

Special Damages: Medical Expenses

The jury awarded Mrs. Bassett medical expenses in the amount of $4,500. On appeal, plaintiffs assert that this award is erroneous in light of the record, which shows that Mrs. Bassett’s medical expenses were $170,538.26.

A claimant’s recovery of medical expenses must be confined to those expenses related to the accident. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App.2d Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La.04/26/02), 814 So.2d 558; Beasley v. Yokem Toyota, 33,805 (La.App.2d Cir.08/23/00), 767 So.2d 149; Harper, supra. In order to recover, the plaintiff must prove that, more probably than not, the medical treatment was necessitated by |12trauma suffered in the accident. Brandao, supra; Smith v. Clement, 01-0087 (La.App. 3d Cir.10/03/01), 797 So.2d 151, writs denied, 01-2878, 01-2982 (La.01/25/02), 807 So.2d 249, 843; White v. Longanecker, 93-1122 (La.App. 1st Cir.05/23/94), 637 So.2d 1213, writ denied, 94-1704 (La.10/07/94), 644 So.2d 640.

We find merit to plaintiffs’ argument; the jury’s award of $4,500 in medical expenses is erroneous and the trial court’s denial of JNOV is clearly wrong. We cannot, however, award the amount sought by plaintiffs inasmuch as the record fails to support that the entirety of that amount, $170,538.26, was related to treatment necessitated by the accident. Our careful examination of the evidence reflects that plaintiffs are entitled to medical expenses in the amount of $26,288.75.

1 uPast Lost Wages

The Bassets contend that the jury’s award of $7,635 for Mrs. Bassett’s past lost wages is inconsistent with the wage information from the Caddo Parish School Board, her employer. The Bassetts seek to have the award increased to the amount of $16,734.32. Toys-R-Us urges that the jury’s award is reasonable because the Bassetts failed to produce medical evidence which connected the amount of time Mrs. Bassett was unable to work to the accident.

Awards for past lost wages are not susceptible to the great discretion given the factfinder, because lost income is subject to mathematical calculation. Worsham v. Hetrick, 34,206 (La.App.2d Cir.02/07/01), 777 So.2d 1280; Robbins v. State Dept. of Labor, 31,590 (La.App.2d Cir.02/24/99), 728 So.2d 991. Past lost income can be computed on an amount the plaintiff would in all probability have been earning at the time of trial and damages for loss of past income are not necessarily limited to a multiplier of the amount earned at the time of injury. Robbins, supra.

In the present case, the evidence showed that Mrs. Bassett’s daily wage was $104.16 and $116.80 respectively as a secretary at the Caddo Parish School Board Central Office. The calculation of past lost wages involves multiplying the daily wage by the relevant time period of absence. Mrs. Bassett was absent for 94.5 days when her daily wage was $104.16 and 59 days when her daily wage was $116.80. This results in total lost wages in the amount of $16,734.32. Thus, the jury erred in making its award of past |ulost wages in the amount of only $7,635.00. Accordingly, we hereby amend the judgment to award Mrs. Bassett lost wages of $16,734.32.

Loss of Consortium

Plaintiffs’ final assignment of error is that Mr. Bassett’s loss of consortium award, $5,000, is inadequate. The Bas-setts ask this court to award loss of consortium damages in the amount of $25,000.

In general, a claim for loss of consortium has seven elements: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations; (4) loss of performance of material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of fidelity. Brandao, supra; Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App.2d Cir.12/06/00), 774 So.2d 1093, writ denied, 01-0026 (La.03/09/01), 786 So.2d 735; Bell v. USAA Casualty Insurance Co., 30,172 (La.App.2d Cir.01/21/98), 707 So.2d 102, writs denied, 98-0712, 98-0766 (La.05/08/98), 718 So.2d 433, 434; Finley v. Bass, 478 So.2d 608 (La.App. 2d Cir.1985). To be compensable, it is not necessary for a claim for consortium to include damages from each type of loss. Brandao, supra.

A loss of consortium award is a fact-specific determination, to be decided case-by-case and is disturbed only if there is a clear showing of an abuse of discretion. Id.; Quinn, supra.

We find no abuse of discretion in this case. Mrs. Bassett testified that her husband now does most of the cooking and that she doesn’t keep up with her household chores like she did before the accident. She also noted that she is not as patient as she used to be. Her husband had to carry her up and down the stairs so she could bathe when she was recuperating from her 11Bdiskitis and bowel condition and was confined to the first floor of their townhouse. Regarding the couple’s intimate relationship, Mrs. Bassett noted that they had no marital relations for a long time and that now, the frequency is “few and far between.” Mr. Bassett’s testimony did not add anything to the above statements made by his wife. We will therefore not disturb the jury’s award of $5,000 to Mr. Bassett for his loss of consortium.

Conclusion

For the foregoing reasons, the judgment of the trial court denying JNOV as to apportionment of fault, general damages, medical expenses and past lost wages is REVERSED. The judgment is AMENDED to increase the amount of fault assessed against defendant, Toys-R-Us, from 42% to 75% and decrease the amount of fault assessed against plaintiff, Patricia Bassett, from 58% to 25%. We also AMEND the judgment to increase: Mrs. Bassett’s general damage award from $67,500 to $100,000; Mrs. Bassett’s medical expense award from $4,500 to $26,288.75; and Mrs. Bassett’s past lost wage award from $7,635 to $16,734.32. In all other respects the judgment is AFFIRMED. In accordance with our amendment of the percentage of fault attributable to Mrs. Bassett, the damages awarded herein are subject to reduction by 25% rather than 58%. Costs of this appeal are assessed to defendant, Toys-R-Us.

HARRISON, J., dissents with written reason.

PEATROSS, J., dissents for the reasons set forth in the written dissent of Judge Harrison.

| GARRISON, J. (Pro Tem),

dissents.

I respectfully dissent. This record contains not one shred of evidence to prove how long the allegedly slippery condition had existed inside the entrance doors of Toys-R-Us. Under La. R.S. 9:2800.6 C(l), a plaintiff “who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute.” Kennedy v. Wal-Mart Stores Inc., 98-1939 (La.4/13/99), 733 So.2d 1188. This is what the jurisprudence refers to as the “temporal element.”

The majority infers that because rain had been falling and customers traversing the entrance for 2lk hours, a puddle or slippery condition must have existed for long enough to prove constructive knowledge. However, the opinion in Kennedy states that rain had been falling on the evening of the accident. Despite the natural inference that puddles will accumulate during rainy weather, the Supreme Court held that such an inference could not satisfy the temporal element. A “positive showing” is required.

Following this rationale, this court and others have consistently refused to infer constructive knowledge from the fact that rain is falling and customers are using an entrance. See, e.g., Dawson v. Brookshire Grocery Co., 31,042 (La.App. 2 Cir. 9/23/98), 718 So.2d 623; Oliva v. Winn-Dixie La. Inc., 99-831 (La.App. 5 Cir. 1/4/00), 756 So.2d 444, writ denied, 00-0370 (La.3/31/00), 759 So.2d 71; Cooper v. Wal-Mart Stores Inc., 97-1723 (La.App. 1 Cir. 12/9/98), 725 So.2d 51, writ denied, 99-0524 (La.5/28/99), 743 So.2d 665; Alexander v. Wal-Mart Stores Inc., 96-1598 (La.App. 3 Cir. 2/4/98), 707 So.2d 1292, writ denied, 98-0572 (La.4/24/98), 717 So.2d 1169. Given the total absence of proof of the temporal element, I cannot agree that the jury’s finding of liability is free of manifest error.

The majority attempts to lessen the effect of this fatal deficiency by stating that Ms. Graves “knew prior to Mrs. Bassett’s fall that the specific area in which Mrs. Bassett slipped and fell would be hazardous.” In response to leading questions by plaintiffs counsel, Ms. Graves hesitantly admitted that the area where Ms. Bassett fell would be slippery, since “to a point” it was foreseeable that the floor would become slippery when wet. On cross examination, however, she testified that just because rainwater can make things slippery does not mean that the entrance was in fact slippery; she called this “speculation.” From this testimony I cannot subscribe to the majority’s finding that Ms. Graves had actual knowledge of an unreasonably dangerous condition.

Given the absence of proof of the temporal element, it is not really necessary for this court to discuss and deprecate the safety precautions used by Toys-R-Us. Nonetheless, Ms. Graves testified that the Astroturf mats inside the entrance doors were large and heavy, requiring several people to move and replace them. Because of their unwieldiness, they would not be removed on the day after Thanksgiving, the busiest shopping day of the year. Although Ms. Graves did not specifically recall that they were in place when Ms. Bassett fell, she repeatedly testified that she was “positive” that they were. While this may not be “direct evidence,” its implications are simply too strong to dismiss entirely, as the majority does.

Given the lack of evidence of the temporal element required by R.S. 9:2800.6 C(1) and Kennedy v. Wal-Mart Stores Inc., supra, I would reverse lathe judgment of the trial court and render judgment in favor of Toys-R-Us. For these reasons, I respectfully dissent.

APPLICATION FOR REHEARING

Before BROWN, C.J., GASKINS, PEATROSS, DREW, and HARRISON, JJ.

Rehearing denied.

PEATROSS and HARRISON, JJ., would grant rehearing.

      . The record contains proof that Mrs. Bassett incurred medical expenses in excess of $200,000. Because the expenses for her is-chemic bowel and intra-abdominal abscess conditions were merged with expenditures related to her disk surgery and diskitis, however, we are unable to separate out and award further amounts associated with the accident.

      . This amount represents the wages lost by Mrs. Bassett as a result of the accident, herniated disk surgery and diskitis infection.