author: _[iMICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Marcus AUGILLARD.
    No. 2003-KA-0237.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.
    Rehearing Denied Sept. 9, 2003.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   _[iMICHAEL E. KIRBY, Judge.

This appeal concerns a resentencing only.

Marcus A. Augillard was charged with possession of cocaine and found guilty of attempted possession of cocaine after a jury trial on October 13, 2000. He was adjudicated a fourth-felony habitual offender on December 14, 2000, and sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. He appealed, and, in an unpublished opinion, this Court affirmed his conviction and vacated his sentence, remanding the case for resentenc-ing. State v. Augillard, 2001-0218 (La.App. 4 Cir. 12/5/01, 806 So.2d 183).

The facts of the case as presented in the prior opinion are as follows.

New Orleans Police Officer Preston Bosch arrested the defendant on July 12, 2000, at approximately 12:10 p.m. Officer Bosch and his partner, Officer Krekel Eckland, stopped two subjects in the 1900 block of Foucher Street. As the officers exited their vehicle and ordered the two over to the patrol car, Officer Bosch observed the defendant drop an object to the ground with his right hand. Officer Bosch retrieved the object, which he believed to be a crack pipe. The officer explained for the jury how a person would use the pipe to smoke crack cocaine. He responded in the negative when asked whether in his experience as a police officer he was aware of any use for the device other than smoking. Officer Bosch also gave an affirmative response when asked if he had detected a residue in the pipe. He was asked what about the crack pipe caused him to arrest the ^defendant on a charge of possession of cocaine, rather than only possession of drug paraphernalia, with which the defendant was also charged. The officer replied that the pipe had a white coating on it, and explained that the more a crack pipe is used, the whiter it gets.
Officer Bosch explained on cross-examination that the defendant and the other man were stopped because the other man, accompanied by the defendant, had walked off with a power saw belonging to a third man. The officer admitted that no cocaine of any kind or other contraband was found on the defendant’s person when he was searched incidental to his arrest for the crack pipe.
Nhon Hong, a criminalist with the New Orleans Police Department Crime Lab, was qualified by stipulation as an expert in the analysis and identification of controlled dangerous substances. All three tests Mr. Hong conducted on residue extracted from the crack pipe, gas chromatography, mass spectrometer, and microcrystalline, were positive for cocaine. Mr. Hoang said that he does not weigh such residue, but estimated its weight at less than a decigram, perhaps a centigram; an amount he conceded was “very, very small.”
Officer Krekel Eckland testified that at the time he and Officer Bosch stopped the defendant and the other man, his attention was focused on the other man, not the defendant. Consequently, he did not observe the defendant discard anything.

State v. Augillard, 2001-0218, pp. 1-3 (La.App. 4 Cir. 12/5/01), 806 So.2d 183, 2001 WL 1673483.

The defendant was resentenced on November 19, 2002. This Court had found the mandatory life sentence under La. R.S. 15:291(A)(l)(c)(ii) excessive and remanded the case for reconsideration under State v. Dorethy, 623 So.2d 1276 (La.1993). At the sentencing hearing the trial court stated that, while it believed that the life sentence was appropriate, a twenty year term would be imposed because that was the minimum sentence for a fourth felony offender.

In a single assignment of error, the defendant appeals his resentencing, arguing that the twenty year sentence is excessive. At the time of the offense in this case, La. R.S. 15:529.1, the Habitual Offender Law, provided in pertinent part:

la(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life;
(ii) If the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) ..., the person shall be imprisoned for the remainder of his natural life without benefit of parole, probation, or suspension of sentence.

Thus, Augillard at his resentencing received the minimum twenty-year term mandated by law.

Under La. Const. Art. I, § 20, a sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment or is the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).

The minimum sentences imposed on multiple offenders by the Habitual Offender Law are presumed to be constitutional. State v. Johnson, 97-1906 at p. 7, 709 So.2d at 676. The defendant bears the burden of rebutting the presumption that the mandatory minimum sentence is constitutional. State v. Short, 96-2780, p. 8 (La.App. 4 Cir. 11/18/98), 725 So.2d 23, 27. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it that would rebut the presumption of constitutionality. State v. Johnson, 97-1906 at p. 7, 709 So.2d at 676. After reviewing the. law and jurisprudence concerning the “rare circumstances” under which a court may depart from the mandatory minimum sentence, the Louisiana Supreme Court has stated:

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which in this context means that because of unusual circumstances, the defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Lindsey, 99-3302, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343 (Citation omitted; emphasis added).

Moreover, in State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, [519 U.S. 1043,] 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there appeals] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).

LThe defendant concedes that he received the minimum sentence but complains that the trial court gave no consideration to any mitigating factors under State v. Dorthey, 623 So.2d 1276 (La.1993), as this Court ordered. In vacating the life sentence, this Court stated:

Considering that the defendant’s only violent crime was committed twenty years prior to his offense in the instant case, and his current conviction is based on his abandonment of a crack pipe, the defendant has arguably rebutted the presumption that the sentence provided for him under the Habitual Offender Law is constitutional. Therefore, we find merit to the defendant’s argument that he is exceptional, i.e., that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Augillard, 2001-0218, p. 11 (La.App. 4 Cir. 12/5/01), 806 So.2d 183, 2001 WL 1673483.

The defendant is correct; at the resen-tencing hearing, the trial court simply pronounced the twenty-year sentence. However, the defendant mistakenly maintains that when this Court found the life term excessive it mandated that he be resen-tenced to a term less than the statutory minimum under La. R.S. 15:529.1(A)(l)(c)(i). This Court held only that the life sentence under La. R.S. 15:529.1(A)(l)(c)(ii) was constitutionally excessive.

At the hearing no evidence was offered by the defendant or any witnesses as to special circumstances that would further reduce his sentence. Although Augil-lard’s record did not merit a life sentence, we do not find the twenty-year sentence to be excessive. We therefore conclude that the trial court did not abuse its broad sentencing discretion in imposing the twenty-year sentence.

IfiWe reject this assignment of error.

Accordingly, for the reasons stated, the defendant’s sentence is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: J^MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Priscilla JASPER v. MEMORIAL MEDICAL CENTER.
    No. 2003-C-0489.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2003.
    Rehearing Denied Sept. 9, 2003.

      Andrew W. Horstmyer, New Orleans, LA, for Relator.
    James M. Taylor, Kristi Stroebel Burnt-horne, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, for Respondent.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   J^MICHAEL E. KIRBY, Judge.

Relator seeks review of the workers’ compensation judge’s denial of her motion for an order allowing relator to be evaluated and treated by a neurosurgeon of her choice with costs of said evaluation and treatment to be incurred by her employer, respondent, Memorial Medical Center. After reviewing the writ application and opposition thereto, we find the worker’s compensation judge did not err in denying relator’s motion.

On May 26, 2000, while helping a patient pull up in bed, relator incurred an injury to her back. Dr. Chad W. Millet diagnosed relator with an acute lumbar strain and mild degenerative changes of the lumbar spine. She was referred to physical therapy and subsequently advised that she could return to work without restriction.

Relator alleges that her condition deteriorated, and in November 2000, she elected Dr. Courtney Russo, an orthopedic surgeon, as her choice of treating physician. An initial MRI revealed a herniated disk at L5-S1. Dr. Millet indicated at that time that if relator’s pain failed to subside, surgery could be required. In February 2001, relator became pregnant and was unable to take any medication. Subsequently, Dr. Russo prescribed epidural steroid injections. By July 17, 2002, | ?relator’s complaints of pain had increased, and she showed no signs of improvement. Dr. Russo recommended a repeat MRI. Relator had received three epidural steroid injections by this time. The MRI revealed a herniated disc at the L5-S1 level and a small bulge at the L4-L5 level. Dr. Russo’s recommendation as of September 10, 2002, was to continue the steroid injections. He did not recommend surgery at that time.

In November 2001, Dr. Russo referred relator to Dr. Patrick Waring, a pain management specialist, and relator began seeing him on a regular basis. Dr. Waring performed the epidural injections.

A report by Dr. Waring, dated November 21, 2002, notes that relator had “voiced strong opposition to surgical approaches to treat her low back pain.” Relator was also adverse to any diagnostic procedure that might temporarily increase her pain or discomfort. Additionally, by December of 2002, both Dr. Russo and Dr. Waring had recommended that relator undergo a psychological examination.

On December 31, 2002, relator filed a motion seeking an order allowing her to be evaluated and treated by a neurosurgeon of her choice with costs of said evaluation and treatment to be incurred by her employer. In denying the motion, the worker’s compensation judge stated, “Claimant does not have any doctor referring her to a neurosurgeon and more specifically, claimant’s own choice of orthopedist Dr. Russo does not refer her to a neurosurgeon.”

In McCrary v. New Orleans Health Corp., 2001-1632 (La.App. 4 Cir. 9/26/01), 798 So.2d 1085, this court reviewed the relevant jurisprudence as follows:

La. R.S. 23:1203 provides in pertinent part as follows:
|SA. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal, ...
Costs of medically necessary diagnostic tests recommended by one’s treating physician are recoverable when needed in order to determine the proper treatment for the patient. Dumas v. Hartford Ins. Co., 583 So.2d 31 (La.App. 4th Cir.1991); LeDoux v. Robinson, 568 So.2d 244 (La.App. 3rd Cir.1990).
When a dispute exists as to the need for such tests the burden rests on the plaintiff to prove by a preponderance of the evidence that the required tests are necessary. Dumas, supra; Stelly v. United Parcel Service, 600 So.2d 156 (La.App. 4th Cir.1992); Whittington v. Rimcor, Inc., 601 So.2d 324 (La.App. 2nd Cir.1992); Butler v. Overnite Transport Co., Inc., supra, [444 So.2d 676 (1984)].
A trial court’s assessment of the necessity of medical treatment pursuant to La. R.S. 23:1203(A) is a factual determination subject to the manifest error standard of review. Ramogasse v. Lafitte Welding Works, 93-682, p. 2 (La. App 5 Cir. 12/13/95), 666 So.2d 1176, 1178.

Id, 2001-1632, p. 4, 798 So.2d at 1088.

Additionally, La. R.S. 23:1121(B) provides in pertinent part:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

Relator contends that her “right to select one treating physician in any field or specialty” includes the right to obtain a treating physician in more than one field Lor specialty. Clearly, this is a strained interpretation of the rule that is not anticipated by the statute. The statute’s subsequent statement that prior consent is not necessary to change “to a treating physician in another field or specialty” demonstrates that § 1121 does not invest the worker’s compensation claimant with the right to multiple treating physicians.

Relator’s motion was properly considered by the worker’s compensation judge as a request for additional testing pursuant to § 1203. In that regard, relator failed to carry her burden as neither her treating physician, nor Dr. Millet, nor Dr. Waring, recommended referring her to a neurosurgeon. Relator contends that Dr. Millet’s opinion that if relator’s pain failed to subside surgery might be required is a sufficient indication that a referral to a neurosurgeon was necessary. The difficulty with relator’s position is that there is no indication that she ever suggested to any of the physicians who were treating her that she felt she might need to see a neurosurgeon. In fact, relator told Dr. Waring that she was strongly opposed to any surgical approach for her back pain. Finally, if relator felt that she could more properly be treated by a neurosurgeon than an orthopedist, she would be entitled to change her treating physician to one in another specialty. However, this is not what relator seeks. The workers’ compensation judge properly denied relator’s motion.

WRIT GRANTED; RELIEF DENIED; JUDGMENT AFFIRMED


author: | Judge TERRI F. LOVE. I t CANNIZZARO, J„

text:
    Douglas FAULKNER and Gloria Faulkner v. THE McCARTY CORPORATION, Owens Corning Fiberglas Corporation, Combustion Engineering, Inc., Garlock, Inc., Pittsburgh-Corning Corporation, Rock Wool Manufacturing Company, Anco Insulations, Inc., Acands, Inc., Rapid American, et al.
    No. 2002-CA-1337.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2003.
    Rehearing Denied Sept. 9, 2003.

      John F. Dillon, John F. Dillon, PLC, and Frank Swarr, Mickey P. Landry, Landry & Swarr, L.L.C., and Donni E. Young, Scott Galante, Ness, Motley, PA, New Orleans, LA, for Plaintiff/Appellant.
    Francine Weaker, New Orleans, LA, and Henry E. Yoes, III, Yoes Law Firm, Lake Charles, LA, and Joseph P. Tynan, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   | Judge TERRI F. LOVE.

Plaintiffs filed suit, asserting Douglas Faulkner was exposed to asbestos while working as a longshoreman for various stevedoring companies from 1951 through 1989. The trial was bifurcated, and the Board of Commissioners of the Port of New Orleans (“Dock Board”) was the only defendant to opt for a bench trial. The remaining defendants submitted to trial by jury. The jury awarded judgment for the plaintiff, however at the bench trial, the judge entered judgment for the Dock Board. The trial court found that the Dock Board owed no legal duty to Mr. Faulkner to protect him from the injuries he sustained. For the following reasons we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Douglas and Gloria Faulkner, filed suit on March 21, 1996, two of one hundred and fourteen plaintiffs claiming injuries due to asbestos exposure. Defendants named in the original petition were manufacturers, designers, marketers, distributors and sellers of asbestos and asbestos-related products. Plaintiffs later added the Board of Commissioners of the Port of New Orleans L(“Dock Board”). The case against the Dock Board was decided by the trial judge under La. R.S. 13:5105. The trial was bifurcated and the Board of Commissioner’s liability was considered and adjudicated independent of the jury verdict. The instant appeal concerns only the judgment as to the Board of Commissioners for the Port of New Orleans.

Mr. Faulkner worked as a longshoreman from 1951 to 1989, loading and discharging cargo. Mr. Faulkner’s exposure to asbestos occurred while working for numerous stevedoring companies, during which time he loaded and unloaded sacks of pure asbestos at the terminal, ways, roads, sheds and warehouses, namely the Cotton Warehouse, at the Port. Mr. Faulkner was never an employee of the Dock Board.

Douglas Faulkner died on August 21, 1998, of a malignant mesothelioma as a result of asbestos exposure. His son Douglas Faulkner, Jr., was substituted in the survival action and asserted a wrongful death claim.

DISCUSSION

In their assignment of error, the plaintiffs assert that the trial court erred as a matter of law in concluding that there exists no legal duty for the Board of Commissioners of the Port of New Orleans. Duty is a question of law; the inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Perkins v. Entergy Corp., 98-2081, p. 22 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 403. As a question of law, duty is a legal question subject to de novo review on appeal. Id. Therefore, this Court will review de novo whether the trial |3court committed legal error in finding that the Dock Board owed no legal duty to the plaintiffs for Mr. Faulkner’s injury.

The plaintiffs sought relief under the theories of negligence and strict liability at trial. However in the plaintiffs’ appellate brief, they assert that the Dock Board breached its duty to warn Douglas Faulkner of the alleged unsafe conditions at the Cotton Warehouse. The plaintiffs’ did not assert this claim at the trial court level; therefore, this Court wall not consider it. [Ijssues not brought before the trial court cannot be considered on appeal. See Wilson v. Head, 97-0992, p. 1 (La.App. 3 Cir. 2/4/98), 707 So.2d 127, 128.

We will first address the plaintiffs’ claims of negligence against the Dock Board.

The plaintiffs argue that the Dock Board owed a legal duty to the plaintiffs under the “public duty doctrine”. The “public duty doctrine” states that a plaintiff cannot recover against a governmental entity or public official or their employees or officers unless he can prove facts which show that the defendant owed him a special duty outside of the duty owed to the general public. Boguille v. Chambers, 96-1173, p. 6 (La.App. 4 Cir. 12/11/96), 685 So.2d 582, 586 (citing Kramer v. Continental Casualty Co., 92-1131 (La.App. 3 Cir. 6/22/94), 641 So.2d 557).[I]n jurisdictions where the “public duty doctrine” is applied, it is subject to the important exception that liability can be founded upon the violation of a duty that would be generally considered to be owed to the public, if the statute or ordinance setting forth the duty indicates, by its language, that the duty is designed to protect a particular class of individuals. Stewart v. Schmieder, 386 So.2d 1351, 1358 (La.1980). However, our Supreme Court has rejected the “public duty doctrine”. In Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So.2d 1, the Court discussed the application of the “public duty doctrine as follows:

At the outset, we reject the application of the Public Duty Doctrine. Although the validity of the Public Duty Doctrine has remained somewhat speculative in the lower courts, this court in Stewart v. Schmieder, 386 So.2d 1351, 1358 (La.1980), and Fowler v. Roberts, 556 So.2d 1 (La.1989), rejected the doctrine. Viewing the holdings in Stewart and Fowler together, this court has found that even though the public nature of a duty does not preclude liability on the part of a governmental entity, this does not mean a governmental body will be liable each time a person’s injury could have been prevented by a public official’s proper performance of his duty. Duty and liability must be decided according to the facts and circumstances of each case. This is accomplished under the duty risk analysis.

Id. 98-2208, p. 5, 745 So.2d at 6.

Since the Supreme Court rejects the “public duty doctrine”, the plaintiffs may not employ it to establish a duty on the part of the Dock Board. We are directed by the Supreme Court to perform duty-risk analysis to the facts of this particular case.

The duty-risk analysis is employed on a case-by-case basis. McGuire v. New Orleans City Park Improvement Ass’n., 2002-1401, p. 6 (La.1/14/03), 835 So.2d 416, 420. Under the duty-risk analysis, the plaintiff must satisfy the following to prove negligence; the plaintiff must prove that: 1) the conduct in question was the cause-in-fact of the resulting harm, 2) the defendant owed a duty of care to the plaintiff, 3) the defendant breached that requisite duty and 4) the risk of harm was within the scope of protection afforded by the duty breached. Id. (citing Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585). If the plaintiff fails to satisfy one of the elements of duty/risk, the defendant is not hable. Pitre v. Louisiana Tech University, (La.1996), 673 So.2d 585, 589. Duty is a question of law: simply put, the inquiry is whether the plaintiff has any law | ^statutory or jurisprudence- to support his claim. Absent a duty to the plaintiff, there can be no actionable negligence and hence no liability. Polk v. Blanque, 93-1740 (La.App. 4 Cir. 3/15/94), 633 So.2d 1382. Governmental agencies may be subjected to the imposition of duties by legislation, ordinance or rule of law, the breach of which may result in liability for damages to those injured by a risk contemplated by that duty. Cormier, 98-2208, p. 7, 745 So.2d at 8. The court’s role is to determine whether there is any jurisprudential or statutory rule, or policy reason why, under the facts and circumstances of the case, the state would owe a duty to compensate plaintiff for his injuries. Id. 98-2208, pp. 7-8, 745 So.2d at 8.

The plaintiffs presented copious testimony regarding Mr. Faulkner’s work experience, whether or not he worked with asbestos, and whether the Cotton Warehouse was properly ventilated. Plaintiffs’ expert Frank Parker, III, an industrial hygienist, testified that the Dock Board should have been on notice about the danger of asbestos since 1943 when it hosted the Gulf Coast Safety Conference, where asbestos related issues were discussed. However, he also admitted that the conference was for shipbuilders and that the Dock Board representative was present only as a part of the welcoming committee. Mr. Parker then suggested a ventilation system that, in his opinion, should have been in place in the Cotton Warehouse at the time Mr. Faulkner worked there. Mr. Parker’s opinions were directly refuted by the defense expert, Tracy Dodd, an expert in toxicology, environmental safety regulations, and health and risk assessment, who testified that Mr. Parker’s ventilation plan would have actually made the Cotton Warehouse more dangerous, not just for the men working there, but for the surrounding neighborhoods. Ms. Dodd also suggested that Mr. Parker was using current knowledge and technology that was not available at the time Mr. Faulkner | ¿was injured. Lastly Mr. Parker admitted that traditionally it is the employer who is responsible for making the work conditions safe for its employees.

The plaintiffs failed to present any applicable statutory or jurisprudential rule that establishes the Dock Board owed a duty to the plaintiffs, during the time of Mr. Faulkner’s employment, to protect him from the injuries he sustained. As such, since no duty existed, the Dock Board may not be found liable for Mr. Faulkner’s injury.

The plaintiffs alternatively argue that the duty owed by the Dock Board to the plaintiffs is the product of the lessor/lessee relationship between the Dock Board and Mr. Faulkner’s various employers.

La. R.S. 9:8221 provides:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not ha-ble for injury caused by any defect therein to the lessee or anyone of the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

The exception to the rule of La. R.S. 9:3221 is that, even if a property owner contracts away his responsibility for maintaining his premises to his lessee, the owner can still be held liable if he knew or should have known of a defect in the property and failed to remedy it within a reasonable time. Audler v. Board of Comm’rs of the Port of New Orleans, 617 So.2d 73, 77 (La.App. 4th Cir.1993).

In the instant case we find that the evidence clearly demonstrates that when the Dock Board leased its warehouses, it gave complete control of those warehouses to the lessee. The Dock Board presented ample evidence that it was unaware of particular cargoes being stored at its warehouses. The Dock Board also showed that it was not aware that there was a defect in the ventilation system of its 17warehouses that it could remedy. The plaintiffs did not establish that the Dock Board knew or should have known about the lack of ventilation in its warehouses, and that the Dock Board, with this knowledge, failed to remedy the defect. The plaintiffs did not present evidence of the industry standard at the time of Mr. Faulkner’s employment to show the Dock Board had notice of the defect, nor did the plaintiffs establish the Dock Board was aware that asbestos was being stored in its warehouses. Plaintiffs only posit assumptions and allegations to support their claims. Further, the plaintiffs’ own expert admitted that it is the individual employers who would insure the safety of their employees, rather than the Dock Board. Since the plaintiffs did not establish that the instant case falls under the exception of La. R.S. 9:3221; the plaintiffs’ assertion of duty under this statute is without merit.

The plaintiffs’ claims fail the duty/risk analysis outlined in Cormier because the facts and evidence presented by the plaintiffs do not articulate a legal duty owed to Mr. Faulkner by the Dock Board to protect him from the injuries he sustained. Further, the plaintiffs fail to establish a duty under the lessor/lessee relationship provided for in La. R.S. 9:3221. We therefore find that the trial court was correct in ruling the plaintiffs did not establish the Dock Board owed a duty to Mr. Faulkner to protect him from his injuries.

We will now address plaintiffs strict liability claim. In order to maintain a cause of action for strict liability, plaintiffs must prove:

1) The thing which caused injury must be in the care, custody and control of the defendant;
2) The thing had a vice or defect which created an unreasonable risk of harm;
3) The injuries in question were caused by said defect.

See Borruano v. City of Plaquemine, 720 So.2d 62, 64 (La.App. 1 Cir.1998).

In Loescher v. Parr, 324 So.2d 441, 451 n. 7 (La.1975), the Supreme Court defined article 2317 “custody”:

The things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usu-fructuary, the borrower for use and the repairmen, among others ... The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it.

To find defendant liable under a theory of custodial liability pursuant to La. C.C. art. 2317, it must be shown that defendant either “owned or had care, custody, or ‘garde’... and that under the circumstances ... presented an unreasonable risk of harm which resulted in the plaintiffs damage.” Ledet v. Montgomery Elevator Co. & XYZ, 94-0411, p. 5 (La.App. 4 Cir. 10/13/94), 644 So.2d 1075, 1078 (citing Rabito v. Otis Elevator, 93-1001, p. 15 (La.App. 4 Cir. 2/11/94), 633 So.2d 368, 376). The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction. La. C.C. Art. 2322. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise reasonable care. Id.

The plaintiff did not present sufficient evidence at trial to prove the Dock Board knew that asbestos was being stored in their warehouses. Joseph Orlesh, Jr., an employee of the Dock Board since 1973, testified that the Dock Board had no specific knowledge of what cargoes were being stored in its warehouses, and that Ronce vessels cleared U.S. Customs, space that was leased from the Dock Board to load, unload and store cargo was in the sole control of the lessee. The warehouses were only defective with regard to the ventilation system, once asbestos was brought onto the premises. Under La. C.C. art. 2322 this precludes strict liability on the part of the Dock Board. Additionally, the Dock Board gave the lessees complete care, custody, and control over the warehouses, which precludes strict liability under La. C.C. art. 2317. Further, the plaintiffs did not establish that the Dock Board was aware of the danger of asbestos at the time of Mr. Faulkner’s employment, such that it created an unreasonable risk of harm, making the Dock Board strictly liable for Mr. Faulkner’s injuries.

Therefore, we find that the trial court was correct in finding that the Dock Board was not strictly liable for Mr. Faulkner’s injuries.

CONCLUSION

For the foregoing reasons, we find that the trial court was correct in finding that the Dock Board was not negligent because it owed no legal duty of care to Mr. Faulkner, nor can the Dock Board be found strictly liable for Mr. Faulkner’s injuries.

AFFIRMED.

CANNIZZARO, J., CONCURS WITH WRITTEN REASONS.

I t CANNIZZARO, J„

CONCURS WITH REASONS.

I respectfully concur in the majority opinion to affirm the trial court judgment dismissing the plaintiffs’ suit against the Board of Commissioners of the Port of New Orleans (“Dock Board”). In rendering judgment, the trial court concluded that the Dock Board owed no duty to Douglas Faulkner to protect him from the injuries he sustained, i.e., malignant meso-thelioma.

The majority correctly holds that the Dock Board owed no duty to Mr. Faulkner under the “Public Duty Doctrine,” as the Louisiana Supreme Court expressly rejected the doctrine in Stewart v. Schmieder, 386 So.2d 1351, 1358 (La.1980), Fowler v. Roberts, 556 So.2d 1 (La.1989), and Cormier v. T.H.E. Ins. Co., 98-2208, p. 5 (La.9/8/99), 745 So.2d 1, 6. Thus, as the Court noted in Fowler, supra, duty and liability must be decided according to the facts and circumstances of each case using the duty-risk analysis. Fowler, 556 So.2d at 7.

The Supreme Court adopted the duty-risk analysis in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). See also Mart v. Hill, 505 So.2d 1120, 1122 (La.1987). Under this analysis, the plaintiff must prove:

| ¡.(1) the conduct in question was the cause in fact of the resulting harm;
(2) the defendant owed a duty of care to the plaintiff;
(3) the requisite duty was breached by the defendant; and
(4) the risk of harm was within the scope of protection afforded by the duty breached.

Mundy v. Dept. of Health and Human Resources, 620 So.2d 811 (La.1993); Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289 (La.1993). If the plaintiff fails to satisfy one of the elements of the duty-risk analysis, the defendant is not liable. McGuire v. New Orleans City Park Improvement Ass’n, 2002-1401 (La.1/14/03), 835 So.2d 416. The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide. Id.; Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). Whether a defendant has breached a duty is a question of fact. Mundy, supra.

The Dock Board’s liability to the plaintiffs may arise under a theory of negligence, La. Civ.Code art. 2322, or a theory of strict liability, La. Civ.Code art. 2317. Under both articles, liability hinges on whether the defendant has breached his duty to the plaintiff. Hunter v. Department of Transportation and Development, 620 So.2d 1149, 1151 (La.1993). While the basis for determining the existence of the duty is different in article 2317 strict liability cases and in ordinary negligence cases, the duty that arises is the same. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). The distinction between recovery under |Rthese theories is that under strict liability a plaintiff is relieved of proving the owner or custodian of the thing that caused the damage knew or should have known of the risk involved. Campbell v. Louisiana Department of Transportation and Development, 94-1052, p. 4 (La.1/17/95), 648 So.2d 898, 901.

In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Id.; St. Hill v. Tabor, 542 So.2d 499, 502 (La.1989); Harris, 455 So.2d at 1369; Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1047 (La.1979). A duty may be imposed by legislation, ordinance or rule of law. Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So.2d 1.

In the instant case, the evidence at trial showed that the Dock Board had leased its warehouses to several stevedore companies for the storage of cargo that they, not the Dock Board, discharged from ships in accord with contracts between them and the vessels’ owners and/or steamship agents. It is undisputed that the damage claimed by the plaintiffs, i.e., Mr. Faulkner’s mesothelioma, was caused by asbestos, a hazardous material that the stevedore companies transported to and stored temporarily on the Dock Board’s premises. It is also undisputed that the stevedore companies, including Mr. Faulkner’s employers, had exclusive control over the asbestos cargo.

The plaintiffs put forth no direct evidence at trial that Mr. Faulkner’s illness was caused by the ventilation or lack of ventilation or some other defect on the Dock Board’s premises. Although the plaintiffs’ industrial hygiene expert, Frank Parker, testified that the Dock Board should have had installed a ventilation system in the Cotton Warehouse at the time Mr. Faulkner worked there, the defendants’ expert, Tracy Todd testified that Mr. Parker’s opinion was based on current technology that was unavailable at the time Mr. Faulkner worked as a | longshoreman. Furthermore, the plaintiffs put forth no expert testimony as to the industry standards in effect during the 1950’s, 60’s, 70’s and 80’s, the time of Mr. Faulkner’s employment, to show that the Dock Board’s warehouses were defective or unsuitable for storing asbestos containing cargo. Absent such evidence, the Dock Board cannot be held liable for the plaintiffs’ damages based on its negligent failure to safely maintain its premises.

The plaintiffs contend that the Dock Board knew or should have known in the 1940’s that asbestos cargo on its premises posed a danger to longshoremen such as Mr. Faulkner. Mr. Parker, the plaintiffs’ expert, testified that the Dock Board should have been on notice that asbestos was a potential health hazard no later than World War II, in view of the work done in the maritime industry by the public health service. He further claimed that the Dock Board’s attendance at the Gulf Coast Safety Conference in New Orleans in 1943, where asbestos related topics were addressed, provided the board with knowledge of the dangers inherent in the handling and storage of asbestos.

Joseph M. Orlesh, Jr., a witness for the Dock Board, testified that he worked for the board in various positions for thirty years, at one point directing the operations of the Port of New Orleans. Mr. Orlesh explained that the stevedore companies would lease the Dock Board’s warehouses long before their cargoes ever entered the port. He further explained that the stevedores’ documentation and cargo manifests from the ships, on which the Dock Board calculated its rent, generally were delayed thirty to forty-five days, and thus the board never possessed information regarding the manifest or cargo coming off the ships. Mr. Orlesh denied that the Dock Board had specific knowledge of any individual vessels importing or exporting asbestos. The plaintiffs offered no evidence to controvert Mr. Orlesh’s testimony.

|<As to the Gulf Coast Safety Conference in 1943, the evidence in the record indicated the conference was related entirely to shipbuilding and that a representative of the Dock Board appeared merely as a member of the City’s welcoming committee, along with representatives from the Mayor’s office, the Chamber of Commerce, and Young Men’s Business Club. The plaintiffs put forth no evidence that the Dock Board built ships or vessels of any kind or owned or operated shipyards at any time from which one could reasonably conclude that the board knew or should have known of the dangers that asbestos posed to longshoreman working on its premises.

Because the plaintiffs did not prove by a preponderance of the evidence that a defect in or on the Dock Board’s premises posed an unreasonable risk of harm and caused Mr. Faulkner’s injury, the Dock Board cannot be held liable for the plaintiffs’ damages. In the absence of evidence to show that the Dock Board knew or should have known of the safety hazards asbestos posed to longshoreman working on its premises or that it had custody and control of the asbestos on its premises, the plaintiffs have not established that the Dock Board had a duty to warn and/or protect Mr. Faulkner from the risks associated with handling the asbestos while on its premises.

As to strict liability under La. Civ.Code art. 2317, the plaintiff bears the burden of proving: (1) the thing that caused the plaintiffs injury or damage was in the care, custody and control, or garde, of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injury and/or damage were caused by the vice or defect. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990); Chaplain v. American Empire Surplus Lines Insurance Company, 98-1372 (La.App. 4 Cir. 3/31/99), 731 So.2d 973.

As previously stated, the plaintiffs have not demonstrated by a preponderance of the evidence that the Dock Board’s premises posed an | ¿unreasonable risk of harm to Mr. Faulkner. Similarly, they have not shown how the presence of asbestos, a foreign object brought onto the Dock Board’s premises of which the stevedore companies had exclusive control, created a defect in the premises for purposes of establishing liability under La. Civ.Code art. 2317. In view of this, the Dock Board cannot be held strictly liable for the plaintiffs’ damages.

In addition to arguing the applicability of the Public Duty Doctrine, which has been rejected in this case, the plaintiffs contend that La. R.S. 34:21 A(l) and La. R.S. 34:25 B impose a duty on the Dock Board to be a prudent administrator of its premises. Such a duty, the plaintiffs argue, encompassed providing a safe environment for workers such as Mr. Faulkner who handled asbestos cargo within the Dock Board’s warehouses.

In Boguille v. Chambers, 96-1173 (La.App. 4 Cir. 12/11/96), 685 So.2d 582, this Court expressly stated that La. R.S. 34:21 A(l) and La. R.S. 34:25 B allow the Dock Board to use its discretion when regulating the various facilities under its administration and noted that La. R.S. 9:2798.1(B) grants the Dock Board qualified immunity from liability based upon the exercise or performance or the failure to exercise or perform its discretionary acts. Id., 685 So.2d at 588-89. Thus, in the absence of a nondiseretionary duty imposed on the Dock Board by statute or ordinance to protect third parties from risks encountered in handling ^hazardous materials on its premises, the trial judge did not err in concluding that the Dock Board was not liable for Mr. Faulkner’s injuries.

In summary, the plaintiffs did not prove that the Dock Board owed a duty to Mr. Faulkner under theories of negligence or strict liability to warn and/or to protect him from the risks associated with the handling of asbestos on its premises. Thus, in the absence of a statute or ordinance imposing such a duty on the Dock Board, the trial court did not err in determining the Dock Board was not liable for the damages resulting from Mr. Faulkner’s mesothelioma.

      . La. Civ.Code. Art. 2322 provides, in part:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise or reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

      . La. C.C. art. 2317 provides:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . La. R.S. 34:21 A(l) provides:
      The [Dock Board] shall regulate the commerce and traffic of the port and harbor of New Orleans in such a manner as may, in its judgment, be best for the maintenance and development thereof.

      . La. R.S. 34:25 B provides:
      The [Dock Board] shall by proper ordinances make rules and regulations for the conduct, management, and control of the port, its commerce, traffic and navigation, the waters and landings within its territorial jurisdiction, the structures and other facilities under its administration, and for the government thereof, which may, in its judgment, be necessaiy or proper in the exercise of the powers now conferred upon it by the constitution and statutes of the state of Louisiana, and shall, from time to time, enlarge, modify, or change such rules and regulations in its discretion.


author: JjMICHAEL E. KIRBY, Judge.

text:
    Edward Charles WASHINGTON and Travis Parker v. AETNA LIFE INSURANCE COMPANY, et al.
    No. 2003-C-0790.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.
    Rehearing Denied Sept. 9, 2003.

      Tom W. Thornhill, Chadwick W. Coll-ings, Thornhill Law Firm, L.C., Slidell, Louisiana, for Respondent.
    Christopher J. Aubert, James P. Meyer, Aubert Law Firm, L.L.C., Covington, Louisiana, For Relator.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   JjMICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

The defendants, Schindler Elevator Corporation and Zurich American Insurance, seek review of the trial court’s judgment prohibiting them from using a surveillance videotape to cross examine plaintiffs treating physicians during a deposition.

The plaintiffs, Edward Washington and Travis Parker, filed the present action seeking damages for injuries allegedly sustained when a freight elevator that they were in dropped suddenly. The plaintiffs alleged that Washington was slammed to the floor and as a result, suffered injury to his knees, back and neck. During the discovery phase of the litigation, the defendants sought to have an independent medical examination (IME) performed on Washington. The defendants based their request for an IME on the fact that they have videotapes of the accident which indicated that the accident did not happen as plaintiffs have alleged. The defendants contended that the videotapes reveal that “there was no indication shown on the videotape that could have caused the injuries suffered by Washington.” The defendants further stated that the videotape from a basement j ^camera shows “the two Plaintiffs unloading their carts from the elevator without incident or apparent injury and simply going about their business.”

The trial court denied defendants’ request for the IME. Defendants sought supervisory review from this Court. On December 19, 2002, in writ 2002-C-1925, this Court stated:

The writ application is denied. The trial court did not abuse its discretion in deciding not to order an independent medical examination (“IME”). As to the issues of the plaintiffs injuries, treatment and prognosis, the defendant can make use of the two IME’s by the worker’s compensation insurer. As to the issue of causation, the defendant may use the videotapes to cross-examine the plaintiffs treating physicians and the worker’s compensation physicians. The defendant’s medical expert may use the videotapes for his opinion on causation.

Thereafter, the defendants filed notices of deposition for Washington’s two treating physicians. The plaintiffs opposed the depositions and filed a motion to quash the depositions. After a hearing on April 1, 2003, the trial court granted the plaintiffs’ motion to quash the deposition of Dr. Butler. The trial court allowed the defendants to depose Dr. Parnell but prohibited the defendants from using the videotapes in their cross-examination of the physician. The trial court stated during the hearing:

We went over what the Court of Appeals said, and I just disagree with the philosophy behind it. Until I make a determination of whether or not the tape comes into evidence, I’m not going to allow you to utilize it at (sic) deposition.

\?,DISCUSSION

The defendants argue that the trial court erred when it refused to allow them to use the videotapes during their deposition of Dr. Parnell. The defendants suggest that the language in the prior writ binds the trial court and this Court under the law of the case doctrine.

In Jones v. McDonald’s Corp., 97-2287, pp. 4-5 (La.App. 1 Cir.1998), 723 So.2d 492, 494-495, the First Circuit reviewed the jurisprudence on the law of the case doctrine.

The law of the case principle is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same ease. Louisiana Land and Exploration Co. v. Verdin, 95-2579, pp. 3-4 (La.App. 1 Cir. 9/27/96); 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96); 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997). It applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. Brumfield v. Dyson, 418 So.2d 21, 23 (La.App. 1 Cir.), writ denied, 422 So.2d 162 (La.1982). The reasons for the law of the case doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Louisiana Land and Exploration Co. v. Verdin, 95-2579 at 4; 681 So.2d at 65.
Reargument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269, 1271 (La.App. 1 Cir.1982).
When an appellate court considers arguments made in supervisory writ applications or responses to Rsuch applications, the court’s disposition on the issue considered usually becomes the law of the case, foreclosing relitigation of that issue either at the trial court on remand or in the appellate court on a later appeal. Dupre v. Maynard, 96-1188, p. 8 (La.App. 1 Cir. 3/27/97); 692 So.2d 36, 38, writ denied, 97-1508 (La.9/26/97); 701 So.2d 986. The law of the case doctrine is not an inflexible law, thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous. Dodson v. Community Blood Center of Louisiana, Inc., 633 So.2d 252, 255 (La.App. 1 Cir.1993), writs denied, 93-3158, 93-3174 (La.3/18/94); 634 So.2d 850, 851.

In the present case, this Court in writ 2002-C-1925 stated that defendants would be able to use the videotapes in cross examining the plaintiffs’ treating physicians on the issue of causation. Given that the causation of the plaintiffs’ injuries is a major issue in the case, the defendants should be allowed to present its facts about the accident to the physicians to see if it changes the physicians’ opinions on the cause of the plaintiffs’ injuries. We find that this Court’s prior ruling is not manifestly erroneous. Therefore, we apply the law of the case doctrine and reaffirm the language of this Court in the prior writ.

Accordingly, we grant the defendants’ writ application and reverse the trial court’s ruling. The defendants are allowed to use the videotapes during their deposition of Dr. Parnell.

WRIT APPLICATION GRANTED; JUDGMENT REVERSED.


author: [, DAVID S. GORBATY, Judge. 11 JONES, J.,

text:
    Mary SEITHER, Individually and in Her Capacity as Tutrix of the Minors, Mark Seither and Stephen Seither v. WINNEBAGO INDUSTRIES, INC., Bernard J. Seither, AIU Insurance Company, and State Farm Mutual Automobile Insurance Company.
    No. 2002-CA-2091.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2003.
    Rehearing Denied Sept. 9, 2003.

      Santo A. Dileo, Harahan, LA, for Appellant, Norman Penton, d/b/a Penton Studio.
    Arthur W. Landry, Plauche’ Maselli Landry & Parkerson, L.L.P. New Orleans, LA, and George W. Healy, IV, George Healy & Associates Gulfport, MS, and Catherine Leary, Westwego, LA, for Plaintiff/Appellant.
    Stephen M. Gele’, Ungarino & Eckert, L.L.C., Metairie, LA, for AIU Insurance Company.
    Robert W. Maxwell, Keith W. McDaniel, Geoffrey J. Orr, Lance Williams, McCra-nie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Covington, LA, for Defendant/Appellant, Winnebago Industries, Inc.
    (Court composed of Judge CHARLES R. JONES, JUDGE MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   [, DAVID S. GORBATY, Judge.

FACTS AND PROCEDURAL HISTORY

In July 1999, Bernard and Bertha Seither invited their son Kurt and their three young grandsons, Kurt Jr., age 13, Mark, age 11, and Stephen, age 8, to accompany them on a vacation trip to Gatlinburg. They were traveling in a 1994 Winnebago Brave Recreational Vehicle (“RV”). Bernard was driving the RV in rural Alabama when he drove off the road for several hundred feet, ultimately striking an oak tree bordering a fence line. Kurt Sr. and Kurt Jr. died as a result of injuries they sustained in the accident. Mark and Stephen were also injured in the collision.

The RV in question was manufactured by Winnebago Industries, Inc. (“Winnebago”) in Forest City, Iowa. It was delivered to Reliable RV Sales, Inc. (“Reliable”), a Winnebago dealership located in Gulfport, Mississippi. Rehable sold the RV to Mr. and Mrs. Bobby Hill. The Hills reported problems steering the vehicle at highway speed. Service people selected by Reliable and Winnebago Rwere unable to correct the problems to the Hills’ satisfaction, so the Hills returned the vehicle as defective and obtained a full refund of the purchase price.

With Winnebago’s consent, Reliable placed the vehicle back on the lot for resale as a used vehicle. Reliable then sold the vehicle to Bernard Seither. They furnished Mr. Seither with a certificate stating that the RV was in “excellent” condition.

Mary Seither filed suit, seeking damages as a result of the survival and alleged wrongful death of her husband, Kurt Seither, Sr., and her son, Kurt Seither, Jr. She also filed for damages as tutrix of her minor sons, Mark and Stephen, for their own personal injuries and the damages resulting from the deaths of Kurt Seither Sr. and Jr. Made defendants were Winnebago; Bernard Seither; his insurer, AIU Insurance Company (“AIU”); State Farm Mutual Automobile Insurance Company (“State Farm”), as the uninsured motorist carrier; and Rehable.

The matter went to trial beginning on October 10, 2001, before a jury in Orleans Parish. During the trial, Reliable settled with the plaintiffs. After the plaintiffs presented their evidence, Winnebago moved for a directed verdict, which was denied. The jury found Winnebago to be forty (40) percent at fault; Reliable to be thirty (30) percent at fault; and Bernard Seither and AIU to be thirty (30) percent at fault. They awarded actual damages totaling $1,182,000.00 and rejected plaintiffs’ claims for punitive damages. Plaintiffs settled with Bernard Seither post-trial. All new trial motions were denied. All parties subsequently appealed.

| ASSIGNMENTS OF ERROR BY WINNEBAGO INDUSTRIES

1. The trial court abused its discretion in failing to grant a motion for directed verdict on the design defect claim because a valid alternative design had not been established under the Louisiana Products Liability Act (“LPLA”). Thereafter, the jury was clearly wrong in finding a design defect without the proof required by law.

A motion for directed verdict is a procedural device available in jury trials with the intended purpose of promoting judicial economy. Reed v. Columbia/HCA Information Systems, Inc., 2000-1884 (La.App. 5 Cir. 4/11/01), 786 So.2d 142. Courts have noted that it is appropriately utilized where the evidence overwhelmingly points to one conclusion. Hebert v. BellSouth Telecommunications, Inc., 01 0223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614. The trial court has discretion in deciding whether to grant or deny the motion for directed verdict. Brockman v. Salt Lake Farm Partnership, 33,938 (La.App. 2 Cir. 10/04/00), 768 So.2d 836. However, a motion for directed verdict should be granted when, after considering all evidentiary inferences in the light most favorable to the mover’s opponent, it is clear that the facts and inferences are overwhelmingly in favor of the moving party, and reasonable men could not arrive at a contrary verdict. Burris v. Wal-Mart Stores, Inc., 94-921 (La.App. 1 Cir. 3/3/95), 652 So.2d 558. Only if there is substantial evidence “of such quality and weight that reasonable and fair-minded jurors in exercise of their impartial judgment might reach different conclusions” should a motion for directed verdict 14be properly denied. Cross v. Cutter Biological Div. Of Miles, Inc., 94-1477 (La.App. 4 Cir. 5/29/96), 676 So.2d 131. On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Lott v. Lebon, 96-1328 (La.App. 4 Cir. 1/15/97), 687 So.2d 612.

La. R.S. 9:2800.54 creates an exclusive remedy against manufacturers for damages “proximately caused by a characteristic of the product that renders the product unreasonably dangerous ...” Simon v. American Crescent Elevator Co., 99-2058, p. 3 (La.App. 4 Cir. 4/26/00), 767 So.2d 64, 68. A product can be unreasonably dangerous in design or because an adequate warning about the product has not been provided. La. R.S. 9:2800.54. The plaintiff bears the factual burden of proving each and every element. La. R.S. 9:2800.54(D).

Design defect claims are subject to Section 2800.56 of the Louisiana Products Liability Act (“LPLA”), which provides:

... a product is unreasonably dangerous in design if, at the time the product left its manufacturer’s control:
(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and
(2) The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

Under this statute, a plaintiff claiming a product is unreasonably dangerous in design must establish that a feasible alternative design existed at the time the product left the manufacturer’s control that would have prevented the plaintiffs ^injury and that the risk avoided by the alternative design outweighed the burden of its adoption. See, e.g., Morgan v. Gaylord Container Corp., 30 F.3d 586, 590 (5th Cir.1994). A product is not unreasonably dangerous in design where the evidence shows that the product can be safely used if the instructions in the operations manual are followed. Delphen v. DOTD, 94-1261, p. 8-9 (La.App. 4th Cir.5/24/95), 657 So.2d 328, 334, writ denied, 95-2116, 95-2124 (La.11/17/95), 663 So.2d 716, 717.

Plaintiffs’ automotive design expert at trial was John Stilson. Mr. Stilson’s thesis centered upon the complaint of the RV’s crashworthiness. Mr. Stilson determined that the only appropriate alternative design was to “stretch the front end of this vehicle out.” Initially, Mr. Stilson considered a minivan with unibody construction as a model or basis for his alternative design. After a crash test performed by Winnebago before trial established that the occupants of his minivan concept would be killed in a collision with the allegedly defective Winnebago, Mr. Stilson proposed another alternative design: the Dodge Ram van.

At trial, he presented a mock-up of a Dodge Ram van. However, his design criteria were not outlined, there were no engineering drawings produced, he did not establish any dimensions, and he had done no analysis or testing. To further invalidate his theory, Mr. Stilson’s analysis of the economic feasibility of his proposed alternative did not have a material quote or manufacturing labor factor. Mr. Stilson testified on cross-examination that he did not calculate or measure the amount of intrusion that would have occurred even with his supposed design, thus defeating a claim that the alternative design would have prevented plaintiffs’ injuries. The record is devoid of any technical drawings, calculations, scientific study, photographs, or the publication of any engineering principles as to this | ^proposed alternative design. Further, the National Highway Traffic Safety Administration (“NHTSA”) tested the crashworthiness of the same model Dodge Ram van in a frontal barrier crash test. Stilson admitted on cross-examination that his proposed second alternative design had failed federal standards for crashworthiness and occupant protection.

At trial, Mr. Joseph Kuefler testified as Winnebago’s expert in recreational vehicle engineering. He found that Mr. Stilson’s design alternative added significant weight to the RV, and there was no chassis on the market that could support the weight. Thus, had Stilson actually reduced his speculative concepts to writing, the weight additions would have made its manufacture impossible.

We find that there was no valid alternative design presented. Mr. Stilson presented merely a concept that was untested, unengineered, and not presented to the jury in any fashion more than mere speculation. In fact, the Dodge van theory or concept represented by Mr. Stilson was shown to be invalid and incapable of passing required federal tests. Furthermore, plaintiffs failed to present a risk/utility analysis of the proposed alternative design. Since there was no valid evidence concerning one of plaintiffs’ essential elements of the claim, a viable alternative design, we find that the trial judge abused his discretion in failing to grant the directed verdict as to this issue. This assignment of error has merit.

2. The trial court abused its discretion in failing to grant a motion for directed verdict on the warnings claim because no expert testimony or specific proposed alternative warning was presented. Thereafter, the jury was clearly wrong in finding a warnings defect without the proof required by law.

Section 2800.57 of the LPLA provides:

|7A. A product is unreasonably dangerous because an.adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not require to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
(2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.
C. A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

In considering whether a warning in an instruction manual is inadequate because it should have been placed on the product itself, a court must consider the nature and severity of danger to be warned against, likelihood that the product will be used by persons who have not read the manual, practicality and effectiveness of placing the warning on the product itself, and any other relevant factors. See Black v. Gorman-Rupp, 94—1494, p. 7 (La.App. 4th Cir.5/16/95), 655 So.2d 717, 723; see also Bloxom v. Bloxom, 512 So.2d 839, 844 (La.1987). A manufacturer’s duty to warn does not include warnings concerning dangers that are or should be obvious to the ordinary user. See Delphen, supra, at p. 9, 334. A plaintiff must present evidence of an adequate warning which if provided “would lead an ordinary reasonable user or handler of a product to contemplate the danger in using |Ror handling the product in such a manner as to avoid the danger for which the claim was made.” La. R.S. 9:2800.53(9).

At trial, plaintiffs presented no evidence on any of the components of an inadequate warning claim. Plaintiffs did not present expert testimony concerning warnings, nor did they present any language of a proposed adequate warning. Indeed, the only possible warning could have been not to crash the vehicle into a tree. Because plaintiff failed to present any evidence on a warning claim, the trial judge abused his discretion in failing to render the directed verdict. This assignment of error has merit.

Because we find that Winnebago’s first two assignments of error have merit, their remaining assignments of error are moot, and we need not consider them.

ASSIGNMENTS OF ERROR BY MARY SEITHER

1. The damage award of $250,000 to Mark Seither was so low as to constitute an abuse of the factfinder’s wide discretion.

Since we have reversed the finding of liability as to Winnebago, and the remaining parties cast in judgment have already settled with plaintiffs, we need not consider this assignment of error.

2. The plaintiff is entitled to a new trial on the issue of punitive damages, as a remedy for Winnebago’s improper concealment of the Calspan crash tests.

Through the application of Alabama law, the issue of punitive damages was presented to the jury. The jury rejected punitive damages. Without citing to any violated foundational rulings, appellees now suggest that this court should essentially impose sanctions on appellants by ordering a new trial on the issue of punitive damages “to ensure that Winnebago does not profit from [their] |amisconduct.” There is no legal support for appellees’ contention. This assignment of error is without merit.

3. Winnebago should be held responsible for the fault of Reliable. The evidence proved that every defect in the unit reported to Reliable was also reported to Winnebago. Winnebago was in a superior position to correct all defects in the unit, but instead approved of and ratified Reliable’s resale of the unit to Mr. Seither, under the representation that the vehicle was in excellent condition. Thus, The fault assigned to Reliable, 30%, should flow through to Winnebago.

Plaintiffs cite no law in support of their argument. We find no reason in law or equity to hold Winnebago responsible for Reliable’s liability. We also note that plaintiffs settled with Rehable during trial and have thus already received compensation from them. This assignment of error is without merit.

4. The trial court erred in refusing to admit the 1976 Winnebago rollover test.

The trial court’s ruling on the relevancy of the evidence and whether the probative value of the evidence is substantially outweighed by its prejudicial effect will not be disturbed on review, absent an abuse of discretion. Lacy v. ABC Insurance Co., 97-1182 (La.App. 4 Cir. 4/1/98), 712 So.2d 189. For evidence of prior, similar accidents to be probative, the person presenting such evidence must demonstrate that the accidents were substantially similar to the occurrence in question. Bailey v. Oliver, 504 So.2d 152.

The test at issue depicted a dissimilar experimental Winnebago motor home being induced to roll over upon being sent up a ramp when turning left. The present case involves the impact of a Winnebago into a tree. We find no abuse of | indiscretion in the trial court’s exclusion of this test, given the lack of similarity to the facts and circumstances of this case.

ASSIGNMENTS OF ERROR BY AIU INSURANCE COMPANY

1. The trial court erred in not applying Alabama law to the issue of liability of Bernard Seither and in not dismissing AIU.

On February 10, 2000, AIU filed a Motion for Partial Judgment and/or Declaratory Judgment praying that Alabama law, including the Alabama guest statute, be applied. The motion was denied, and AIU took a supervisory writ to this court. On July 18, 2001, this court granted the •writ, but denied any relief, stating, “The trial court correctly determined that Louisiana law should apply to the issues of liability [and] affirmative defenses.” AIU filed a supervisory writ with the Louisiana Supreme Court. On July 27, 2001, the Louisiana Supreme Court denied the writ.

We find no reason to reverse the earlier judgment of this court. This assignment of error lacks merit. Because we find that Winnebago’s assignments of error have merit, AIU’s remaining assignments of error are moot, and we need not consider them.

ASSIGNMENT OF ERROR BY NORMAN PENTON

1. The trial court erred in denying Penton’s Motion for La.C.C.P. art. 863 Sanctions against Mary Seither’s attorney, George Healy.

La. C.C.P. art. 863 pertains to the Signing of Pleadings. It provides, in pertinent part:

InB.[T]he signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well-grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Appellant was hired by Healy to photograph and enlarge court exhibits. Penton asserts that Healy filed a Motion to Determine Photographic Costs to “harass and to bludgeon” Penton into compromising his outstanding account for photographic services. The record is devoid of any evidence that would support appellant’s claim. This assignment of error is meritless.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

JONES, J., concurs with reasons.

11 JONES, J.,

concurs with reasons.

I reluctantly concur with the majority. The Louisiana Products Liability Act is specific that there must be a demonstration of the existence of “an alternative design for the product that was capable of preventing the claimant’s damage ...” La. R.S. 9:2800.56(1). It appears from the record that the Seither’s failed to present expert testimony regarding an alternative design. There is no question that the passenger compartment of the Winnebago should not have collapsed the way that it did. However, I am bound by law to rule in this manner.

      . Bernard Seither's insurer, AIU, has settled with plaintiff but has maintained the appeal because of a continuing dispute with Winnebago over allocation of damages.


author: hCHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. David W. WILLIAMS.
    No. 2003-KA-0682.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 2003.

      Eddie J. Jordan, Jr., District Attorney, Kristen Keller, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES and Judge TERRI F. LOVE).
   hCHARLES R. JONES, Judge.

David W. Williams appeals his conviction and sentence for possession of heroin, a violation of La. R.S. 40:966(C). We affirm.

On June 21, 2002, the State filed a bill of information charging Williams with a violation of La. R.S. 40:966(C). Later that same month Williams entered a plea of not guilty. After a motion hearing the district court found probable cause to bind Williams over for trial and denied his Motion to Suppress the Evidence. After being advised of his right to a jury trial, Williams elected for a bench trial. On October 16th, 2002, Williams was found guilty of the responsive verdict of attempted possession of heroin. That same day, the State filed a multiple bill charging Williams as a third felony offender under La. R.S. 15:529.1, and, after being advised of his Boykin rights, he pleaded guilty to the bill and was sentenced to serve forty months at hard labor. The district court recommended that Williams be placed in the Blue Waters Program. This timely appeal follows.

At trial Officers Penelope Young and Martin Holloway testified that about 8:55 p.m. on June 1, 2002, they were patrolling on Jackson Avenue for stolen vehicles when they saw Williams at the corner of Jackson Avenue and St. Thomas Street. He appeared to be very nervous; he was “almost shaking” and looking back Lover his shoulder continually. As they approached him, they observed him drop something to the sidewalk. The officers decided to investigate because Williams’ behavior was so bizarre they suspected he might need medical attention. Officer Holloway went to Williams, and Officer Young picked up the small white jar that had been discarded. Within it, she found a napkin holding eight foils of what appeared to her to be heroin. As Officer Holloway was putting handcuffs on Williams, someone began firing a high-caliber weapon at them. The officers told everyone on the street to get down. Officer Young had stopped a very young man just prior to the shooting. Williams and the young man were put into a police car for safety at that time. When the shooting stopped, the young man was released.

Criminalist Bill Giblin, an expert in identification and analysis of controlled dangerous substances, testified that he tested the substances found in four of the eight foils retrieved from the small jar. The substances proved to be heroin.

Verdell Comeaux, Williams’ mother, testified that her son lived with her at the time he was arrested and that she knew he did not have enough money to purchase eight foils of heroin. He was not working and he received no money from the State.

In a single assignment of error, Williams argues that the evidence is insufficient to support the conviction for attempted possession of heroin.

This court, in considering a similar situation in State v. Brent, 2000-0072, pp 8-9 (La.App. 4 Cir. 11/29/00), 775 So.2d 565, 570 set out the following standard:

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).
lain addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438. LSA-R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentia-ry guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, supra.
LSA-R.S. 40:966(C) makes it unlawful for any person to knowingly or intentionally possess heroin, a controlled dangerous substance classified in Schedule I. To prove a defendant attempted to possess a controlled dangerous drug, the State must prove that the defendant committed an act tending directly toward the accomplishment of his intent, i.e. possession of the drugs. State v. Chambers, 563 So.2d 579 (La.App. 4 Cir.1990). The State need not prove that the defendant was in actual possession of the narcotics found; constructive possession is sufficient to support the conviction. See State v. Trahan, 425 So.2d 1222, 1226 (La.1983); see also State v. Cann, 319 So.2d 396, 397 (La.1975). The mere presence of a defendant in the area where the narcotics were found is insufficient to prove constructive possession. See State v. Collins, 584 So.2d 356, 360 (La.App. 4 Cir.1991); see also Cann, supra at 397.

Williams makes three arguments as to the insufficiency of the evidence. First, he contends that a possibility exists that he did not possess the jar in which the heroin was contained; many people were on the street and the jar could have belonged to someone else. However, both officers saw Williams acting in a very nervous manner and then, on seeing the officers, drop the canister. Thus, there appears to be no possibility that he did not possess the jar.

He next contends that his nervousness was due to his knowledge that the shooting was about to occur and not to his fear of the police officers. He also claims to have been cooperative when he was stopped. We find nothing in the record to support this claim of expectation of gunfire, and it does not exculpate Williams from the charge of possession of heroin. Furthermore, Williams could |4not run from the officers for physical reasons; he has lost a leg and wears a prosthesis.

In his third argument, Williams maintains that no evidence indicates that he had knowledge of the heroin. He contends that even if he had possession of the jar he was not aware of its contents. Williams cites State v. Postell, 98-0503 (La.App. 4 Cir. 4/22/99), 735 So.2d 782, in support of his argument. In Postell this Court overturned the defendant’s conviction for possession of cocaine residue in a crack pipe after finding the evidence of guilty knowledge insufficient. Although the pipe tested positive for cocaine, there was no physical residue visible when the pipe was found. The defendant was initially charged with having drug paraphernalia, and only after the pipe proved to have a small cocaine residue was he charged with possession of cocaine. Additionally, the defendant exhibited no furtive behavior on seeing the arresting officer. Thus, in Pos-tell this Court determined that guilty knowledge could not be gleaned from the facts given the very small amount of cocaine residue in the pipe and the absence of furtive behavior on the defendant’s part.

Postell can be distinguished from the case at bar, however. Williams was in possession of eight foils of heroin. This Court has held that the amount of the substance seized has some bearing on the defendant’s guilty knowledge. State v. Monette, 99-1870 (La.App. 4 Cir. 3/22/00), 758 So.2d, 362, 365; State v. Postell, supra at, 785. In the case at bar, guilty knowledge can be inferred from the amount of contraband possessed by Williams. Furthermore, Williams exhibited such furtive behavior that the officers initially thought he might be ill. This circumstantial evidence corroborates the solid evidence that Williams knowingly and intentionally possessed the heroin.

IfiFor the reasons stated herein, the conviction and sentence of David W. Williams are affirmed.

AFFIRMED.


author: hMAX N. TOBIAS, JR., Judge.

text:
    James HOTARD, Jr. d/b/a 3839 Ulloa, Inc. v. Vincio BUEZO d/b/a Colorado Environmental Labor Brokers, Inc. d/b/a Colorado Environmental Training Institute.
    No. 2003-CA-0563.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 2003.

      Vallerie Oxner, Metairie, LA, for Plaintiff/Appellee.
    Kurt C. Garcia Ansardi, Maxwell & Power, Kenner, LA, for DefendanVAppel-lant.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge MAX N. TOBIAS, JR.)
   hMAX N. TOBIAS, JR., Judge.

By written contract of lease dated 5 March 2001, KENDA, Ltd. leased the premises at “3887 Ulloa Street, First Floor Annex, Suite 100, 1,316 usable square feet, New Orleans, LA 70119,” to “Colorado Environmental Labor Brokers, Inc., d/b/a Colorado Environmental Training Institute.” The lease provided that the appellant would pay rent of $1,248.46 per month due on the first day of each month. The premises in question were subsequently transferred to 3839 Ulloa Street, L.L.C. by KENDA, Ltd. The appellant failed to pay the rent for the month |2that commenced on 1 December 2002, and the appellee initiated eviction proceedings on 18 December 2002. The appellant was cited to show cause on 6 January 2003 why it should not be evicted from the premises. At the trial of the rule held on 6 January 2003, Jose Buezo appeared on behalf of the appellant. He admitted that the appellant had not timely paid the December 2002 rent at the time the rule for possession was filed. Mr. Buezo stated that the appellant had subsequently sent the appellee a check for the rent on 23 December 2002, but the appellee declined to accept the payment. Mr. Buezo argued at the hearing that the appellant had been late with its rent payments because the appellee had failed to make repairs that had been requested. The trial court rendered judgment in the appellee’s favor and ordered the appellant to vacate the premises.

On appeal, the appellant contends that the trial court refused to allow it to introduce evidence in support of its claims that (1) the appellee did not properly notify them of the eviction in accordance with the lease agreement; (2) the appellee refused to accept the December 2002 rental payment; (3) the appellee agreed that the appellant could withhold $86.97 from the November 2002 rental payment; and (4) the appellee failed to maintain and repair the rental property after being notified by the appellant of the need for repairs. The appellant’s sole argument in its in globo discussion of these four assignments of error is directed at having the trial court’s judgment vacated and the matter remanded to allow the appellant to introduce evidence concerning these claims. The record before us fails to demonstrate that the appellant attempted to introduce evidence on these four matters at the 6 January 2003 hearing and was not permitted to do so.

In Duncan v. State, Dept. of Transp. and Dev., 615 So.2d 305, 312 (La.1993), the Louisiana Supreme Court stated that “although a case may be remanded for introduction of additional evidence, this power must be exercised sparingly, limited to cases wherein the evidence was unobtainable with due diligence for the first trial and the record reflects that the new evidence is likely to affect the outcome of the case.” In the case at bar, no indication is present that the alleged evidence that the appellant seeks to introduce on a remand was unobtainable prior to the hearing on 6 January 2003. In fact, the appellant does not state what evidence it is that it would introduce at a new hearing. The appellant acknowledged that counsel represented it at the time of the hearing of the rule on 6 January 2003, but its counsel did not believe it was necessary for him to appear at the hearing. The trial transcript reveals that the trial court permitted the appellant to introduce evidence of the various disputes with the appellee, including the late rental payment and the repairs to the rental property. The record before us does not demonstrate that the evidence was introduced.

The appellate record indicates that the lease agreement provided for a monthly rental of $1,248.46 due on the first of each month. The appellant acknowledged that it did not timely make its December 2002 rental payment and had not paid the rent at the time the rule for eviction was filed on 18 December 2002. The appellant’s failure to pay the December 2002 rent was sufficient cause to grant judgment for the appellee on the rule for possession and order the appellant to vacate the premises. Based upon the record before us, we find no error in the ruling of the trial court considering the evidence that the trial court heard on 6 January 2003.

^Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . We note from a review of the Louisiana public records, but not in the record on appeal, that the correct name for Colorado Environmental Labor Brokers, Inc. is Colorado Environmental Labor Brokers Services, Inc. and that another corporation, Colorado Environmental Training Institute, Inc., exists. The record before us does not reflect whether or not at the time of the execution of the contract of lease that Colorado Environmental Labor Brokers Services, Inc. was doing business as Colorado Environmental Training Institute. We assume that Colorado Environmental Labor Brokers, Inc. is Colorado Environmental Labor Brokers Services, Inc. Hereinafter, Colorado Environmental Labor Brokers Services, Inc. will be referred to as "appellant.”
      Further, the public records, but not the record on appeal, reflect that Vinicio Buezo is a director of both corporate entities and that he is the registered agent of Colorado Environmental Labor Brokers Services, Inc. Jose Buezo, Jr. is a director of both corporations and the registered agent for Colorado Environmental Training Institute, Inc. We note that the caption of this case misspells Mr. Buezo's first name.

      . The record before us contains no specific evidence that KENDA, Ltd. transferred the premises to 3839 Ulloa Street, L.L.C. The eviction proceedings in this case were commenced by "3839 Ulloa, Inc.” and the rule for possession was signed by James S. Hotard, Jr. without any indication as to his capacity on behalf of the entity. The public records indicate no corporation by the name of "3839 Ulloa, Inc.”; however, the public records reflect a limited liability company by the name of 3839 Ulloa Street, L.L.C. of which James S. Hotard, Jr. was the organizer, is a member, and is the registered agent. Mr. Hotard is presumed to be the agent for the owner of the leased premises, and the appellant does not assert a lack of capacity of Mr. Hotard to act for the owner of the premises. We assume that 3839 Ulloa Street, L.L.C. is doing business as "3839 Ulloa, Inc.” and that they are one and the same. The appellant has not raised the issue of a right of action of the appellee to proceed in this cause by means of an exception of no right of action.