author: | .PETERS, J. hAMY, J.,

text:
    Norrene McCALL v. WAL-MART STORES, INC.
    No. 02-1343.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Rehearing Denied April 16, 2003.

      Robert L. Beck, Jr., Rivers, Beck, Dal-rymple and Ledet, Alexandria, LA, for Plaintiff/Appellee, Norrene McCall.
    Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Wal-Mart Stores, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   | .PETERS, J.

In this workers’ compensation case, Wal-Mart Stores, Inc. (Wal-Mart) opposed the payment of benefits to its former employee, Norrene McCall, on the basis that she did not sustain an accident within the meaning of La.R.S. 23:1021(1). From an adverse judgment awarding indemnity and medical benefits as well as penalties and attorney fees, Wal-Mart now appeals. For the following reasons, we reverse in part and affirm in part.

DISCUSSION OF THE RECORD

Ms. McCall, whom Wal-Mart employed as a cashier, asserts that she sustained an injury to her back on July 21, 2001, while in the course and scope of her employment. She testified that upon arriving at work at 9:00 a.m. on July 21 she was not experiencing any discomfort or pain in her back and that she had not ever previously experienced discomfort or pain in her back.

According to Ms. McCall, during the course of the day, her back began feeling “tired.” At some point during the day, she asked to be assigned to the express checkout fine instead of the regular checkout line, in which she had been working, because her back was “tired.” Ms. McCall testified that at about 5:00 p.m, while working the express checkout line, she suddenly experienced pain in her “side back” while she was “[j]ust ringing out the customers.” She recalled the exact time she experienced the pain because she looked at her watch at that moment to see how much longer she had to work on her shift. However, Ms. McCall was unable to identify the precise movement of her body or the specific item of merchandise she was lifting at the time she first felt the pain. She completed her shift and left work at 6:00 p.m.

Ms. McCall first sought medical treatment that same evening when she went lato a local emergency room where she was diagnosed with back pain, left flank pain, and radiculopathy and prescribed various medications. Thereafter, Ms. McCall saw various physicians, including Dr. Gerald J. Leglue, Jr., an Alexandria, Louisiana phy-siatrist and her treating physician. Dr. Leglue ultimately diagnosed her as having acute piriformis strain, lumbar facet joint sprain, degenerative disc disease of the lumbar spine, and degenerative joint disease of the lumbar spine. __ jr w' ~

Other than one $68.00'medical bill for services rendered five days after the initial onset of symptoms, Wal-Mart refused to pay any indemnity or medical benefits. Wal-Mart refused benefits based on its contention that Ms. McCall had not suffered a work accident as defined by La. R.S. 23:1021(1). Because of Wal-Mart’s refusal to pay benefits, Ms. McCall filed the instant claim for benefits, penalties, and attorney fees.

Following a hearing on the merits, the workers’ compensation judge (WCJ) ordered Wal-Mart to pay Ms. McCall temporary total disability benefits from July 22, 2001 to August 5, 2002, and thereafter to pay her supplemental earnings benefits on a zero-base earning capacity. Additionally, the WCJ ordered Wal-Mart to pay various medical expenses, penalties of $2,000.00 for nonpayment of indemnity benefits, penalties of $2,000.00 for nonpayment of medical benefits, and $8,000.00 in attorney fees.

Wal-Mart has appealed that judgment, contending that the WCJ erred (1) in finding that Ms. McCall satisfied the definition of an “accident” as set forth in La.R.S. 23:1021(1), (2) in disregarding La.R.S. 23:1317 by holding that Ms. McCall established a compensable disability in light of the lack of objective findings, (3) in holding that the claim was not reasonably controverted, and (4) in holding that the | .-.medical expenses must be pakL^sfithout reference to the Louisiana Fee" Schedule. Additionally, Ms. McCall ^as: answered the appeal, requesting attorney fees for work done on appeal.

OPINION

Accident

./Louisiana Revised Statutes 23:10; T0,í) provides:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

Wal-Mart contends that the WCJ erred in finding that an “accident” occurred where the evidence established only that there was a progressive degeneration and not that there was a sudden, actual, identifiable, precipitous event. “[Cjredibility calls are the function of the trial court.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 364 (La.1992).

Ms. McCall testified that, at the time of the onset of pain, she was working at the express checkout line “[j]ust ringing out the customers” on the general merchandise side of the store, which was configured so that the merchandise would be transferred from her left to her right and then placed into the customer’s buggy. While she could not identify a specific movement she was making or item of merchandise she was handling at that time, Dr. Leglue testified that his findings of tenderness in the piriformis muscle and the iliolumbar ligament were consistent with Ms. McCall’s subjective description to him of left-sided pain and that the “pirifor-mis and the iliolumbar are specifically a traumatic injury.” Additionally, the doctor stated:

|4[T]he piriformis and the iliolumbar problem is a rotation and flexion injury. I can tell you what she did, whether she knows it or not. Somewhere along the way in her movement, she went off to the right and bent forward, and it’s unacceptable mechanically.... The fact she hurt the left side very specifically, I know for a fact that she had to have gone off to the right and bent forward. It’s a very common mechanism of injury.

On the other hand, Dr. Gregory Gidman, a Lafayette, Louisiana orthopedist who examined Ms. McCall on one occasion, gave the following opinion:

This lady, in my opinion, is 64 years old, has a job requiring constant standing, bending and lifting activities as a Cashier at Wal-Mart. I think her symptoms are easily explained by her age and the constant standing, lifting and bending she does all day long at her job. I don’t think there is any particular injury or any particular activity that caused her symptoms. I think it was accumulation of the chronic standing and the physical activities with her job. Her symptoms, in my opinion, are not related to any one particular bending activity either to the right or leg [sic]. I think it’s just an accumulation of all of her job activities that is [sic] required and the fact that she is 64 years of age.

We note that “[t]he testimony of a claimant’s treating physician should be afforded more weight than that of an examining physician, since the treating physician is more likely to know the patient’s symptoms and complaints due to repeated examinations and sustained observations.” George v. Guillory, 00-0591, p. 10 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1207. The WCJ apparently chose to give more weight to the testimony of the treating physician, Dr. Leglue.

Accordingly, based on the testimony of Ms. McCall and Dr. Leglue, we find no error in the WCJ’s determination that Ms. McCall proved the occurrence of a sudden, actual, identifiable, precipitous event. The duties and motion having been identified through the testimony of both Ms. McCall and Dr. Leglue, it is immaterial that Ms. McCall could not identify the exact movement she was making or item she was handling at the time of the sudden onset of pain. Importantly, “[t]he ‘actual, identifiable, precipitous event’ may include a routine movement or task that the | .^employee regularly performs, if the claimant is able to identify with some par-tieularity as to time, place and manner, the objective manifestation of the accidental injury.” Thompson v. Orleans Parish Sch. Bd., 00-1230, p. 3 (La.App. 4 Cir. 3/21/01), 786 So.2d 128, 130. Further, “[ajlthough the definition of accident was amended to emphasize that the identifiable, precipitous event must be more than a gradual deterioration or progressive degeneration, jurisprudence holds that these terms do not exclude those instances where a worker can establish a work-related event, which may seem to be a customary or routine work activity, which results in an injury to the employee.” Richard v. Workover & Completion, 00-794, p. 4 (La. App. 3 Cir. 12/6/00), 774 So.2d 361, 364. Thus, we find no merit in this assignment of error and affirm the finding that an “accident” occurred within the meaning of La.R.S. 23:1021(1).

Compensable Disability

Wal-Mart also contends that the WCJ erred in holding that Ms. McCall established a compensable disability where there were no objective findings as required by La.R.S. 23:1317(A). Specifically, Wal-Mart asserts that “[i]n this case, there existed no purely objective findings of injury as the claimant simply complained of pain.” Further, Wal-Mart asserts that “[tjhere were no bruises, red marks or blood or other physical signs of injury.” Thus, Wal-Mart contends that Ms. McCall has not satisfied the requirement of “objectivity.”

Louisiana Revised Statutes 23:1317(A) provides in part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not Lwithin the physical or mental control of the injured employee himself.

(Emphasis added.)

In the instant case, Ms. McCall’s injuries were proven by competent medical evidence. In any event, even disregarding the disjunctive “or” used in La.R.S. 23:1317(A), Dr. Leglue reported objective findings in that when he “challenged” the piriformis muscle “it was clearly tight.” Thus, this assignment of error is without merit.

Penalties and Attorney Fees

Wal-Mart additionally contends that the WCJ erred in awarding penalties and attorney fees. We agree.

In Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, the supreme court stated:

To determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

In the instant case, there was evidence that Ms. McCall had been experiencing prior “back problems” (although she classified this as a tired feeling rather than a feeling of pain), and she could not identify a specific movement or an item that was being moved at the time she felt the pain. Further, this case included credibility determinations, and Wal-Mart was in possession of Dr. Gidman’s medical opinion which reasonably countered Dr. Leglue’s medical opinion. Thus, we reverse the award of penalties and attorney fees. Concomitantly, we reject Ms. McCall’s request for additional attorney fees for work performed on appeal.

\nFee Schedule

Finally, Wal-Mart contends that the WCJ erred in failing to refer to the Louisiana Fee Schedule in awarding medical expenses. Specifically, La.R.S. 23:1034.2(D) provides: “Fees in excess of the reimbursement schedule shall not be recoverable against the employee, employer, or workers’ compensation insurer.” However, pursuant to Uniform Rules— Courts of Appeal, Rule 1-3, “[t]he Courts of Appeal will review only issues which were submitted to the trial court ... unless the interest of justice clearly requires otherwise.” We have not found that the issue was first submitted to the WCJ, and we do not find that the interest of justice clearly requires us to consider it at this late date. Thus, we reject this assignment of error.

DISPOSITION

For the foregoing reasons, we reverse the award of penalties and attorney fees and affirm the judgment in all other respects. We assess costs of this appeal to Wal-Mart Stores, Inc.

REVERSED IN PART AND AFFIRMED IN PART.

AMY, J., dissents in part and assigns written reasons.

hAMY, J.,

dissenting in part.

I respectfully disagree with the majority that an affirmation in part is required. In my opinion, the record fails to support a finding that an “accident” occurred within the definition of that term as provided by La.R.S. 23:1021(1). The statute requires the occurrence of an “identifiable, precipitous event[.]” In the instant matter, the claimant was unable to report the occurrence of such an “event[.]” Rather, her testimony reveals the onset of pain while performing her duties as a cashier. While jurisprudence indicates that an accident can occur while performing the tasks of a routine work-day, the statute still requires that the event be identifiable. In my view, no such identifiable event has been established in this case. Due to my conclusion that a reversal is required as to the occurrence of an accident, the reversal of the award of penalties and attorney’s fees is also required.

Accordingly, I would reverse the determination of the workers’ compensation judge and enter a dismissal of the claim.


source: Caselaw Access Project

author: l i COOKS, Judge.

license: Public Domain

text:
    Mel McDANIEL v. CARENCRO LIONS CLUB, et al.
    No. 02-1244.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2003.
    Writ Denied June 27, 2003.

      Nolan Edwards, E. Byrne Edwards, Lafayette, LA, for Plaintiff/Appellant: Mel McDaniel.
    John W. Penny, Jr., Penny and Hardy, Lafayette, LA, for Defendants/Appellees: Lafayette City-Parish Consolidated Government, Division of Arts and Culture, Carenero Lions Club, Royal Insurance Company of America.
    George J. Armbruster III, Voorhies and Labbe, Lafayette, LA, for Defendani/Ap-pellee: Lafayette City-Parish Consolidated Government, Division of Arts and Culture.
    John S. Thibaut, Jr., Thibaut, Thibaut and Vogt, L.L.P., Baton Rouge, LA, for Defendant/Appellee: John Gullett and/or John Gullett d/b/a Global Telemedia, Inc. and/or John Gullett d/b/a J.G. Enterprises, Inc.
    Court composed of SYLVIA R. COOKS, BILLIE C. WOODARD and BILLY H. EZELL, Judges.
   l i COOKS, Judge.

STATEMENT OF THE CASE

Mel McDaniel sued the Lafayette City-Parish Consolidated Government (the City), the Carencro Lions Club, John Gul-lett and Royal Insurance Company of America for injuries sustained when he fell seven feet from the stage of the Heymann Performing Arts Center onto the concrete floor of the orchestra pit. Trial on the merits was held on June 3, 4, and 5, 2002 before the Honorable Patrick Michot. At the close of plaintiff’s case, the trial court granted Motions for Involuntary Dismissal and Directed Verdict in favor of all defendants, finding Mr. McDaniel was solely at fault in causing the accident. Mr. McDaniel filed this appeal presenting two issues for our review: (1) whether he presented a prima facie case that the uncovered, unlit orchestra pit was an unreasonably dangerous defect and whether the City had actual or constructive knowledge of the defect; (2) whether the trial court erred in prohibiting him from presenting testimony of Fabian Patín, an expert in architecture and lighting. For the reasons assigned below, we reverse the judgment of the trial court.

STATEMENT OF THE FACTS

The relevant facts of this case are not in dispute. The accident occurred during the “Grand Ole Opryland Show,” a fund-raising event hosted by the Carencro Lions Club. The Lions Club received information about Mr. John Gullett, a professional promoter, who had been successful in handling fund-raising events for other charitable organizations. Mr. Gul-lett was contacted by a Lions Club officer and agreed to promote a country music revue. The Lions Club signed a contract with Mr. Gullett and authorized him to take whatever action was necessary on behalf of the Lions Club to promote the event. Mr. Gullett contracted with country music singer/songwriter Mel McDaniel to provide entertainment for the “Grand Ole | «.Opryland Show” and leased the Hey-mann Performing Arts Center from the Lafayette City-Parish Consolidated Government for the evening of November 14, 1996.

The Heymann Performing Arts Center is an auditorium style performing arts theater. Built in 1960, it has a stage elevated four feet from the floor of the auditorium and an orchestra pit, immediately in front of the stage. The floor of the orchestra pit is recessed seven feet below the floor of the stage. A three-foot concrete wall encircles the pit, protecting the audience from the recessed area. The distance from the edge of the stage to the concrete wall, marking the end of the pit, is approximately seven feet. The stage is accessible to the audience by two sets of stairs located on either side. The stairs do not have guard rails.

Prior to renovations in 1987, a row of raised footlights delineated the edge of the stage from the beginning of the orchestra pit. The renovations removed the footlights as unnecessary and added electrical outlets which are flush with the stage floor. At the time Mr. Gullett leased the Heymann Performing Arts Center an orchestra pit cover was available. In fact, the lease agreement signed by Mr. Gullett with the Heymann Performing Arts Center contains the following language:

ORCHESTRA PIT COVER available upon advance request at $100.00.

However, unless the cover was specifically requested by a lessee, the pit remained uncovered and, during performances, a strip of white tape was used to mark the edge of the stage from the seven-foot drop off. Mr. Gullett did not request that the cover be placed on the orchestra pit.

On the evening of November 14, 1996, during Mr. McDaniel’s concert, a technical problem developed with the sound equipment. Mr. McDaniel stopped his performance and began to converse with the audience. He stated he could not see the audience. The auditorium lighting technician turned up the house lights approximately fifty percent. At this point, Mr. McDaniel, as was his custom, decided Uto hand out guitar picks and bandanas to members of the audience and began to walk forward, toward the audience and the orchestra pit. As Mr. McDaniel walked toward the open orchestra pit, “the follow spot technician” swung the spotlight back on Mr. McDaniel in an attempt to warn him of impending danger. Someone else shouted out a warning. It was too late. A stunned audience watched Mr. McDaniel fall seven feet from the stage of the 'Hey-mann Performing Arts Center onto the concrete floor of the uncovered orchestra pit. It is clear from the video tape Mr. McDaniel was completely unaware of the drop off. His stride toward the pit was unbroken and he walked, without hesitation, off the stage into the orchestra pit. An ambulance was called and Mr. McDaniel was rushed to Lafayette General Hospital where it was determined he sustained severe injuries to his back, neck, head, shoulder, arms and knees. The record indicates he has incurred considerable medical expenses as a result of the accident.

Mr. McDaniel’s fall into the uncovered pit was not the first at the Heymann Performing Arts Center. From 1983 to 1998 there were nine reported accidents involving persons falling into the open orchestra pit. The first reported accident occurred on May 26, 1983 when a gentleman was ascending the stairs to the stage, lost his balance, fell into the orchestra pit and died. Since 1983, approximately every eighteen months, an individual is injured from a fall into the uncovered orchestra pit. The victims include patrons, performers and City employees and the accidents occur in different ways. Some individuals fall from the unguarded stairs; some are auditorium technicians who inadvertently back into the pit; some are local performers who misjudge the edge of the stage during a performance. The accidents at the Heymann Performing Arts Center involving the orchestra pit were no secret. City officials clearly recognized the hazard presented by the uncovered orchestra pit and its potential liability to individuals injured as a result of falling into the pit. The | ¿City’s knowledge of the risk was evidenced in several documents, the first of which is titled “City of Lafayette Internal Safety Audit Memorandum” dated August 21, 1989 from Pat Roy, Risk Manage-menVSafety to Frank Bradshaw. The memorandum provides:

Prior to renovations and reopening of Heymann Center in January 1989, there have been four accidents with individuals falling into orchestra pit. One was a private citizen, and this accident resulted in death of individual. The other three accidents involved City employees — one of which turned into a workman’s comp case, and the other two being somewhat minor in nature.
Since the auditorium reopening at beginning of 1989, there have been two separate cases of individuals falling into orchestra pit. Both cases involved private citizens, a nine-year old boy and a twenty-year old girl. Individuals’ injuries were injured right forearm and sprained left wrist. Both of these cases have been closed.
From the auditorium’s very beginning in 1960 until now, there has never been a reported, injury of any member .of a professional performing or theatrical group falling into orchestra pit. One would, therefore, begin to conclude that the professional entertainer is always conscious of where the edge of a stage is and always aware of an existing orchestra pit.
But since the auditorium in Lafayette is also used by local people for such things as dance reviews, Mardi Gras pageants, etc., what can we do to reduce our liabilities with the non-professional using the stage area.
Referring to the attached photographs, areas of concern are top three stairs leading onto stage and the edge of the stage itself. A fall from these areas is about a seven-foot drop to the bottom of the orchestra pit. In the front of the orchestra pit is a short wall, or “people barrier”. Quite obviously, a rail protector or barrier can’t be installed on pit side of top stair steps, nor on stage edge because of obstruction of audience viewing.
The following choices offered for your consideration when orchestra pit is not being used, maintain a safety factor consistency but vary in extremes of aesthetic values:
Choice # 1 — Plain and simple catch netting attached to hooks mounted along inside periphery of orchestra pit. Netting is of type used in aerial performances such as high wire walking and trapeze acts.
Advantage — Economical
| ¿Disadvantage — Negative aesthetic value.
Choice #2 — Placement of large Styrofoam filled bags on orchestra pit bottom. These are type of bags utilized in catch pits for pole vaulters and high jumpers infield-track events. Advantage — Economical
Disadvantage — Zero aesthetic value.
Choice # 3-Placement of sectional, portable, flooring onto portable support structure similar to scaffolding. Height of portable floor top in orchestra pit could be designed to be slightly less than top of “people barrier” in front of orchestra pit.
Advantage — Lessened erosion of aesthetic value of auditorium stage area.
Disadvantage — Considerable time and labor expenses incurred during set-up and take-down of portable, elevated pit flooring and portable support structures.
Choice #1 — Permanent installation of hydraulic operated orchestra pit floor which could be brought to desired floor height by energizing an automated system.
Advantage — Total aesthetic enhancement of auditorium stage area, the increased achievement of theatrical effectualness, additional positive selling feature when attempting to attract national and international theatrical groups.
Disadvantage — Cost
Again, Frank, we are emphasizing the local, non-professional performer using the stage and ascending to/descending from stage that we must protect. For instance, had the local nine year-old boy, as described earlier, experienced permanent disability or even death from the fall into the pit. .... can you imagine the financial cost to the City!! You have a tough call to make. I, personally, would, recommend Choice # 4,— hydraulic operated floor. As you described to me, the room for control panel, pre-run conduit and anticipated electrical circuits in main distribution panel were all done back during the initial design and construction of the auditorium. Some person or some group of people had vision back “when” and planned for the day when a raise-lower orchestra pit floor would be installed.

The City opted to build a portable wooden structure which could be placed | f;over the orchestra pit and removed when the space was needed. The minutes of the Community Development Departmental Safety Meeting held October 8, 1989 reflected the following discussion under New Business:

An update was given by Blane Toce on the construction of a portable wooden deck to enclose the orchestra pit at the Heymann Performing Arts and Convention Center to prevent possible accidents during performances.

An Internal Memorandum dated September 10, 1991 from Frank Bradshaw to Phil Lank regarding the Five-Year Capital Outlay Program for the Heymann Performing Arts center includes a cost estimate for a hydraulic orchestra pit cover. The Memorandum provides:

ORCHESTRA LIFT
This proposition was in the original 1988-89 renovation project as an odd-alternate; but, it was not accepted. The facility’s user groups still [feel], the installation of an orchestra lift will make the HP ACC multi-functional by:
* Providing an extension or cover over the orchestra pit. Virtually every act that has played this house since it reopened has requested a pit cover or extension in order to play the audience more intimately.
* Providing additional seating in the pit. Depending on the act and the arrangements, 75 more seats could be added; thus, making the building more attractive and marketable to promoters.
* Properly framing the orchestra when in the pit by elevating the floor when needed, coupled with a modification of the pit, necessitated by the lift installation, the orchestra could perform its function without the feeling of “playing in a hole”.
Another feature this cover/lift could provide to the complex is to cover the orchestra pit when not needed. This would be a tremendous safety feature for the building as pointed out in a recent Risk Management inspection report. (Risk Management Safety Audit attached)
For more detail, I have attached the scope of work detail with cost estimations as prepared by Wayne Come of Come, Sellers and Associates.
|^ESTIMATED COST: $m, 815.00

Considering the cost of the hydraulic lift cover, the portable wooden orchestra pit cover appeared a reasonable option for the City. It is clear from the correspondence the City safety supervisor intended that the pit remain covered when not in use. However, the City decided to charge every lessee one hundred dollars to place the cover on the open orchestra pit. Additionally, the request for the pit cover had to be made in advance of the event to insure that auditorium staff would be available to install the structure.

ACTION OF THE TRIAL COURT

Mr. McDaniel sued the Lafayette City-Parish Consolidated Government under La.R.S. 9:2800, the Carenero Lions Club and John Gullett under La.Civil Code art. 2317. In accordance with La.R.S. 13:5105, which prohibits jury trials of suits against political subdivisions of the State, the liability issue relating to the City was tried before Judge Michot and the liability of the remaining defendants was tried by a jury.

At the close of plaintiffs case, the trial court granted Motions for Involuntary Dismissal and Directed Verdict in favor of defendants, finding Mr. McDaniel was solely at fault in causing the accident. The trial court reasoned Mr. McDaniel was a professional performer and thereby familiar with the stage; he was delinquent in not performing a sound check prior to his performance, which would have familiarized him with the auditorium arrangement; and he should have been more careful about looking where he was walking. Ruling from the bench, the trial judge stated:

Mr. McDaniel’s own testimony states that he was a performer for some 18 to 20 years, performing on stages.
And also the evidence in the case came out that Mr. McDaniel is the only case that came out in evidence in this case where a musician, a performer, did not participate in the sound check.
And he admitted that he didn’t participate in the sound check as well.
|sAlso, that — he testified that when he was walking out past his monitors that he was not looking at his feet but was looking ahead of him at the audience.
And he was also walking where he couldn’t see obviously which is — those are three basic problems that he’s got.
You try to walk where you can’t see— and that’s common basic sense. And that the due care that individuals have to exercise when they’re walking to protect themselves is to not walk where they don’t see; don’t put their feet where they can’t see.
It’s sort of the — a similar premise of you don’t dive into the pond without going and checking and making sure that it’s deep enough.
You walk out where you can’t see, then if something happens you only have yourself to blame basically on this.
And so the Court finds that as far as the City’s liability is concerned it was Mr. McDaniel’s fault, not the City’s, that caused the accident.

Turning to other defendants the judge found even if the orchestra pit had been covered, Mr. McDaniel may have walked out over the pit cover and may have fallen four feet to the floor of the auditorium. He concluded:

So that — the orchestra pit cover wouldn’t have been an ensurer (sic) of safety under these circumstances when he was looking at the audience, not at his feet, and heading in that direction.
So looking at that even in light most favorable to the nonmover (sic) party, the Court will grant the motion as to the City, the — I mean, as to the Lions Club and Gullett and their insurance companies.
Plaintiff will be cast with costs.

LAW AND DISCUSSION

An Involuntary Dismissal at the close of the plaintiffs case is provided for in Louisiana Code of Civil Procedure Article 1672 which states in relevant part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Like a Motion for a Directed Verdict, (La.Code Civ.P.art. 1810), granting of a motion for involuntary dismissal ends the plaintiffs case and should be used only |3when plaintiff has failed to present a prima facie case of liability. The issue for the trial court is not whether plaintiff has proven his case by a preponderance of the evidence but rather whether prima facie evidence has been presented “sufficient to establish a given fact, which, if not rebutted or contradicted, will remain sufficient”. Whitt v. Wal-Mart Stores, Inc., 96-906, p. 4 (La.App. 5 Cir. 3/12/97); 690 So.2d 1009, 1011. On a motion for directed verdict, this court has stated:

On appeal, we must not ascertain whether Moore, the Plaintiff, proved his case by a preponderance of the evidence, but, after viewing all of the evidence submitted, we must ascertain whether reasonable people could have reached a verdict in favor of Moore, the non mover.... Further, in determining the propriety of the trial court’s decision, the evidence must be analyzed through the looking glass of substantive law.

Moore v. Brookshire Grocery Company, Inc., 01-737, p. 4 (La.App. 3 Cir. 1/16/02); 805 So.2d 446, 448.

We find, from a review of the record, Mr. McDaniel, at the very least, presented prima facie proof sufficient for reasonable people to resolve the liability question in his favor and in accordance with the substantive law found in La.R.S. 9:2800 and La.Code Civ.P. art. 2317.

Louisiana Civil Code Article 2317 provides in relevant part:
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. Louisiana Revised Statutes 9:2800 provides in relevant part:
Limitation of liability for public bodies
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
|inC. Constructive notice shall mean the existence of facts which infer actual knowledge.

DUTY AND NOTICE

The judge failed to apply the appropriate analysis in evaluating the City’s corporate duty vis a vis the alleged negligence of plaintiff. The trial court determined the ambit of the City’s duty by limiting it to the scope of plaintiffs knowledge and reasoned, since plaintiff should have known the danger existed, he was negligent in failing to avoid it or take steps to guard against it. Thus, his negligence, the judge concluded, was the sole cause of his injury. The trial judge’s analytical approach was specifically rejected in Politz v. Recreation and Park Commission for Parish of East Baton Rouge, 619 So.2d 1089 (La.App. 1 Cir.1993) writ denied, 627 So.2d 653 (La.1993). In that case, plaintiff, an experienced softball player was injured when she stepped into a hole under the second base. The trial court granted an involuntary dismissal. In the reasons for judgment, the trial court discussed the plaintiffs actual knowledge and actions and concluded the umpire warned the plaintiff the base was loose and had, therefore, fulfilled his duty to the plaintiff. Further, the trial court found the plaintiff was an experienced softball player and was well aware physical sports were dangerous. The appellate court reversed, stating:

A court may not define the defendant’s initial duty in terms of the plaintiffs actual knowledge, and thereby achieve the same result which would be reached if assumption of the risk were still a valid defense in Louisiana, operating as a total bar to plaintiffs recovery. A defendant’s duty does not turn on a particular plaintiffs state of mind, but instead is determined by the standard of care which the defendant owes to all potential plaintiffs. The determination of the plaintiffs knowledge regarding the risk of injury is made after fault on the part of the defendant has been established and is governed by the comparative fault principles enunciated in LSA-C.C. art. 2322.

Id. at 1095.

The standard of care owed by the City to patrons and performers of the Heymann Performing Arts center is found in La.R.S. 9:2800. Under this statute, to In carry his burden, plaintiff was required to show: (1) the orchestra pit was in the care, custody and control of the defendants; (2) the orchestra pit had a vice or defect which created an unreasonable risk of harm; (3) his injury was caused by the defect. Additionally, under the provisions of La.R.S. 9:2800 Mr. McDaniel must prove the City had actual or constructive notice of the dangerous condition. Dupree v. City of New Orleans, 99-3651 (La.8/31/00); 765 So.2d 1002.

There is no genuine dispute, the orchestra pit was in the care, custody and control of the City. The City first attempts to shift total blame to Mr. Gullett, who leased the auditorium on behalf of the Lions Club. The City contends Mr. Gullett as a professional promoter should have requested the pit cover. We note, however, the lease agreement does not inform a prospective lessee of the known dangers associated with an uncovered orchestra pit and the City presented no testimony to establish Mr. Gullett knew or should have known of the accidents involving the pit. The City opted to remain silent even though it had information involving a known hazard. The City did not share this information with the Mr. Gullett or with Mr. McDaniel. The City was clearly in a superior position to prevent the accident. See, Maldonado v. Louisiana Superdome Commission, 95-2490 (La.App. 4 Cir. 1/22/97); 687 So.2d 1087, writ denied, 97-469 (La.4/18/97); 692 So.2d 448.

In Maldonado, plaintiff suffered a herniated disk when he slipped and fell in a pool of spilled beer just outside the door of the Superdome. The accident occurred at 7:30 in evening and the weather was clear and dry. Thirty minutes after he had fallen, the area in front and around the door was being cleaned up by Superdome employees. The issues presented on appeal were whether the 112Superdome had constructive or actual knowledge of the spilled beer through the presence of ticket-takers at the turnstile near where plaintiff fell and whether the plaintiffs inattentiveness contributed to the accident. In this case, the court found the Superdome had constructive notice of the spillage that caused Mr. Maldonado to fall and an opportunity to correct the condition. In finding, the Su-perdome solely at fault, the court stated:

The Superdome was in a superior position to discover the hazard and either place warnings or clean the area in order to avoid injuries to patrons. Furthermore, the failure of those responsible for detecting and cleaning up the spill was found to be the direct cause of plaintiffs injuries.

Id. at 1093.

The testimony established during the concert the City had full control of the stage area including lighting and sound. The City had several employees, including a stage manager, lighting technician, follow spot technician and event coordinator, on staff that evening to insure the success of the event.

Mr. McDaniel testified that he did not see the unlit uncovered pit while he was on stage due in part to the extreme stage lighting at the time. He had never been to the Heymann Performing Arts Center before and was unaware of the history of accidents involving the orchestra pit. In contrast, documentation in the record and testimony established that the City was well aware of the risks involved and attempted to remedy the situation by building a portable wooden pit cover. The practice of keeping the pit uncovered substantially increased the risk that someone might fall. The City was in a superior position to discover the hazard and warn potential lessees of the danger or keep the pit covered at times when it was not in use.

The City contends the orchestra pit cover was built for Wayne Newton and not because of any risk of liability. This claim by the City appears disingenuous considering the history of recurring accidents, correspondence in the record detailing the City’s concern and the testimony of its employee, Pat Roy, safety supervisor. Alternatively, the City contends even if the cover was built to prevent accidents, its only concern was for the non-professional performer because the professional | ^performer “is always conscious of where the edge of the stage is and always aware of an existing orchestra pit.” However, the record indicates prior to Mr. McDaniel’s fall a local dance instructor (during a performance) misjudged the edge of the stage and fell into the pit. Additionally, an auditorium employee who was in the process of running cable inadvertently backed into the pit and was injured. Both individuals were aware of the existence of the orchestra pit, were familiar with the auditorium arrangement and had experience working around a stage. However, both were injured from a fall into the uncovered pit. We decline to adopt the professional/non-professional distinction urged by the City and find the evidence plaintiff presented was sufficient to establish the uncovered pit presented a risk even to individuals familiar with the stage and the existence of the orchestra pit at the Hey-mann Performing Arts Center.

UNREASONABLE RISK

While the uncovered orchestra pit presented a risk, the City was well aware existed, we recognize not every imperfection constitutes a defect within the meaning of the statute. To constitute a defect, the uncovered orchestra pit must pose an unreasonable risk of injury to persons exercising ordinary care. See, Guild v. City of New Orleans, 617 So.2d 967 (La.App. 4 Cir.1993).

In Guild, the issue presented was whether a 8.75 inch platform in the meeting room of the Algiers branch of the New Orleans Public Library presented an unreasonable risk of injury. The plaintiff, Ms. Guild had been sitting at a table on the platform for about an hour receiving income tax information from a tax consultant. When she stood up and turned to leave, she took one or two steps and fell. She claimed she had forgotten about the platform and she thought the floor was all one level. Ms. Guild alleged several factors made the platform unreasonably dangerous; the lighting was dim, the carpeting on the floor and vinyl on the platform were similar 114in color, the room contained no signs or markers indicating the need to step down, no one alerted her to the danger. The trial court dismissed Ms. Guild’s suit and the appellate court reversed. The only issue for the appellate court was whether the plaintiff proved by a preponderance of the evidence that the condition of the premises constituted a vice or defect which created an unreasonable risk of harm. The appellate court found that it did and stated:

Generally, Louisiana courts have determined that not every imperfection constitutes a defect. In order to be considered defective, “the imperfection must pose an unreasonable risk of injury to persons exercising ordinary care and prudence ...” The determination of whether a particular condition is a defect is not mechanical, but merely provides guidance to judges in evaluating the risks imposed by the condition.... The judge must “weigh certain considerations including the gravity of the risk and the harm, the individual and societal rights and obligations, and the social utility involved....
Using these standards, we find that the plaintiff in the instant case proved by a preponderance of the evidence that the conditions in the meeting room ... were defective because they posed an unreasonable risk of harm.” “She was unable to differentiate between the height of the platform and level of the regular floor because of the poor lighting and the similarity of the color of the two types of flooring....”

Id. at 969.

Additionally, in Richardson v. City of Gramercy, 99-1162 (La.App. 5 Cir. 4/25/00); 772 So.2d 682, the Illinois Central Railroad was utilizing the Gramercy Council Chambers to process claims arising out of a train derailment. Plaintiff was requested to appear in the Council Chambers to present her claim to the railroad. The plaintiff was injured when she fell while attempting to descend the stairs from the platform. The trial court held the steps were unreasonably dangerous because they had no handrails, no sign or other warning, the platform, stairs and ground level were all the same color and material and experts for both city and plaintiff testified that a twenty-one inch height difference between the platform and ground level was inherently dangerous. The appellate court articulated the rule:

In determining whether a defect presents an unreasonable risk of harm, |1Kthe trier of fact must balance the gravity of the harm against the individual and societal rights and obligations, the societal utility and the cost and feasibility of repair. In other words, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others.

Id. at 684.

In determining whether the uncovered orchestra pit presented an unreasonable risk of harm under the statute, the following factors are to be considered and weighed: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Dupree v. City of New Orleans, 99-3651 (La.8/31/00); 765 So.2d 1002.

From a review of the testimony, we find plaintiff presented prima facie evidence that the uncovered orchestra pit presented an unreasonable risk of injury to individuals using the auditorium. The City had a great interest in protecting patrons and performers from injury and had a great interest in protecting itself from liability. In fact, the City built a pit cover for just such a purpose. The risk that others would suffer injury from an uncovered orchestra pit was known and virtually certain to occur. The record indicates every eighteen months an individual was injured from a fall into the pit and the City was well aware of this fact. The injuries associated with the falls were minor to severe. One individual was killed from a fall into the pit. The burden of adequate precautions was minimal. In fact, the City built the pit cover and the record reflects the City’s safety supervisor’s intent was to keep the pit covered “when orchestra pit is not being used.” However, despite the supervisor’s recommendation, his supervisors decided to keep the pit uncovered unless specifically requested in advance by a lessee. The City now argues the industry standard is to keep the pit uncovered and offered the testimony of Frank Bradshaw who stated, “Standard operating for the building is for the pit cover in the off | -^position. That’s pretty much standard nationwide.” Mr. McDaniel was prohibited from presenting testimony of Fabian Patín, an expert in lighting and architecture to address this issue. Prohibiting Mr. McDaniel from presenting the testimony of Fabian Patín with regard to the industry standard was clear error, as discussed below. Mr. Patín would have testified the City was not in compliance with several standard building code regulations including the Life Safety Code, Section 5-2.2.6.1 which provides:

Means of egress ... that are more than 30 inches above the floor or grade below shall be provided with guards to prevent falls over the open side.

The Standard Building Code, Section 1121 which provides:

All unenclosed floor and roof openings, open and glazed sides of landings and ramps, balconies or porches which are more than 30 inches above grade or a floor below shall be protected by a guardrail.

The Occupational Safety and Health Act (OSHA), Section 1910.23(a)(5):

Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction. While the cover is not in place, the pit or trap opening shall be consistently attended by someone or shall be protected on all exposed sides by removable standard railings.

Additionally, to further justify its policy, the City argues the majority of auditorium lessees prefer the pit uncovered. The City’s position is clearly contradicted by its own record which contains a memorandum dated September 10, 1991, which states: “Virtually every act that has played this house since it reopened has requested a pit cover or extension in order to play the audience more intimately;” The social utility in keeping the pit uncovered when not in use does not outweigh the potential hazard involved in having a large, unlit hazard immediately adjacent to the stage. When the pit is being used for an orchestra or for other purposes connected with a performance, the presence of individuals and lights in the pit, serve to warn a stage performer of its existence. In this case, the orchestra pit was not in use and 1 inhere were no lights in the pit which would have alerted Mr. McDaniel that it existed.

The City relies on the Louisiana Supreme Court case of Boyle v. Board of Supervisors, Louisiana State Univ., 96-1158 (La.1/14/97); 685 So.2d 1080. In Boyle, plaintiff, Judith Boyle, a forty year old student, was injured when she tripped and fell on a sidewalk on the campus of LSU. The trial court found in favor of plaintiff, the appellate court affirmed and the Louisiana Supreme Court reversed, stating:

Weighing against the risk and gravity of injury is the social utility, including cost of repair. The utility of sidewalks on university campuses is clear as pointed out by the court of appeal. It carries great weight in the equation. Furthermore, LSU has over 22 miles of sidewalk on its campus. (One witness estimated 25 miles.) To police this much ground and keep it in perfect repair is beyond reasonable expectation for LSU or any other university.

Id. at p. 1083.

Of significance to the Louisiana Supreme Court in Boyle was the fact that this was the first accident at the site, the injury to the plaintiff was minor, and the cost to the university to maintain sidewalks in near perfect condition was great. We find the facts of Boyle do not support the position of the City. In fact, Boyle mandates an opposite result in the present case. The accident history involving the pit, the minor cost to the City of keeping the pit covered when not in use, and the severity of the plaintiffs injuries mandates a finding the City was at fault in not covering the orchestra pit.

Even if an unreasonable risk exists, the City insists it fulfilled its duty to Mr. McDaniel by placing a strip of white tape on the edge of the stage. A similar argument was made in Dupree v. City of New Orleans and Sewerage and Water Board of New Orleans, 99-3651 (La.8/31/00); 765 So.2d 1002. In Dupree, the plaintiff was injured when he struck a street cave-in which was covered with water, concealing its true width and depth. The Sewerage and Water Board asserted it did not breach its duty because it placed one barricade at the location of the cave-in. The I!«trial court disagreed and found the Sewerage and Water Board at fault and the plaintiff free of fault. The appellate and the Louisiana Supreme Court affirmed. The Court stated:

It is the duty of one with custody or garde of a thing presenting an unreasonable risk of harm to properly and adequately label, mark or barricade places in that site so as to provide adequate warning to persons using the area.

Id. at 1015.

We find the placing of a strip of white tape at the edge of the stage did not properly alert Mr. McDaniel of the existence of a seven foot drop off to a concrete floor and, thereby, exonerate the City from liability.

We are satisfied the record contains sufficient prima facie evidence to find the uncovered orchestra pit presented an unreasonably dangerous defect to individuals using or working around the stage of the Heymann Performing Arts Center.

CAUSATION

Nonetheless, the City contends the uncovered orchestra pit did not cause Mr. McDaniel’s injury, rather it was his own inattentiveness which caused the accident and the fact that he did not participate in a sound check prior to performing on an unfamiliar stage. Testimony by employees in control of the stage and the performance, described the conditions which existed on stage and the events leading up to the accident. Michael Schnauder, stage manager testified he was on a headset with Marc Gambino, fighting technician and Carla Romero, follow spot technician. He stated there were no fights shining into the orchestra pit when Mr. McDaniel was performing. When the sound system malfunctioned he testified: “But I wasn’t paying a lot of attention to Mr. McDaniel because of what we were doing ... Fifty minutes into it, the bass guitars failed to continue to work, so me and the owners of the sound [ isequipment were attempting to fix it. And during this time is when Mr. McDaniel was telling jokes and stalling for time, waiting for us to try to get this up and running when the incident — accident occurred.”

Carla Romero, follow spot technician, testified Mr. McDaniel had a 1200 watt spotlight on him while he was performing. She testified the spotlight did not have a blue gel filter which had been requested in the contract with the auditorium. The blue gel filter reduces the intensity of the spotlight. She testified when Mr. McDaniel began to converse with the audience, she did not follow him with the spot the entire time. She testified, “But when I noticed him walking forward, that’s when I grabbed the spot, and I — you know, I tried my best to warn, you know, ‘You’re in danger.’ ”

Marc Gambino, lighting director, testified, in addition to the 1200 watt spotlight, on Mr. McDaniel, the stage was lit with three-color wash overhead lights. Cove lights located over the audience, pointed in the direction of the stage, further illuminated the faces of the performers. Mr. Gambino testified when Mr. McDaniel stated he could not see the audience, he raised the houselights fifty percent. He stated the houselights were located over the audience and did not illuminate the orchestra pit.

Mr. McDaniel testified he could see the wall of the pit and the audience just on the other side of the wall, he assumed the stage extended to the audience. The record supports a finding even if Mr. McDaniel had performed a sound check, momentary inadvertence, or disorientation from the extreme stage lighting could have caused him to forget the existence of the pit, its location, or the distance to the edge of the stage. The accident history indicates even performers and employees familiar with the auditorium stage have fallen into the pit.

Reviewing the substantive law and the prima facie evidence presented by plaintiff, we find a reasonable fact finder could conclude the City was either solely Ignat fault or contributorily at fault in causing Mr. McDaniel’s accident and injuries.

EXCLUSION OF EXPERT TESTIMONY

The trial court denied plaintiffs request to present testimony of Fabian Pa-tin, an expert in lighting and architecture. Mr. Patin would have testified concerning building code standards applicable to the auditorium stage and orchestra pit and whether the City was in compliance with those standards. Additionally, Mr. Patin would have testified that the house lights failed to illuminate the orchestra pit and the glare from the follow spot caused the orchestra pit to appear even darker than normal. The trial court excluded the testimony on the basis that the exact lighting conditions on the evening of Mr. McDaniel’s performance could not be duplicated, and therefore, he would not allow testimony of Mr. Patin as to the lighting conditions at the time of the accident. Louisiana Code of Evidence Article 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Mr. McDaniel presented testimony of City employees who were working the event the night of the accident and testimony of plaintiff himself. However, the testimony of an expert would have assisted the jury in understanding the circumstances of the accident and the conditions on stage faced by Mr. McDaniel. We find it was error on the part of the trial court to exclude the testimony of Fabian Patín.

DECREE

Based on the foregoing, we reverse the judgement of the trial court and remand for a trial on the merits not inconsistent with this opinion. All costs of this appeal are assessed to the Defendants.

REVERSED AND REMANDED


author: | LAUNDERS, Judge.

text:
    STATE of Louisiana v. Marvin D. TARVER.
    Nos. 02-0973, 0974-KA, 0975-KA.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2003.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Marvin D. Tarver.
    Walter Evans Dorroh Jr., Assistant District Attorney, Hon. J. Reed Walters, District Attorney — 28th Judicial District Court, Jena, LA, for State of Louisiana.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   | LAUNDERS, Judge.

Between June 1, 1999, and August 15, 1999, the Defendant anally raped his twelve-year-old biological son thirty times and forced his son to engage in oral sex with him thirty times. Additionally, during this time, the Defendant forced his eight-year-old biological son to manually stimulate him to orgasm on eight occasions.

On October 17, 2001, the Defendant, Marvin D. Tarver, was charged by three separate grand jury indictments with thirty counts of aggravated rape of a juvenile (lower court docket number 67,182), violations of La.R.S. 14:42, thirty counts of aggravated oral sexual battery (lower court docket number 67,183), violations of La.R.S. 14:43.4, and eight counts of sexual battery (lower court docket number 67,-184), violations of La.R.S. 14:43.1.

On May 28, 2002, trial on all three indictments commenced, and on May 30, 2002, a twelve person jury found the Defendant guilty on all counts.

On July 2, 2002, the Defendant filed a “Motion for Post Verdict Judgment of Acquittal” which was denied by the trial court on July 3, 2002.

On this same date, the Defendant waived sentencing delays. Under lower court docket number 67,182, for his convictions of aggravated rape, the Defendant was sentenced as follows:

(1) Count one of the indictment, life imprisonment without benefit of parole, and to pay costs;

(2) Count two of the indictment, life imprisonment without the benefit of parole, with this sentence to run concurrently to the sentence imposed on count one;
19,(3) Counts three to thirty of the indictment, life imprisonment without benefit of parole on each count, with these sentences to run consecutive to the sentences imposed on counts one and two but concurrently to each other.

Under lower court docket number 67,-183, for his conviction of aggravated oral sexual battery, the Defendant was sentenced as follows:

(1) Count one, fifteen years at hard labor without the benefit of parole, plus all costs;
(2) Count two, fifteen years at hard labor without the benefit of parole, with this sentence to run consecutive to the sentence imposed under count one;
(3) Counts three to thirty, fifteen years at hard labor without benefit of parole on each count, with these sentences to run consecutively to counts one and two but concurrent to each other.

Under lower court docket number 67,-184, the Defendant was sentenced as follows:

(1) Count one, ten years at hard labor without benefit of parole and pay all costs;
(2) Count two, ten years at hard labor without benefit of parole, with this sentence to run consecutively to count one;
(3) Counts three to eight, ten years at hard labor without benefit of parole, with these sentences to run consecutively to counts one and two but concurrently to each other.

Following imposition of sentence, the Defendant’s attorney orally moved for reconsideration of sentence as excessive which the trial court denied. The Defendant’s attorney then moved for an appeal which was granted.

On appeal, the three convictions have been consolidated, and the Defendant asserts the following errors:

1. The trial court erred by failing to afford counsel to defendant at arraignment after he had invoked his right to counsel in pre-trial interrogation.
|a2. Sentences for aggravated rape of life at hard labor to be served consecutively, one with the other, on two counts and life on twenty-eight other counts, concurrent with each other, but consecutive with the other two, plus 15 years on each of two charges of aggravated oral sexual battery consecutive with each other and then 15 years on twenty-eight other counts, concurrent with each other but consecutive with counts one and two, plus 10 year sentences on each of two counts of sexual battery, consecutive with each other and then 10 years on each of six additional counts concurrent with each other but consecutive with counts one and two, and each sentence to run concurrently with the other is excessive for this offender in this case.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find the sentencing minutes for lower court docket number 67,182 require correction. The sentencing transcript states that the sentences imposed on Counts three through thirty are to run concurrently with each other, but consecutive to Counts one and two. The minutes do not reflect that the sentences imposed on Counts three through thirty are to run consecutive to the sentences imposed in Counts one and two. Thus, the case must be remanded for correction of the sentencing minutes.

ASSIGNMENT OF ERROR NO. 1:

The Defendant contends the trial court erred in failing to afford him counsel at arraignment, after he had invoked his right to counsel during pre-trial interrogation. The Defendant explains that during questioning by police on August 28, 2001, he requested counsel. On November 5, 2001, he was arraigned without counsel. The Defendant argues once he requested counsel, he invoked his right to counsel at every critical stage of the proceeding under the United States Sixth Amendment and La. Const, art. I, § 13. In support of his argument, the Defendant cites State v. Carter, 94-2859 (La.11/27/95); 664 So.2d 367.

I .Applying the principals set forth in Carter, the State counters that the Defendant’s arraignment was not a “critical stage” because the Defendant was not “confronted by his expert adversary in such a setting as could render a future trial a mere formality.”

The transcript from the November 5, 2001, arraignment indicates the Defendant was present for arraignment without counsel. The clerk read the bills of indictment and the Defendant entered pleas of not guilty. At the end of the proceeding, the trial court indicated that the Defendant had previously been appointed counsel. There was no indication that the Defendant waived the presence of counsel at this proceeding.

The Sixth Amendment to the United States Constitution provides “in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.”

La. Const, art. I, § 13 provides in part: “At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.”

In Carter, the supreme court held a defendant has a Sixth Amendment right to counsel only after adversary criminal proceedings have been initiated against him. The court explained:

In the plurality opinion of Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), the Supreme Court held the right to counsel does not attach prior to the “initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” In an oft-quoted passage, the Court explained why the Sixth Amendment right to counsel does not attach until this point in the proceedings.
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and |Ronly then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. Kirby, Id. at 689-90, 92 S.Ct. at 1882.

Id. at p. 5, 372.

The Carter court stated that after the Sixth Amendment right to counsel attached, the right to counsel “exists only during those post-attachment, pretrial confrontations which would be considered ‘critical stages’.” Id. at p. 6, 373.

Then, the Carter court turned to La. Const, art. I, § 13, explaining that in State v. Hattaway, 621 So.2d 796 (La.1993), the court held that the right to counsel under this constitutional provision attached no later than a defendant’s initial court appearance or first judicial hearing and thereafter applied to pre-trial proceedings which would be considered “critical stages” under the jurisprudence interpreting the Sixth Amendment. The court explained what is a “critical stage” in pertinent part:

This determination involves an analysis of “whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice” and includes “any pretrial procedure occurring after the attachment of the right to counsel in which a meaningful defense or a fair trial could potentially be impaired if an uncounselled defendant were subjected to a confrontation by the state.” Hattaway, 621 So.2d at 802 and 809. Therefore, even though the literal language of Art. I, Sec. 13 gives a defendant the right to counsel at “each stage of the proceedings”, this court interpreted that phrase to include only those stages occurring after the attachment of the right to counsel which would be considered “critical stages” under the Sixth Amendment to the United States Constitution.

Id. p. 4, 664 So.2d at 371.

In footnote number four of Carter, pp. 6-7, 664 So.2d at 373, the court | p,explained in pertinent part:

As the Supreme Court noted in Michigan v. Jackson, 475 U.S. 625, 629 n. 3, 106 S.Ct. 1404, 1407 n. 3, 89 L.Ed.2d 631 (1986) a case where “arraignment” under Michigan law marked the initiation of prosecution, “[t]he question whether arraignment signals the initiation of adversary judicial proceedings ... is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel, absent a valid waiver.” See also Gilmore v. Armontrout, 861 F.2d 1061, 1070 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989); Upton v. State of Texas, 853 S.W.2d 548, 553 (Tex.Cr.App.1993); State v. Simmons, 260 Ga. 92, 390 S.E.2d 43, 45 (1990); 1 LaFave & Israel, Criminal Procedure, Sec. 6.4, p. 466, n. 59.1 (1991 Supp.).
The two inquires are distinct. When the right to counsel under the Sixth Amendment attaches is determined by the point at which adversary judicial proceedings have begun against defendant and the “adverse positions of government and defendant have solidified.” Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882. On the other hand, a proceeding is only a critical stage if it is one at which the “accused [is] confronted, just as at trial by the procedural system, or by his expert adversary, or by both” in a situation where the results of the confrontation “might well settle the accused’s fate and reduce the trial itself to a mere formality.” Gouveia, 467 U.S. at 188-89, 104 S.Ct. at 2292. Thus, a defendant’s right to counsel can attach at a particular proceeding even though that event may not also be a critical stage under the Sixth Amendment or under La. Const, art. I, Sec. 13.

In this case, on October 17, 2001, the Defendant was charged by three bills of indictment. A copy of the arrest report which was filed into the record indicates the Defendant was arrested the same day the bills of indictment were handed down by the grand jury. The Defendant was arraigned on November 5, 2001. Thus, the Defendant’s right to counsel attached prior to arraignment. Consequently, the issue in this case is whether the Defendant’s arraignment was a “critical stage” in the prosecution requiring the presence of counsel.

In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the Supreme Court addressed a similar issue. In Hamilton, the defendant who was charged with a capital offense asserted he was denied counsel at the time of arraignment. The Supreme 17Court held in pertinent part:

Arraignment under Alabama law is a critical stage in a criminal proceeding. It is then that the defense of insanity must be pleaded (15 Ala.Code § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is “not revisable” on appeal. Rohn v. State, 186 Ala. 5, 8, 65 So. 42, 43. Cf. Garrett v. State, 248 Ala. 612, 614-615, 29 So.2d 8, 9. Pleas in abatement must also be made at the time of arraignment. 15 Ala.Code § 279. It is then that motions to quash based on systematic exclusion of one race from grand juries (Reeves v. State, 264 Ala. 476, 88 So.2d 561), or on the ground that the grand jury was otherwise improperly drawn (Whitehead v. State, 206 Ala. 288, 90 So. 351), must be made.

Id. at 53-54, 82 S.Ct. 157.

In State v. Fraychineaud, 620 So.2d 338 (La.App. 5 Cir.1993), the defendant was charged with a misdemeanor, speeding. He appeared for arraignment but refused to enter a plea. A plea of not guilty was entered on his behalf. At the conclusion of a trial on the merits, in which the defendant represented himself, he was found guilty as charged. On appeal, as one of his assignments of error, the defendant argued he was not informed of his right to counsel and he did not waive that right. The court found in pertinent part:

Accordingly, LSA-C.Cr.P. art. 513 mandates that the court inform a defendant of his right to counsel before he pleads in answer to an indictment for an offense punishable by imprisonment. While the defendant may waive the right to counsel, the waiver must be knowing and voluntary and the record must affirmatively reflect that the defendant was advised of the right and elected to waive it. LSA-C.Cr.P. art. 514; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This failure of the trial court to inform defendant of his right to counsel and to secure a valid waiver constitutes reversible error.

Id. at 340.

Arraignment under Louisiana law is limited in function. In State v. Obey, 193 La. 1075, 192 So. 722 (1939), the defendant raised a similar issue and complained the record failed to show the defendant’s counsel was present at the arraignment or that his | «presence was waived by the defendant. The supreme court stated:

Under the provisions of Article 256 of the Code of Criminal Procedure if a defendant voluntarily enters on the trial without arraignment it shall be considered as if he had pleaded not guilty. There is nothing in the record to show the defendant objected to going to trial. State v. Harper, 172 La. 1067, 136 So. 54.

Id. at 724.

La.Code Crim.P. art. 555 stems from former La.Code Crim.P. art. 256 and provides:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

La.Code Crim.P. art. 516 provides:

When a defendant has pleaded at the arraignment without counsel, counsel subsequently appointed or procured before trial shall be given a reasonable time within which to withdraw any motion, plea, or waiver made by the defendant, and to enter any other motion or plea.

The comments of La.Code Crim.P. art. 516 indicate this article codified the jurisprudential rule set forth in State v. Lyons, 180 La. 158, 156 So. 207 (1934). In Lyons, the defendant asserted the trial court failed to appoint counsel to defend him before he was arraigned. Counsel argued article 143 of the Code of Criminal Procedure provided that in capital cases, the accused was entitled to the assistance of counsel before arraignment and at every stage of the prosecution. The supreme court affirmed the trial court’s ruling which denied reversal of the defendant’s conviction on this basis. The supreme court, quoting the trial court, stated in pertinent part:

‘The accused was ably defended, received a fair and impartial trial, and the mere failure of the court to have appointed counsel prior to his | q arraignment, when no application had been made therefor by him, and more particularly when learned counsel was appointed immediately following arraignment, and afforded more than a reasonable time to prepare their defense, constitutes no error which in my judgment is sufficient in law to arrest the judgment in this case.’

Id. at 210.

In State v. Rose, 271 So.2d 863 (La.1973), the defendant complained counsel was not present at arraignment. The supreme court conceded that the minutes were silent as to whether counsel was present at the defendant’s arraignment, but found no error because the defendant entered a plea of not guilty, and, pursuant to La.Code Crim.P. art. 516, counsel could have withdrawn his plea and entered any other motion or plea at a later time.

In Louisiana, there is no confrontation of witnesses or presentment of evidence at arraignment. Additionally, available defenses are not lost if not pled at arraignment. For example, La.Code Crim.P. art. 561 provides that a “defendant may withdraw a plea of ‘not guilty’ and enter a plea of ‘not guilty and not guilty by reason of insanity,’ within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.” (Emphasis added). La.Code Crim.P. art. 726 which permits a defendant, who intends to introduce testimony relating to a mental disease, defect, or other condition bearing upon the issue of his mental state required for the offense charged, to notify the district attorney of such intention no later than ten days prior to trial or such reasonable time as the court may permit. Moreover, motions to quash are required to be filed after arraignment. See La.Code Crim.P. arts. 521 and 535. Therefore, the present case is distinguishable from Hamilton.

Further, the present case is distinguishable from Fraychineaud. Fraychineaud |1flwas not represented by an attorney at arraignment or at trial and the court found reversible error. The court did not distinguish whether it would have reached the same result if the attorney had not been present at arraignment but had been present at the trial. In this case, the Defendant had appointed counsel at the time of arraignment. The record indicates that on August 29, 2001, the trial court ordered no bond be set and referred the case to the Indigent Defender Board. The day after arraignment, November 6, 2001, the Defendant’s appointed counsel filed a Motion for Discovery and Inspection and Motion for Bill of Particulars. On January 2, 2002, the Defendant’s counsel requested discovery and a fifteen day extension to file any motions. Moreover, he also participated in all phases of the trial and sentencing.

Consequently, arraignment was not a critical stage requiring the presence of counsel. Therefore, this assignment of error is denied.

ASSIGNMENT OF ERROR NO. 2:

The Defendant asserts his consecutive sentences, imposed without any benefits, are excessive. The Defendant also contends the trial court failed to consider the lack of corroboration of the victim’s statement.

Following imposition of sentences, the Defendant’s attorney orally moved for reconsideration of sentence asserting the sentences imposed were excessive. This motion was denied by the trial court. Pursuant to La.Code Crim.P. art. 881.2, review by this court is limited to the exces-siveness of the sentence.

At the time of the commission of the offenses, a conviction of aggravated rape provided punishment of life imprisonment without the benefit of probation, parole or suspension of sentence. Aggravated oral sexual battery carried a sentence of imprisonment up to fifteen years, without the benefit of parole, probation or In suspension of sentence. Sexual battery carried a sentence of imprisonment up to ten years, without the benefit of parole, probation or suspension of sentence.

La.Code Crim.P. art. 888 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

In this case, the defendant received the maximum sentences on all of his convictions and counts one and two under each docket number were ordered to run consecutive to each other.

In State v. Blackmon, 99-391, pp. 5-7 (La.App. 3 Cir. 11/3/99); 748 So.2d 50, 53-54, writ denied, 1999-3328 (La.4/28/00); 760 So.2d 1174, this court explained:

A punishment is considered constitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more tha[n] the purposeful and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” State v. Wilson, 96-1392, p. 3 (La.12/13/96); 685 So.2d 1063, 1065, citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
[A] trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. Stale v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.
In sentencing a defendant, the trial court must specifically state for the record the considerations taken into account and the factual basis for the sentence. La.Code Crim.P. art. 894.1(C). Although not all aggravating and mitigating factors listed in Article 894.1(A) must be referenced by the sentencing judge, the record must affirmatively reflect hjfhat adequate consideration was given to codal guidelines in particularizing the defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983).

Maximum sentences are reserved for the most egregious offenders. See State v. Jones, 99-1074 (La.App. 3 Cir. 3/8/00); 758 So.2d 905, writ denied, 2000-1843 (La.8/13/01); 795 So.2d 1202, and State v. Pierce, 2001-94 (La.App. 3 Cir. 10/31/01); 799 So.2d 732.

In imposing sentence, the trial court stated in pertinent part:

But, anyway, I’ve had an opportunity to review this and I noticed that your adult record begins in November 17th of 1978, Mr. Tarver. When at that time, you were arrested by the Alexandria Police Department for illegal carrying of a weapon, and, also possession of marijuana. And, then, the next year, it was your first offense — first time — DWI, here in LaSalle Parish. Then, your second time was disturbing the peace in Columbia — January 14th, 1981 — plus a simple assault. On January 6th, 1982, a DWI first — a second DWI first — here in LaSalle Parish, and you were convicted of that on December the 2nd of 1982. Resisting arrest and carrying a concealed weapon at that time — brass knuckles — on April 26th, 1984. Benton S.O. October 16th, 1984, arrested for DWI, convicted on 4-17 of '85_Feb-ruary 4th, 1997, Natchitoches S.O., simple rape, amended to aggravated battery — that’s what we heard you testify to at trial, because you entered a plea on October 15th of 1997, you got four years at hard labor which were suspended, three years’ probation and you were revoked on October 5th of 2001.... And, of course, on August 23rd of 2001, that’s when the present charges, according to this particular thing were initiated — the aggravated rape, the sexual battery and aggravated oral sexual battery — of course, as the evidence went, it occurred during the ten week period during that particular summer that your two — that your children were visiting with you— your three children. So, basically, what the Court looks at is that for a period of approximately ten weeks, while you had the custody of your children, you sodomized one of them 30 times and you raped one of them 30 times and you had the other one masturbate you, or you masturbate the other one eight times, while in LaSalle Parish over a ten week period. That’s what you did. Sounds horrible, don’t it? When I say it that way? But, that’s what happened. I’ve considered Article 894.1(a), that in your particular case, that you are completely not eligible for probation, parole, or suspension of sentence, and, in fact, even if you were, I would still incarcerate you because of your prior criminal history indicates to me that there would be an undue risk giving the criminal history that you would re-offend. You definitely are in need of correctional treatment that only can be provided by commitment to an | ^institution — a penal institution — and any less of a sentence would deprecate the seriousness of these crimes that you did. On the aggravated factors, Article 894.1(B)(2) — you knew or should have realized your victims were particularly vulnerable due to their extreme youth. These were your young sons. Four — you used your position and status as a father to facilitate your crimes. If you were a total stranger, this never would’ve happened. Six— (b)(6) — you used threats of and actual violence in committing your crimes. And I could consider it to be violent when you restrain a person with handcuffs even though you don’t hit them. That’s what I’m considering violent. Number seven — subsequent to the offenses, you used threats or conduct with the intent to influence the institution of a criminal proceeding. When one of your sons went to tell your ex-wife, the first thing she did was confront you with it and after that, the young man seen that he really didn’t have any help from even his mama, because of your response and reaction, that retarded the progress of the criminal prosecution. And what happened was that he actually started misbehaving, acting out, and then he became violent and that leads us to number nine. The offenses with him resulted in significant, permanent, psychological damage to that older son— well, the middle son, actually. Mitigating circumstances are considered in 894.1(b) from number 22 to number 33. Guess what? No mitigating circumstances. In other words, what you did was so dastardly that the State of Louisiana has declared that a person who is convicted of that offense has to go to jail for the rest of their life.
Well, Article 883 in the Louisiana Code of Criminal Procedure tells the Court what it should do with concurrent and consecutive sentences. And it says — if the defendant is convicted of two or more offenses based on the same act or transaction or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the Court expressly directs that some or all be served consecutively. So, that’s what I’m doing. Counts one and counts two in the first two bills of information are consecutive to one another. And counts three through 30 are consecutive so I don’t expect to see any motions saying I didn’t think about it. Other sentences of imprisonment shall be served consecutively, unless the Court expressly directs the sum of all them be served concurrently. But, anyway, that’s what I’m telling you. They are all consecutive and the reason why they are consecutive is because what I heard was that on about — what I heard was is that you did the aggravated rape both ways, you did the aggravated oral sexual battery both ways and the sexual battery was both ways. Both you used the victim and you required the victim to use you. That’s what I heard. And that’s part of the reason. Anyway, that’s my sentence and the reasons for it. Next case.

We find the trial court did not abuse its discretion in imposing maximum 1 usentences in this case. A review of the trial judge’s reasons for imposing sentence indicates the trial court took into consideration the applicable aggravating circumstances in imposing sentence and found no mitigating circumstances. Additionally, the trial judge specified why he was imposing consecutive sentences. Applying the facts of this case and considering the material contained in the presentence investigation report, we find the sentences imposed by the trial court were not so grossly disproportionate to the severity of the crimes as to shock one’s sense of justice. Accordingly, this assignment of error is denied.

DECREE:

For the reasons stated above, the Defendant’s convictions and sentences are affirmed. However, the case is remanded for correction of the sentencing minutes of lower court docket number 67,182 to reflect that the sentences imposed on Counts three through thirty are to run concurrently with the sentences imposed on Counts one and two.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The record before this court does not indicate the Defendant moved for consolidation of the charges for trial. However, the record does not indicate that the Defendant objected to the charges being tried together, and because the charges involve a similar character, they could have been consolidated under La. Code Crim.P. art. 493.2.

      . See comments (a)(b) and (c) of La.Code Crim.P. art. 555.