author: LMARION F. EDWARDS, Judge. hCHEHARDY, J„

text:
    Theodore O. OSTER v. WINN-DIXIE LOUISIANA, INC. and Winn-Dixie Stores, Inc.
    No. 04-CA-117.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Joseph W. Rausch, Metairie, LA, for Plaintiff/Appellant.
    Robert E. Peyton, Alison A. Bradley, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   LMARION F. EDWARDS, Judge.

Theodore Oster appeals the summary judgment dismissing his slip-and-fall suit against Winn-Dixie Louisiana, Inc. For the following reasons we affirm.

The accident occurred on May 18, 2001 at about 11:56 p.m., at Winn-Dixie Marketplace Store # 1404, 8601 Jefferson Highway, River Ridge. While shopping in the toiletries aisle of the store, Oster slipped on a piece of plastic or cellophane on the floor, causing him to fall backward and strike his head on the jagged edge of a steel display shelf.

Oster filed suit against Winn-Dixie Louisiana, Inc. and Winn-Dixie Stores, Inc. (hereafter jointly referred to as “Winn-Dixie”), contending that the accident was due to the negligence and fault of the defendants in littering the shopping aisle of the store with clear plastic trash, and that the jagged edge of the display shelf created an unreasonably hazardous/dangerous condition on the premises. He alleged liability under La.R.S. 9:2800.6, and under La.C.C. art. 2317 et seq.

| oWinn-Dixie filed a motion for summary judgment, arguing that it had no knowledge, either actual or constructive, that the piece of plastic existed on the floor prior to accident. It also asserted that Oster had no personal knowledge of where the plastic or cellophane came from or how long it had been on the floor.

In opposition, Oster contended that his deposition and the depositions of Winn-Dixie managers created a genuine issue of material fact as to whether the store personnel created the hazard of trash on the floor while stocking products for sale on its shelves, thus vitiating the requirement of prior knowledge, and that the staggered shelf with exposed sharp edge upon which he struck his head was an unreasonably dangerous/hazardous condition.

The trial court granted summary judgment. On Oster’s request, the court subsequently issued written reasons for judgment stating the basis for its judgment:

Under La.R.S. 9:2800.6(B)(2), the plaintiff has the burden of proving that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Plaintiff testified that he does not have any personal knowledge as to how the cellophane got on the floor or how long it was on the floor before his fall. Therefore, by the plaintiffs own testimony, plaintiff cannot prove that defendant had actual or constructive notice of the alleged hazard.
In addition, the plaintiff has no proof that the store created the hazard that allegedly caused the fall. This unfounded allegation is contradicted by all of the testimony and evidence. First, both store managers, in their depositions, testify that no stocking was done in the aisle where the accident occurred. Second, both managers described the cellophane wrapper as being very thin and that is appeared to have come off of a pack of cigarettes, not from stocking in the store. In fact, one manager emphatically testified that the wrapper in question did not look like a piece of shrink wrap from restocking and was “not even close” to looking like any restocking material. Plaintiffs failure to produce any evidence as to whether Winn-Dixie created or knew of the hazard on the floor is fatal to his claim.
As for his claim under Civil Code Articles 2817 and 2317.1, the plaintiff has the burden of proving that the owner or custodian of a thing knew of the defect. Plaintiff has presented no testimony or evidence as to the condition of the shelf prior to his falling into it. Plaintiff has presented no evidence (1) of when the alleged condition was created and (2) who created the alleged condition, or (3) that any Winn-Dixie employee knew about the alleged hazard prior to his fall.

|40n appeal Oster contends the trial court erred in granting summary judgment because doing so required the court to decide disputed issues of material fact and to make credibility determinations.

Summary judgment now is favored. La. C.C.P. art. 966(A)(2). When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties equally, .without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation. Under this standard, the appellate courts review motions for summary judgment de novo. In conducting a de novo review, appellate courts use the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.

La.C.C.P. art. 966(C)(2) provides that in summary judgment proceedings the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

In connection with the Motion for Summary Judgment, Oster’s deposition was admitted. In it, he stated that the accident happened right across from the pharmaceutical company; it was as if somebody pulled his leg forward and up, and he fell, hitting his head. He passed out. The manager, or other employee, showed him the cellophane and told him that’s where he had fallen. Before that, he had not seen the cellophane, which was as big as a shoe. He did not know where the cellophane came from, but the employee “said something about the packaging. I |fidon’t know ... you know, things they are stocking.” He only knew what was implied to him by the employee. He did not see anybody stocking in the area.

Brian Brocato, a manager at the store, was not there at the time of the accident but was involved in preparing the accident report. The report was based on information provided by assistant manager James Cavalier. Brocato saw the piece of cellophane, and said it was about two inches long by one inch wide, and looked as if it came off a pack of cigarettes. It did not look like shrink wrap from stock shelves. There was no stocking going on in that aisle at that time of night. However, the cellophane, and photograph taken of it, along with a copy of the zone log and accident report, was mailed to the Risk Management Department at the Florida headquarters. Brocato unsuccessfully tried to contact Oster several times. According to Brocato, the staggered shelf on which Oster struck/sliced his head is not a usual feature in the store and “would instantly be fixed.”

James Cavalier read from the accident report. A customer found Cavalier to report Oster had slipped on the floor, and that the only thing on the floor was cellophane. The other customer did not leave his name. Cavalier also described the cellophane as small, like from a cigarette pack, perhaps Vk to 2 inches. He put the cellophane in an envelope, and gave it to Brocato. Store records show that safety sweeps were made every half-hour, and that one was conducted beginning at 11:30 p.m. that evening.

La.R.S. 9:2800.6 establishes the burden of proof in claims against merchants as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant Rshall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

A plaintiff must prove each of three elements set forth in section B; failure to prove any of these required elements will prove fatal to a plaintiffs claim. Where a claimant is relying upon constructive notice under La. R.S. 9:2800.6(B)(2), the claimant must come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence. This element is referred to as the “temporal” element. Absent some showing of the temporal element, there can be no inference of constructive knowledge. While there is no bright line time period, a plaintiff must show that the condition existed l7for “such a period of time.” While the claimant must make a positive showing of the existence of the condition prior to the fall, a defendant merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Because it is the claimant’s burden to prove the existence of the condition for some period of time, the absence of evidence can not support the claimant’s cause of action. Rather, the absence of evidence is fatal to the claimant’s cause of action.

In the present case, none of the evidence showed, or tended to show, that the condition existed for some time before the fall. Therefore, Oster did not establish that he would be able to satisfy his evidentiary burden at trial.

Further, as the trial court found, in asserting a claim for negligence based on strict liability it is incumbent on the plaintiff to prove that the defendant had or should have had knowledge of the alleged defect. Regarding the condition of the staggered shelves, no evidence was presented as to actual or constructive knowledge of this condition prior to the fall, nor was there evidence of when this condition was created, or by whom.

Our de novo review discloses no genuine issues of material fact that would preclude summary judgment. For these reasons, the judgment is affirmed. Oster is assessed costs of this appeal.

AFFIRMED.

CHEHARDY, J., dissents with reasons.

hCHEHARDY, J„

Dissents.

I would reverse and remand. In my view, the trial court erred in granting summary judgment because doing so required the court to decide disputed issues of material fact and to make credibility determinations.

Oster’s deposition and the depositions of Winn-Dixie managers create genuine issues of material fact as to whether the store personnel created the hazard of trash on the floor while stocking products for sale on its shelves, thus vitiating the requirement of prior knowledge, and that the staggered shelf with exposed sharp edge upon which he struck his head was an unreasonably dangerous/hazardous condition.

Oster testified in his deposition that a Winn-Dixie manager told him at the time of his fall that the cellophane wrapper trash upon which he slipped came from shelf product packaging dropped during stocking of the shelves, which stocking was done by Winn-Dixie employees.

Winn-Dixie store manager Brian Broca-to stated in his deposition that the cellophane trash was last in his possession when he knew of Oster’s injury in the fall and when Broeato prepared the “customer accident form,” but the trash has now “disappeared”; the staggered shelf with exposed sharp edge/point on which Oster struck/sliced his head was an unacceptable condition which “would instantly be fixed”; the staggered shelf with exposed sharp edge/point is not a usual feature Rin the store; the staggered shelf with exposed sharp edge/point has no business purpose to Winn Dixie; the staggered shelf with exposed sharp edge/point would be something that you generally would not have in a store; the store’s assistant manager would have photographed the cellophane trash as part of his incident-handling instructions, but any photograph of the trash has now “disappeared.”

The Winn-Dixie personnel said the trash was only the size of a postage stamp, while Oster described the trash as maybe as big as a shoe. Further, there is a clear conflict in testimony between Oster and the Winn-Dixie store manager, Broeato, regarding whether the store manager told Oster the plastic came from the shelf product stocking packages while employees were stocking the shelves. Thus, there is conflict concerning the size and type of plastic that was on the floor, as well as whether the store created the condition.

When the merchant created the condition, the injured party need not prove how long the condition existed or whether the merchant had actual or constructive knowledge of it. La.R.S. 9:2800.6(B)(2).

A trial judge cannot make credibility determinations on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234.

The court’s error in this case was a legal error that should be corrected by reversal of the summary judgment.

        .Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610, quoting Hayes v. Antin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

      . Id.

      . Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991).

      . Hardy v. Bowie, 98-2821, supra.

      . White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081.

      . Id.

      . Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La.4/13/99), 733 So.2d 1188.

      . See White v. Wal-Mart Stores Inc., supra; Oliva v. Winn-Dixie Louisiana, Inc. 99-831 (La.App. 5 Cir. 1/4/00), 756 So.2d 444.

      . Id.

      . White v. Wal-Mart Stores, Inc., supra.

      . Haley v. Roberts, 02-30 (La.App. 5 Cir. 5/29/02), 820 So.2d 1114.


source: Caselaw Access Project

author: laBUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana, v. Troy RHODES.
    No. 04-KA-207.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Frederick J. Kroenke, Jr., Baton Rouge, LA, for Appellant, Troy Rhodes.
    John M. Crum, Jr., District Attorney, Kim M. Ancona-Laborde, Assistant District Attorney, Edgard, LA, for Appellee, State of Louisiana.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, Pro Tempore.
   laBUSAN M. CHEHARDY, Judge.

On August 7, 2002, the St. John the Baptist Parish grand jury indicted defendant, Troy Rhodes, on one court of armed robbery, a violation of La. R.S. 14-M. Defendant entered a not-guilty plea and filed a motion to suppress identification. Defendant’s motion to suppress identification was heard on November 6, 2002 and denied on December 4, 2002.

On April 21, 2003, defendant was rear-raigned and entered a guilty plea reserving his right to appeal under Crosby. The trial judge accepted defendant’s guilty plea and, in accordance with the plea agreement, sentenced defendant to fifteen years at hard labor without the benefit of parole, probation or suspension of sentence.

Defendant timely filed a pro se motion for appeal. His appointed appellate counsel filed an Anders brief alleging there were no non-frivolous issues to raise |3on appeal and sought to withdraw as defense counsel. On December 2, 2004, this Court allowed appellate counsel to withdraw.

On January 22, 2004, defendant filed a pro se appellate brief alleging, in his sole assignment of error, a defective indictment. On February 3, 2004, this Court, noting that the record lacked the transcript of the motion to suppress hearing, issued an order for completion of the appellate record and ordered the reappointment of appellate counsel. After the record was completed, the matter was re-lodged on February 27, 2004.

Because defendant’s conviction was obtained as the result of a guilty plea, the facts of the offense are limited. This factual summary is based on testimony at the suppression hearing and the State’s discovery responses.

At approximately 3:30 p.m. on May 7, 2002, tellers at the First National Bank in Laplace were robbed at gunpoint by two black males. The men took money out of the tellers’ drawers and the bank’s safe before fleeing on a motorcycle. The police subsequently chased the motorcycle. Shortly thereafter, one of the perpetrators, co-defendant Michael Addison, was apprehended. Addison gave at least three statements to the police. In one of the statements, Addison implicated defendant (and himself) in the robbery. Addison later identified defendant from a photographic lineup as his accomplice in the bank robbery.

On appeal, defendant raises two assignments of error. First, he alleges that the trial court erred in denying his motion to suppress identification because co-defendant Addison was not advised of his right to have his appointed counsel present before making the identification of defendant from the photographic lineup and, second, defendant alleges that the grand jury indictment was defective because it failed to include an essential element of the armed robbery offense.

|4In his first assignment of error, defendant contends Addison should have been advised of his right to counsel prior to making the identification because Addison’s identification of defendant not only inculpated defendant, but also inculpated Addison in the robbery. Defendant further maintains the interrogating officer knew Addison had appointed counsel but failed to obtain counsel’s permission to question Addison outside counsel’s presence.

Initially, we note that a guilty plea normally waives all non-jurisdictional defects in the proceeding leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Frisella, 03-1213 (La.App. 5 Cir. 2/23/04), 868 So.2d 871, 873. A defendant may be allowed appellate review if he expressly reserves his right to appeal a specific adverse ruling at the time he enters a guilty plea. State v. Crosby, 338 So.2d 584 (La.1976); State v. Frisella, supra.

In the present case, defendant failed to specify which pre-trial ruling he desired to reserve for appeal as part of his guilty plea under Crosby. However, the record reflects that the only pre-trial ruling in the case was on defendant’s motion to suppress identification. This Court has held that the failure of the defendant to specify which pre-trial ruling he wishes to reserve for appeal is inconsequential where there is only one pre-trial ruling. See, State v. Frisella, supra.

At the suppression hearing, Officer Royal Burke testified that Addison was arrested on the day of the incident and gave two statements. The first statement was taken on May 7, 2002 and the second statement was taken on May 8, 2002. Officer Burke stated he advised Addison of his constitutional rights prior to each statement and that Addison executed a waiver of rights form waiving his rights on each occasion. Officer Burke testified that, in his second statement, Addison identified defendant, by his first name only, as his accomplice. Addison also told Officer Burke other details that led | .¡Officer Burke to identify defendant and compile a photographic lineup.

Approximately three weeks later, on May 29, 2002, Officer Burke showed Addison a photographic lineup containing defendant’s photograph and Addison identified defendant as his accomplice. Officer Burke testified that he did not advise Addison of his constitutional rights prior to showing him the photographic lineup. Further, when Addison was shown the photographic lineup, he had been appointed counsel but Officer Burke did not contact Addison’s counsel. Officer Burke explained that he did not know who had been appointed to represent Addison and that Addison never mentioned his attorney to him.

A person who is adversely affected by a confession unlawfully obtained from another does not have standing to raise its illegality. State v. Burdgess, 434 So.2d 1062, 1064 (La.1983). While Defendant admits this principle of law in his appellate brief, he argues that this rule does not apply where gross intentional police misconduct is involved.

In Burdgess, the Louisiana Supreme Court explained that this principle of law has been applied where a defendant “seeks to suppress evidence incriminating him that was obtained from a coparticipant in [the] crime without proper compliance with the procedural requirements of Miranda or otherwise in violation of that party’s Fifth or Sixth Amendment rights.” State v. Burdgess, supra at 1064. The supreme court found defendant had no standing to object to the nonvoluntary nature of his co-defendant’s confession but reserved judgment on whether “gross police misconduct against third parties in the overly zealous pursuit of criminal conviction might lead to limited standing.” Id. at 1065.

Here, defendant relies on this language to suggest Officer Burke’s purposeful questioning of Addison outside of his counsel’s presence constitutes “gross police misconduct,” which might warrant limited standing. In suggesting | (¡that there may be limited standing for a defendant to challenge the voluntary nature of a third party’s confession, the supreme court cited United States v. Fredericks, 586 F.2d 470 (5 Cir.1978), cert. denied, 440 U.S. 962, 99 S.Ct. 1507, 59 L.Ed.2d 776 (1979). In Fredericks, the United States Fifth Circuit noted that it did not sanction gross police misconduct against third parties in pursuit of criminal convictions. The court used the extreme example that “statements wrung from one of four criminal suspects through torture and unremitting prolonged interrogations” would not be allowed in the trial of the other three suspects. United States v. Fredericks, supra at 481. In Burdgess and Fredericks, the courts noted that the police conduct bordering on third-degree physical or psychological coercion might warrant the exclusion of the statement or confession.

In this case, while we concede that defendant is adversely affected by the challenged identification, we do not find that Officer Burke’s conduct in showing co-defendant Addison a photographic lineup outside of his counsel’s presence is the type of conduct that warrants granting limited standing to the adversely affected third-party. Because defendant does not have standing to seek suppression of the identification on the basis it was obtained from his co-defendant in violation of his co-defendant’s constitutional rights, we will not consider the merits of this assignment of error.

In his second assignment of error, defendant argues that the grand jury indictment is defective because it fails to allege an essential element of the charged offense. Specifically, defendant claims the indictment fails to allege the thing of value that was allegedly taken from the robbery victim. He contends that he was, thus, not provided proper notice of the charges against him.

The grand jury indictment against defendant charges that defendant, in violation of La. R.S. 14:64, robbed Roxanne Duhe while armed with a dangerous [7weapon. The indictment does not specify the thing of value taken from the victim. The Louisiana Supreme Court has held:

[W]here in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where ... no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.

State v. James, 305 So.2d 514, 516-517 (La.1974).

In the present case, defendant did not raise the defect in the indictment prior to conviction. Defendant did not object to the omission of the thing of value until this appeal and has not shown surprise or prejudice from the omission. Further, in the pre-trial stage, defendant filed a motion for discovery and the State filed written responses that are included in the record. From these discovery responses, defendant was on notice that the thing of value taken from the victim was money. Additionally, the State provided sufficient details in its discovery responses to give defendant adequate notice of the charge against him. We find, that, despite the failure of the indictment to include the thing of value, the record provided sufficient details of the elements of the crime with which defendant was charged. Further, defendant has not shown that he suffered prejudice from the defective indictment. We conclude that this assignment of error lacks merit.

Finally, we have reviewed the record for errors patent, according to La. C.Cr.P.art. 920. We note that the trial court failed to properly inform defendant of the prescriptive period for filing post-conviction relief pursuant to La.C.Cr.P. art. 930.8. At sentencing, the trial court advised defendant that he had “a two year prescriptive period in which to file for post conviction relief.” This Court has held that this type of advisal is incomplete. See, State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975. Therefore, we remand with instructions to the district court to properly inform defendant of the time that the prescriptive period for post-conviction relief begins by sending written notice of such to defendant within ten days of the rendition of the appellate opinion and to file written proof that defendant received the notice in the record. Id.

      . The grand jury also indicted Michael Addison with armed robbery and Kristi Hoover and Wilson Jackson as principals to armed robbery.

      . Defendant’s motion to suppress was denied in open court on December 4, 2002; the trial judge signed a written judgment to that effect in April 2003.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Defendant’s motion for appeal is contained within his pro se motion for production of documents.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . In appellate counsel's brief, he specifically notes that defendant wishes his previously filed pro se assignment of error be addressed by the court.


author: I JAMES L. CANNELLA, Judge.

text:
    TLC NOVELTY COMPANY, INC. v. PERINO’S INC., Perino’s Boiling Pot, Inc., and Perino’s Boiling Pot, II, Inc.
    No. 04-CA-281.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Philip F. Cossich, Jr., David A. Parsiola, Jeffrey A. Raines, W.J. Leblanc, Jr., Cos-sich, Sumich & Parsiola, Belle Chasse, LA, for Appellant.
    Mark A. Pivach, George Pivach, II, Belle Chasse, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, Pro Tempore.
   I JAMES L. CANNELLA, Judge.

The Plaintiff, TLC Novelty Company, Inc. (TLC), appeals from a summary judgment granted by the trial court in favor of the Defendants, Perino’s IncJPerino’s), Perino’s Boiling Pot, Inc. (Perino’s I), and Perino’s Boiling Pot II, Inc. (Perino’s II), (collectively the Perino entities). For the reasons which follow, we affirm.

In 1996, Perino’s and Perino’s I, separately incorporated businesses, were owned by the same person, Lena Perino (Lena) and managed by her son, Salvadore “Sam” Perino (Sam). Perino’s, incorporated in 1994, is a retail/wholesale fresh seafood market and delicatessen located at 6850 Westbank Expressway in Jefferson Parish. Perino’s I, incorporated in 1996, was a boiled seafood restaurant and bar located at 3825 Westbank Expressway in Jefferson Parish. On November 12, 1996, Perino’s and Perino’s I entered into contracts, on a profit sharing basis, with TLC for the placement of video gaming and amusement devices on their premises for a term of five years.

Almost three years after signing the contracts, in October of 1999, a third business was incorporated, Perino’s II. Lena was also the owner of this ^corporation and Sam managed it. Perino’s II is a seafood restaurant and bar which sells both boiled and fried seafood and is located at 3754 Westbank Expressway, across the street from Perino’s I. When Perino’s II opened, Perino’s I closed its restaurant facilities and continued operation only as a bar for approximately 12 months and then closed completely. This dispute arose when Perino’s II refused to allow TLC to place its video gaming and amusement machines on its premises for the 18 month remainder of the November 12, 1996 contract. Perino’s II instead contracted with another company for video and amusement machines to be located on its premises.

TLC filed suit against the Perino entities for breach of contract. Among other things, TLC argued that Perino’s I and Perino’s II were, for all intents and purposes, the same business and bound by the five year contract with TLC. The Perino entities argued that all three of the businesses were separate legal entities and not bound by contracts entered into by the others.

The parties filed cross motions for summary judgment. They both agree that there is no dispute as to the facts. TLC argued that Perino’s II was created to avoid the contractual obligations that Peri-no’s I had with TLC and, therefore, the trial court should look beyond the incorporation and find a breach of contract. The Perino entities argued that the three businesses were separate legal entities, all operating separately at the same time and, therefore, there had been no breach of the contract by Perino’s II for refusing to allow TLC to place its machines on the restaurant’s premises for the remainder of TLC’s five year contract with Perino’s I. On November 24, 2003, the trial court, without reasons, granted summary judgment in favor of the Perino entities and denied TLC’s motion for summary judgment. It is from this judgment that TLC appeals.

On appeal TLC argues that the trial court erred and that under the terms of the contractual agreement, the Perino entities should be found liable under the | contract entered into by TLC and Peri-no’s I. Specifically, TLC points out that the video poker contract gave it the exclusive right to place video poker machines at the “Establishment’s business premises” for a period of five years beginning November 12, 1996. “Establishment” is defined in the contract as follows:

“ESTABLISHMENT” — shall mean the current name and any successor name under which the individual who holds the license to sell alcoholic beverages for consumption on Establishment premises, whether such Establishment is a corporation, partnership, sole proprietorship or other type of legal entity. Further this agreement shall also be binding upon any assignees, successor purchaser that acquires ownership or control of the establishment or becomes the named licensee under any permit to sell alcoholic beverages for consumption on Establishment’s premises.
“Premises” is defined in the contract as:
“PREMISES” — shall be the address listed in this agreement as well as any successor address to which Establishment transfers its operation during the term of this agreement.

Another contract between TLC and Per-ino’s and Perino’s I gave TLC the exclusive right to place amusement devices and cigarette dispensers at the premises for a period of five years and was signed on the same day as the video poker contract. It provided:

In the event Proprietor sells, leases, transfers or assigns its business location, Proprietor shall sell, lease, transfer or assign the business subject to this agreement and all of the conditions thereof.

Under these provisions, TLC argues that the Perino entities are liable to it for breach of the contracts because of the transfer of its restaurant business from Perino’s I to Perino’s II without fulfilling its contractual obligations. TLC argues that the issue presented is one of contractual interpretation based on the above contractual provisions.

The Perino entities argue that this is an over simplification of the legal issue herein. The legal issue cannot be resolved by a simple contractual interpretation | swhere TLC is asking that a party, not a signatory to the contract, Perino’s II, be held liable for not placing TLC video and amusement machines in its facility. The Perino entities argue that Perino’s II is a separate legal entity and, as such, cannot be held liable for the contractual obligations of another separate legal entity, Perino’s I. Moreover, even if the terms of the contracts are considered, they do not support TLC’s position because Perino’s II had a separate license to sell alcoholic beverages and both businesses operated simultaneously. Perino’s II was not a successor to Perino’s I and the business location of Perino’s I was not sold, leased, transferred, or assigned to Perino’s II.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La.App. 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544; Moody v. United Nat. Ins. Co., 98-287 (La.App. 5th Cir.9/29/98), 743 So.2d 680. Thus, this court must consider whether, all genuine issues of material fact are absent and mover is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Moreover, the summary judgment procedure is favored, and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2); Magnon v. Collins, supra.

All parties agree that the facts involved in this controversy are not in dispute. Perino’s I was incorporated in 1996. It, along with Perino’s contracted with TLC in November of 1996, in a profit sharing arrangement, allowing TLC to have the exclusive right to provide video and amusement devices on the premises of each business for a term of five years. In October of 1999, a third business was incorporated, Perino’s II. Perino’s I conducted a boiled seafood and bar business. | fiPerino’s II was located across the street and conducted a boiled and fried seafood business along with an oyster bar and regular bar. Perino’s II was three times the size of Perino’s I. Shortly after Peri-no’s II opened, Perino’s I closed the restaurant part of its business and continued operating for another 12 months as simply a bar or lounge under the contract with TLC. Perino’s I closed six months before the term of the TLC contract ran out. When Perino’s I closed its restaurant business, Perino’s II took the tables and chairs and trays from Perino’s I. A new sign was procured utilizing The Boiling Pot name, with the addition of the terms “Seafood Restaurant” and “Oyster Bar.” The employees from Perino’s I, with the exception of one bartender, went to work at Perino’s II after it opened. Perino’s II had its own telephone numbers, although it took one of the former restaurant’s telephone numbers after it closed completely. Perino’s II did not take the kitchen boiling equipment from Perino’s I, but purchased new kitchen equipment. The boiling pot from Peri-no’s I was actually transferred to Perino’s. The three businesses were separately incorporated, had separate bank accounts and separate licenses. The Office of Alcohol and Tobacco (ABO) Permit for Perino’s I was issued in the name of “Perino’s Boiling Pot Inc[,] Perino’s Boiling Pot Inc.” The ABO permit for Perino’s II was issued in the name of “Perino’s Boiling Pot II Inc[,] Perino’s Boiling Pot.” The permits had different permit numbers and addresses.

TLC has argued three theories of recovery. TLC argues that the Perino entities should be found to have breached the contracts between Perino’s, and Perino’s I and TLC because Perino’s II is a successor/as-signee to Perino’s I, because Perino’s II is nothing more than a continuation or reincarnation of Perino’s I, or because the Perino entities operate as a single business enterprise, thereby binding Perino’s II for the contractual obligations of Perino’s I.

The Perino entities argue that Perino’s II is not a successor/assignee because there is no contractual agreement to that effect and no part of Perino’s I was sold to 17Perino’s II. They argue that the continuation/reincarnation theory lacks merit because it pre-supposes the cessation of business simultaneously with the commencement of a new business. They point out that Perino’s I continued in operation approximately 14 months simultaneously with Perino’s II. Finally, the Perino entities argue that the single business enterprise theory is not applicable here because the three businesses were completely separate with separate bank accounts, employees and payrolls.

Reviewing the case de novo, we find that the summary judgment in favor of the Perino entities was properly granted. The TLC contracts were with Perino’s and Per-ino’s I. Prior to the expiration of the term, a new business was incorporated, Perino’s II, and opened across the street from Peri-no’s I. These were separate legal entities, all conducting their respective businesses simultaneously. There were separate bank accounts, licenses, and alcohol permits. We find that Perino’s II was not a successor to Perino’s I, nor a reincarnation of Perino’s I and that the two businesses did not comprise a single business enterprise. Based on the foregoing, we find that the Perino entities did not breach their contracts with TLC when Perino’s II opened its restaurant and bar business across the street from Perino’s I and contracted with a company other than TLC for its video gaming and amusement devices.

Accordingly, we affirm the summary judgment granted by the trial court in favor of the Perino entities. Costs of appeal are assessed against TLC.

AFFIRMED.


author: I,SUSAN M. CHEHARDY, Judge.

text:
    Robert E. UNDERWOOD and his wife, Dorothy Underwood v. BEST WESTERN WESTBANK, INC., d/b/a Best Western Westbank, Scottsdale Insurance Company, Linda Boteler and XYZ Insurance Company.
    No. 04-CA-243.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Sidney H. Cates, New Orleans, LA, for Appellants, Robert and Dorothy Underwood.
    Wayne R. Maldonado, Ginger K. DeForest, Metairie, LA, for Appellees, Linda Boteler and Scottsdale Insurance Company.
    C. Michael Pfister, Magali Puente Martin, Metairie, LA, for Appellee, Linda Bo-teler.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, Pro Tempore.
   I,SUSAN M. CHEHARDY, Judge.

Plaintiffs, Robert and Dorothy Underwood, appeal the summary judgment dismissing their action for damages against defendants, Linda Boteler and Scottsdale Insurance Company. For the following reasons, we affirm.

On May 9, 2001, Robert Underwood was a guest at the Best Western West Bank Motel (“Best Western”) in Harvey, Louisiana. That evening, when Mr. Underwood exited the motel, he fell in the motel’s parking lot as he stepped from the sidewalk onto an adjacent pedestrian ramp. He sustained injuries, including a fractured right ankle that later required surgery.

On March 2, 2002, the Underwoods filed a petition for damages naming Best Western, its insurer, Scottsdale Insurance Company (“Scottsdale”), and Linda Boteler as defendants. In their petition, the Under-woods alleged that Best Western was negligent for failing to maintain safe and unobstructed exits and entrances to its facility and Ms. Boteler was negligent for “blocking the ingress and egress of | Spedestrian traffic” by illegally parking her vehicle in a restricted parking zone. The Underwoods also allege that Best Western was strictly liable for, among other things, the existence of unsafe walkways and obstructed exits and lack of skid-resistant pedestrian ramps. Boteler and Scottsdale timely answered the petition.

On November 7, 2002, Boteler. filed a motion for summary judgment to which it attached an excerpt from Mr. Underwood’s deposition and the affidavit of Linda Boteler with photographs of the area in question. Based on the pleadings, depositions, and affidavits, Boteler asserted that there was no genuine issue of material fact because the Underwoods could not prove that where Ms. Boteler parked her vehicle was a cause of Mr. Underwood’s accident. In her affidavit, Boteler, who was an officer of the corporation that owns the motel, attested that the parking area which encompassed the ramp was reserved for the exclusive use of the hotel owners and managers. She attested that the area in question is not designated as or reserved for handicapped parking. Boteler further pointed out that in his deposition, Mr. Underwood stated that a “slippery ramp” had caused him to fall. He further stated in this deposition that he may or may not have touched Boteler’s vehicle as he walked around the car. He also stated, “I didn’t see no hazard. I just walked off the ramp.” Mr. Underwood lastly stated that the weather was clear and sunny on the day he fell and the ground was dry where he fell.

The Underwoods opposed the motion, averring that there were issues of fact regarding whether Boteler’s car was illegally parked and obstructing a pedestrian walkway and whether that was a cause of Mr. Underwood’s fall. In support of their opposition, the Underwoods attached an affidavit from Mr. Underwood with photographs of the area and Ms. Boteler’s parked vehicle as well as a copy of the motel’s incident report that described that area of the fall as “ramp for HC parking.” The trial judge heard the motion on January 13, 2003 and denied the motion on February 10, 2003.

|4On July 7, 2003, after further discovery, Boteler, with Scottsdale Insurance Company, filed a second motion for summary judgment to which they attached a second affidavit from Ms. Boteler, photographs of the parking area with the “No Parking” signs, and an excerpt of Mr. Underwood’s deposition. On August 20, 2003, the defendants supplemented their motion with the affidavit and report of Fred Van-derbrook, an engineer who examined the area of Mr. Underwood’s fall and determine that the ramp did not present an unreasonable risk of harm. In this motion, defendants contended that the Un-derwoods could not present sufficient evidence under either theory of liability that defendants were at fault in this accident. Specifically, defendants alleged that the Underwoods cannot prove that there is a defect in the premises necessary to hold defendants strictly liable under La. C.C. art. 2317.1 because they have not listed an expert witness who will testify on that issue. Further, defendants argued that the Underwoods cannot prove that Boteler was negligent for parking her vehicle on the ramp.

The Underwoods opposed the second motion, averring that there were issues of fact regarding whether Boteler’s car was illegally parked and obstructing a pedestrian walkway and whether that was a cause of Mr. Underwood’s fall. In support of their opposition, the Underwoods attached an affidavit from Mr. Underwood with photographs of the area and Ms. Boteler’s parked vehicle as well as a copy of the motel’s incident report that described that area of the fall as “ramp for HC parking.” To this second opposition, the Underwoods also attached a copy of two statutes regarding parking in prohibited areas. The trial judge heard the motion on September 25, 2003, granted the defendants’ motion, and dismissed the plaintiffs’ claims on October 1, 2003. The Underwoods filed a timely appeal.

On appeal, the Underwoods assert that the trial judge erred in granting Boteler and Scottsdale’s motion for summary judgment because genuine issues of material fact were raised. The Underwoods argue specifically that “the designation |fiof the area in which Mr. Underwood’s slip and fall took place is material to the outcome of this litigation, and ... .the legality and appropriateness of Linda Boteler’s parking of her vehicle in the aforementioned area” are questions of fact that should be determined by the jury at the trial on the merits.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 574.7, 03-1533, (La.2/20/04), 866 So.2d 228; Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610.

Summary judgments are reviewed de novo on appeal. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Id. In Smith, the supreme court recognized that a “genuine issue” is a “triable issue.” Id. “An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is | fino need for a trial on that issue.” Id. Facts are material when their existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Id. at 751. See also La. C.C.P. art. 966(B). When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967.

The movants, here Boteler and Scottsdale, have the burden of proof. La. C.C.P. art. 966(C)(2). However, because they will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the Underwoods’ action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the Underwoods’ action. If Boteler and Scottsdale meet this initial burden of proof, the burden shifts to the Underwoods to produce factual support sufficient to establish that they will be able to satisfy their evi-dentiary burden at trial. If the Under-woods fail to meet this burden, there is no genuine issue of material fact, and Boteler and Scottsdale are entitled to summary judgment.

To carry their burden on summary judgment, Boteler and Scottsdale must show that there is an absence of factual support for any of the elements of both the negligence and the strict liability cause of action. The negligence ease is resolved by employing a duty-risk analysis, which involves five elements: (1) that the defendant’s conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) that the defendant’s conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) that the plaintiff suffered actual damages (the damages 17element). Perkins v. Entergy Corp., 00-1372, p. 7 (La.3/23/01), 782 So.2d 606, 611.

With respect to the negligence cause of action, Boteler and Scottsdale contend that the Underwoods will be unable to prove any connection between Boteler’s vehicle and Underwood’s fall or that Boteler’s conduct in parking partially on the ramp failed to conform to an appropriate standard. Because we conclude that there is an absence of factual support for the cause-in-fact element, we need not discuss factual support for the other elements of the negligence action. In Mr. Underwood’s deposition, he stated that the cause of his fall was a “slippery ramp.” He also stated that he saw a vehicle and that he may or may not have touched Boteler’s vehicle as he walked around the car. He also stated, “I didn’t see no hazard. I just walked off the ramp.” Mr. Underwood lastly stated that the weather was clear and sunny on the day he fell and the ground was dry where he fell. His testimony does not support his contention that the parked vehicle was a “cause-in-fact” of his fall. Further, he did not present any other proof to indicate that he could meet his evidentiary burden on this element at trial.

Boteler and Scottsdale, thus, indicated an absence of factual support for the cause-in-fact element essential to the Un-derwoods’ negligence action so the burden then shifts to the Underwoods to produce factual support sufficient to establish that they will be able to satisfy their evidentia-ry burden at trial. La. C.C.P. art. 966(C)(2). The Underwoods argue that they have never argued that Boteler’s parked vehicle was the sole cause of his fall but they allege that her illegally parked vehicle was a “significant contributing factor” to his fall. They maintain that Boteler’s vehicle was “hazardous and unsafe” because it was parked illegally, which constitutes negligence per se. We note that Boteler’s vehicle was parked on private property in an area that is designated by the property owners as a “No Parking” zone. Further, her uncontroverted affidavit indicates that the area was |sdesignated as “No Parking” to reserve parking space for the motel owners and managers, including her. We disagree that a reasonable juror could find that the location of Boteler’s vehicle was a cause-in-fact of Mr. Underwood’s fall. We conclude that the Underwoods have failed to meet their burden of proof and, as such, there is no genuine issue of material fact. Boteler and Scottsdale are, therefore, entitled to summary judgment on the negligence cause of action.

With respect to the strict liability claim, the pertinent provisions of La. C.C. art. 2817.1 state:

The owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

The supreme court applied an unreasonable risk of harm analysis in the case of Reed v. Wal-Mart Stores, Inc., 97-1174 (La.03/04/98), 708 So.2d 362. Reed concerned whether a parking lot was defective, and in this regard the court noted:

It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curves. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm.

Id. at 363.

On appeal, Boteler and Scottsdale argue that the Underwoods did not present proof that they could meet their evidentiary burden of proof for their strict liability claim at trial. According to Boteler and Scottsdale, the Underwoods had to prove that Boteler and/or Best Western had custody of the ramp that caused the injury, that the ramp contained a defect (a condition creating an unreasonable risk of | flharm), and that the defect caused Mr. Underwood’s injury. Furthermore, the Under-woods had to prove that Boteler or Best Western knew or should have known of the vice or defect. Boteler and Scottsdale assert that the Underwoods offered no evidence to prove that the ramp contained a defect that presented an unreasonable risk of harm. We agree.

Once Boteler and Scottsdale pointed out an absence of factual support for an element essential to the Underwoods’ strict liability claim action, the burden then shifts to the Underwoods to produce factual support sufficient to establish that they will be able to satisfy their evidentia-ry burden at trial. La. C.C.P. art. 966(C)(2). The Underwoods allude to the lack of non-skid surfacing as the defect in the “slippery ramp.” They did not, however, present proof that the ramp did not have non-skid surfacing on the day of Mr. Underwood’s fall. We cannot, therefore, agree that a reasonable juror could find that the ramp had a defect that presented an unreasonable risk of harm. We conclude that the Underwoods have failed to meet their burden of proof and, as such, there is no genuine issue of material fact. Boteler and Scottsdale are, therefore, entitled to summary judgment on the strict liability cause of action.

For the foregoing reasons, we find that the trial judge did not err in granting summary judgment. The judgment is affirmed. Costs of this appeal are taxed to the appellants.

AFFIRMED.

      . Prior to the Louisiana Legislature’s adoption of La. C.C. art. 2317.1, cases such as the one at bar were analyzed under the provisions of La. C.C. art. 2317 which states, in pertinent 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 ...”


author: | ¡.JAMES L. CANNELLA, Judge.

text:
    Cindy Phuong Cao and Kevin Khan CAO v. Dr. Randall Mark SCHAFFER and Dr. Diem Duy Do.
    No. 04-CA-242.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.

      Bolen, Parker & Brenner, LTD, James A. Bolen, Jr., Donna J. Duplechian, Alexandria, LA, for Appellants.
    Wessel & Associates, William F. Wessel, New Orleans, LA, for Appellees.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and JAMES C. GULOTTA, pro tempore.
   | ¡.JAMES L. CANNELLA, Judge.

The Defendants, Dr. Randall Mark Schaffer and his insurer, AAMOS National Insurance Company (AAMOS), appeal from a judgment in a dental malpractice case in favor of the Plaintiff, Mrs. Cao Phuong Cao (Mrs. Cao). We reverse the Judgment Notwithstanding the Verdict (JNOV), deny the new trial request and reinstate the judgment of the jury.

Dr. Diem Do, a newly licensed Vietnamese general dentist, opened his office in July of 1995. In August, he saw Mrs. Cao, also Vietnamese, for teeth cleaning and cavities. Because of pain in the area of one of her wisdom teeth, Dr. Do referred her to Dr. Schaffer, an oral and maxillofa-cial surgeon, for the possible extraction of an impacted wisdom tooth. Dr. Schaffer had recently moved back to Louisiana from Mississippi, where he had voluntarily surrendered his Mississippi license to practice oral surgery as a result of a consent decree. However, he was licensed in Louisiana, but had not yet set up an office, when he saw Mrs. Cao. At the time, he was performing oral surgery in the offices of referring general dentists in the area. He kept no medical records and made all his entries relative to [..¡treatment in the records of the various dentists. His entries relative to her were in Dr. Do’s chart.

Dr. Schaffer first saw Mrs. Cao in Dr. Do’s office on October 12, 1995. Although Mrs. Cao speaks, reads and writes English, she required a translator to speak with Dr. Schaffer. Dr. Do acted as translator for Dr. Schaffer in order to assure that Mrs. Cao understood the procedure and the risks. Although a written consent for extracting the tooth was not obtained, Dr. Do and Dr. Schaffer testified that Dr. Schaffer’s recited the risks of the surgery, including the possibility of nerve damage. Mrs. Cao denies being told that nerve damage is a risk of extraction. However, she consented at that time and Dr. Schaf-fer extracted the tooth. Mrs. Cao paid $100 by check, which was split between the two doctors. Following the surgery, neither doctor provided Mrs. Cao with post-surgery instructions, nor did Dr. Schaffer give her a telephone number where he could be reached in case of emergency. Although she received several prescriptions from Dr. Schaffer and Dr. Do in October and December of 1995, only two were noted in Dr. Do’s chart. The chart also fails to record the medical necessity for the extraction.

Following the surgery, Mrs. Cao immediately experienced pain, bleeding, swelling and numbness on the right side. According to her, when she complained to Dr. Do, he told her that these complaints could last for a year. When she saw Dr. Schaf-fer on her follow-up visit on November 9, 1995, he noted in the chart that she had a resolution of right sided paresthesia and that she was doing well, except for diffuse pain on the right side. He felt that the numbness was improving. Dr. Schaffer saw Mrs. Cao again in another dentist’s office in November or December of 1995. No notations in the chart were made of this visit and the date is unclear. According to Dr. Schaffer, he had difficulty communicating with her at that time and suggested that she return to Dr. Do, where he would examine her with Dr. Do | ¿translating. Her pain and the numbness continued to be a problem. An appointment with Dr. Schaffer was scheduled for December 14, 1995, but Mrs. Cao canceled because she had to go to California to take care of her sick mother. Dr. Schaffer had no further contact with her.

During the months that she was in California, Mrs. Cao sought no medical treatment and did not take any prescription drugs. However, she was still experiencing problems and, when she returned, her sister-in-law referred her to Dr. Richard Akin, another oral surgeon. Dr. Akin began treating her on April 19, 1996. In June of 1996, Dr. Akin performed surgery to attempt to repair nerve damage. The effort failed. Dr. Akin has continued to treat her and recommended further surgery in the future, as well as orthodontic work, to correct malocclusion. At the time of trial, she was wearing a splint and still experiencing complete anesthesia in the right lower jaw.

Mrs. Cao eventually filed a medical malpractice claim against Dr. Schaffer and Dr. Do. The Medical Review Panel hearing was held on December 9, 1999 and the panel found that Dr. Schaffer did not breach the standard of care in performing the extraction, but that he breached the standard of care in not obtaining written, informed consent. Later, at trial, two members of the panel revised their opinions that Mrs. Cao did not have informed consent because Louisiana law only requires verbal consent for dental procedures.

The Plaintiffs, Mrs. Cao and Mr. Cao Khan Cao (Mr. Cao), filed a petition for damages in the trial court on December 4, 1996 against Dr. Do, Dr. Schaffer, and AAMOS. In 2002, Dr. Schaffer’s license to practice oral surgery in Louisiana was revoked for medical improprieties dating back to 1995, when he first moved to Louisiana. He was unlicensed at the time of the trial.

A jury trial was held on November 4-6, 2002. The jury found Dr. Do not liable and that Dr. Schaffer had obtained informed consent prior to treating Mrs. |BCao. However, it further found that Dr. Schaffer failed to adhere to the applicable standard of care “in his treatment of the Plaintiff.” Nevertheless, the jury found that Mrs. Cao did not suffer any damages “as a result of the procedure performed on October 12, 1995.” The verdict was reduced to judgment on January 14, 2003.

On January 30, 2003, Mrs. Cao filed a motion for JNOV and alternatively for a new trial. After a hearing on March 31, 2003, the matter was taken under advisement. On June 6, 2003, the trial judge granted the motion for JNOV as to damages. He found that damages were warranted because the jury found “Dr. Schaf-fer’s performance of the procedure was below the standard of care,” the evidence stipulated medical expenses, the finding by the medical review panel that Mrs. Cao was not properly advised and informed of the risks of the surgery, and that she did not give her consent to the procedure. He awarded Mrs. Cao medical expenses of $18,813.75 and general damages of $7,000, for a total of $25,813.75, plus legal interest.

On appeal, the Defendants assert that the jury and trial judge erred in finding that Dr. Schaffer breached the standard of care. They further contend that the trial judge erred in admitting the evidence of the revocation of his dental license and excluding evidence of the findings of the panel. Third, they assert that the trial judge erred in granting the Plaintiffs’ motion for JNOV.

| JUDGMENT NOTWITHSTANDING THE VERDICT

A JNOV is warranted when facts and inferences point so strongly in favor of one party that reasonable men could not arrive at a contrary verdict, not merely when there is a preponderance of evidence for the mover. Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 4 (La.1/30/00), 772 So.2d 94, 99; Mills v. Jaume, 02-668, p. 4 (La.App. 5th Cir.12/11/02); 836 So.2d 282, 285. If the evidence opposed to the motion is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Joseph, 00-0628 at 4, 772 So.2d at 99; Mills, 02-668 at 4, 836 So.2d at 285. In making the determination, we should not evaluate the credibility of witnesses and all reasonable inferences of factual questions should be resolved in favor of the non-moving party. Joseph, 00-0628 at 4, 772 So.2d at 99; Mills, 02-668 at 4, 836 So.2d at 285.

| .STANDARD OF CARE AND CAUSATION

The standard of care for a dentist licensed under R.S. 37:751 et seq. provides:

A. In a malpractice action based on the negligence of ... a dentist licensed un.der R.S. 37:751 et seq..., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by ..., dentists ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by ... dentists ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

The Defendant asserts that the expert testimony at trial established that Dr. Schaffer did not breach the standard of care in performing the extraction or in his follow-up care. He contends that all of the experts testified that Mrs. Cao’s complaints were accepted risks of the procedure that can occur even if the procedure is performed without incident.

The Medical Review Panel concluded that Dr. Schaffer did not breach the standard of care in extracting the tooth. Dr. Kimberly Meng and Dr. Akin concurred that there was no evidence that the extraction was not performed using the standard of care for that procedure. However, Dr. Akin testified at trial that Dr. Schaffer breached the standard of care for oral surgeons in other ways. He stated the requirements of the standard of care in the community as follows, that:

1. all contacts with the patient be charted;
2. a diagnosis be charted prior to any operation;
3. a written consent be obtained in connection with all surgeries;
4. postoperative care is the responsibility of the oral surgeon and the procedure should be in writing; and
|r5. the opportunity for referral to a neurosurgeon be explained to a patient in the Plaintiffs condition, where there is pain, swelling and numbness after an extraction, and that this referral should be done sooner than later.

Dr. Akin testified that Dr. Schaffer breached the standard of care first because he failed to obtain written consent for the procedure. The requirement of written consent as part of the standard of care for oral surgeons in the community was supported by the testimony of Dr. Meng, the Defendant’s expert and a member of the Medical Review Panel and by the panel. In addition, AAMOS, recommends this practice to its insureds. However, written consent is not required by law, unless performed in a hospital. La. R.S. 40:1299.131.

Dr. Akin also testified that an impacted wisdom tooth should not be extracted without a diagnosis by the oral surgeon that there is infection, cyst, periodontal involvement or swelling. Here, as reflected in the chart, neither Dr. Schaffer nor Dr. Do made a diagnosis for the extraction. Dr. Akin noted that Mrs. Cao suffers from malocclusion or incorrect bite on that same side. He inferred that this could have been the source of her pain. The notes in the chart simply state that she has pain in the tooth and wants it removed. Notably, the other wisdom tooth was also impacted, but has not been removed because it has not caused any pain or problems. Dr. Schaffer testified that he extracted the tooth because he suspected an infection.

Dr. Akin testified that Dr. Schaffer failed to provide follow up care to the Mrs. Cao. He failed to give her his telephone number, or a nurse’s number (there was no nurse); he failed to give written instructions; he failed to take post-operative x-rays as a result of complaints of numbness; and he failed to chart the removal of stitches or the area of post-operative pain. Dr. Akin stated that Dr. | flSchaffer should have told Mrs. Cao what to expect post-surgically and after she began to complain of post-surgical pain and numbness, he should have told her that she could have a referral to a specialist if the condition did not improve. In effect, he contended that Dr. Schaffer abandoned Mrs. Cao, relying on Dr. Do to provide any post-surgical care.

Dr. Akin further testified that the notes made by Dr. Schaffer in November, stating that the numbness had resolved, were not credible. He said that Mrs. Cao told him that the numbness had never resolved at any time. Further, Dr. Akin stated that, when he examined Mrs. Cao, “she was as numb as this desk and it’s (sic) simply not something that was going to progress. It’s (sic) something that happened. The nerve was irreparably damaged at the time of the surgery and she was numb from the beginning and numb to the point that I saw her.”

According to the testimony of the experts, the standard of care also requires that an oral surgeon refer a patient to a specialist as early as possible when there is suspected nerve injury. AAMOS also recommends to its insureds that oral surgeons refer the patient early. The evidence shows that Dr. Schaffer failed to refer Mrs. Cao at any time. However, Dr. Akin and Dr. Meng stated that the surgeon should follow the patient for a period of time before making the referral. If there is improvement, a referral is not necessary. Dr. Akin stated that the time period is approximately six to eight weeks. Dr. Meng stated that it can be as long as several months. The time delay is dependent on the particular case. However, the sooner the damage is discovered, the better the chances of repairing it, if it is repairable.

Dr. Aiken noted that Dr. Do and Dr. Schaffer ordered five pain prescriptions after the surgery, October 17, 20, 27, December 8 and 14, indicating that the problem persisted even after Dr. Schaffer’s examination on November 9,1995.

|inDr. Schaffer testified that he saw Mrs. Cao less than one month after the extraction on November 9, 1995 and that his notes verify that she was improving, although she disagreed with this conclusion and he continued to order pain medications. Dr. Schaffer contends that when he examined Mrs. Cao on November 9, 1995, he performed a neurological examination that indicated that she could detect sharpness, dullness and direction in the area of her complaints. Thus, he felt that there was no necessity for a referral at that time. He saw her again on one occasion between that date and December 14, 1995 and Dr. Do was not there to translate. Next, she was rescheduled for a visit on December 14, 1995 in Dr. Do’s office. That would have been six weeks from the extraction. Because of her mother’s illness, she canceled the appointment. When she returned in April of 1996, six months after the extraction, she did not go back to him and went to Dr. Akin instead. Dr. Schaffer argues that accepting Dr. Akin’s opinion of when to refer a patient, he was within the 6-8 week post-operation period when he saw her. Dr. Meng testified that it is appropriate to follow the patient and “map” the numbness which can be done by drawing a picture or describing the location of the numbness in the chart. Dr. Meng noted that Dr. Schaf-fer failed to map the area of numbness. However, Dr. Meng also stated that an oral surgeon-would follow a patient up to three months before referring the patient to a specialist, especially if there is improvement. Thus, Dr. Schaffer argues that since Mrs. Cao was out of town during that period, he was not remiss in his follow-up care.

In order to recover in a dental malpractice case, the plaintiff must prove not only the dentists lack of knowledge or skill or failure to exercise the appropriate degree of care, but must also show that, as a 'proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, she suffered injuries that would not otherwise have been incurred. The jury found that Dr. 11¶ Schaffer breached the standard of care in the treatment of Mrs. Cao, but that she did not suffer any damages from the breach of the standard of care. We agree.

Mrs. Cao’s damages in this case are numbness and pain caused by compression of the nerve that occurred during the surgery. That is a known risk of the extraction procedure and there was no evidence that Dr. Schaffer breached the standard of care in the actual extraction procedure. However, we recognize, as apparently the jury did, that Dr. Schaffer breached the standard of care in the follow-up treatment of Mrs. Cao in several administrative and recordation respects. Under the community standards, as testified by the expert witnesses, Dr. Schaffer neglected to obtain written consent for the procedure and neglected to chart a diagnosis for the extraction before he performed the procedure. His post-operative follow up was deficient by failing to give Mrs. Cao his telephone number, failing to give written instructions, failing to take post-operative x-rays as a result of complaints of numbness, failing to chart the removal of stitches, and failing to map the area of post-operative pain and numb area when he saw her in November of 1996. However, none of these must be construed as the proximate cause of the damages suffered by Mrs. Cao. Further, there is no evidence that these omissions contributed to the delay in her diagnosis of nerve compression or that the numbness and pain could have been alleviated by an early detection of the damage.

In that regard, Dr. Schaffer treated Mrs. Cao up until December 14, 1995, the last scheduled appointment that she canceled. That was two days more than two months from the procedure. Then, she left town for several months, so he had no further opportunity to follow her progress. Thus, Dr. Schaffer’s post-surgery contact with Mrs. Cao was well within the time period that an oral surgeon should follow the patient before referring to a specialist, which is anywhere from four weeks to four months, according to Dr. Akin and Dr. Meng. The delay in Mrs. Cao’s obtaining treatment for the nerve damage was due to her absence from the |12area, not from Dr. Schaffer’s actions. Thus, we conclude that Dr. Schaffer, for all of his negligence in his administrative and recordation conduct, did not breach the standard of care in respect to a timely referral to a specialist, and thus, none of the administrative or recordation omissions were a proximate cause of her damages.

Dr. Schaffer apparently also failed to inform Mrs. Cao, before or when she canceled the December 14, 1995 appointment with him, that her condition needed to be monitored because of possible nerve damage. We find that this failure to so inform her is also a breach of the standard of care for an oral surgeon. But, Mrs. Cao did not prove by a preponderance of the evidence that had she known and sought an earlier referral, that it would have mitigated or prevented the nerve damage. Dr. Akin testified that if a Computerized Axial Tomography (CT) scan had been taken as soon as possible showing a nerve compression, he would have been “tempted to go in and relieve the pressure.” However, he did not state that it would have made a difference, only that it is better to refer a patient “earlier than later.” At one point in his testimony Dr. Aiken stated that the nerve was irreparably damaged at the time of the surgery. Thus, neither Dr. Akin nor any other expert testified that it was more likely than not that early discovery of the condition would have prevented or mitigated Mrs. Cao’s damages from the compressed nerve. Thus, Mrs. Cao failed to bear her burden of proof that, even if there was an unreasonable delay in referring her to a specialist, that delay was the proximate cause of her damages.

In light of these findings, we conclude that the standard for granting a JNOV was not met in this case since the facts and inferences do not point so strongly in favor of one party that reasonable men could not arrive at a contrary verdict. Joseph, 00-0628 at 4, 772 So.2d at 99; Mills, 02-668 at 4, 886 So.2d at 285. Thus, the trial judge erred in granting the JNOV as to damages. We will, therefore, | ^reverse the ruling of the trial judge in the JNOV, vacate the JNOV, and reinstate the jury verdict.

Dr. Schaffer further asserts that the trial judge erred in allowing evidence of the revocation of his Louisiana license for violations going back to 1995, without allowing a portion of the decision exonerating him in relation to allegations relating to Mrs. Cao. However, without commenting on the admissibility of that document, we find no error in the finding by the jury that Dr. Schaffer violated the standard of care in his treatment of Mrs. Cao’s condition. The evidence in this case was replete with instances of his disregard for his duty to provide post-surgical instructions to Mrs. Cao and to comply with his administrative and recordation duties in his treatment of her condition.

Finally, we note that Mrs. Cao moved for a new trial as an alternative to her motion for JNOV. The trial court’s judgment granting a JNOV, however, did not address her alternative request for a new trial, as required by art. 1811. Nevertheless, we need not send this case back to the trial court for it to rule on the motion for new trial,, as “sending this matter back to the trial court would be contrary to the concept of judicial economy and the interest of the parties in having this longstanding lawsuit concluded.” Va-Salle v.Wal-Mart Stores, Inc., 01-0462, p. 18 (La.11/28/01), 801 So.2d 331, 342. Like the Court in VaSalle, we have concluded that the jury’s verdict is reasonable in light of the evidence presented and, thus, the Plaintiff is not entitled to a new trial. We therefore deny the request for a new trial.

Accordingly, the JNOV is hereby vacated, the new trial is denied and all other rulings are affirmed. The jury verdict is hereby reinstated. Each party shall bear his/her costs of appeal.

JNOV VACATED; NEW TRIAL DENIED; JURY VERDICT REINSTATED.

      . The impacted tooth was number 32, commonly known as a third molar or wisdom tooth.

      . No judgment was rendered as to Mr. Cao and he has not appealed that omission. Thus, we will refer to the Plaintiff in the singular. We also refer to Dr. Schaffer as the Defendant in the singular, although the insurer is also a party.

      . La. C.C.P. art. 1811 provides for the JNOV, as follows:
      A.(l) Not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913, a party may move for a judgment notwithstanding the verdict. If a verdict was not returned, a party may move for a judgment notwithstanding the verdict not later than seven days, exclusive of legal holidays, after the jury was discharged. (2) A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
      B. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or render a judgment notwithstanding the verdict. If no verdict was returned, the court may render a judgment or order a new trial.
      C. (1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
      (2) If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
      (3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
      D. The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may move for a new trial pursuant to Articles 1972 and 1973. The motion for a new trial shall be filed no later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of the signing of the judgment notwithstanding the verdict under Article 1913. The motion shall be served pursuant to Articles 1976 and 1314.
      E. If the motion for a judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for a judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Article precludes the court from determining that the appellee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted.
      F. The motion for a judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both issues.

      . La. R.S. 40:1299.13 IF. provides:
      It shall not be essential to the validity of any informed consent that the consent be obtained in writing. Where consent to dental treatment by the patient or consent to dental treatment ... is secured other than in writing in accordance with Paragraph C of this Section, the explanation to the patient or person authorizing consent for the patient shall include the matters set forth in Paragraphs B(l) and B(2) of this Section, such consent shall be valid, effective, and subject to proof according to the rules of evidence of ordinary cases.


author: | JAMES C. GULOTTA, Judge, Pro Tempore.

text:
    Barbara B. GILLIAM and George R. Gilliam v. Lori L. PALAZZO, M.D.
    No. 04-CA-241.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 31, 2004.
    Joel A. Levy, Marrero, LA, for Plaintiffs/Appellants.
    Rodi W. Culotta, Angelle Schmidt Stuart, Mang, Batiza, Gaudin, Godofsky & Penzato, Metairie, LA, for Defendant/Ap-pellee.

      Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and JAMES C. GULOTTA, Pro Tempore.
   | JAMES C. GULOTTA, Judge, Pro Tempore.

Barbara B. Gilliam and George R. Gilliam, plaintiffs-appellants, appeal from the trial court’s judgment in this medical malpractice case, dismissing their suit against defendant-appellee, Lori L. Palazzo, M.D. We affirm.

On Wednesday, October 1, 1997, 56-year-old Barbara Gilliam telephoned the office of her primary care physician, Dr. Lori Palazzo, to obtain an appointment. According to the telephone consultation memo, Mrs. Gilliam related that she had neck pain and “now” had a rash on the right side of her neck that did not itch, but hurt. The memo further indicated Mrs. Gilliam said that someone had told her she might have “shingles.” Mrs. Gilliam was given an appointment for the following morning.

When Dr. Palazzo examined Mrs. Gilliam, she diagnosed Mrs. Gilliam with poison ivy, not shingles. Dr. Palazzo testified at trial that her progress notes indicated Mrs. Gilliam reported working in the garden for approximately four days. The progress notes also indicated that Mrs. Gilliam’s neck pain was intermittent. Dr. Palazzo testified that a physical examination revealed scattered vesicles, or 13small blisters, in patches on Mrs. Gilliam’s neck, upper chest, abdomen and arm. Dr. Pa-lazzo gave Mrs. Gilliam a steroid injection, placed Mrs. Gilliam on oral steroids, topical steroid cream, and Zyrtec, an antihistamine to help with itching.

On Monday, October 6, 1997, Mrs. Gilliam telephoned Dr. Palazzo’s office complaining of burning all over and spasms in her neck and right arm. She also related that she could not sleep. In response, Dr. Palazzo prescribed a sleeping pill and a muscle relaxant.

On Thursday, October 9, 1997, Mrs. Gilliam again telephoned Dr. Palazzo’s office. According to the telephone consultation memo, Mrs. Gilliam related that she still had poison ivy and that she still oozed and itched. Dr. Palazzo recommended that Mrs. Gilliam consult a dermatologist and made arrangements for her to see Dr. Daniel Marshall, a board certified dermatologist.

When Dr. Marshall examined Mrs. Gilliam the following day, October 10, 1997, he diagnosed her with herpes zoster, also known as shingles. Dr. Marshall explained that the disease is caused by the varicella virus, which is the same virus that causes chicken pox. After a person has chicken pox, the virus remains dormant in the nerve root. When activated, the virus travels from the nerve root along the nerves. It appears in patches of blisters on the skin along the distribution of the nerves. Dr. Marshall further explained that the manifestation of the blisters is preceded by tingling or pain in the area where the blisters are about to appear.

According to Dr. Marshall, the blisters are typically seen in the chest or abdominal area, but Mrs. Gilliam’s blisters were on her neck. Mrs. Gilliam also had a bacterial skin infection that was secondary to shingles. Mrs. Gilliam was treated by Dr. Marshall over the next several months. In November, Dr. Marshall prescribed medication for neuralgia, which is the pain resulting from shingles. By the last visit on January 26, 1998, Dr. Marshall noted that Mrs. Gilliam had sustained discoloration of the skin and had some scarring secondary to the | infection. Mrs. Gilliam also was treated by Dr. Steven Atkins, a neurologist, for the post-herpetic neuralgia.

A medical review panel was convened and an opinion was rendered on November 18, 1999. Two of the panelists, Doctors Samuels and Alper, found that Dr. Palazzo breached the standard of care, but that there were no damages. One panel member, Dr. McCord, found the evidence did not show Dr. Palazzo failed to comply with the appropriate standard of care. On January 10, 2000, the Gilliams filed a petition for damages against Dr. Palazzo alleging that she negligently failed to diagnose Mrs. Gilliam’s skin condition as shingles instead of poison ivy. The petition alleged that Dr. Palazzo’s negligence caused Mrs. Gilliam’s pain and permanent injuries, and both plaintiffs sought damages for loss of consortium and other damages.

The matter proceeded to a bench trial on August 13, 2003. After holding the matter open for the taking of depositions of experts, the trial judge rendered judgment, in extensive and well-written reasons, in favor of Dr. Palazzo on November 6, 2003, dismissing plaintiffs’ suit. The trial judge concluded that Dr. Palazzo did not breach the standard of care for an internist and that the misdiagnosis did not cause any damages. He also properly concluded that the window of opportunity had closed for administering antiviral medication and that plaintiffs’ argument in this respect was “mere conjecture.” We agree.

The plaintiffs assign two errors for our review:

1. The trial court erred in finding that there was no malpractice.
2. The trial court erred in finding that the plaintiffs sustained no damages.

In Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La.1991), the Louisiana Supreme Court outlined the burden of proof and appellate standard of review as follows:

| fiIn a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 723 (La.1986). Resolution of each of these inquires are determinations of fact which should not be reversed on appeal absent manifest error. Housley v. Cerise, 579 So.2d 973 (La.1991); Smith, 523 So.2d at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989); Hastings, 498 So.2d at 720.

The law does not require perfection in medical diagnosis and treatment. On the contrary, a doctor’s professional judgment and conduct must be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events. Fraser v. Ochsner Foundation Hosp., 94-380, p. 7 (La.App. 5 Cir. 12/28/94), 648 So.2d 1081, 1084, writ denied, 95-101 (La.3/17/95), 651 So.2d 270.

In the present case, the expert testimony conflicted as to whether Dr. Palazzo breached the standard of care by failing to diagnose Mrs. Gilliam with shingles. At trial, Dr. Palazzo was accepted as an expert in internal medicine. Dr. Palazzo explained that she diagnosed Mrs. Gilliam with poison ivy instead of shingles based on several factors. First, Mrs. Gilliam presented with a history of working in the yard. Second, she had a rash and pain at the same time, while the pain precedes the rash by days or even weeks in a patient with shingles. Further, Dr. Palazzo explained that patients with shingles are usually so incapacitated by the pain that they come into the office right away, while Mrs. Gilliam’s pain was intermittent. Also, Dr. Palazzo saw only a few scattered blisters in different areas of Mrs. Gilliam’s body, which was not the typical presentation of shingles.

Dr. Marshall testified that, when he saw Mrs. Gilliam on October 9,1997, eight days after she first saw Dr. Palazzo, the disease was in a “classic” presentation in that the blisters were unilateral on the right side and followed the | ^dermatome distribution. Dr. Marshall acknowledged that shingles is usually seen on the chest or abdominal area, while the disease was on Mrs. Gilliam’s neck. While Dr. Marshall testified he had no difficulty in making the diagnosis, he did not believe Dr. Palazzo had breached the standard of care based on “what she saw and what she thought she was treating.”

The deposition testimony of the medical review panelists and of Dr. Marshall was submitted to the trial court after the trial. Both Doctors Samuels and Alper testified that Dr. Palazzo should have diagnosed Mrs. Gilliam’s condition to be shingles. However, Dr. Alper did not believe that the misdiagnosis had done any “harm” to Mrs. Gilliam. Dr. Alper explained that antiviral medication to treat shingles should be given within 72 hours. Dr. Sam-uels believed that the best time to give the antiviral medication is before the rash appears or when the patient has one or two blisters. Both doctors agreed that the effectiveness of the medication is speculative when administered beyond the 72-hour window. Dr. Samuels opined the medication would have had “little effect” on Mrs. Gilliam’s condition, because of the amount of time that had passed when Mrs. Gilliam saw Dr. Palazzo.

The third panelist, Dr. McCord, testified that the evidence did not support a finding that Dr. Palazzo breached the standard of care. According to Dr. McCord, it is not uncommon to miss the diagnosis of shingles because the disease manifests itself in a variety of ways. Dr. McCord agreed that a diagnosis of poison ivy was reasonable in a patient who presented with Mrs. Gilliam’s history and whose blisters were on both sides. Moreover, Dr. McCord believed that the outcome of Mrs. Gilliam’s condition would have been the same even if the antiviral medication had been administered.

Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. Theriot v. Lasseigne, 93-2661, p. 9 (La.7/5/94), 640 So.2d 1305, 1313. Further, where the |7trial court’s findings are reasonable in light of the record, the court of appeal may not reverse. From our consideration of this record, we conclude that the trial judge properly dismissed plaintiffs’ suit.

Accordingly, we affirm the trial court’s judgment. Costs for this appeal are to be paid by plaintiffs-appellants.

AFFIRMED.