author: hTERRI F. LOVE,- Judge.

text:
    Emma TURNER v. Michael LYONS, ABC Insurance Company, and the City of New Orleans.
    No. 2003-CA-0186.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 2004.
    Rehearing Denied Feb. 27, 2004.

      Fred L. Herman, Law Offices of Fred L. Herman, New Orleans, LA, for Emma Turner, Isaiah Turner, Joyce Turner- and Robert Tate.
    Harry R. Crimm, New Orleans, LA, for Milton Turner, Ruby Turner and Arthur Turner.
    Edward E. Reynolds, Deputy City Attorney, Frank B. Hayne, III, Assistant City Attorney, John Smith, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy of Litigation, Charles L. Rice, Jr., Former City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge MOON LANDRIEU).
   hTERRI F. LOVE,- Judge.

Defendants appeal the trial court’s judgment awarding the substituted plaintiffs $400,000 for the survival action and $150,000 each for their wrongful death claims. It is from this judgment that Michael Lyons and the City of New Orleans appeal. For the following reasons, we affirm the trial court’s findings as it pertains to the assessment of liability, but reverse the trial court’s finding on quantum.

FACTS AND PROCEDURAL HISTORY

On August 1,1995, between 9:30 to 10:00 p.m., sixty-year-old Emma Turner (“Mrs.Turner”) was crossing from the lake to the river side of Canal Street in the block between North Galvez and North Miro, when she was injured by a New Orleans Police Department (“N.O.P.D.”) vehicle, being driven by Officer Michael Lyons. Mrs. Turner was transported to Charity Hospital where she underwent immediate surgery to repair her two broken legs and a broken arm caused by the accident. That same night, while in the process of recovery, she suffered a heart attack. Two months later, on October 1, 1995, Mrs. Turner was re-admitted for eight days at Charity Hospital for heart complications. Less than one month later, on November 3, 1995, she returned to the hospital with acute [^exacerbation and congestive heart failure and suffered a seizure. On January 19, 1996, Mrs. Turner once again was hospitalized with congestive heart failure, deep vein thrombosis, and a clot in her right atria. Mrs. Turner returned to the hospital on February 21, 1996, again on February 25, 1996, due to symptoms related to congestive heart failure. Her final visit to the hospital was on April 4, 1996, where she was admitted for five days due to heart complications. Mrs. Turner died on May 31,1996.

On September 25, 1995, Emma Turner filed suit against Michael Lyons, ABC Insurance Company, and the City of New Orleans for injuries she sustained as a result of the accident. Upon her death, Mrs. Turner’s six children were substituted in her survival action as plaintiffs and they, in turn, filed a wrongful death action against Officer Michael Lyons, ABC Insurance Company, and the City of New Orleans, alleging that the August 1, 1995 car accident was the cause of their mother’s death. At the trial on the merits, defendants contend that sixty year-old Emma Turner propelled herself into the side of the N.O.P.D. vehicle. However, after considering the evidence, the testimony, and arguments of counsel, the trial court found that the injuries suffered by the decedent, Mrs. Turner, were consistent with a frontal impact and that Officer Michael Lyons was 100% at fault in causing the accident. In its reasons for judgment, the trial court also held, “[t]he testimony of Dr. William Lacorte valid and undisputed by the defense. Therefore, the Court finds that the accident of August 1, 1995, led to the death of Emma Turner.” The trial court awarded plaintiffs in the survival action $400,000 and $150,000 each for their wrongful death claims. From this judgment, defendants, Michael Lyons, ABC Insurance Company and the City of New Orleans appeal.

LAW AND DISCUSSION

On appeal, Michael Lyons and the City of New Orleans allege four assignments of errors:

|«(1) The trial court erred by relying upon the testimony of an accident reconstruction expert to impose liability, where that expert’s opinions were based on undefined and unproven facts;
(2) The trial court’s holding was erroneous in failing to attribute contributory negligence to Emma Turner;
(3) The award of $400,000 for plaintiffs survival action claim was excessively high; and
(4) The award of $150,000 to each adult plaintiff for wrongful death damages was excessively high and constituted an abuse of discretion.

The issues presented in this appeal consist primarily of questions of fact. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court announced a two-part test for the reversal of a fact finder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of a trial court, and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stobart v. State of Louisiana, Through the DOTD, 617 So.2d 880 (La.1993).

The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The Louisiana Supreme Court has emphasized that

the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Housley v. Cerise, 579 So.2d 973 (La.1991), (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

The rationale for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, but also upon the proper allocation of trial and appellate functions between the respective courts. Thus, where two views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Watson v. State Farm Cas. Ins. Co., 469 So.2d 967 (La.1985).

First Assignment of Error

Since the disposition of the first assignment of error may pretermit any consideration of defendant’s other assignments of error, we address the appellants’ first assignment of error at the outset. In the first assignment of error, defendants assert that plaintiffs expert testimony was based upon inadmissible evidence and accordingly, the trial court’s reliance upon the expert testimony was erroneous. Defendants conclude that the trial court’s imposition of liability upon Officer Lyons based on this testimony is reversible error.

The appellants, Officer Michael Lyons and the City of New Orleans contend that the testimony of plaintiffs expert, Dr. Frank Griffith, a physicist and plaintiffs accident reconstruction expert, was inadmissible because his opinion was based upon inadmissible evidence. Appellants contend that the inadmissible evidence Dr. Griffith relied upon in forming his opinion was the N.O.P.D. Police Report and the N.O.P.D. Internal Report. Appellants assert that the trial court based its finding of liability against Officer Lyons upon Dr. Griffith’s testimony and should therefore be reversed. We find no merit in this argument. Louisiana Code of Evidence Article 703 provides:

[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those | ¡^perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidénce.

In Wiley v. City of New Orleans, 2000-1544 (La.App. 4 Cir. 5/16/01), 809 So.2d 151, the testimony of an expert in the field of land surveying and design, construction, maintenance and safety of public roads and streets was challenged by the appellants as being inadmissible because it was based upon an inadmissible (hearsay) police accident report. According to Article 703 of the Louisiana Code of Evidence, this court found the expert’s testimony admissible even though it was a based upon inadmissible hearsay per s.e. In Wiley this court referenced the 1988 official comments’(d) to the Louisiana Code of Evidence Article 703 states:

Under this Article the facts or data underlying the expert witness’ opinion may properly be: ... (3) under designated circumstances, facts or data not admissible in evidence (because, for example, their source is inadmissible hearsay), if they are of a kind reasonably relied upon by experts in the particular field in arriving at their opinions or inferences ... Whether the facts or data may be reasonably relied upon” in this Fashion is a question for the court under Article 104(A).'

During direct examination, Dr. Griffith testified:

Q: Right. Okay. Now, Doctor, would you tell the Court what information you ■reviewed in connection with the matter of Emma Turner?
A: I reviewed the accident report, the deposition of Officer Lyons, a report Sergeant Glasser, which was the internal report, and the deposition of Dr. Liuzza. Those were the documents that I reviewed. In addition to that, I did a sight visit where measurements were made and photographs were taken on the 19th of April, this year.

Dr. Griffith also testified that he based his opinions upon the trial testimony of defendant Officer Lyons, reviewed the specifications of the type of police vehicle Officer Lyons was driving at the time of the accident, and made calculations regarding its stopping time. Additionally, Dr. Griffith reviewed the Motor Vehicle Traffic Regulations, a textbook pertaining to pedestrian accident reconstruction as | (¡well as videos with pedestrian accident reconstructions. The evidence indicates that Dr. Griffith based his opinions on various sources including, but not limited to the N.O.P.D. Police Report and Internal Report, such that the admissibility of the two documents are irrelevant to the overall admissibility of his testimony. Moreover, as in Wiley, Dr. Griffith’s reliance upon the N.O.P.D. Police Report and Internal Report does not render his testimony inadmissible as they are of the kind of facts and/or data reasonably relied upon by experts in his particular field.

Finally, the trial court conveyed in its reasons for judgment that it evaluated all the witness testimony, arguments of counsel, and all the evidence presented during the trial. The court specifically stated that it relied upon the testimony of plaintiffs medical expert, Dr. William Lacorte, in its deliberations and noted that Dr. Lacorte’s testimony had been undisputed by the defense. Included in the trial testimony were that of Officer Lyons, the officers who responded to the scene of the accident, and the officer who performed the internal investigation of the accident. Therefore, it is apparent the trial court evaluated other witness testimony and evidence from which it drew reasonable inferences in assessing liability to Officer Lyons.

After a complete review of the record and the trial court’s reasons for ruling, we cannot find that the trial court’s ruling assigning liability to Officer Lyons was manifestly erroneous. We find no error in the trial court’s ruling that the evidence was inadmissible hearsay per se, but could be used as a basis of expert testimony.

Second Assignment of Error

In the appellant’s second assignment of error, the defendants assert the trial court erred in failing to attribute any fault to Mrs. Turner. Allocation of fault is a factual finding, which an appellate court may not disturb unless the finding is demonstrably wrong. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. Factual findings cannot be overturned in the absence of manifest error. Stobart v. State of Louisiana, Through the DOTD, 617 So.2d at 882. The issue to be resolved by this court is not whether the trial court was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id. Pursuant to La. R.S. 32:214, “[E]very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway.” Dang v. New Hampshire Ins. Co., 2000-1554 (La.App. 4 Cir. 10/10/01), 798 So.2d 1204. A motorist has a duty to maintain a careful lookout and to exercise care to avoid any obstructions. Nick v. King Cab Co., 02-295, p. 6 (La.App. 5 Cir. 9/30/02), 829 So.2d 568, 572. When a motorist sees, should have seen, or anticipates that a pedestrian is going to cross the path of his vehicle, the motorist must exercise reasonable care to protect the pedestrian. Id. at 571. On direct examination Dr. Griffith testified:

Q: Now, Doctor, did you have occasion in the course of your investigation to review the medical opinion of the forensic pathologist, Dr. Liuzza?
A: I did.
Q: And what did you understand the injuries to Mrs. Turner to be?
A: The major injuries were broken legs, both legs broken in a manner, which was from her left to her right. That is, -the force would have been applied from her left to her right.
Q: What significance is that to you as a physics in accident reconstruction?
A: Well, it requires considerable force to break the legs, and these are lower leg fractures, and it’s not consistent with striking a rear view mirror. It’s consistent with striking a bumper.

At the trial on the merits, the appellants had the burden of proving that Mrs. Turner was comparatively negligent for the cause of the accident. Appellants offered no proof to suggest how Mrs. Turner was hit. During Officer Lyon’s testimony on cross-examination he testified:

Q: Officer Lyons, is it your testimony that at no time did the front of your vehicle contact Ms. Emma Turner?
A: That’s correct.
Q: You did not see her before impact; is that correct?
-A: That’s correct.
|SQ: You did not apply your brakes before impact; is that correct?
A: That’s correct.
Q: You, in fact; did not stop until after impact; is that correct?
A: That’s correct.

Officer Lyons testified that he stopped at a red light on Canal Street and was aceeler-ating from the green light when he struck Mrs. Turner. However, Dr. Griffith demonstrated through diagrams of the scene and Officer Lyons’ testimony that Mrs. Turner had either been within, or at most within five (5) feet of the crosswalk area at the time of the accident. It is uncontested that Mrs. Turner had walked all the way from the curb, across a parking lane and two driving lanes before being struck by Officer Lyons. Dr. Griffith demonstrated that the intersection had lights on all corners and that Mrs. Turner would have been visible to' him for at least one hundred fifty (150) feet, allowing Officer Lyons sufficient time to take evasive action. Dr. Griffith testified:

Q: So Mrs. Turner would have been visible from a stopping vehicle proceedings on Canal from Galvez at least 150 feet down the block?
A: That’s correct.

Furthermore, forensic pathologist, Dr. Liuzza demonstrated that the severity and angle of the break to the tibia and fibula of both Mrs. Turner’s legs indicate that she did not walk into the side of the police car, as appellants suggest, but her injuries were consistent with being hit by the front bumper of the vehicle. Defendants did not controvert neither the plaintiffs’ evidence nor the testimony of plaintiffs expert, Dr. Griffith’s; therefore, it was reasonable for the trial court to conclude that defendants failed to prove any comparative fault on the part of Mrs. Turner. In the absence of specific facts to the contrary, it is appropriate to presume | flthat a decedent pedestrian had not entered a roadway in the face of an oncoming vehicle. Gallineau v. Travelers Indem. Co., 322 So.2d 408 (La.App.1975).

Considering the record before us, we cannot say the trial court’s determination that Mrs. Turner was not at fault in the accident was “manifest error.” Accordingly, this assignment is without merit.

Third Assignment of Error

In its third assignment of error, appellants assert that the damages awarded to plaintiffs are excessive. Thus, we must determine whether a survival award of $400,000 is an abuse of the trial court’s discretion. The trial court has great discretion when assessing damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Each case is different, and the adequacy of the award should be determined by the facts or circumstances particular to the case under consideration. Id. Thus, the initial inquiry is whether the award for the particular injuries and their effects, under the particular circumstances, on the particular injured person is a clear abuse of the “much discretion” vested in the judge or jury. Youn, 623 So.2d at 1260; Joseph v. City of New Orleans, 2002-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420. In reviewing general damages, an appellate court is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id. The standard for review is nonspecific, and only when the award, in either direction, is beyond that which a reasonable trier of fact could assess for effects of a particular injury to a particular plaintiff under particular circumstances, should an appellate court increase or reduce award. Coco v. Winston Industries, Incorporated, 341 So.2d 332 (La.1977). Upon finding an abuse of discretion, the award can only be raised (lowered) to the highest (lowest) point, which is reasonably within the discretion of the trial court. Emerson v. Empire Fire and Marine Insurance Company, 393 So.2d 691 (La.1981), citing Coco v. Winston Industries, Incorporated, 341 So.2d 332 (La.1977).

|inLouisiana Civil Code (La.C.C.) article 2315.1(A) provides in pertinent part for survival actions:

If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property, or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

Generally, survival damages are warranted if plaintiff presents any evidence (“a scintilla”) of pain and suffering on the part of the decedent. Giammanchere v. Ernst, 1996-2458 (La.App. 4 Cir. 5/19/99), 742 So.2d 572. Plaintiffs correctly analogize Mrs. Turner to the plaintiff in Giam-manchere, asserting that, like Giammanchere, Mrs. Turner’s survival damages were appropriately valued at $400,000. Ms. Giammanchere suffered for six weeks with a misdiagnosis and resultant delay in treatment of a hip fracture and experienced severe and documented pain. Furthermore, Ms. Giammanchere experienced multiple system failure after her surgery, including a stroke, and remained in the hospital from the date of her surgery until her death, three and a half months later.

It is undisputed that Mrs. Turner was severely injured when the vehicle struck her. The injuries she suffered caused her to endure great pain and suffering. Her arm and both of her legs were broken, requiring immediate surgery. Dr. La-corte, plaintiffs’ medical expert, testified that the trauma of the accident caused severe blood loss, which put a strain on Mrs. Turner’s heart. Dr. Lacorte was of the opinion that the stress of the accident caused Mrs. Turner’s heart attack. Mrs. Turner continued to experience congestive heart failure after the accident. Dr. La-corte attributed Mrs. Turner’s poor cardiac function to be a direct consequence of the accident. Mrs. Turner then developed deep vein thrombosis and a clot in her atria as a result of her being sedentary. Mrs. Turner needed a by-pass surgery. This surgery would have required a vein graft to be taken from her leg, but the Indamage to her legs from the motor vehicle accident precluded her from being a candidate for the surgery. Approximately a month and a half before her death, Mrs. Turner was diagnosed as having “end stage cardiomyopathy.” Mrs.Turner died approximately ten months after being hit by the police vehicle.

At trial, Mrs. Turner’s son, Milton Turner, testified that Mrs. Turner had been very active and independent before the accident, tending to her own needs as well as those of her family, including her young grandchildren. She was also a very active member of her community. Following the accident, she was in constant pain and discomfort' in the months between the accident and her death. Furthermore, Mrs. Turner was no longer able to lead the active lifestyle she had prior to the accident and was able to get around only with the aid of a walker. The injuries Mrs. Turner sustained were ongoing, causing her to return to the hospital multiple times following the accident, sometimes for days on end, and, ultimately caused complications, which led to her death.

Based upon the totality of evidence presented to the trial court on Mrs. Turner’s survival damages, we find the trial court’s award of $400,000 did not constitute a clear abuse of its discretion.

Fourth Assignment of Error

In the appellants’ fourth assignment of error, we do find that the trial court abused its discretion in awarding $150,000 to each of Mrs. Turner’s six children for wrongful death damages. La. C.C. article 2315.2(A) provides in pertinent part:

If a person dies due to the fault of another, suit may be brought by the following persons to recover damages, which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

Damages for wrongful death are intended to compensate the victim’s beneficiaries for their loss, following the victim’s death. Elements of damages for | ^wrongful death include loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Watkins v. Bethley, 662 So.2d 839 (La.App. 2nd Cir. 11/1/95); Mathieu v. State, Dept. of Transportation and Development, 598 So.2d 676 (La.App. 2nd Cir.1992); Pierre v. Lallie Kemp Charity Hospital, 515 So.2d 614 (La.App. 1st Cir.1987). In order to establish a claim for loss of consortium, a claimant must factually support the defendant’s liability, the damage suffered by the primary victim, and his or her loss of consortium damages. Peck v. Wal-Mart Stores, Inc., 96-645 (La.App. 3 Cir. 11/6/96), 682 So.2d 974. Loss of consortium, in the context of the parent/child relationship, means loss of the aid, assistance and companionship of the child, or loss of affection, society and service. Spears v. Jefferson Parish School Board, 94-0352, p. 7 (La.App. 5 Cir. 11/16/94), 646 So.2d 1104, 1107. A loss of consortium award is a fact-specific determination, to be decided case-by-case and is disturbed only if there is a clear showing of an abuse of discretion. Rudd v. Atlas Processing Refinery, 26,048 (La.App. 2 Cir. 9/21/94), 644 So.2d 402, 411; Johnson v. Wal-Mart Stores, Inc., 616 So.2d 817 (La.App. 2nd Cir.1993). If an abuse of discretion is found, it is incumbent upon this court to determine the greatest or least amount that the fact finder could have reasonably awarded, and either raise or lower the award to that extent. Town v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

However, before a trial court award of damages can be questioned as excessive or inadequate, the reviewing court must look first, not to prior awards, but to the individual circumstances of the instant case. Coco v. Winston Industries, Incorporated, 341 So.2d 332 (La.1977). Thus we must examine the facts of this case and, in particular, the circumstances of the relationship of each child with the decedent. Emphasis added. Watkins v. Bethley, 662 So.2d 839 (La.App. 2 Cir. 11/1/95). In Thonn v. Cook, 2003-0763 (La.App. 4 Cir. 12/10/03), 863 So.2d 628, the Fourth Circuit, held:

11sLoss of consortium claims generally have the following seven items: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations; (4) loss of performance or material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of fidelity. Campbell v. Webster Parish Police Jury, 36,391 (La.App. 2 Cir. 09/18/02), 828 So.2d 170.

To be compensable, it is not necessary that a loss of consortium claim include damages from each category. Gunn v. Robertson, 01-347 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, 565; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700. However, the plaintiff has the burden of proving definite loss. Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App. 2 Cir. 12/6/00), 774 So.2d 1093. Although claims for consortium are usually made by minor children, La. C.C. articles 2315, 2315.1 and 2315.2 offer relief without regard to the majority or minority of the parties so aggrieved. Moreover, precedent exists for the award of loss of consortium to adult children. Sebastien, et al. v. McKay, M.D., et al., 94-203 (La.App. 3 Cir. 11/23/94), 649 So.2d 711.

Although plaintiffs factually supported the defendant’s liability, and established damage suffered by the primary victim, Mrs. Turner, this court finds that there was insufficient factual support establishing a loss of consortium sufficient to render individual awards of $150,000. “Ordinarily, the parent’s duty to provide largely disappears when the child attains majority, unless the child is still in school, less than nineteen years old, and dependent.” Id. at 6, 649 So.2d at 715 citing LSA-C.C. art. 230.

[A]n award for loss of consortium is properly made where there has been some measurable or compensable loss, such as loss of love and affection, society and companionship, right of performance of material services, right of support, aid and assistance, and felicity.

Armstrong v. Fireman’s Fund Ins. Co., 558 So.2d 646 (La.App. 1 Cir.1990) citing La. C.C. art. 2315; Johnmeyer v. Creel, 499 So.2d 571 (La.App. 2nd Cir.1986).

Mrs. Turner had six (6) children, all majors, at the time of her accident and subsequent death. The record clearly indicates that Mrs. Turner was loved by her 114children and was cherished as a significant member of the Turner family. In no way is this court attempting to demoralize the fact that Mrs. Turner enriched the lives of her children, grandchildren, and the community.

However, we are a court of records. In assessing whether the trial court abused its discretion in awarding $150,000 to each of Mrs. Turner’s adult children, we must review the evidence of record in this case, showing that the children had such . extraordinary demands on them as to establish an award for loss of consortium for $150,000. At the trial on the merits, two of Mrs. Turner’s children testified, Milton and Isaiah Turner. On direct examination, Milton Turner testified that he visited his mother approximately three to four times a week to eat at his mother’s house, because she cooked everyday. He also testified that other members of the family would come by to visit as he did. When questioned about family holidays and gatherings, Milton Turner testified that the family gathered for birthdays and holidays such as Easter, Thanksgiving and for the family reunion, which was usually the last Saturday in May. He gave testimony that his mother’s favorite hobby was Bingo and that she attended church every Sunday and cooked meals for the homeless given by her church every Wednesday. Milton Turner also testified that his brother, Robert, along with his three minor children, lived with Mrs. Turner. Although neither Robert Turner nor Mrs. Turner’s grandchildren testified as to the level of closeness they shared with Mrs. Turner, Milton Turner testified that his mother would “cook, clean, and tend to her grand kids” on a daily basis.

During direct examination, Milton Turner gave testimony establishing to what extent the family was impacted by the injury and subsequent death of Mrs. Turner. Milton was questioned about the hospital visits to see his mother during her two weeks stay after the accident. He testified that he went back a few times to see his mother in the hospital, but based on bad hospital experiences, he became all | ^“jittery and stuff in hospitals.” He also testified that he “did see his siblings, his brothers and sisters up there visiting their mother on a regular basis.” Although Milton Turner did not provide elaborate testimony as to the extent of the familial ties the Turner children shared with Mrs. Turner, the testimony does establish that the Turner children had suffered a compensa-ble loss. The defendants did not controvert'the testimony of Milton Turner as it pertains to the familial relationship between Mrs. Turner and the Turner children and grandchildren.

The other Turner child to testify was Isaiah Turner, who lived in Philadelphia at the time. Isaiah Turner also mentioned the normal holiday family gatherings and reunions., During direct examination, Isaiah Turner testified that the annual family reunion was held on the last Saturday in May, and that Mrs. Turner’s death on May 31, 1996 was the last Saturday in May that year. During direct examination, Isaiah Turner was questioned as to the. Turner’s familial relationship.

Q: Robert (sic), I know it’s been on and off for a few weeks and months and years really, but the next document I -want to show you is really a'photocopy we made of a plaque. And I want you to tell the Judge what this plaque was.
A: Actually it’s a plaque me and my deceased brother, Darryl, made in honor of the family to her, and mostly everyone else, at the time I was in New Orleans with her’ listed at the timé, her grandchildren, and two of her sons in recognition of what she has méant to them and to everyone else.

Isaiah Turner also testified that on his way home from Philadelphia, when he found out that his mother died, he composed a tribute to her, which he read at her wake. Isaiah Turner testified that Mrs. Turner’s death had a “tremendous affect on the family, as she was the matriarch for the family, and she was like the centerpiece for the family.” On direct examination Isaiah was asked how the death of Mrs. Turner affected the family. Isaiah testified:

It had tremendous affect on the family, as she was the matriarch for the family, and she was.like the centerpiece for the family. She was the counselor, the disciplinarian |1fiif that called. She was almost the whole family in a sense. We met there for reunions, for gatherings. It was never a question of where you’re going to go, it was like, what time are you going to get there, in a sense. When holidays came up her favorite time was Mardi Gras. That’s something we still try to hold dear to our having the family around her.

Plaintiff’s cite Courteaux v. State, 99-0352 (La.App. 4 Cir. 9/22/99), 745 So.2d 91 as an attempt to demonstrate that the loss of consortium award for major children is not excessive, but supported by case law. In Courteaux v. State, two major children were awarded $200,000 for the loss of their mother in an auto accident. However, unlike the plaintiffs in the instant action, the two daughters in Courteaux had mental limitations, which made them especially dependent, physically and emotionally, upon their mother.

In the other cases plaintiffs relied upon, there was evidence of especially close relationships with their parent(s) and testimony that the parents were great sources of emotionally support. In Thomas v. State Farm Insurance Co., and Tuggle v. State, Through DOTD, 499 So.2d 562 (La.App. 2nd Cir.1986), the court held:

[ajwards of $400,00 to husband and $300,000 to each child for wrongful death of wife and mother were excessive and would be reduced to $150,000 to husband, $100,000 to minor child, and $75,000 to adult child. The court reasoned, that although the Thomases were a close-knit family of which Mrs. Thomas was an integral part, when considered against the mass of general damage awards for the wrongful death of a wife and mother, the trial court’s awards were excessive. In wrongful death eases involving a parent, awards to minor children have traditionally been greater than awards for major children. For example, awards to minor children range from $25,000 to $150,000, with most of these awards being at $40,000.00 and $100,000.00; awards to major children range from $20,000.00 to $75,000.00 with no specific concentration. See Thomas v. State Farm Insurance Co. and State through DOTD, 499 So.2d at 566 (La.App. 2nd Cir.1986).

Although the record indicates that the Turner children did, in fact, suffer a measurable and compensable loss, other than general testimony, there is nothing in 117the record for this court to review that would indicate that the Turner children’s loss of consortium claim warrants individual awards of $150,000 each. In Robbins v. State Through the Department of Labor, 728 So.2d 991 (La.App. 2 Cir. 2/24/99), the plaintiff sustained injuries when she fell at the Department of Labor office. At the time of the accident the plaintiffs children, Shane, Juanita, and Brian were ages 14, 12, and 11, respectively. The Second Circuit amended the judgment and awarded the three adult children loss of consortium damages. During the trial on the merits, plaintiffs presented trial testimony along with their depositions. However, there was “neither trial nor deposition testimony from” the daughter Juanita. The court amended the judgment, which denied the loss of consortium claim, and awarded the children $2,000 to Shane, $1,000 to Juanita and $2,500 to Brian. Although there was neither trial testimony nor deposition testimony from Juanita, the court reasoned that Shane testified, in great detail, as to the responsibilities his sister assumed, due to the injury of their mother. The court found that there was testimony as to the specific impact that Mrs. Robbins’ injury played in all of the children’s lives and the degree to which Mrs. Robbins’ injury required the children to adjust their lives.

Because loss of consortium is a personal loss, each child should be given a chance to convey the impact the injury or death had on their respective lives. Through the testimony of the two Turner children who were called to testify, the record establishes the impact that the death of Mrs. Turner had on the Turner family, but more specifically the impact her death had on Milton and Isaiah Turner.

We have conducted a review of loss of consortium awards in similar cases and found that the awards varied according to evidence of record. In Rivet v. State, Through Department of Transportation, 434 So.2d 436 (La.App. 3rd Cir.1983), the court awarded $35,000.00 to each of three major children. In Estate of King v. Aetna Cas. Surety Co., 427 So.2d 902 (La.App. 3rd Cir.1983), the court |18awarded $150,000.00 to the minor child, $50,000.00 to each of four major children, and $75,000.00 to each of two major children. In LeJeune v. Allstate, Ins. Co., 373 So.2d 212 (La.App. 3rd Cir.1979), the court decreased the award to wife from $50,000.00 to $25,000.00, increased the award to the minor son from $12,500.00 to $30,000.00, and increased the award to each of the three major children from $7,500.00 each to $20,000.00.

In Brodtmann v. Duke, 96-0257 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, the court reasoned that the award $150,000 to each of decedent’s three adult children, although high, was not an abuse of discretion. This court reasoned that the trial court found that the Brodtmann family was a very close family. In Brodtmann, this court held:

[T]he trial court was very impressed by the testimony of Mrs. Brodtmann and the Brodtmann siblings regarding the effect of their father’s death on the quality of their lives ... [S]uch a tragic and untimely fashion caused great despair in each of the plaintiffs ... Although the Brodtmann children are adults and were not dependent upon their father for financial support, they each testified that he was great source of emotional support to them ... Although some may find the awards to be on the high end of the scale, we cannot say that the awards are out of proportion or constitute an abuse of the trial court’s discretion.

Emphasis added. Id. at 460.

The loss of a loved one can never justly be compensated, however, in assessing an appropriate quantum, we are guided by preexisting case law. The Supreme Court has held:

[I]f the appellate court determines that abuse of discretion with respect to award of damages has been committed, it is then appropriate to resort to review of prior awards to determine appropriate modification of award; in such review, test is whether present award is greatly disproportionate to mass of past awards for truly similar injuries.

Theriot v. Allstate Insurance Company, 625 So.2d 1337 (La.1993).

haln the present case, we find that the testimony does not rise to the level that was set forth in Brodtmann. Although the testimony does indicate that the Turner children incurred a measurable and compensable loss, the testimony does not establish a loss of consortium claim supporting awards of $150,000 for each child. The testimony given by Milton and Isaiah was specific as to the impact that their mother’s death had on their respective lives; however, their testimony was only general in establishing the impact that Mrs. Turner’s death had on the other Turner children who did not testify. We find that an award of $150,000 to each of Mrs. Turner’s adult children is excessive and accordingly reduce the award for each Turner child who testified, Milton and Isaiah, to $50,000. Based on the general testimony, as to the impact of Mrs. Turner’s injury and subsequent death on the four Turner children who did not testify, we find that an award of $150,000 is excessive and reduce the award to $20,000.

CONCLUSION

For the reasons assigned, we find no merit in the appellant’s first assignment of error and we affirm the trial court’s ruling that the expert testimony was admissible. We find no merit in the appellant’s second assignment of error and affirm the trial court’s determination that Mrs. Turner was not at fault in the accident. Further, appellant’s third assignment of error is without merit and we find that the trial court’s award of $400,000 did not constitute a clear abuse of discretion. However, in addressing appellant’s fourth assignment of error, we amend the trial court’s judgment awarding each of the plaintiffs $150,000 for their wrongful death claim. We find that the highest amount the trial court could have awarded to Isaiah and Milton Turner, the two major surviving children of Mrs. Turner who testified is $50,000 each. As for the judgment awarding the other four of Mrs. Turner’s children damages for their loss of consortium claim, based on the | ^testimony establishing a loss to satisfy an award for loss of consortium, the trial court’s judgment is amended as to Arthur, Robert, Joyce and Ruby Turner and reduced to $20,000.

AFFIRMED, AMENDED AND RENDERED.

      . Dr. Griffin testified that as of the day of trial, there was no recognizable painted crosswalk where the accident occurred.


source: Caselaw Access Project

author: CLEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Joy WILLIAMS v. DEPARTMENT OF UTILITIES.
    No. 2003-CA-1473.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 2004.

      Brett E.-Emmanuel, Assistant City Attorney, Joseph V. DiRosa, Jr., Deputy City Attorney,-Franz L. Zibilich, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, New Orleans, LA, for Defendant/Appellee, City of New -Orleans, Dept, of Utilities.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   CLEON A. CANNIZZARO, JR., Judge.

Joy Williams appeals the decision of the Civil Service Commission for the City of New Orleans, which upheld the New Orleans Department of Utilities’ termination of her civil service employment. At the time, Ms. Williams wás employed as an Office Assistant III with permanent status.

FACTS AND PROCEDURAL HISTORY

Ms. Williams was working in the taxicab permit department as a counter clerk when a New Orleans Police Department raid resulted in her arrest, along with the arrest of numerous taxicab drivers and other City employees, for the criminal offense of public bribery.

The First Disciplinary Action: Public Bribery

As a result of her arrest for public bribery, the Department of Utilities notified Ms. Williams that she was placed on emergency suspension for one hundred and twenty days. Ms. Williams appealed the disciplinary action.

At the hearing in connection with The suspension, Detective. Michael Walsh, the chief investigator for the City of New Orleans, testified that Ms. Williams issued a taxicab permit to Mr. Ismail Khan even though he did not meet the ^requirements necessary to obtain a permit.. As a result, Ms. Williams and her two supervisors were arrested for public bribery. Detective Walsh noted that there was no evidence that Ms. Williams had bribed anyone or had received any bribe money. Rather, according to Detective Walsh, the investigation revealed that Ms. Williams’ supervisors profited from the bribes.

Andrea Johnson, Principal Analyst for the Department of Utilities, testified that Ms. Williams was suspended because she had been arrested for public bribery and that any further disciplinary action would be decided after the investigation.

Ms. Williams testified and admitted that she issued permits to people who did not meet the requirements for a taxicab permit: applicants who had not taken and passed the written exam; had not taken and passed a drug screen; and had not submitted to a criminal background check. Ms. Williams further testified that she recognized that, at the time, issuing taxicab permits to those who had not met the requirements was wrong. Ms. Williams claimed, however, that she issued such permits only on the orders of her supervisor, Mr. Freddie Sims, and upon confirmation from the major supervisor, Mr. Brian Cain.

The hearing examiner concluded in the suspension case that the City of New Orleans had failed to produce any evidence of bribery, but noted that there may have been malfeasance on Ms. Williams’ part.

The Second Disciplinary Action: Malfeasance

Prior to the issuing of the hearing examiner’s recommendation in the suspension case, the Department of Utilities notified Ms. Williams that a pre-termination hearing was scheduled. The Department of Utilities charged Ms. Williams with malfeasance for processing eleven taxicab permit applications of ^ineligible persons. Ms. Williams did not attend the pre-termi-nation hearing on the advice of her attorney.

The Department of Utilities notified Ms. Williams that her employment was terminated for her failure to maintain standards of service. Ms. Williams appealed the disciplinary action.

A hearing was held, and the parties stipulated that the testimony taken in connection with the suspension hearing should be admitted. In addition, Detective Walsh was called as a witness regarding the grounds for Ms. Williams’ termination. Detective Walsh testified that an additional eleven taxicab permits were issued by Ms. Williams to persons who did not meet the necessary qualifications. Again, Detective Walsh testified that there was no evidence that Ms. Williams directly took a bribe in exchange for a taxicab permit.

The City of New Orleans also called the former Director of the Department of Utilities, Mr. Paul May, as a witness. Mr. May testified that Ms. Williams’ suspension was for one case of improperly issuing a permit, and her termination was for an additional eleven cases of improperly issuing permits.

In the termination case, the hearing examiner found that the Department of Utilities failed to prove that Ms. Williams’ actions rose to the level of termination. He recommended a one hundred and twenty day suspension for malfeasance and again noted that there was no evidence of bribery but concluded that Ms. Williams was working in a corrupt environment and should have blown the whistle on her immediate supervisors.

The Civil Service Commission, however, rejected the hearing examiner’s recommendation and upheld Ms. Williams’ termination, stating:

|4The Appellant must accept responsibility for her actions. At the very least, she should have refused to participate in activities that she knew to be wrong. All civil service employees should know that civil service rules protect them from retaliation for reporting or refusing to participate in prohibited activities. They are not required to comply with directions that they know to be wrong.

This appeal followed.

STANDARD OF REVIEW

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his/her employer except for cause expressed in writing. La. Const. art. X, § 8(A); Walters v. Department of Police, 454 So.2d 106 (La.1984). The employee may appeal from such disciplinary action to the City Civil Service Commission, and the burden of proof on appeal, as to the facts, is on the appointing authority. Id.; Goins v. Department of Police, 570 So.2d 93 (La.App. 4th Cir.1990).

“Cause” for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Walters v. Department of Police, 454 So.2d. at 113. The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Id.

The Civil Service Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. La. Const, art. X, § 12(B). Thus, the reviewing court should apply the clearly wrong or Lmanifest error rule prescribed generally for appellate review in deciding whether to affirm the Civil -Service Commission’s factual findings. Walters v. Department of Police, 454 So.2d. at 113; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In reviewing the Civil Service Commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the Civil Service Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Id. at 112-14; See also Evans v. DeRidder Municipal Fire and Police Civil Service Board, 2001-2466 (La.4/3/02), 815 So.2d 61; Delpit v. New Orleans Dept. of Utilities, 2002-2008 (La.App. 4 Cir. 2/19/03), 841 So.2d 30.

In Newman v. Department of Fire, 425 So.2d 753 (La.1983), the Louisiana Supreme Court discussed the meaning of “arbitrary and capricious” in the context of a civil service commission hearing as well as the legal cause necessary to impose disciplinary action on a civil service employee. The Supreme Court stated:

Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority (Superintendent) must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service.

Id. at 754.

In Bannister v. Department of Streets, 95-0404 (La.1/6/96), 666 So.2d 641. the Louisiana Supreme Court again considered the meaning of “arbitrary and capricious” in the context of a civil service commission hearing and determined Rthat “arbitrary and capricious” means that there is no rational basis for the action taken.

DISCUSSION

On appeal, Ms. Williams argues (1) that termination was too severe a penalty and (2) that the Civil Service Commission should not have consolidated the charges against her.

After reviewing the record, we cannot say there was no rational basis for the action taken by the Civil Service Commission. Ms. Williams issued taxicab permits to eleven applicants who did not meet the necessary requirements with the knowledge that it was wrong to do so. She also failed to report the prohibited activities being conducted by her immediate supervisors in the taxicab bureau to the proper City of New Orleans’ authorities. These facts are undisputed. Although termination may appear to be a harsh penalty in the absence of a finding of public bribery on Ms. Williams’ part, the Civil Service Commission’s decision certainly was not arbitrary, capricious, or an abuse of discretion.

Furthermore, we cannot say that the factual findings were manifestly wrong or clearly erroneous considering that the parties stipulated to the facts regarding Ms. Williams’ actions. The stipulated evidence shows, minimally, that Ms. Williams knowingly issued taxicab permits to numerous ineligible persons in violation of the City of New Orleans’ requirements. An employee who fails to adhere to the rules and regulations she is charged with implementing clearly impedes the efficient operation of public service. The Civil Service Commission’s discussion of the protections that would have been afforded Ms. Williams had she come forward were essentially a review of civil service policy, not de facto punishment for Ms. Williams’ failure to act as a whistleblower.

|7The first assignment of error is without merit.

As to whether the Civil Service Commission should have consolidated the charges against Ms. Williams, Rule 13:23 of the Civil Service Rules allows for the consolidation of appeals. Clearly, the circumstances surrounding Ms. Williams’ suspension and termination are similar or related. The emergency suspension was predicated on Ms. Williams’ arrest for bribery in connection with the processing of one taxicab permit application and to allow a full investigation to proceed. Ms. Williams’ termination occurred after the investigation revealed that she had improperly processed eleven additional applications. The consolidation of the appeals did not affect Ms. Williams’ rights as she was afforded a full hearing on the suspension appeal as well as a full hearing on the termination appeal. In fact, the parties stipulated to the introduction of the transcript of the suspension appeal at the termination appeal. Licausi v. Department of Health and Human Resources, 458 So.2d 148, 150 (La.App. 1 Cir.1984). This assignment of error is without merit.

CONCLUSION

Accordingly, we find that the decision of the Civil Service Commission was based on sufficient legal cause and was neither arbitrary, capricious, nor an abuse of discretion. Therefore, the decision of the Civil Service Commission is affirmed.

AFFIRMED.

      . 13.23 Consolidation. When two or more appeals involve similar or related circumstances, the Commission may order a joint hearing of any or all the matters at issue in the appeals, or may order that all such appeals be consolidated.


author: ^MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Jamal BRADLEY.
    No. 2003-KA-1518.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 2004.

      Eddie J. Jordan, Jr., District Attorney, David M. Abdullah, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   ^MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

On May 20, 2002 the State filed a bill of information charging the defendant-appellant Jamal Bradley with one count of possession of marijuana with the intent to distribute, a violation of La. R.S. 40:966(A)(1). He entered a not guilty plea at arraignment on May 23, 2002. A motion to suppress and preliminary hearing were held on May 31, 2002 at the conclusion of which the court denied the motion to suppress and found probable cause to sustain the charge. On July 25, 2002 the defendant withdrew his former plea of not guilty and entered a plea of guilty as charged with a reservation of the right to appeal from the denial of his motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). The defendant also waived all sentencing delays. The court then sentenced him to serve five years at hard labor.

The State initially filed a multiple bill of information charging the defendant as a second offender. The hearing was set many times, until finally the State | gwithdrew the bill on February 20, 2003. On March 20, 2003 the defendant through counsel filed his written motion for an appeal, which was granted.

STATEMENT OF THE FACTS

Because there was no trial in this matter, the facts are reflected only in the motion hearing transcript. The sole witness was Officer Tommy Mercadel, who stated that he was assigned to the Fifth District Narcotics Division. Officer Mer-cadel testified that, on May 4, 2002, he and fellow officers were conducting an investigation of street level narcotics sales in the 2300 block of St. Anthony Street. They were targeting this area because of citizen complaints of narcotics trafficking and several prior drug arrests. Officer Mercadel set up a surveillance. From a vantage point thirty feet away, he observed the defendant and another man, later identified as Don Nichols, standing in front of a car which was parked in a driveway of an apartment building. A third man approached and spoke to the defendant and Nichols. Officer Mercadel saw the unknown person hand U.S. currency to the defendant. The defendant reached into his left front pants pocket and pulled out a large object. From that object, he removed a smaller object, which he handed to the unknown male. The man then walked away from the defendant and Nichols. His path took him alongside Officer Mercadel’s vehicle, and from only four or five feet away the officer could see that the man was trying to open what appeared to be a small plastic Ziploc bag. Officer Mer-cadel, who had sixteen years experience as a police officer which included almost three hundred drug sales, recognized the bag as common packaging for a five dollar bag of marijuana; however, he could not actually see the contents of the bag.

| .-¡Based on his observations, Officer Mer-cadel believed that he had witnessed a drug sale by the defendant. He notified the three other officers working with him at the time and arranged to return to the scene with them in enforcement vehicles. When Officer Mercadel and his partner pulled up in an unmarked but recognizable police vehicle,. Nichols immediately began running down an alley, and the defendant followed. Officer Mercadel chased the defendant through several yards onto Pauger Street. He ordered the defendant to stop, but the defendant continued running until he ran back around a corner and was confronted by another officer, Detective Charles, and was apprehended.

After the defendant was physically stopped, Officer Mercadel frisked him for weapons; none were found. However, the officer felt a large bulge in the defendant’s left front pocket. As he pushed or squeezed the defendant’s clothing, he could feel objects sliding around. In Officer Mercadel’s opinion, the objects felt like plastic bags such as are used for drug packaging. Officer Mercadel removed a package from the defendant’s pocket which consisted of one bag containing several small Ziploc bags containing marijuana. The defendant was formally arrested.

ERRORS PATENT

A review of the record for errors patent reveal none.

DISCUSSION

In his sole assignment of error the appellant argues that the trial court erred when it denied the motion to suppress the evidence. He argues that the police did not have reasonable suspicion to conduct an investigatory stop. Alternatively, the | ¿appellant argues that the seizure of the marijuana from his pocket resulted from a search which exceeded the permissible scope of a frisk. He also suggests that the officers had placed him under arrest without probable cause before the search of his pocket and seizure of the evidence.

The Louisiana Supreme Court recently discussed investigatory stops in State v. Temple, 2002-1895 (La.9/9/03), 854 So.2d 856.

Although La.C.Cr.P. art. 215.1 permits an officer to stop a citizen in a public place and question him, the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983). If an officer stops a person pursuant to art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B). Determining whether “reasonable, articulable suspicion” existed requires weighing all of the circumstances known to the police at the time the stop was made. State v. Williams, 421 So.2d 874, 875 (La.1982).
In making a brief investigatory stop on less than probable cause to arrest, the police “ ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore “articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest.
In determining whether the police possessed the requisite “ ‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, Sokolow, 490 U.S. at 7,109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing | ^courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); see also State v. Huntley, 97-0965, p. 1 (La.3/13/98), 708 So.2d 1048.
In reviewing the totality of circumstances, the reputation of an area is an articulable fact upon which a police officer may legitimately rely and is therefore relevant in the determination of reasonable suspicion. State v. Buckley, 426 So.2d 103, 108 (La.1983) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). The assessment by a reviewing court of the cumulative information known to the officers avoids a “divide- and-conquer analysis” by which the whole becomes less than the sum of its parts because each circumstance examined individually may appear “readily susceptible to an innocent explanation.” Arvizu, 534 U.S. at 274,122 S.Ct. at 751.
At any rate, cases have held that the pertinent facts and circumstances must be articulated, i.e., testified to in court by law enforcement officials. For example, in State v. Hughes, 99-2554 (La.App. 4th Cir.5/31/00), 765 So.2d 423, writ denied, 00-1981 (La.6/1/01), 793 So.2d 179, the Fourth Circuit reversed Hughes’s conviction for possession of crack cocaine in a case in which the officers observed Hughes place something white in his pants pocket, then hurry into a nearby grocery. The officers neglected to testify that the area around Olive and General Ogden streets was known for drug-trafficking. One officer conceded that he based his belief that Hughes was involved in drug activity upon his “19 years of experience as a police officer.” The appellate court found this was little more than a hunch, and ruled that the state failed to elicit adequate information from the officers for a finding of reasonable suspicion to support the detention of Hughes. Hughes, 99-2554 at 6, 765 So.2d at 426-27.

State v. Temple, pp. 2-3, 854 So.2d at 859-860.

| (¡In Temple it was notable that the defendant and his companions did not attempt to flee from the police, nor had the police received information about drug activity. In contrast, in State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, the Louisiana Supreme Court found there was reasonable suspicion for stopping the defendant because he had fled at the sight of the officers. The Court stated:

This Court has previously ruled that flight from police officers, alone, will not provide justification for a stop. State v. Belton, 441 So.2d 1195 (La.1983). This activity, however, is highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. Belton, 441 So.2d at 1198. Given the highly suspicious nature of flight from a police officer, the amount of additional information required in order to provide officers a reasonable suspicion that an individual is engaged in criminal behavior is greatly lessened.

Benjamin, 97-3065, p. 3, 722 So.2d at 989.

In State v. Schaffer, 99-0766 (La.App. 4 Cir. 4/12/00), 767 So.2d 49, this Court found that flight by the defendant and his companion, coupled with the fact that the police officers had observed the two men engaged in activity which was consistent with a drug transaction, gave the officers grounds to stop them. The court noted that the activity which the officers had observed by itself might not have given the officers reasonable suspicion to conduct an investigatory stop. However, the combination of the flight and the observance of activity consistent with a drug transaction gave the officers reasonable suspicion to stop and question the defendant.

In the instant case, Officer Mercadel testified that the area in which the defendant was observed was known for narcotics activity. There had been citizens complaints of ongoing trafficking. The officer observed the defendant engage in an action, an exchange of an object for currency, which was consistent with a drug ^transaction. The object was packaged consistently with marijuana packaging. When the officers approached in an unmarked but identifiable police vehicle, both the defendant and his companion fled. Based on these circumstances, there was reasonable suspicion to stop the defendant.

The appellant attempts to distinguish his case from Benjamin by suggesting that Benjamin fled upon immediate sight of the police, whereas he claims he remained in the area after making the alleged drug sale and did not flee the area until the police returned twenty minutes later. However, there is nothing in the record to indicate that he was aware that he was under surveillance by Officer Mercadel. Thus, the fact that he did not flee the area immediately after engaging in an apparent drug transaction does not indicate he was innocent of illegal activity; rather it simply indicates he did not know the police were targeting the area at the time. As soon as his companion saw the police and fled, the defendant did the same.

In addition to arguing that the police had no right to stop him, the appellant argues that Officer Mercadel’s actions after stopping him exceeded the scope of a frisk for weapons and instead constituted a search which required probable cause.

Officer Mercadel testified that as he frisked the defendant for weapons he felt a bulge in the defendant’s pocket. He described the feel of the bulge more precisely as objects sliding around which in his opinion felt like plastic bags such as are used for drug packaging. In State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, the Supreme Court was faced with a similar situation and applied the “plain feel” exception to the warrant requirement recognized in Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). Quoting Dickerson, the court stated:

|sIf a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Broussard, pp. 7-8, 816 So.2d at 1289.

In Broussard the officer testified that, based on his knowledge and experience as a narcotics officer, he knew that narcotics and firearms have a known association. The court found that the officer had articulated a sufficient basis for a protective frisk. The officer further stated that during the frisk he felt lumps and heard the crinkle of plastic from Broussard’s pocket, which he knew from his years of experience to be consistent with drug packaging of crack cocaine. The court held that the evidence was obtained by lawful means. Broussard, pp. 7-8, 816 So.2d at 1288-89.

Here, Officer Mercadel testified to his ability, based upon his substantial experience with narcotics arrests, that he recognized the object in the defendant’s pocket to be contraband. Thus, we conclude that, assuming a lawful frisk, the evidence was properly seized.

Nevertheless, as the court noted in Broussard a frisk for weapons is not necessarily authorized in every investigatory stop. Instead a police officer may stop a person whom he reasonably suspects is committing, has committed, or is about to commit a crime, and if the officer reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon; if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. La.C.Cr.P. art. 215.1(B); State v. Jones, 99-0861, p. 12 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 38. The officer need not be absolutely certain that the person is armed, but the facts must justify a belief that the officer’s safety or that of others is in danger. State v. Williams, 98-3059, p. 4 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144. The question is not whether the police officer subjectively believes he is in danger, or whether he articulates that subjective belief in his testimony, but whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger, an objective test. State v. Dumas, 2000-0862, pp. 2-3 (La.5/4/01), 786 So.2d 80, 81-82. In Jones, this Court recognized a drug trade-weapons connection, stating:

[I]n many instances, suspicion of drug dealing itself is an articulable fact that may support a frisk pursuant to La. C.Cr.P. art. 215(B). State v. Fortier, 99-0244 (La.App. 4 Cir. 1/26/00), 756 So.2d 455 (“We can take notice that drug traffickers and users have a violent lifestyle, which is exhibited by the criminal element who are generally armed due to the nature of their illicit business. Therefore, a police officer should be permitted to frisk a suspect following an investigatory stop [based on reasonable suspicion] relating to drug activities.”), 99-0244 at p. 7, 756 So.2d at 460, quoting State v. Curtis, 96-1408, pp. 9-10 (La.App. 4 Cir. 10/2/96), 681 So.2d 1287, 1292. See also State v. Williams, 98-3059 (La.App. 4 Cir. 3/3/99), 729 So.2d 142 (officer’s testimony that he frisked a defendant suspected of drug activity to look for weapons for his own safety was sufficient to validate a frisk pursuant to La.C.Cr.P. art. 215(B)). (footnote omitted).

Jones at p. 14, 769 So.2d at 38-39.

In the instant case, the evidence established that, based on Officer Mercadel’s observations and experience, the officer witnessed the defendant sell drugs. He saw the apparent buyer of the drugs with a bag consistent with marijuana packaging. The defendant and his companion fled from the police. Officer Mercadel testified that he did a “protective frisk” of the defendant, |inimplying that it was done for the officers’ protection. The officers had a reasonable suspicion that the defendant had just engaged in a drug transaction. Therefore, based on the recognized drug trade-weapons connection, Officer Merca-del was justified in frisking the defendant for weapons. During that lawful frisk, he could feel an object which was immediately apparent to him, based on his experience and observations, to be contraband, and which was thus lawfully seized.

The appellant makes an additional argument that the police actually intended to arrest the defendant when they drove up in the unmarked but readily identifiable police car. In support he cites State v. Fisher 97-1133 (La.9/9/98), 720 So.2d 1179, 1183 (La.1998), where the court stated:

The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. State v. Allen, 95-1754 (La.9/5/96); 682 So.2d 713. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Allen, 682 So.2d at 719; Moreno, 619 So.2d at 65 (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person’s liberty. Allen, 682 So.2d at 719; State v. Simms, 571 So.2d 145, 148 (La.1990).

In Fisher the defendant was handcuffed and placed in a police car; as he was being driven to the police station he confessed to a murder.

In contrast, in this case, there is no evidence that Officer Mercadel and his partner intended to effect an arrest when they drove up to where the defendant was standing, nor did they come upon the defendant and his companion with such a show of force that it could be deemed an arrest. Officer Mercadel indicated that he In and his partner drove up in a car which had no dashboard light or police markings. They were not in uniform. The defendant and his companion immediately fled. There'was no testimony that Officer Mer-cadel and his partner had even exited their vehicle at the time the defendant fled.

Whatever the ultimate intentions of the officers, the record is devoid of evidence that they had effected an arrest of the defendant prior to the lawful frisk and discovery of the drugs in the defendant’s pocket.

The trial court did not err when it denied the defendant’s motion to suppress evidence. This assignment of error has no merit.

CONCLUSION

The appellant’s conviction and sentence are affirmed

AFFIRMED.

      . The minute entry states that the defendant pled guilty to distribution of marijuana, but the waiver of rights form and the transcript clearly show that the defendant pled guilty to possession of marijuana with the intent to distribute. When there is a discrepancy between the transcript and the minute entry, the transcript controls. State v. Beard, 547 So.2d 7 (La.App. 4 Cir.1989).