author: LRETTIGBEW, J.

text:
    Donnie Eunelle BOZEMAN, Individually and as Administratrix for the Succession of Bree D. Hull and Gary Stephen Gomez v. SCOTT RANGE TWELVE LIMITED PARTNERSHIP.
    No. 2003 CA 0903.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Rehearing Denied June 28, 2004.

      William T. Lowrey, Jr., Baton Rouge, for Plaintiff-Appellant Donnie Eunelle Bozeman.
    Sidney L. Shushan, New Orleans, for Defendantr-Appellee Scott Range Twelve Limited Partnership.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   LRETTIGBEW, J.

In this case, plaintiffs challenge the trial court’s judgment granting summary judgment in favor of defendant and dismissing their claim for damages. For the reasons that follow, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the record herein, Scott Range Twelve Limited Partnership (“Scott Range”) owns a tract of land located on the southwest corner of the intersection of South Range Road and Interstate 12 (“I-12”) in Denham Springs, Louisiana. Scott Range uses this property for various commercial business ventures, including the sale of fireworks. Toward the rear of the property, there is a large borrow pit, approximately 25 feet in depth. The borrow pit is accessed by a gravel roadway that leads from South Range Road onto Scott Range’s property and ends at the pit.

On March 6, 1996, Bree D. Hull was driving her vehicle in a westerly direction on the gravel roadway in question. Her daughter, Cassandra B. Hull, was a passenger in the vehicle. As Ms. Hull proceeded to the end of the gravel roadway, she drove into the borrow pit, and her vehicle became submerged. Ms. Hull and her daughter both drowned. Following their deaths, Ms. Hull’s parents, Donnie Eunelle Bozeman and Gary Stephen Gomez, brought a wrongful death and survival action on her behalf against Scott Range.

Scott Range answered plaintiffs’ petition, generally denying the allegations contained therein. Thereafter, Scott Range moved for summary judgment, arguing that the borrow pit was an open and obvious hazard, thus warranting summary judgment in favor of Scott Range. In support of its motion for summary judgment, Scott Range introduced the following exhibits: 1) the affidavit of Dr. Jimmy B. Smith, a partner in Scott Range; 2) the affidavit of Alvin Fairburn, a licensed surveyor who prepared a sketch of the property in question, a copy of which was annexed to his affidavit; 3) the affidavit of Coley A. Scott, a partner in Scott Range; 4) two affidavits from Deputy Perry N. Rushing, concerning the location of the borrow pit and his inspection of Ms. Hull’s vehicle following the accident; 5) the affidavit of Detective Chucky Watts regarding the location of j3the borrow pit; and 6) two affidavits from Officer Ronald Cotton, concerning the location of the borrow pit and his investigation of the accident, with a copy of the accident report attached thereto.

Plaintiffs filed a memorandum in opposition to Scott Range’s motion for summary judgment. Plaintiffs alleged that the evidence before the trial court was of sufficient quantity and quality such that a reasonable fact finder could conclude plaintiffs would be able to satisfy their evidentiary burden of proof at trial, i.e., that the borrow pit was obscured and not visible at the time of the accident. Thus, plaintiffs argued, summary judgment was not appropriate. In support of their position, plaintiffs introduced the following exhibits: 1) the affidavit of Donnie Eunelle Bozeman; 2) the affidavit of Harry Aldrich Bozeman, III, Mrs. Bozeman’s husband and Ms. Hull’s stepfather; and 3) the affidavit of Sandra Smith Welch, a friend of Ms. Hull’s.

On December 9, 2002, the trial court heard arguments on the motion for summary judgment. After considering the applicable law and the evidence in the record, the trial court granted Scott Range’s motion for summary judgment, dismissing plaintiffs’ suit with prejudice. A judgment in accordance with the court’s findings was signed on January 24, 2003. It is from this judgment that plaintiffs have appealed, assigning error to the trial court’s judgment granting summary judgment in favor of Scott Range.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. [4art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. 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 is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, unit denied, 2003-3439 (La.2/20/04), 866 So.2d 830.

In Smith v. Our Lady of the Lake Hospital, Inc.-, 93-2512, pp. 26-27 (La.7/5/94), 639 So.2d 730, 750-751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material.

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
IrA fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637. Thus, we now turn to a discussion of the applicable law.

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. Vinccinelli v. Musso, 2001-0557, p. 4 (La.App. 1 Cir. 2/27/02), 818 So.2d 163, 165, writ denied, 2002-0961 (La.6/7/02), 818 So.2d 767. This duty is the same under the strict liability theory of La. Civ.Code art. 2317 and the negligence Lability theory of La. Civ.Code art. 2315. Williams v. Leonard Chabert Medical Center, 98-1029, p. 5 (La. App. 1 Cir. 9/26/99), 744 So.2d 206, 209, writ denied, 2000-0011 (La.2/18/00), 754 So.2d 974. Under either theory, the plaintiff has the burden of proving that: (1) the property that caused the damage was in the “custody” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Vinccinelli, 2001-0557 at 4, 818 So.2d at 165.

In general, defendants may have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 11 (La.5/10/96), 673 So.2d 585, 591, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). The degree to which a potential victim may observe a danger is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or was as obvious to a visitor as it was to the landowner. Williams, 98-1029 at 8, 744 So.2d at 211. Whether a condition is unreasonably dangerous requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature. Hutchinson v. Knights of Columbus, Council No. 5717, 2003-1533, pp. 9-10 (La.2/20/04), 866 So.2d 228, 235.

In moving for summary judgment, Scott Range argued that the borrow pit was an open and obvious hazard and, thus, not unreasonably dangerous. Scott Range further asserted there was no duty to warn or protect Ms. Hull against this obvious hazard. Accordingly, Scott Range maintained, it could not be liable for any damages to plaintiffs under either negligence or strict liability. In support of its motion for summary judgment, Scott Range submitted affidavits from various individuals regarding their knowledge of the borrow pit in question.

Dr. Jimmy B. Smith, a partner in Scott Range, indicated in his affidavit that the borrow pit was visible from 560 feet away at all times of the year. He further stated that Scott Range was “never concerned that someone would drive into the [borrow pit] ... because the land was completely flat, and because the land was kept free of underbrush at all times by ... the partnership.” Similarly, Coley A. Scott, another partner in Scott Range, indicated that “the property is generally flat with good visibility” and that the borrow pit is clearly visible at all times from a distance of more than 550 feet away. Mr. Scott further noted that the road leading to the borrow pit and about 75 feet on either side of the pit is mowed on a regular basis and “the visibility from the driveway of the [borrow pit] is not obstructed by weeds at any time of the year.”

|7Scott Range also submitted the affidavit of Alvin Fairburn, a licensed surveyor who inspected the property in question on November 6,1998. According to Mr. Fair-burn, “[t]here were no buildings, trees, bushes or other obstructions over the ... distance of approximately 568 feet between the turn in the road and the edge of the [borrow pit].” Mr. Fairburn further added that when approaching the borrow pit from a westerly direction, there “was no sharp drop off at the edge of the [borrow pit] which could have concealed it from a motorist approaching from a westerly direction.”

The other affidavits submitted by Scott Range were from three Livingston Parish Sheriffs officers who participated in the investigation of Ms. Hull’s accident. All three officers indicated that the borrow pit located on South Range Road was an “obvious hazard in plain view” from I-12. Moreover, one of the three officers added that the location of the borrow pit was “well known to residents of Livingston Parish.”

The plaintiffs, on the other hand, opposed the motion for summary judgment, arguing that there remained a genuine issue of material fact regarding whether the borrow pit was visible at the time of the accident in question. According to plaintiffs, Scott Range was negligent for failing to 1) warn motorists of the danger the pit posed; 2) maintain barriers and/or barricades - in front of the pit; 3) limit access to vehicular traffic traveling near the pit; 4) place warning signs on the property alerting vehicular traffic to the pit’s existence; and 5) mark or delineate the gravel roadway’s termination into the pit. Plaintiffs further argued that Scott Range was strictly liable because at the time of the accident, the pit presented an unreasonable risk of harm to Ms. Hull and her daughter.

In support of their position, plaintiffs submitted several affidavits concerning the condition of the land surrounding the borrow pit at the time of the accident in question. Donnie Eunelle Bozeman, Ms. Hull’s mother, attested to her recollection of the events following her daughter’s death. On the day of the accident, she and her husband, Harry |sAldrich Bozeman, III, were at Columbia Medical Center at around 3:00 p.m. when Ms. Hull and her young daughter were pronounced dead. They left the hospital at approximately 5:30 p.m. and went immediately to the accident site. According to Mrs. Bozeman, “there were gates to each side of the beginning of the gravel roadway from [South] Range Road” that were open and “overgrown with weeds.” As they traveled down the gravel roadway to the borrow pit, they noticed “knee-high weeds overgrown in front of the borrow pit immediately adjacent to the gravel road that would have obscured the view of the borrow pit from a motorist.” The weeds were such that the borrow pit would not have been visible to a motorist approaching the pit traveling in a westerly direction along the gravel roadway.

Plaintiffs also submitted the affidavit of Mr. Bozeman, in which he corroborated his wife’s version of events. Mr. Bozeman stated he remembered there were knee-high weeds obstructing their view of the borrow pit as they traveled down the gravel roadway from South Range Road. In the third and final affidavit submitted by plaintiffs in support of their position, Sandra Smith Welch, a friend of Ms. Hull’s, confirmed that she too went to the accident scene on the day of the accident. Ms. Welch indicated that she arrived there at approximately 4:00 p.m. and noted what she described as “weeds and/or grass [that] were knee-high to waist-high tall” in front of the borrow pit. She added further that the weeds and/or grass that she observed that day “would have hidden the borrow pit from a motorist who approached the [borrow pit] traveling on the gravel road.”

On appeal, plaintiffs contend it is obvious from a reading of the above affidavits that there remains a genuine issue of material fact regarding whether the borrow pit was visible at the time of the accident in question. Further, plaintiffs maintain, “the clear relevance of the material fact of visibility of the borrow pit bears upon the responsibility of the defendant, Scott Range,” thus precluding summary judgment under the facts and circumstances herein. Following a thorough review of the record and the evidence introduced by the parties in support of their respective positions, we agree.

As previously indicated, any doubt as to a dispute regarding a material issue of fact must be resolved against granting a motion for summary judgment and in favor of a trial 19on the merits. See Smith, 93-2512 at 27, 639 So.2d at 751. In the instant case, the evidence before the trial court sufficiently raised genuine issues of material fact as to whether the borrow pit in question constituted an unreasonable risk of harm and whether the borrow pit was an open and obvious hazard such that Scott Range would have owed no duty to Ms. Hull and her daughter. Resolution of these unresolved issues is essential to plaintiffs’ cause of action under either negligence or strict liability. Therefore, we conclude the trial court erred in granting summary judgment in favor of Scott Range and preventing a full evidentiary hearing on all issues.

CONCLUSION

For the above and foregoing reasons, the trial court’s judgment granting summary judgment in favor of Scott Range is reversed and the matter is remanded for further proceedings consistent with this opinion. All costs associated with this appeal are assessed against Scott Range.

REVERSED AND REMANDED.

      . Although the court’s January 24, 2003 judgment indicates there were "reasons orally assigned on December 9, 2002,” the record before us does not contain a transcript of the court’s reasons. Moreover, the minute entry from the December 9, 2002 hearing makes no reference to any reasons for judgment given by the trial court.

      . Although these affidavits support the position that the borrow pit was visible from 1-12, there is no evidence in .the record to suggest that Ms. Hull traveled on 1-12 immediately prior to this tragic incident. Rather, the evidence simply reveals that Ms. Hull was traveling in a westerly direction on the gravel roadway that leads from South Range Road onto Scott Range’s property and ends at the pit.

      . Interestingly, the two other officers crossed through this statement on their affidavits.


source: Caselaw Access Project

author: | .GAIDRY, J.

license: Public Domain

text:
    Patrick M. LaSALLE v. The CANNATA CORPORATION.
    No. 2003 CA 0954.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Paul T. Landry, Morgan City, Counsel for Plaintiff/Appellant Patrick M. LaSalle.
    Nicholas F. Larocca, Jr., Morgan City, Counsel for Defendant/Appellee The Can-nata Corporation.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   | .GAIDRY, J.

This case involves an alleged agreement to sell a tract of land. The trial court granted summary judgment in favor of defendant, and plaintiff has appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant, The Cannata Corporation (Cannata), is the owner of lots 6, 7, and a portion of Lot 8 on the corner of Bernard Street and Highway 90 West in Morgan City, Louisiana. Cannata entered into a listing agreement with A.F. Sauls Real Estate for the sale of that property on September 6, 2001. The listing agreement provides that the price of the property shall be $45,000.00 CASH. The agreement is effective September 6, 2001 and expires on March 30, 2002.

On January 30, 2002, plaintiff, Patrick LaSalle, signed a “Residential Agreement to Purchase and Sell,” in which he offered to purchase the property for $43,000.00. This document provided that the sale would be conditioned upon the following: LaSalle’s ability to obtain a conventional mortgage and borrow the sum to be determined by the lender at a fixed per annum rate of interest, an appraisal being equal to or greater than the sales price, and acceptance in writing by Cannata with notice given to LaSalle. The document is signed by LaSalle. The listing agent, Robert Bu-sinelle, Jr., signed the document as having been received by him at 2 p.m. on January 30, 2002. LaSalle gave Businelle a check in the amount of $1,000.00 as a deposit on the purchase of the property on January 30, 2002, and Businelle deposited the check into the account of A.F. Sauls Real Estate at that time. There is no signed acceptance, nor any evidence of a verbal acceptance of this offer.

|oOn March 18, 2002, LaSalle prepared another document entitled “Seller’s Counter Offer to Agreement to Purchase and Sell.” This document provides that “the ‘Residential Agreement to Purchase and Sell’ is acceptable, provided PURCHASER agrees to the following changes: new sales price to be $45,000.00.” This “counteroffer,” which was signed only by LaSalle, further stated that “ALL OTHER TERMS REMAIN UNCHANGED.”

Cannata never signed either document, nor is there any evidence of a verbal acceptance.

LaSalle offered, by certified letter dated April 9, 2002, to close the sale of the property on April 22, 2002, or another date acceptable to the parties. On April 11, 2002, Cannata’s counsel informed LaSalle’s counsel that there was no sale or agreement to sell. In this letter, Cannata also offered to sell the property to LaSalle for a new sale price of $91,008.00, explaining that the tract of land contained more property than they previously believed.

LaSalle filed this suit, seeking specific performance under the purchase agreement since Cannata refused to sell him the property for $45,000.00. Cannata filed a motion for summary judgment and a hearing was held on November 27, 2002, after which the court granted Cannata’s motion for summary judgment, dismissing La-Salle’s suit.

LaSalle appealed, asserting that the trial court erred in the following particulars:

1. In granting the motion for summary judgment denying the sale after La-Salle and Cannata agreed on the sale price;
2. In finding that the acceptance by LaSalle was actually a counteroffer;
|43. In failing to find that there were sufficient writings to establish a written agreement to sell the property;
4. In failing to find that Cannata should be estopped from refusing to complete the sale; and
5. In failing to find that the real estate broker, as Cannata’s agent, bound Cannata to the sale of the property.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a fullscale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

Ijn determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

In order for a contract to be formed, an acceptance must be in all things conformable to the offer.. An offer must be accepted as made to constitute a contract. A modification in the acceptance of an offer constitutes a new offer which must be accepted in order to become a binding contract. Rodrigue v. Gebhardt, 416 So.2d 160, 161 (La.App. 4 Cir.1982).

LaSalle asserts that Cannata’s signing of the listing agreement for the price of $45,000.00 cash was an offer to sell the property for $45,000.00 cash, which LaSalle asserts he accepted in his counter proposal of March 18, 2002. However, both the original “offer” by LaSalle and the “counteroffer” contained conditions which were never accepted by Cannata. The conditions regarding the mortgage and financing, the appraisal, and written acceptance by Cannata varied the terms of the original offer. Thus, acceptance by Cannata was required before an agreement was formed. This acceptance never occurred; therefore, there was no agreement to sell.

There is no genuine issue as to material fact in this case, and summary judgment was appropriate.

h,DECREE

The December 16, 2002 judgment of the trial court granting Cannata’s motion for summary judgment is affirmed. Costs of this appeal are assessed to plaintiff, Patrick LaSalle.

AFFIRMED.


author: J^PETTIGREW, J.

text:
    M.P.G. CONSTRUCTION, INC. and Alpha Painting & Construction Co., Inc., a Joint Venture v. The DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, State of Louisiana.
    No. 2003 CA 0164.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Writ Denied June 4, 2004.

      W.P. Wray, Jr., Christopher P. Pierce, Baton Rouge, for Plaintiffs-Appellees M.P.G. Construction, Inc. and Alpha Painting and Construction, a Joint Venture.

      Cheryl L. Duvieilh, Baton Rouge, for Defendant-Appellant # 1 Louisiana Department of Transportation and Development.
    Emile Joseph, Jr., Lafayette, for Inter-venor-Appellant # 2 Certified Coatings of California, Inc.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^PETTIGREW, J.

Unsuccessful bidder on highway construction project brought action against the State of Louisiana, through the Department of Transportation and Development (“DOTD”), seeking to enjoin the award of the contract. After writs were exhausted, successful bidder intervened and joined DOTD’s reconventional demand for damages against unsuccessful bidder for delay of the project. Cross motions for summary judgment were filed by both sides. The trial court granted summary judgment and dismissed DOTD and inter-venor’s claims for damages, attorney fees, and costs. From this judgment, DOTD and intervenor have appealed.

FACTS

On August 25, 1999, the DOTD accepted bids, post advertisement, for State Project No. (“SPN”) [ XXX-XX-XXXX ] known as the Crescent City Connection Bridge No. 1, Repainting Segment 2, Main Bridge Superstructure, Route: U.S. 90 (Business), Orleans and Jefferson Parish (“the project”). Prior to the project having been awarded, DOTD discovered an error and, consequently, exercised its right to reject all bids and re-advertise the project. Following re-advertisement of the project, bids were again received, opened, and publicly read on December 15,1999.

Certified Coatings of California, Inc. (“Certified Coatings”) was the low bidder. M.P.G. Construction, Inc. and Alpha Painting & Construction Co., Inc., a Joint Venture (collectively “M.P.G./Alpha”), was the next lowest bidder. On January 10, 2000, M.P.G./Alpha filed a Petition for Preliminary Injunction, Permanent Injunction, Declaratory Judgment and Mandamus seeking to prevent DOTD from awarding the project and entering into a contract with Certified Coatings. On January 18, 2000, DOTD filed a Response and Recon-ventional Demand for Dissolution, Damages and Attorney Fees. Certified Coatings filed a Petition of Intervention on January 19, 2000.

A hearing on M.P.G./Alpha’s Request for Preliminary Injunction was held on January 21, 2000. Following this hearing, the trial court concluded that DOTD had committed no error in its award of the project to Certified Coatings and, accordingly, denied M.P.G./Alpha’s request for injunctive relief. M.P.G./Alpha thereafter filed an | ¡Application for Supervisory Writs and Injunction with this court as well as a devolutive appeal seeking expedited review of the trial court’s denial of injunctive relief.

The contract for the project was signed on February 9, 2000. In response to the writ action, 2000-CW-0237, this court issued an order, dated February 15, 2000, commanding that “the award and signing of the. contract and/or issuance of work orders and the performance of any work orders under the contract be stayed pending further orders” from the court. Thereafter, this court dissolved the order staying execution of the contract, and in a per curiam opinion in the writ action concluded on July 12, 2000, found that the trial court had committed no error. M.P.G./Alpha later sought Supervisory and/or Remedial Writs to the Louisiana Supreme Court that were similarly denied on August 30, 2000. Accordingly, this court later dismissed the appeal as “moot”, and writs were ultimately denied by the supreme court.

While DOTD alleged that it pursued execution of the contract immediately, the stay delayed the start of the project for five months. Certified Coatings claimed that solely as a result of the legal action brought by M.P.G./Alpha, it had experienced an escalation in the labor, equipment, and insurance costs necessary to perform work on the project. On April 12, 2002, DOTD filed a Supplemental Recon-ventional Demand seeking damages and fees resulting from M.P.G./Alpha’s enjoining of the project and “perfecting a sus-pensive appeal without bond.” Certified Coatings filed its First Amending and Supplemental Reconventional Demand on April 18, 2002. Therein, Certified Coatings claimed that M.P.G./Alpha had been “successful in securing a preliminary injunction” from this court.

On June 10, 2002, M.P.G./Alpha filed a Motion for Summary Judgment wherein it alleged that it had never alleged a violation of the Louisiana Public Bid Law (R.S. 38:2211 |4et seq.), only violations of La. R.S.48:255 A, the statute that provides for the establishment of DOTD bid requirements and formalities. On July 16, 2002, DOTD filed a Cross Motion for Partial Summary Judgment with respect to the issue of liability. Certified Coatings later filed a similar Cross Motion for Partial Summary Judgment on August 5, 2002. A hearing was held on the Motion for Summary Judgment filed by M.P.G./Alpha and the Cross Motions for Partial Summary Judgment filed by DOTD and Certified Coatings on September 30, 2002. Following the hearing, the trial judge granted M.P.G./Alpha’s motion for summary judgment and dismissed with prejudice all claims, demands, and causes of action made against it. A final judgment to this effect was later signed by the trial court on November 18, 2002.

DOTD and Certified Coatings have separately appealed from the judgment of November 18, 2002.

ASSIGNMENT OF ERRORS

In connection with their appeal in this matter, DOTD and Certified Coatings allege that the trial court committed the following errors:

1. In determining that, legally, injunc-tive relief was not granted when DOTD was enjoined from awarding the contract, when DOTD and Certified Coatings were enjoined from signing the contract, when DOTD was enjoined from issuing work orders and/or DOTD and Certified Coatings were enjoined from performing any work on the Project;
2. In determining that M.P.G./Alpha was not legally liable to DOTD and Certified Coatings for damages and attorney’s fees under La.Code Civ. P. art. 3608; and
3. In determining that M.P.G./Alpha was not legally liable for attorney’s fees and costs under La. R.S. 38:2220.4.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is. no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary | ¿judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La. App.l Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

^DISCUSSION

The initial error assigned by DOTD and Certified Coatings is that the trial court erred in its determination that M.P.G./A1-pha had not obtained a form of injunctive relief in connection with its writ application.

In support of this position, DOTD and Certified Coatings point out that M.P.G./Alpha did not request a stay of proceeding, but rather an injunction of the award of the contract, issuance of work orders, and the performance of the work itself. The trial court previously denied the injunction; however, this court granted writs and issued a stay order. While DOTD and Certified Coatings do not question appellate courts’ authority to issue writs necessary in the aid of their jurisdiction, they claim that the effect of the stay order imposed by this court did not merely stay the litigation, but enjoined DOTD from taking any action in furtherance of the contract as required by La. R.S. 48:255 et seq. DOTD and Certified Coatings claim that in effect, M.P.G./Alpha secured from this court what it had been unsuccessful in obtaining from the trial court.

By way of response, M.P.G./AIpha argue that this court’s ruling of February 15, 2000, was not injunction, but rather a stay of proceeding under Uniform Rules— Courts of Appeal Rule 4-4. M.P.G./Alpha claims that the purpose of the stay was to allow the appellate court time to obtain the record below and consider its writ application. M.P.G./Alpha further cite Taylor v. Zibilich, 508 So.2d 840, 842-48 (La.App. 4 Cir.1987) for the proposition that the supervisory jurisdiction of the appellate court would have been rendered “impotent” if the court had not issued a stay while considering its writ application. M.P.G./Alpha conclude with the argument that since no preliminary injunction was ordered, issued or dissolved by any court, DOTD and Certified Coatings are not entitled to damages and attorney fees under La.Code Civ. P. article 3608.

In our review of this matter, we note that La.Code Civ. P. art. 3608 provides:

The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits. [Emphasis supplied.]

]7The language of the aforementioned article makes it clear that an award of damages and attorney fees for the wrongful issuance of a temporary restraining order or preliminary injunction is discretionary with the court. The use of the word “may” affirms that the award of damages, including attorney fees, is left to the discretion of the trial court. J. Caldarera & Co. v. City of Baton Rouge, 03-0759 p. 2 (La.App. 1 Cir. 2/23/04) 873 So.2d 728, 729. In the instant case, a preliminary injunction was not issued; however, DOTD and Certified Coatings argue that because the stay order issued by this court had the same effect as a preliminary injunction, La.Code Civ. P. article 3608 should be applied to permit the recovery of damages.

In Bally’s Louisiana, Inc. v. The Louisiana Gaming Control Board, this court stated “[a] preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. It is designed to and serves the purpose of preventing irreparable harm by preserving the status quo between the parties pending a determination on the merits of the controversy.” Bally’s, 99-2617, p. 7 (La.App. 1 Cir. 1/31/2001), 807 So.2d 257, 263, writ denied, 2001-0510 (La.1/11/2002), 807 So.2d 225.

By way of contrast, Black’s Law Dictionary, Fifth Edition, defines “stay of proceedings” in pertinent part as “[t]he temporary suspension of the regular order of proceedings in a cause, by direction or order of the court.” In addition, “stay order” is defined as “[a] stopping; the act of arresting a judicial proceeding by the order of a court or the temporary suspension of the regular order of proceedings in a cause by direction or order of the court.” Article 5, Section 2 of the Louisiana Constitution provides that “[a] judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court.”

It appears that although the two terms are similar, they are not synonymous. A preliminary injunction is issued for the protection of one or more parties to the litigation and is designed to preserve the existing status of the litigants and usually requires a showing of irreparable injury, loss, or damage. In those cases where the conduct sought to be enjoined is unlawful however, a showing of irreparable injury is not required. Star Enterprise v. State, Through Department of Revenue and Taxation, 95-1980, p. 13 (La.App. 1 Cir. 6/28/1996), 676 So.2d 827, 834, writ denied, 96-1983 (La.3/14/97), 689 So.2d 1383. A stay of proceedings is issued for the benefit of the court and is similarly designed to preserve the existing status of the litigants until the court has had sufficient time to review the record and make a determination of the issues presented. A stay differs from an injunction in that a stay is issued for the benefit of the court rather than the benefit of the litigants and does not require a showing of irreparable harm.

We conclude that based upon the foregoing, the trial court did not err in its determination that M.P.G./Alpha had not obtained a form of injunctive relief in connection with its writ application. This assignment is without merit.

In their second assignment of error, DOTD and Certified Coatings claim that the trial court erred in its determination that M.P.G./Alpha was not legally liable for damages and attorney fees under La.Code Civ. P. art. 3608.

We have previously reviewed the language of La.Code Civ. P. article 3608, which permits an award of damages and attorney fees for the wrongful issuance of a temporary restraining order or preliminary injunction. In light of our determination that M.P.G./Alpha had not obtained injunctive relief in connection with its writ application, we must conclude that the cited codal provision is inapplicable to the facts of this case. This assignment is similarly without merit.

In their final assignment of error, DOTD and Certified Coatings claim that the trial court erred in its determination that M.P.G./Alpha was not legally liable for attorney fees and costs under La. R.S. 38:2220.4. DOTD and Certified Coatings argue that in its pleadings M.P.G./Alpha sought relief under both Title 38 and Title 48. Consequently, DOTD and Certified Coatings claim that regardless of our ruling on the wrongful injunction issue, costs and attorney fees are still recoverable.

M.P.G./Alpha cites L & A Contracting Company, Inc. v. RAM Industrial Coatings, Inc., 99-0354, p. 22 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1236 for the proposition that attorney fees are not recoverable unless expressly authorized by statute |9or contract. M.P.G./Alpha claims that absent a statutory or contractual basis for an award of attorney fees, it is not liable to DOTD and Certified Coatings for attorney fees.

Louisiana Revised Statute 38:2220.4 provides in pertinent part:

A. The court shall enter an order declaring whether a violation of R.S. 38:2211 et seq. has occurred. The declaration shall have the force and effect of a final judgment or decree.
B. (1) The court shall also award to the principal plaintiff as determined by the court, if successful in his action, reasonable attorney fees. The court shall also award to any prevailing defendant costs and reasonable attorney fees. However, if the court finds fraud on behalf of a defendant, the award to the plaintiff shall be twice the amount of reasonable attorney fees.

La. R.S. 38:2220.4.

Based upon our review of the record in this matter and the language of the aforementioned statute, we note that based upon its status as an intervenor in this litigation, Certified Coatings lacks status to assert a claim for costs and attorney fees. We cannot discern from the record, however, whether or not DOTD is entitled to costs and attorney fees. In its transcribed oral reasons for judgment, the trial court stated:

I don’t believe we ever addressed the issue, we may have, on the declaratory judgment might have satisfied 38:2220.4. I think it’s Subsection A., but the First Circuit sent the declaratory judgment back and said that there was conflicting evidence as to whether that was properly even before the court and we never addressed that issue again. So I am not certain that we ever addressed the issue of whether there had been a violation of the Public Bid Law under at least certainly Title 38 and therefore, I don’t think that [2220.4] kicks in. For those reasons, the motion for summary judgment filed by M.P.G. Alpha is granted.

It is unclear from the record whether the trial court made a determination regarding a violation of La. R.S. 38:2211 et seq. Absent such a determination, this court is unable to make a determination as to whether DOTD is entitled to recover attorney fees and costs. Accordingly, it was error for the trial court to dismiss all claims against M.P.G./Alpha through a grant of summary judgment. We therefore remand this matter to the trial court for a determination of whether a violation of La. R.S. 38:2211 et seq. occurred, and if not, whether DOTD is entitled to recover attorney fees and costs.

I ^CONCLUSION

For the above and forgoing reasons, the judgment of the trial court dismissing DOTD’s and Certified Coatings’s causes of action for damages and attorney fees pursuant to La.Code Civ. P. article 3608 is affirmed. Similarly, the judgment dismissing Certified Coatings’s cause of action for attorney fees pursuant to La. R.S. 38:2220.4 is also affirmed. The judgment of the trial court dismissing DOTD’s cause of action for attorney fees pursuant to La. R.S. 38:2220.4 is reversed and that cause of action is remanded to the trial court for a determination as to whether a violation of La. R.S. 38:2211 et seq. occurred, and if not, whether DOTD is entitled to recover attorney fees and costs. All costs associated with this appeal are to be shared equally among petitioner, M.P.G./Alpha, defendant, DOTD, and intervenor, Certified Coatings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

McClendon, j., concurs.

      . M.P.G. Construction, Inc. and Alpha Painting & Construction C., Inc., A Joint Venture v. Louisiana Department of Transportation and

        Development, 00-CW-0237 (La.App. 1 Cir. 7/12/2000).

      . M.P.G. Construction, Inc. and Alpha Painting & Construction C., Inc., A Joint Venture v. Louisiana Department of Transportation and Development, 2000-CC-2314 (La.8/30/2000).

      . M.P.G. Construction, Inc. and Alpha Painting & Construction C., Inc., A Joint Venture v. Louisiana Department of Transportation and Development, 00-CA-0816 (La.App. 1 Cir. 10/5/2000), writ denied, 00-OC-3039 (La. 1/5/2001).


author: [¡.DOWNING, J.

text:
    Wesley ROBERTS, Jr. and Annie Matt Roberts v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp., Owens-Illinois, Inc., Owens-Illinois Glass Co., Garlock, Inc., Crown Cork & Seal Co., Inc., Rock Wool Manufacturing Co., M.H. Detrick Co., Riley Stoker Corp., Metropolitan Life Ins. Co., Foster Wheeler Energy Corp., W.R. Grace & Co.-Conn., The Anchor Packing Co., North American Refractories Co., General Refractories Co., Kaiser Aluminum & Chemical Corp., Proko Industries, Inc., Synkoloid, Georgia-Pacific Corp., Minnesota Mining and Manufacturing Co., U.S. Miner Products Co., The Flintkote Co., Asten Group, Inc., Indresco, Inc., Uniroyal Holding, Inc., Kelly-Moore Paint Co., and the McCarty Corporation.
    No. 2003 CA 0248.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2004.
    Rehearing Denied June 28, 2004.

      Rick Nemeroff, Kevin McHargue, Dallas, TX, Lawrence Gettys, Joseph McKer-nan, Baton Rouge, Counsel for Plaintiff/Appellee Wesley Roberts, Jr.
    Gary A. Bezet, Carol L. Galloway, Baton Rouge, Counsel for Defendant/Appellant Exxon Corporation.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   [¡.DOWNING, J.

Exxon Mobil Corporation (Exxon) appeals two judgments notwithstanding the verdict (JNOVs) in which it was held liable for survival damages for Mr. Wesley Roberts, Jr., and for wrongful death damages to his wife and successors arising from his development of mesothelioma after being exposed to asbestos at an Exxon site. Mr. Roberts’ wife and successors (collectively, “Roberts”) answer the appeal alleging that the proper judgment failed to reflect Exxon’s solidary liability up to 50% and that the jury erroneously found several other • defendants liable, thus decreasing Exxon’s liability. For the following reasons we declare the nullity of the second entered JNOV, reverse in part the first entered JNOV, amend the first amended JNOV, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Wesley Roberts worked as a pipefitter throughout his career from 1941 to 1981. During the 1950’s, 1960’s and 1970’s, he was exposed to asbestos containing products while working at the Exxon refinery in Baton Rouge and at other facilities. In 1994, Mr. Roberts was diagnosed with mesothelioma. He died in 1995.

Prior to his death, Mr. Roberts and his wife filed suit against numerous manufacturers alleging that exposure to asbestos-containing products caused his disease. After his death, the lawsuit was amended to add premises owners as defendants and to assert wrongful death claims and also to add Mr. Roberts’ three children as plaintiffs.

The matter came to trial against Exxon alone. Roberts had settled with all other defendants. At trial the jury found nineteen defendants liable and apportioned fault. Judgment was entered accordingly.

| ¡¡Roberts and Exxon moved for JNOV. Exxon’s motion also requested a new trial or remittitur. The trial court apparently granted both JNOV motions in one judgment. It found in favor of Exxon on the issue of damages that there was no evidence to support the award for past medical expenses. It found in favor of Roberts on the issue of liability that there was no evidence to support findings of liability against five defendants.

Later, on its own motion the trial court entered a second JNOV to increase Exxon’s degree of fault, stating in an order that the first JNOV was only partial. But this second JNOV altered many of the decrees of the first JNOV. Both JNOVs specifically deny all relief not expressly granted, thus denying Exxon’s motions for new trial and remittitur.

In both JNOVs, except as stated above, the trial court appears to adopt the jury’s verdict, including the percentage findings of fault in connection with the remaining defendants.

From these judgments, Exxon appeals, asserting ten assignments of error addressing the validity of the second JNOV, challenging the trial court’s finding that Exxon was negligent, suggesting that the trial court erred in dismissing liability on the part of five defendants, challenging awards for survival damages and wrongful death damages as being excessive, challenging the trial court’s ruling to allow one witness to testify as a rebuttal witness, and claiming that the trial court erred in excluding prior trial testimony of two witnesses.

14Roberts answered the appeal, asserting eight assignments of error, but raising only two issues in its brief. They alleged that if the first JNOV is the only valid judgment, that judgment erroneously failed to hold Exxon solidarily liable for 50% of their damages as required by the applicable version of La. C.C. art. 2324 B. They further argue that the trial court erred by erroneously finding liability on the part of five settled defendants, thus reducing their entitlement to damages.

DISCUSSION

I. EXXON’S ASSIGNMENTS OF ERROR

A. Validity of Second JNOV

“A final judgment may not be amended to effect a substantive change except on application for new trial, action for nullity, or timely appeal.” State ex rel. Dept. of Soc. Serv. v. A.P., 02-2372, p. 8 (La.App. 1 Cir. 6/20/03), 858 So.2d 498, 503. The Louisiana Supreme Court also recognizes a jurisprudential exception that, on its own motion and with the consent of the parties, the trial court may substantively amend a judgment. Id. Courts have uniformly held substantive amendments to judgments made without recourse to proper procedures to be absolute nullities. Bourgeois v. Kost, 02-2785, pp. 7-8 (La.5/20/03), 846 So.2d 692, 696.

Here, prior to signing the second JNOV, the trial court signed an order stating that the first JNOV was only a partial judgment that did not address reapportionment of fault. The judgment then ordered that a new judgment be prepared. The first JNOV, however, clearly apportioned fault and the second JNOV clearly altered the terms of the first JNOV. And the procedure employed by the trial court is not an authorized method by which to substantively amend a judgment. La.C.C.P. art.1951. As such, the second JNOV is an invalid [^amendment of the first and is an absolute nullity. Bourgeois, 02-2785 at pp. 7-8, 846 So.2d at 696. Exxon’s assignments of error in this regard have merit.

We therefore consider the appeal and answer to appeal in connection only with the first JNOV.

B. Proof of Exxon’s Negligence

Exxon’s only challenge regarding its alleged negligence, is that Mr. Wesley Roberts, Jr. failed to prove that it knew or should have known that Roberts, who was, allegedly, indirectly exposed to asbestos containing products, was at risk for contracting, specifically, mesothelioma. Exxon asserts in brief that, “It is simply not relevant what Exxon knew, or should have known, about asbestos-related diseases other than mesothelioma.” Exxon argues that without such specific knowledge of mesothelioma, it was without knowledge of the risk and could not be found negligent. In so arguing, Exxon asserts that Roberts failed to establish the legal cause (scope of liability or scope of protection) element of the duty/risk analysis. See Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440, p. 7 (La.3/23/01), 782 So.2d 606, 611. See also Perkins v. Entergy Corporation, 98-2081, 98-2082, 98-2083 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, affd, 00-1372, 00-1387, 00-1440 (La.3/23/2001), 782 So.2d 606. It claims that any duty it owed Roberts does not extend to risks of which it did not particularly know. To the contrary, we find that Exxon interprets the scope of its liability too narrowly and | fiwe conclude Roberts has adequately established that Exxon’s conduct was the legal cause for his injuries.

The Louisiana Supreme Court has unequivocally stated that, “the determination of legal cause involves a purely legal question.” Todd v. State, Dept. of Social Services, 96-3090, pp. 6-7 (La.9/9/97), 699 So.2d 35, 39; Perkins, 98-2081, 98-2082, 98-2083, p. 31, 756 So.2d at 410. In Perkins, this court observed that the inquiry into the existence of legal cause involves “whether a legal standard exists and requires delving into policies for and against extending the asserted legal standard of care to protect the particular plaintiff against the particular harm. (Citations omitted.)” Id. This legal determination, however, may depend on factual determinations of foreseeability and ease of association. Id. Exxon acknowledges that it should be held liable “if it knew or should have known its conduct posed a risk of harm, but failed to take steps to prevent the risk.” We therefore, evaluate this legal standard on the bases of foreseeability and ease of association, and on the policies for and against extension of the standard to determine whether it protects Mr. Roberts from the harm he suffered.

1. Foreseeability

Exxon argues that since there was no direct link established between asbestos and mesothelioma until the mid-1960’s, it could not and should not have known of that danger. But it acknowledges that asbestosis was first observed in 1927 and that asbestos-induced lung cancer was recognized in 1955. Exxon also acknowledges that in 1964, it knew of the possible relationship between asbestos and pleural mesothelioma, but only in the context of insulators. It also argues that |7since there is no safe level of exposure to asbestos-containing products, there are no preventive steps it could have taken had it known of the risk.

There is ample factual support in the record supporting the foreseeability component of the duty/risk analysis.

A report prepared for Standard Oil Company in July 1937 entitled, “Dust Producing Operations,” noted that “inhalation of asbestos particles ... is even more hazardous than was originally believed[.]” Another report prepared for Standard Oil’s research department dated April 12, 1949 and entitled, “Report on ‘Summary’ of the Plant Industrial Hygiene Problems,” noted that asbestos dust, among other dust exposures, were encountered widely, with occasionally heavy exposure, in insulating operations. This report noted cancer of the lungs and fibrosis as possible consequences of asbestos exposure. The report stated the need for further study of employees working in close proximity with asbestos.

Dr. Richard Lemen, a qualified expert, testified about these reports. He opined that by 1940, and clearly by the mid-1950s, it was well established that there was a causal link between asbestos and lung cancer. He testified that the first reports connecting asbestos and mesothelioma were reported in 1943 and that a competent company medical department should have been aware of this. Dr. Lemen testified that in 1958 physicians were aware of and discussed malignant diseases including mesothelioma in refinery workers. He testified that asbestos and mesothelioma were causally linked in 1960. He testified that in 1964 a study was published on insulators and insulation manufacturers that showed a significant excess of asbestosis, lung cancer and other lung diseases, such as mesothelioma. Dr. Lemen stated that if Exxon had wanted to know, it could have known that asbestos was not safe to mine or to use in manufacturing.

|sThis evidence, apparently accepted by the factfinder, establishes that Exxon knew or should have known that exposure to asbestos-containing products was hazardous when Mr. Roberts was exposed. Even if Exxon did not know of the exact hazard of mesothelioma, it knew that exposure to asbestos containing products could cause serious lung diseases and cancer. Exxon’s evidence fails to show how the risk for mesothelioma was quantifiably different from that for other asbestos-related lung diseases, except perhaps that meso-thelioma may require less exposure. And at the times Mr. Roberts was exposed to asbestos-containing products, the record shows that Exxon undertook few if any precautions against asbestos exposure, despite the protective measures suggested in its 1937 report.

It was foreseeable that Mr. Roberts would contract a serious lung disease from exposure to asbestos. The factfinder here could have reasonably concluded from evidence in the record that the risks for mesothelioma and other asbestos-related diseases were substantially the same. Accordingly, we conclude that the factfinder was not manifestly erroneous on the basis of lack of foreseeability in finding Exxon negligent.

Exxon cites Teel v. State, Dept. of Transp. and Dev., 96-0592, p. 9 (La.10/15/96), 681 So.2d 340, 343, for the proposition that before it could be held liable for negligence, it needed knowledge of the specific risk (“the owner knew or should have known of that risk.”) To the extent that Exxon argues the adjective, “.that,” requires knowledge of the specific risk of mesothelioma, it interprets much too narrowly, and such reading is not justified by the case law cited. We believe that the damage suffered by Mr. Roberts is fairly encompassed within the risks Exxon knew or should have known. And, “It is well settled jurisprudence that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” Robling v. Allstate Insurance Co., 97-0582, p. 4 (La.App. 1 Cir. 4/8/98), 711 So.2d 780, 783.

|fl2. Ease of Association

Here, we have no difficulty associating Mr. Nelson’s contraction of mesothe-lioma to asbestos exposure since the record reveals that exposure to asbestos is the only known cause for the disease. And the evidence points to no intervening events that would make the association remote. Where the evidence in the record demonstrates that Mr. Roberts was exposed extensively to asbestos-containing dust and products, we cannot say the association between the exposure and the disease is too remote.

3. Policy Considerations

Regarding policy matters, Exxon argues that its duty did not extend to protecting Mr. Roberts from exposure to the asbestos-containing products that resulted in his mesothelioma. It first argues that since many manufacturers are being forced into bankruptcy, plaintiffs are shifting liability to purchasers of the products, such as Exxon; it argues the unfairness of holding a premises owner liable for risks that were not specifically known to it. It farther asserts that finding its acts to be the legal cause of Mr. Roberts’ injuries would require businesses “to implement measures designed to guard against every potential risk which has been suggested in the scientific community, but which has not yet been proven through valid scientific studies.”

We find these points are not compelling in light of La. C.C. art. 2315’s stated policy that, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Regarding the first argument, Mr. Roberts’ development of a fatal lung disease was a natural and probable consequence from prolonged asbestos exposure. As discussed above, we see no basis to distinguish between the consequences of known risks. Regarding Exxon’s second argument, asbestos-related diseases caused by asbestos exposure are longjestablished10 realities. These diseases are and have been more than unproven potential risks suggested by the scientific community.

4. Legal Cause

Accordingly, under the facts of this case, based on foreseeability, ease of association and consideration of the competing public policies, the factfinder did not err in concluding that the scope of protection provided under Exxon’s duty of care extended to a disease that developed from his exposure to asbestos. Nor did it err in finding Exxon negligent in causing Mr. Roberts’ injuries.

C. Dismissed, Settled Defendants, part 1

Exxon argues that the trial court erred in dismissing, by JNOV, five defendants from the allocation of liability. These defendants were CertainTeed Corp., Fibre-board Corp., The Flintkote Co., Foster Wheeler Entergy Corp. and General Electric. And the specific basis on which the trial court entered JNOV in favor of Roberts was the lack of sufficient evidence to support the jury’s findings of liability as to these defendants. We conclude that the trial court did not err in entering JNOV in favor of Roberts.

In Hunter v. Wal-Mart Supercenter of Natchitoches, 01-0299, p. 3 (La.10/16/01), 798 So.2d 936, 937-938, the supreme court reasserted that the proper standard to apply in granting a JNOV is as follows:

Judgment notwithstanding verdict (JNOV) is warranted when facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, and JNOV motion should be granted only when evidence points so strongly in favor of moving party that reasonable men could not reach different conclusions, not merely when there is preponderance of evidence for mover; if evidence opposed to motion is of such quality and weight that reasonable and fair-minded men in exercise of impartial judgment might reach different conclusions, the motion should be denied. (Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991)).

In reviewing a JNOV, an appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria In just as the trial judge does in deciding whether or not to grant the motion. Anderson, 583 So.2d at 832. The trial court must decide whether “the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdiet[.]” Id. If the answer to that question is in the affirmative, then the trial judge correctly granted the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Id.

In this regard, we also consider Exxon’s argument that Roberts did not meet their burden of proof of showing that the jury’s finding of liability as to CertainTeed, Flint-kote, Fibreboard, Foster Wheeler and General Electric were clearly wrong or without evidentiary support. Therefore, Exxon argues, the trial court erroneously granted Roberts’ motion for JNOV on the issue of liability. Exxon asserts that Roberts does not dispute that, given sufficient evidence of exposure, it is appropriate to find manufacturers liable in solido with Exxon. Exxon also points out that plaintiffs did not argue that Mr. Roberts was not exposed to asbestos fibers from these manufacturers’ products. Exxon asserts that plaintiffs argument was that evidence of exposure was insufficient as a matter of law to support the jury’s finding of liability regarding these settled defendants.

Exxon also argues that Roberts changed their argument after the jury verdict to contend that Roberts was not exposed to “respirable fibers.” It appears that Exxon is arguing that “exposure” does not require respiration. Exxon apparently contends that “exposure” means being in the presence of asbestos-containing material with no requirement that the material release respirable fibers.

“Exposure” has been defined in asbestos cases as “inhalation of asbestos fibers into the lungs.” Asbestos v. Bordelon, 96-0525, p. 30 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 948; Abadie v. Metropolitan Life Insurance Co., 00-344, 12 00-856, p. 90 n. 23 (La.App. 5 Cir. 3/28/01) 784 So.2d 46, 65 n. 23. All of the expert testimony agreed that asbestos fibers are only dangerous if inhaled. To be inhaled, asbestos fibers must be, by definition, inhalable, i.e. res-pirable.

Exxon correctly contends, and as Roberts’ experts stated, that any exposure or inhalation, of a respirable fiber, may cause lung disease. But our courts have, as a matter of policy, required that “the claimant must show that he had a significant exposure to the product complained of to the extent that it was a substantial factor in bringing about injury.” Bordelon, 96-0525 at p. 30, 726 So.2d at 948, cited in Abadie, 00-344, 00-856 at p. 90, 784 So.2d at 65. The court in Abadie was very clear that a non-settling defendant must prove, not only that a settling defendant manufactured an asbestos-containing product, but also that the products were used in such a manner that dust was emitted. Evidence of the mere physical presence of asbestos-containing material is insufficient to find a manufacturer liable to a plaintiff. Abadie, 00-344, 00-856 at p. 92, 784 So.2d at 67.

With these principles in mind, we now examine the record to determine whether the evidence points so strongly in favor of Roberts that reasonable jurors could not have reached different conclusions.

The only mention of Foster Wheeler boilers or General Electric turbines is an “x” in Mr. Roberts’ work history indicating that he worked around these products. There was no evidence cited in the record, and we are unable to find any evidence of asbestos dust created by these defendants. Therefore, there was a total absence of legal proof and the trial court correctly granted JNOV in this regard.

Concluding that the trial court correctly entered JNOV in favor of Mr. Roberts on the issue of liability, we now review the JNOV for manifest error.

Although Mr. Roberts mentioned asbestos cement eighteen times in his deposition, we were unable to find any mention of CertainTeed, Flintkote or Fibreboard. However, Mr. Roberts listed on his worksheet that he worked with 113cement manufactured by these three companies. The question then becomes whether this material was respirable. Mr. Roberts described working with asbestos cement as follows:

Q: Okay. What were the conditions like when the asbestos insulating cement was poured from the bag into the vat?
A: It was dusty, pure dust. In other words, it looked more like flour than it did paste.

We conclude that this is sufficient evidence of significant exposure to respirable fibers manufactured by these three defendants. We conclude that the trial court was manifestly erroneous in excluding liability on these three defendants.

We note Exxon’s argument that Roberts judicially confessed his exposure in closing argument, but we do not credit it. A judicial confession “must be an intentional waiver relating to the opponent’s proof and not merely an assertion made for some independent purpose, such as a statement made for the purpose of giving testimony. (Citation omitted.)” Scoggins v. Frederick, 98-1816, p. 7 (La.App. 1 Cir. 9/24/99), 744 So.2d 676, 683. The statements were not apparently intended as confessions. Rather, it appears Roberts was conceding the point for purposes of argument only. Further, the arguments of counsel are not considered evidence. In re Reinstatement of Venture Associates, Inc. of Louisiana, 00-0711, p. 3 n. 6 (La.App. 1 Cir. 5/11/01), 808 So.2d 650, 652 n. 6.

Finding merit in Exxon’s assignment of error regarding the entry of JNOV contrary to its interest, we reverse the trial court judgment finding no liability on the parts of CertainTeed, Fibreboard, and Flintkote. We find no error in the trial court’s findings of no liability on Foster Wheeler and General Electric.

D. Damages

Exxon challenges the quantum of the jury awards on Mr. Roberts’ survival action and on his spouse and children’s wrongful death awards. The jury awarded damages as follows:

I uDamages to compensate Mr. Roberts
Á. Past medical expenses $ 500,000
B. Past pain and suffering $1,500,000
C. Past loss of enjoyment of life $ 500,000
D. Past mental anguish $1,000,000
TOTAL $3,500,000
Wrongful death damages Annie Matt Roberts $1,000,000
Sheila Jane Huffman $ 250,000
Wesley Roberts, III $ 250,000
Loxley Ann Oufnac $ 250,000

The fact finder is given much discretion in the assessment of damages. La. C.C. art. 2324.1. Damage awards on appellate review will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse as to the fact finder’s much discretion. Emery v. Owens-Corporation, 00-2144, pp. 21-22 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 457, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842; Reck v. Stevens, 373 So.2d 498, 501 (La.1979).

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993) (citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)), the court instructed that, “Only-after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.”

|1sExxon suggests that we abandon this seemingly settled jurisprudence and suggests we look to other case law for guidance to assist us in determining whether the awards are excessive. Exxon cites pre-Coco jurisprudence in favor of its position. The answer is simply that we cannot. We are bound to follow the instructions of the Louisiana Supreme Court. Pelican State Associates, Inc. v. Winder, 253 La. 697, 706, 219 So.2d 500, 503 (1969); Willis v. Letulle, 597 So.2d 456, 460 (La.App. 1 Cir.1992).

Accordingly, we review the above awards for abuse of discretion and under the specific facts and circumstances of this case we find no abuse of discretion.

Mr. Roberts’ general damages

The record reflects that Mr. Roberts suffered incredible pain. By his own statement to his doctors, the pain was a “ten out of ten.” The morphine pump given three months before his death only temporarily eased his pain and could not keep the pain under control. One of his doctors testified of the incredible pain caused by mesothelioma and stated that, “Every breath becomes painful.” Mr. Roberts suffered despondency and humiliation.

The jury heard all the evidence and made its awards. Given the compelling evidence of Mr. Roberts’ pain and suffering, loss of enjoyment of life and mental anguish, we cannot conclude the jury abused its vast discretion.

Wrongful death award to Mr. Roberts’ spouse

Mrs. Roberts was married to Mr. Roberts for forty-five years. She quit work to be with her husband once he was diagnosed with mesothelioma. She left her home and moved into an apartment in Baton Rouge so that Mr. Roberts could be close to his doctors. She took over all the tasks Mr. Roberts used to perform around the house. She took care of him during his illness and held his hand when he died. She misses him terribly, especially around the holidays. The jury did not | lfiabuse its discretion in awarding damages to Mrs. Roberts for wrongful death in the amount it decided was fair and appropriate.

Wrongful death awards to Mr. Roberts’ children

The children lost a confidant and companion and an excellent grandfather for their own children. They all feel empty at their great loss. The awards for wrongful death to these children under the circumstances described in the record seem reasonable and within the jury’s discretion.

Concluding the jury did not abuse its discretion in awarding general survival damages and wrongful death damages in the amounts it considered fair and appropriate, we cannot substitute our judgment for the jury’s. Exxon’s assignment of error in this regard lacks merit.

E. Evidentiary issues

Rebuttal testimony of Dr. Samuel Ham-mar

Exxon argues that Dr. Hammar should have been excluded as a rebuttal witness because the testimony to be rebutted was not new. It also argues that rebuttal was used to offer cumulative evidence regarding the diagnosis of mesothe-liorna. For the following reasons, we conclude the trial court did not abuse its discretion in allowing Dr. Hammar’s testimony.

Louisiana Code of Evidence art. 611 E gives a plaintiff the right to rebut evidence adduced by his opponents. Rebuttal evidence should be confined to matters raised by defendants. State ex rel. Guste v. Nicholls College Foundation, 592 So.2d 419, 422 (La.App. 1 Cir.1991). But admission of rebuttal evidence is within the trial court’s discretion. Id.

Here, the trial court observed that, “[y]ou should be permitted to bring out rebuttal evidence to rebut things not specifically covered in the plaintiffs case in chief.” The trial court then limited Dr. Hammar’s rebuttal testimony to “specific matters brought out by Dr. Sherwin” generally relating to Dr. Sherwin’s seven step |17process of determining disease and to dispute about his methods. The trial court noted its own discretion in allowing this testimony.

And Dr. Hammar’s testimony specifically refuted the degree of difficulty in diagnosing mesothelioma and the likelihood of confusion between mesothelioma and ade-nocarcinomas. Dr. Hammar challenged the appropriateness of a diagnostic test employed by Dr. Sherwin. He refuted Dr. Sherwin’s explanation of the growth of mesothelioma. He further refuted Dr. Sherwin’s theory on the cause of the tumor encasing Mr. Roberts’ lung.

The record does not contain a copy of the report allegedly turned over to Roberts six weeks earlier containing Dr. Sher-win’s opinions and conclusions. Even so, in Wingfield v. State, Dept. of Transp. and Dev., 01-2668, p. 22 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 803, writs denied, 03-0313, 03-0339, 03-349, (La.5/30/03), 845 So.2d 1059, 1060, this court found no abuse of discretion where the rebuttal testimony was generally in the same areas as the initial testimony but where rebuttal testimony disputed the expert’s opinion on an evidentiary issue. Here, we similarly conclude that Dr. Hammar’s rebuttal testimony, as limited by the trial court, was not unduly repetitious or prejudicial, and allowing the testimony did not constitute an abuse of discretion.

Exxon’s assignment of error in this regard lacks merit.

Exclusion of Professor James Hammond’s prior trial testimony

Exxon argues that the trial court erred in excluding prior trial testimony of Professor Hammond under La. C.E. art. 804 B(l) since he was an unavailable witness due to illness, infirmity and being outside the trial court’s jurisdiction. La. C.E. art. 804 B(l) provides as follows:

B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against |1swhom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

In denying Exxon’s motion to admit Professor Hammond’s testimony from a prior trial, the trial court found that it would be unable to separate Dr. Hammond’s factual testimony from his opinion testimony, which is specifically inadmissible under La. C.E. art. 804 B(l). It concluded that the prior testimony was inadmissible because Roberts’ counsel had not thoroughly cross-examined Professor Hammond at the prior trial and did not have an opportunity to do so now, thus depriving Roberts of meaningful cross-examination. It also ruled that Hammond was not truly unavailable.

It is undisputed that Dr. Hammond’s testimony would have been beneficial to Exxon. But the trial court did not abuse its discretion in disallowing this testimony. The trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Emery v. Owens-Corporation, 00-2144, p. 6 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 448.

Exxon argues that Dr. Hammond was truly unavailable because of the state of his health and his residence in Texas. The trial court, however, specifically minimized unavailability as a basis for his ruling. Exxon also argued that it could have avoided Professor Hammond’s opinion testimony in its presentation of his testimony. Even accepting these as true for argument purposes, we cannot conclude the trial court abused its discretion where it found that the prior cross-examination was not conducted thoroughly at the prior trial. The trial court’s ruling in this regard does not preclude such evidence ever being introduced, as |-i ¡¡Exxon argues. Rather, it reflects the trial court’s broad discretion in weighing the relevance and prejudice connected with such evidence.

Exxon’s assignment of eri’or in this regard lacks merit.

Exclusion of Dr. Neill Weaver’s prior trial testimony

Exxon next argues that the trial court erred in excluding the prior trial testimony of Dr. Weaver. The trial court found that Dr. Weaver was unavailable because he was called away after his wife became very ill. It disallowed his prior testimony, however, because evidence that was excluded in the other case was admitted during this trial. The court excluded Dr. Weaver’s testimony because Roberts’ counsel had not been able to cross-examine Dr. Weaver about that evidence. Stating that it wanted to be fair to both sides, the trial court also offered to leave the trial open until the next Monday so that Dr. Weaver could return to testify live. Exxon did not choose to exercise this option.

Again, while Dr. Weaver’s testimony would have been helpful to Exxon, the trial court had a reasonable basis for excluding his testimony. Accordingly, the trial court did not abuse its discretion in this regard. Exxon’s assignment of error in this regard is without merit.

II. ROBERTS’ ASSIGNMENTS OF ERROR ON ANSWER TO APPEAL

F. Dismissed, Settled Defendants, part 2

Roberts argues that the trial court erred in finding Babcock & Wilcox, Combustion Engineering, Inc., Riley Stoker Corp., Garlock, Inc and Gasket Holding, Inc. (f/k/a Flexatellic) liable for his injuries, asserting that the record contained no evidence of their liability. He argues specifically that there is no evidence that Roberts was exposed to any respirable asbestos fibers from these manufacturers’ products.

Mr. James D. Garrene, a boilermaker who worked with Mr. Roberts clearly states that Mr. Roberts worked around Riley-Stoker boilers, Combustion | gpEngineering boilers and Babcock and Wilcox boilers. He was not sure about turbines. He further explained how asbestos was released from work on these boilers into the air in Mr. Roberts’ presence thereby establishing exposure to respira-ble fibers. The trial court was not manifestly erroneous in finding liability as to these defendants.

Mr. Roberts testified in his deposition that he cut Garlock gaskets and he specifically testified that he couldn’t help but breathe the dust. He said, “it was so thick, it was like smoke.” The trial court was not manifestly erroneous in finding liability as to this defendant.

Mr. Roberts testified he recognized the Flexatellic asbestos gasket but there is no evidence he ever cut one, or in any way released respirable fibers from one. The trial court was manifestly erroneous in finding Gasket Holding, Inc. (f/k/a Flexatellic) liable.

Accordingly, the trial court was not manifestly erroneous in finding that the products of Babcock & Wilcox, Combustion Engineering, Inc., Riley Stoker Corp., and Garlock, Inc. were substantial contributing factors in causing Roberts’ injuries and that these manufacturers should be held liable for his resulting damages. But, the trial court was manifestly erroneous in finding that Gasket Holding, Inc. (f/k/a Flexatellic) was a substantial contributing factor in causing Roberts’ injuries and this manufacturer should not be held liable for the resulting damages.

This assignment of error has partial merit.

G. Allocation of fault

Survival award

Both Roberts and Exxon argue that Exxon’s liability for its virile share of survival damages should be adjusted. The judgment as here amended, however, Liallocates fault among sixteen defendants. Both parties are correct that Mr. Roberts’ survival damage award should be allocated according to virile shares. The law in effect at the time of the asbestos exposure applies contributory negligence and virile share principles. Cole v. Celotex Corp., 599 So.2d 1058. Since Mr. Roberts’ exposures occurred prior to the 1979 enactment of the Louisiana Comparative Fault Law, virile share principles apply. Id.

Accordingly, we amend the judgment to reflect Exxon’s virile share of Mr. Roberts’ survival damages, which total $187,500.00. This sum reflects the total allowed survival award of $3,000,000.00 divided by the 16, the number of defendants held liable.

Wrongful death awards

Roberts argues that Exxon should be held solidarily liable for 50% of the wrongful death awards to Mr. Roberts’ spouse and children under solidarity liability principles in effect at the time of his death because none of the tortfeasors were found to be individually liable for more than'50% of the damages. For the following reasons, we disagree.

A wrongful death action arises only if and when the victim dies. The action compensates the beneficiaries for their own individual injuries that occur at the moment of the victim’s death and thereafter. Walls v. American Optical Corp., 98-0455, p. 9 (La.9/8/99), 740 So.2d 1262, 1270. The law in effect at the time of decedent’s death controls. See Walls, 98-0455 at p. 10, 740 So.2d at 1270. And in 1995 at the time Mr. Roberts died, La. C.C. art. 2324 B provided in pertinent part that “liability for damages caused by two or more persons shall be solidary only to the extent necessary for persons suffering injury, death, or loss to recover fifty percent of his recoverable damages.” Accordingly, Roberts argues that Exxon’s soli-dary liability should be set at 50%.

| ¡¡¡>,Exxon, however, argues that it is entitled to a credit for the percentages of proportionate fault attributable to the settled defendants; otherwise Roberts could collect more than 100% recovery for their injuries, here 137$%. Exxon relies on Taylor v. United States Fidelity & Guar. Ins. Co., 630 So.2d 237, 239 (La.1993) where the Louisiana Supreme Court observed:

Although Articles 1803 and 1804 were enacted in 1985 ..., Louisiana courts have long recognized that when a plaintiff settles with and releases one of several joint tortfeasors, he thereby deprives the remaining obligors of the right to contribution against the released obligor.... And when the adoption of comparative fault introduced the concept of apportioning fault among joint tortfeasors who are solidary obli-gors, the rule emerged that a plaintiffs settlement with one solidary obligor reduces his recovery against the remaining obligors by the percentage of the proportionate fault of the released obli-gor. The amount received by the plaintiff in settlement is irrelevant to the calculation of the amount of the reduction. Of course, the reduction applies only when the remaining defendants prove at trial that the released party was a joint tortfeasor and therefore solidarity liable. (Internal notes and citations omitted.)

See also Cavalier v. Cain’s Hydrostatic Testing, Inc., 94-1496, p. 8 (La.6/30/95), 657 So.2d 975, 981.

Here, it is not disputed that the settling defendants were proven to be joint tortfea-sors and solidarity liable. The record indicates that all liable defendants except Exxon had settled at the time of trial. And the proportionate fault of the liable settling tortfeasors is collectively 79%. Exxon’s liability was set at 12 $%. Liability for 8$% fault remains unattributed. Applying the above principles, Exxon should be solidarity liable for the unsatisfied portion of liability to Roberts. We conclude that Exxon is solidarity liable for 21% of Roberts’ wrongful death damages.

Roberts argues, nonetheless, that not to hold Exxon 50% solidarity liable would controvert the solidary liability imposed by La. C.C. art. 2324 B. We ^disagree. Exxon is entitled by law to reduce its liability to Roberts by the percentage of the proportionate fault of the released ob-ligors. See Cavalier, 94-1496 at p. 8, 657 So.2d at 981. Accordingly, we hold Exxon solidarity liable for 21% of Roberts’ wrongful death damages, representing the unsettled proportionate liability including Exxon’s. Accordingly, we amend the judgment in this regard.

DECREE

For the foregoing reasons, we declare the nullity of the second JNOV signed November 13, 2002, we reverse in part the first JNOV and amend the judgment. We vacate the allocation of Exxon’s percentage fault on Roberts’ survival action and allocating fault by Exxon’s virile share, as follows:

IT IS ORDERED, ADJUDGED AND DECREED that judgment is entered in favor of Plaintiffs ANNIE MATT ROBERTS, SHEILA JANE HUFFMNA, WESLEY EVNTJE ROBERTS, III, and LOXLEY ANN OUFNAC, and against Exxon Mobil Corporation in the sum of One hundred eighty seven thousand five hundred and no/100 dollars ($187,500.00), together with interest thereon from March 15, 1995 (the date the original action was filed) until paid. This sum of $187,500.00 rendered against Exxon Mobil Corporation reflects its virile share of the amount awarded by the jury for survival damages, based upon the number of entities for whom the jury found liability (16).

We vacate the allocations of Exxon’s percentage fault on Roberts’ wrongful death actions and allocate fault by Exxon’s soli-dary liability, as follows:

IT IS ORDERED, ADJUDGED and DECREED that judgment is entered in favor of ANNIE MATT ROBERTS, individually, and against defendant, Exxon Mobil Corporation in the sum of One hundred nineteen thousand forty-seven and 61/100 dollars ($119,047.61) together with legal interest thereon from April 17, 1996 (the date the petition was amended to include wrongful death) until paid. This sum rendered against Exxon reflects the sum for which Exxon is solidarily liable (21%).
IT IS FURTHER ORDERED, ADJUDGED and DECREED that judgment is entered in favor of SHEILA JANE HUFFMAN, individually, and against defendant, Exxon Mobil Corporation in the sum of Fifty two thousand 500 and no/100 dollars ($52,500.00) together with legal interest thereon from April 17, 1996 (the date the petition was amended to include wrongful death) until paid. This sum rendered against Exxon reflects the sum for which Exxon is solidarily liable (21%).
|,4IT IS FURTHER ORDERED, ADJUDGED and DECREED that judgment is entered in favor of WESLEY E. ROBERTS, III, individually, and against defendant, Exxon Mobil Corporation in the sum of Fifty two thousand 500 and no/100 dollars ($52,500.00) together with legal interest thereon from April 17, 1996 (the date the petition was amended to include wrongful death) until paid. This sum rendered against Exxon reflects the sum for which Exxon is solidarily liable (21%).
IT IS FURTHER ORDERED, ADJUDGED and DECREED that judgment is entered in favor of LOXLEY ANN OUFNAC, individually, and against defendant, Exxon Mobil Corporation in the sum of Fifty two thousand 500 and no/100 dollars ($52,500.00) together with legal interest thereon from April 17, 1996 (the date the petition was amended to include wrongful death) until paid. This sum rendered against Exxon reflects the sum for which Exxon is solidarily liable (21%).

In all other respects, the trial court’s judgment entered September 19, 2002 is affirmed. Costs are taxed one-half each to the plaintiffs and to Exxon.

SECOND JNOY DECLARED A NULLITY; JUDGMENT REVERSED IN PART; JUDGMENT AMENDED; AFFIRMED AS AMENDED.

PETTIGREW and McCLENDON, JJ., concur without reasons.

      . Exxon named these other defendants because, as a nonsettling tortfeasor, it was entitled to a reduction in a judgment only if could prove at trial that the settled defendants were at fault and solidarily liable. See Farbe v. Casualty Reciprocal Exchange, 00-0076, p. 5 (La.7/6/00), 765 So.2d 994, 997.

      . The law allows the entry of partial JNOVs on the issues of liability and damages. See La. C.C.P. art. 1811 F. Once the jury verdict is set aside under the strict JNOV standards, however, the trial court then becomes the trier of fact. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 834 (La.1991). ''[W]hen a trial court decides to grant a motion for JNOV, it then becomes the responsibility of the trial court to review the award de novo, including the calculation of comparative fault." McAshan v. Jack’s Pest Control, 99-1068, on rehearing, 782 So.2d 1 (La.6/21/00), interpreting Anderson. We are unaware of any provision that precludes a trial court from independently arriving at some or many of the same conclusions as did a jury. Here, no party assigns error to this aspect of the JNOVs.

      .Under the Uniform Rules — Courts of Appeal 2-12.4, we consider abandoned those assignments of error not briefed. Particularly, by answer to appeal, Roberts raised as an assignment of error but did not brief the trial court's entry of JNOV on the issue of the lack of evidentiary support for the jury's award of past medical damages. This assignment of error is specifically deemed abandoned.

      . We do not address the validity of a second judgment that might make further disposition of matters not addressed in a first judgment, e.g., where a first judgment fails to cast a party in judgment.

      . As articulated by the Supreme Court, the five elements of the duty/risk analysis are as follows:
      (1) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element);
      (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element);
      (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element);
      (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and
      (5) proof of actual damages (the damages element).

        Perkins v. Entergy Corp., 00-1372, 00-1387,
      00-1440 at p. 7, 782 So.2d at 611.
      “If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable.’’ Id. Here, Exxon challenges only the legal cause (scope of liability/protection) element.

      . See Perkins, 98-2081, 98-2082, 98-2083, p. 34 n. 52, 756 So.2d at 412 n. 52, for an examination of whether the determination of legal cause is a legal or factual question.

      . Exxon fails to explain why it was necessary to continue to expose pipefitters such as Mr. Roberts to asbestos-containing products once it became aware of the potential for the contraction of asbestos-related diseases.

      . This award for this sum has been dismissed by JNOV pursuant to Exxon’s motion. Roberts does not contest this reduction on appeal.

      . In an alternative assignment of error asserted in the event this court had ruled either JNOV judgment to be enforceable, Exxon argued that the trial court erred in increasing its virile share of the survival award. Roberts argues by assignment of error that Exxon's virile share should be increased.

      . We have concluded that insufficient evidence exists against Foster Wheeler, General Electric and Gasket Holdings (frk/a Flexatel-lic). Accordingly, the fault formerly attributed to them is now unattributed. Foster Wheeler had been assigned 2% fault; General Electric had been assigned 2% fault; Gasket Holdings had been allocated 4.5%. Collectively, these represent 8.5% fault allocation.