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

text:
    Herbert PETERS, Jr., et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 2003-C-1206.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2003.
    Rehearing Denied Sept. 15, 2003.

      Michael R. Sistrunk, Kyle P. Kirsch, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, for Defendant/Relator, Arnica Mutual Insurance Company.
    Ramona N. Wallis, Law Office of Harold G. Toscano, New Orleans, LA, for Defendant/Respondent, Allstate Insurance Company-Encompass Insurance.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   LMAX N. TOBIAS, JR., Judge.

We grant the application for supervisory writ of co-defendant, Arnica Mutual Insurance Company (“Arnica”), to conduct a de novo review of a judgment of the First City Court of New Orleans that held Arni-ca, as the insurer of the defendant/driver of the automobile involved in an accident, was primary and Allstate Insurance Company (“Allstate”), the insurer of the defendant/owner of the vehicle involved in the accident, was excess. The trial court granted Allstate’s motion for summary judgment and denied Arnica’s cross-motion for summary judgment.

An accident occurred on 10 June 2001 involving a 1993 Mazda 626 automobile owned by Jennifer Orr (“Orr”) and driven by Mary Dawkins (“Dawkins”). Because Arnica and Allstate have failed to provide us with a copy of the plaintiffs’ petition, we assume that the plaintiffs have alleged that the negligence of Dawkins caused them injury and that they suffered damages. At the time of the accident, Allstate insured Orr’s vehicle and Arnica insured Dawkins as the owner of a 1995 Subaru Legacy Outback automobile. Dawkins was driving Orr’s Mazda with Orr’s permission at the time of the accident. Allstate and Arnica | ¡¿filed cross-motions for summary judgment each asserting that the other insurer is primary and that it is excess.

In part, the applicable Allstate policy language reads:

If an insured person is using a substitute private passenger auto or non-owned auto, our liability insurance will be excess over other collectible insurance. If more than one policy applies on a primary basis to an accident involving your insured auto, we will bear our proportionate share with other collectible liability insurance.
However, this policy will pay on a primary basis for damages an insured person is legally obligated to pay because of bodily injury and damage to or destruction of property arising out of the use of a non-owned auto by you or a resident relative if:
1. The non-owned auto is being used temporarily while your insured auto is being serviced or repaired, or when the non-owned auto is being test-driven by you or a resident relative, and
[Emphasis in original deleted.]

We are unable to quote or review the complete applicable language of the policy because both Arnica and Allstate have provided this court with only the even numbered pages of the policy and the odd numbered pages of the relevant policy endorsement. We assume that the trial court similarly did not have before it the complete policy language when it rendered its decision.

The applicable Arnica policy language reads as follows:

If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.

In addition to the policy language regarding who is excess, we note that the policies’ language states that the insurer shall only be responsible for its proportionate share of damages. We note that Allstate’s policy does not explain how its proportionate share is calculated. It is asserted in Arnica’s application for Rwrits that the policy limits of Allstate’s policy are $25,000 per person/ $50,000 per accident, but we cannot in our de novo review confirm this assertion. That is, although Arnica attaches what is represented to be a copy of Allstate’s policy, no declaratio'ns page of the Allstate policy is in the record before us. Arnica’s policy appears to provide coverage of $100,000 per accident.

The language in the two insurance policies’ language appears repugnant to each other, each asserting that it is excess. This court has held in other similar cases that the matter cannot be determined on motions for summary judgment and must await a determination of whether damages are due the plaintiff. See Spiro v. Liberty Mut. Fire Ins. Co., 99-1797 (La.App. 4 Cir. 4/12/00), 761 So.2d 53: Chedville v. Ins. Co. of North America, 95-0170 (La.App. 4 Cir. 1/16/95), 664 So.2d 1310. Obviously, the issue is fact dependent in at least two respects: the facts and circumstances of the underlying accident, injury, and damages, and the insurance policy language. We note that this suit was filed in First City Court, a court of limited jurisdiction where the maximum damages recoverable by a plaintiff is $20,000. Because of the incomplete language of the policies in this case which we have, including the unexplained interpretation of “proportionate” in the Allstate policy, the determination of the trial court that one of the insurers is primary is apparently based upon at least inaccurate information and is accordingly premature. We therefore are required to vacate the judgment.

We do not address the applicability of La. R.S. 32:900, La. R.S. 22:1406, or the Second Circuit’s opinion in Safeway Ins. Co. of La. v. State Farm Mut. Auto. Ins. Co., 36,853 (La.App. 2 Cir. 3/5/03), 839 So.2d 1022, because we lack the full insurance policies at issue.

14For the foregoing reasons, we vacate the 6 June 2003 judgment of the trial court and remand for further proceedings.

WRIT GRANTED; JUDGMENT VACATED; REMANDED.

      . We cannot determine the precise number of plaintiffs or nature of the plaintiffs' claims because neither Arnica nor Allstate have described the nature of the plaintiffs' claims in the writ or response thereto.

      . The precise policy limits are unclear because the copy of the declarations page in the record before us has been cut off in the process of reproduction.


source: Caselaw Access Project

author: |,DREW, J.

license: Public Domain

text:
    Donald WOODS, Donna W. Bringol, Ritchie Woods and Russell G. Woods, Plaintiffs-Appellants, v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Arnold Construction Company, Defendants-Appellees.
    No. 37,185-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 14, 2003.

      Paul Boyd Wilkins, Columbia, W. Mark McKee, West Monroe, for Appellants Donald R. Woods, Donna W. Bringol, Ritchie Woods and Russell G. Woods.
    Hudson, Potts & Bernstein, LLP, by Robert McCuller Baldwin, D. Brian Allen, Monroe, for Appellant State of Louisiana DOTD.

      Thomas Moore Hayes, III, Monroe, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   |,DREW, J.

From a judgment awarding damages to the family of the decedent in a single car crash, both the plaintiffs and a defendant, the Louisiana Department of Transportation and Development (DOTD), appealed. On November 13, 1999, Maudine Woods died when the vehicle she was driving eastbound on 1-20 left the roadway, skidded for a distance and struck a concrete support column in the median of the interstate at the Britton Road overpass (location # 6081) in Ouachita Parish. Maudine Woods’s husband, Donald Woods, and their three adult children sued DOTD and Arnold Construction Company (Arnold), which was under a contract with DOTD and in the process of replacing old guardrails along the interstate in Lincoln, Oua-chita, and Richland Parishes. The old guardrails had been removed from location # 6081 on either October 25 or October 29, and the new guardrail was installed on November 15, two days after the fatal accident.

The jury cast DOTD with paying the following damages to Mr. Woods:

• $710,000 for loss of love and companionship,
• $260,000 for loss of Mrs. Woods’s earning capacity,
• $85,000 for Mrs. Woods’s survival action (pre-impact fear), and
• $6,200 for Mrs. Woods’s funeral expenses.

| ¡¡Mrs. Woods’s three adult children were awarded $235,000 each for their loss. The jury reduced the total award by 40% for comparative fault assigned to Mrs. Woods and rejected plaintiffs’ action against Arnold, which was dismissed with prejudice.

Following the denial of post-judgment motions, both the Woods family and DOTD appealed the trial judgment signed on May 28, 2002, as well as the judgment disposing of post-trial motions signed August 28, 2002. For the following reasons, the judgment is affirmed in part and reversed in part.

BACKGROUND AND TESTIMONY

Mrs. Woods’s auto left the interstate at a narrow angle of five to seven degrees, traveled in a straight line across the asphalt shoulder into the median, and struck the concrete support column nearly 300 feet from her first skid marks on the asphalt. The column was just over 30 feet from the eastbound inside edge of the highway in a line drawn perpendicular from the column to the edge of the roadway. The interstate was marked with construction zone warning signs and cones to channel traffic. Warning barrels, signs, and barricades marked the column itself. Her car struck on the front driver’s side, sustaining heavy damage. The force of the collision was strong enough to rotate her car counter-clockwise. The experts estimated her speed at leaving the highway from 62 to 82 mph, and her speed at impact from 30 to 46 mph.

14The investigating officers found no evidence of a blowout or any other reason for the vehicle to leave the road in what was described as a drift as opposed to a lurch. Photos in evidence show the day was clear and dry, and the interstate was straight. There were no visual obstructions of the overpass, the column, or the construction area which was clearly marked as a construction zone. One of the investigating state troopers recalled that on his way to the accident, he was aware of entering a construction zone because red and black construction warning signs were posted.

The north Louisiana portion of Interstate 20 was built in 1964. Since then, the record reflects that safety guidelines and equipment have continually evolved, as knowledge, experience, and technology improve. Apparently, and fortunately, this process is ongoing and continuous. This area of 1-20 is no exception to the rule.

Consider:

• Guardrails were added to # 6081 in 1967. These rails were straight installations without crash protection at the ends. Experts later determined that this type rail was a danger to the motoring public because the guardrail could actually pierce the passenger compartment if struck at a particular angle on the end.

• Installed in 1978 at # 6081, the next type of guardrail had a “turndown” at each end which curved over to the ground and which was anchored to the ground. Traffic engineers and others determined that, while an improvement over the early guardrails, if a car struck the turned-down portion of the rail under certain eireum-stances, the vehicle could become | ¡¡airborne or overturn. In the 1980s the federal government advised that turn-down guardrails should be upgraded.

• Arnold’s work at location # 6081 in 1999 included four distinct installations, two for the westbound lanes and two for the eastbound lanes. The interstate ran east and west. Just north of the westbound outside lane and just south of the eastbound outside lane, Arnold was to install pier (column) protection; i. e., concrete walls to shield the concrete piers (columns) located just north and south of the outside shoulders of the interstate. These piers (columns) supported portions of the Britton Road overpass which crossed over the interstate in a north/ south direction. In addition to removing the turn-down guardrails which ran parallel to the lanes of traffic and were located just north and south of the column (pier) in the center of the median, Arnold was to put new guardrails on the inside shoulders of the east and west bound lanes of the interstate.

Arnold removed the 1978 turned-down railing at the Britton Road overpass (# 6081). The rails were within a very few feet of the concrete column in the center of the median on both the eastbound and westbound sides of the interstate. Both rails north and south of the median column were turned down and secured together to an underground concrete anchor at the east and west ends of the installations.

The replacement guardrail at #6081 was to be placed on new asphalt poured outside the old asphalt shoulder and was to be approximately 12 to 13 feet from the edge of the eastbound inside lane. The ends of the new ^guardrail were to be equipped with crash attenuators designed to slow a vehicle with the goal of protecting those passengers and other motorists.

A clear zone is the distance off the road which is considered sufficient for an errant driver to recover control of his vehicle and avoid damage to property or persons in vehicles or in the clear zone. Just outside the clear zone, the column in the median at location # 6081 was a bit over 30 feet from the outside edge of the eastbound roadway. Numerous witnesses confirmed this information.

Arnold began the project at the western point in Lincoln Parish and was proceeding east into Ouachita Parish. The DOTD project engineer overseeing this construction, Thomas M. Hill, testified:

• The Arnold contract provided that the contractor was restricted to working on no more than four locations at a time.
• The contract also required that no more than one lane of the highway be closed at a time, that there be no overnight closures, and that the contractor could not work the median and the outside of the highway at the same time.
• The contract required that Arnold submit a Construction Projection Schedule (CPS) on which Arnold projected three days each for dirt work, asphalt work, and installation of new rails at the accident site. According to the contract, any changes had to be filed with DOTD, and none were filed during the course of the project.
• The period of time between removal of the old guardrails and installation of the new was called the transition period.
• The contract did not set a number of days for which a guardrail could be down.
• Hill did not know of any regulation in the Louisiana Standard Specifications for Roads and Bridges (the Silver Book), MUTCD (a federal guide, Manual on Uniform Traffic Control Devices), or any other standard of conduct requiring Arnold to use temporary barriers during the transition period at Britton Road.
[ 7* At the request of Donnie Arnold, the contractor, Hill authorized Arnold to go beyond four locations and take down guardrails at four additional locations. Although almost certain he cleared this with his own boss, Hill acknowledged he could have made the decision on his own.
• Notwithstanding the Silver Book provision that neither the inspector nor the project engineer was authorized to waive or alter provisions of the contract, Hill stated he spoke for DOTD on the project and had authority to alter the sequence of work if he felt it was in the public interest and necessary to satisfactorily complete the work.
• Hill’s authority included closing an unsafe construction site (a step he had taken with other contractors), but he never suspended Arnold’s work at the accident site for unsafe conditions.
• Hill indicated that he had no evidence that taking down rails at the four extra locations delayed putting the rail up at the crash site “even for a day.” In a seeming contradiction, he then said that removing guardrails at the extra four locations “probably” delayed putting up the guardrail where the accident took place. Hill later explained that he had not reviewed the project diary (a daily DOTD report of construction), had no knowledge of how many crews Arnold had and whether the take-down crew was the same group of workers who installed new guardrails. Hill acknowledged he did not know of and had no basis for stating there was a “probable” delay in placing the new guardrail at site # 6081.
• At the preconstruction meeting, Arnold was informed by DOTD that during the transition period, Arnold was required to use barrels and barricades at the support columns and to use cones and barrels on the roadway. Barrels, barricades, signs and cones did not protect motorists but served to warn oncoming drivers of the construction area.
• This contract did not call for any protective barriers or crash cushioning at any of the sites. Had DOTD wanted to use sand tubs or other protective devices, DOTD would have informed Arnold.
• The contract contained no time period for removal and installation of guardrails at any location.
• Hill did not direct Arnold to leave the old guardrail in place while the company installed the new guardrail. Hill had never seen that done in all his years of experience, and such a course of action would require a feasibility study.
|s« In his experience replacing guardrails, Hill had never seen temporary crash protection barriers used.
• Hill opined that Arnold was not in violation of its contract with DOTD and that Arnold’s actions were all taken with his permission and authority.

Donnie Arnold, an owner of Arnold, testified that in addition to the contract itself, the company was bound to comply with the Silver Book, which included § 105.09 stating: “Except as permitted as instructed by the chief engineer, the project engineer is not authorized to alter or waive provisions of the contract.”

Another provision of the Silver Book on which plaintiffs rely is § 107.07, which provides, in part:

The contractor shall conduct the work to assure the least possible obstruction to traffic. The project site and haul route shall be kept reasonably free from dust and in such condition that the public can travel in safety.
When the highway under construction is kept open to traffic, the sub-grade and surfacing shall be kept reasonably free from dust and in such condition that the public can travel in safety. Safety and convenience of the general public and the residents along with the work, and protection of persons and property, shall be the primary responsibility of the contractor. ...

Donnie Arnold also testified:

• He had been in construction many years and had concentrated on guardrail projects for the last seven years all over Louisiana and in Texas and Arkansas.
• In the CPS, Donnie Arnold estimated that it would take nine days to remove the old guardrails, do the dirt work, and install the new guardrails at the accident site (# 6081); the work actually took a day or two longer.
• The CPS submitted before work began was an estimate which showed the work on site # 6081 (Britton Road Overpass) was scheduled to be complete on the 108th or 111th day. In fact, the guardrail was in place on the 76th contract day.
19» In July, August, and September, the work was proceeding satisfactorily, and Arnold received no complaints from DOTD about the timeliness of the job.
• Donnie Arnold wanted to keep his men working, and he believed he had the right to make the request to exceed four locations. The project engineer approved. Donnie Arnold understood he was authorized to take down a total of 22 individual guardrails at one time, with the understanding that Arnold would place the barricades, barrels, and lights as provided by the project engineer. Arnold had used different crews and subcontractors to perform specific jobs on the entire project.
• Arnold was not a traffic engineering firm, and at no time had DOTD required a traffic protection barrier for a structure 80 feet from the roadway. This concrete support column was 30'1" from the edge of the roadway.
• DOTD provides traffic engineering and there were no barriers in the plans and specification for the job. Arnold made no decisions as to where signs were placed. During the transition period before the new guardrail was in place, Arnold was required to and did place a Type III barricade, two lights and barrels to alert motorists to the column. In Arnold’s work in Texas and Arkansas, no traffic engineer had ever required barriers or suggested that warning barricades, signs, and cones were insufficient.
• Arnold complied with the Silver Book regulation about signs, barricades and markers. Arnold violated no state law. Arnold had never been required to use temporary crash protection in its hundreds of guardrail projects.
• As a contractor, Donnie Arnold had to comply with annual continuing education requirements for licensed contractors. He had never been told to put up temporary protection during a guardrail project. Classes and industry literature instructed that warning devices be in place to warn motorists of the project.

A DOTD construction inspector, Danny Russell, was at the construction site daily where, using a copy of the contract, he verified that Arnold complied with the contract. Workdays were Monday through Friday, not including Saturday, Sunday, or any day that was too wet to work. According to his records, only one workday was too wet to work | ^between October 21 and November 15. Russell reported that the entire job, which was supposed to take 150 days, actually required 152, because Arnold was assigned extra work to repair a damaged guardrail in Lincoln Parish. In his 17 years doing road work, Russell never heard of an old rail being left in place while a new one was installed. He had never seen a column guarded with anything but barricades, barrels, and cones (warning devices), which Arnold placed as directed by DOTD. Signs warning of a construction site went back 10 miles. He had never seen a cushion crash protection barrier used during construction to shield a column. When he left the crash site on November 12, the warning cones, barrels, barricades, and signs were in place.

An Arnold employee, Ray Moore, testified taking down more guardrails at additional locations did not increase the amount of time it took to construct the new guardrails. Contradicting Russell’s records that the guardrails at the crash site were taken down October 25, Moore stated the rails at # 6081 were taken down October 29. An experienced worker on guardrail replacements, Moore worked as a superintendent and machine operator. In his experience, the average time from taking an old guardrail down and installing the new rail was 28 to 30 calendar days and 19 to 20 workdays. Moore described the 22 calendar days that the rail was down as average and noted that most did not get up that fast. Arnold put out signs, barricades, and cones to warn the motoring public about the construction. Moore stated the work on the extra four locations did not slow the project down at all. At # 6081, work was done on the outside pier protection during | T1the time period between laying the asphalt (finished November 5) and installing the inside guardrail on November 15. Moore was certain that Arnold poured westbound pier protection concrete at the crash site on October 28; therefore, the crash site’s old rail could not have been taken down until October 29. Moore also placed signs and cones according to the DOTD plans; in addition, he placed extra cones requested by DOTD. The contract initially did not call for barricades and barrels at the concrete columns in the median but DOTD directed that three barrels and a barricade be placed at median columns and Arnold complied. Moore disputed Russell’s notations that the guardrail was removed at the crash site on October 25. Moore recalled they did not have time to put up the guardrail at the crash site on the day before the wreck because there was insufficient time before dark and Arnold was not permitted to work at night.

Plaintiffs’ expert in traffic engineering and accident reconstruction, Dwayne T. Evans, stated:

• The center of the Woods vehicle did not strike the center of the column, which resulted in the vehicle moving counter-clockwise after impact.
• The barrels and a Type III barricade (boards painted orange and white) at the column were designed to warn motorists, not give crash protection.
• The decedent’s vehicle traveled from the road to the column at a six-degree angle.
• Using measurements taken by the investigating trooper, Evans calculated that the average crush was 32 inches (distance the damage was pushed back toward the steering wheel).
• Woods’s car was traveling approximately 61 to 63 mph at the beginning of her skid on the new asphalt and approximately 39 mph at impact.
17?• Had the new guardrail been in place, Mrs. Woods’s car would have struck the guardrail in the new asphalt shoulder, damaged her car and the rail, and scraped along the guardrail until stopping. Had the old guardrail been in place, Evans speculated that the Woods vehicle would have struck the rail and been deflected away from the column.
• Evans stated water- or sand-filled barriers were available to protect the motorist from an unprotected column. According to Evans, if the old guardrail, the new guardrail or available crash cushions had been in use, Mrs. Woods would not have struck the column.
• The reasons for the accident are unknown, and Mrs. Woods might have been at fault in leaving the roadway.
• Mrs. Woods’s path was more like a drift than a jerk of the steering wheel.
• No legal requirement, no federal regulation, and no ASHTO (American Association of State Highway and Transportation Officials) engineering guideline existed to his knowledge for when a temporary barrier should be placed by a roadway, and there is no instruction for temporary barriers during construction.
• DOTD provided Arnold extensive traffic engineering for the job, and whether to use temporary barriers or cushions to protect the column was an engineering decision.
• Arnold was “probably” justified in relying on DOTD and that Arnold could not second-guess DOTD’s engineering decisions.

Testifying as an expert in accident reconstruction, Louisiana State Trooper James Richardson relied upon the measurements in the original state police accident report and performed his own speed calculations. Richardson concluded from the tests that Woods’s vehicle was traveling from 23 to 30 mph when it struck the column. The investigation revealed no evidence of skid marks on the dirt and grass after the Woods vehicle left the asphalt. At the point on the new asphalt where the first skid marks were found, Richardson calculated Mrs. Woods’s speed to have been a minimum of 57.4 mph. Richardson’s opinion was that the vehicle was moving at the |13higher range of speed, that is, approximately 30 mph at impact and 65 or 66 as her skid began. The trooper opined the vehicle left the road due to driver error or driver condition, such as a medical problem or falling asleep.

Tendered as an expert in highway safety and guardrail systems and accepted by the trial court, Dr. Dean C. Albertson testified:

• No additional safety devices beyond those ordered by DOTD were necessary.
• The length of time which elapsed from removing the old guardrail until installing the new one was not unreasonable. The time period was short, and the old guardrail with rotten posts was a road hazard which needed to be removed.
• The column itself was over 30 feet from the roadway.
• There was no industry standard as to the number of locations on which a contractor should work at one time.
• The Britton Road overpass support column (# 6081) was not unreasonably dangerous.
• In 1999, Louisiana and hundreds of thousands of other interstate miles in the U.S.A. used a 30-foot set-back line so that all trees and signs are placed beyond 30 feet. The exception would be crash-worthy signs designed to break away on impact or signs protected by crash barriers.
• In construction zones, DOTD traffic engineering dictated the equipment and placement of barricades, signs, cones and construction zone warning signs during the transitional period between taking down an old guardrail and installation of the new one.

Hossein Ghara, a registered professional engineer and employee of DOTD, has jurisdiction over guardrail protection for median columns. In the late 1980s, the Federal Highway Commission advised that the old turn down guardrails should be replaced. The 30-foot clear zone was sufficient for a driver to bring an errant vehicle under control. Since this column was over 30 feet from the roadway, engineers did not introduce a barrier to |14protect the obstacle. During construction, no temporary barrier is required for a median column more than 30 feet off the roadway.

A retired Texas A & M professor, Dr. Michael James, who testified as an expert witness, had done accident reconstructions for almost 30 years. In contrast to the trooper reconstructionist who concluded decedent stopped braking when her car exited the asphalt, James concluded that the Woods vehicle was braking on the dirt halfway to the column, because the tire lines to the column were straight and there was no evidence of steering. James explained that a driver cannot steer when the brakes are locked. Had Mrs. Woods stopped braking, she could have steered the auto away from the column. Like the initial investigators, James found no evidence of tire failure. He concluded that Mrs. Woods’s speed had been from 75 to 82 mph when she first began breaking, from 62 to 68 in the dirt, and from 43 to 46 at impact.

Using a different method of measurement, James found that the auto sustained about four feet of crush, as opposed to the trooper’s estimation of about three feet of crush. He considered not only the damage to the front of the vehicle but also the overall compression of the car from front to back along with the bowing, the amount the front was bent to the left by the crash. The greater damage resulted in finding the higher speed. James concluded that, due to inattention, Mrs. Woods drifted off the roadway at a six- to seven-degree angle, panicked when she was about 300 feet from the column, and jammed on her brakes, which prevented her from steering away from the column. The expert acknowledged that Mrs. Woods’s car would ^J^have struck the new guardrail had it been in place; however, he declined to speculate as to the outcome.

Accepted as an expert contractor in guardrail construction and rehabilitation, Thomas Irvin stated he was branch manager of United Rental Technologies, Inc., a national company that performs traffic control contracting and markets items such as guardrails, striping, and pavement markings. Irvin also taught concerning this type construction. Irvin stated:

• In his years of experience, no roadway owner, the State of Louisiana, or any municipality had ever required him to use an impact protective barrier for a column 30 feet from the roadway.
• The decision as to what protection should be used during construction is made by traffic engineering. If barriers are required by DOTD, that information goes out with the bid package so the contractor can include the cost.
• Irvin had never seen protection used for a column 30 feet from the roadway. Moreover, he had never taught or been taught that protective barriers were necessary for columns more than 30 feet from the roadway.
• He had been limited as to the number of locations he could work at one time, but had also consulted the project engineer and received permission to work more than the location limit in the contract. Irvin did not consider this a violation of the contract.
• His experience was that pier protection, which typically involved the outside lanes (like the Britton Road project), slowed guardrail removal and replacement.
• Ten working days between October 29, 1999, and November 15, 1999, was not an excessive or unreasonable amount of time to remove and replace the old guardrail.
• He had never seen a project in which the old guardrail was left up while the new one was installed.
• The clear zone in Louisiana was 30 feet, and he had always been instructed to park construction equipment at least 30 feet off the road.
|1fi« The work in this dispute was done quickly, systematically, and as he would have done it.
• He would not be concerned about the time period between removal of the old and installation of the new guardrail for a column more than 30 feet off the road.

DISCUSSION

In Cormier v. Comeaux, 1998-2378 (La.7/7/99), 748 So.2d 1123, the supreme court explained the standard of review for appellate courts examining the jury’s findings of fact. Absent manifest error or clear wrong, the court of appeal may not set aside the jury’s finding of fact. To reverse a jury’s factual determinations, the appellate court must find (1) that a reasonable factual basis does not exist in the record for the jury’s finding; and (2) that the record establishes that the finding is clearly wrong (manifestly erroneous). The reviewing court must do more than review the record for some evidence which supports or controverts the jury’s finding. Instead, the appellate court must review the entire record to determine whether the jury’s finding was clearly wrong or manifestly erroneous. The issue is not whether the jury was right or wrong, but whether the jury’s conclusion was reasonable. Even if an appellate court concludes its own evaluations and inferences are more reasonable than the jury’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where testimony conflicts.

In order for a defendant to be held hable, the plaintiff must prove that (1) the DOTD had custody of the thing which caused plaintiffs’ damages, (2) the thing was defective because it had a condition which created an unreasonable risk of harm, (3) the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs’ injuries.
_JjjThe DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. This duty extends to the shoulders of highways as well. [DOTD’s] duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. This duty extends to drivers who are slightly exceeding the speed limit or momentarily inattentive. As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.... Whether DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of the case.

Cormier at pp. 1126-1127. (Citations omitted.)

Although the supreme court discussed the liability of DOTD in the foregoing paragraph, the four-part test applies to any defendant. If the plaintiff fails to prove any one of the elements, the defendant is not liable. McGuire v. New Orleans City Park Imp. Ass’n, 2002-1401 (La.1/14/03), 835 So.2d 416.

The central issue presented is whether the concrete column, located in the median of the interstate, marked with warning barriers, warning signs, barrels, and cones, but not a .crash protection barrier, created an unreasonable risk of harm. A finding that no reasonable factual basis exists on which the jury could have concluded that the column presented an unreasonable risk of harm pretermits the other issues raised on appeal. Fully cognizant of the jury’s discretion as the finder of fact and the plaintiffs’ devastating loss, we find, after an extensive review of the entire record, that the jury was clearly wrong and unreasonable in deciding that the | isplaintiffs proved that the concrete column more than 30 feet from the left edge of the roadway was unreasonably dangerous.

The jury correctly rejected plaintiffs’ claims against Arnold. There was no proof that the extra locations delayed installation of the # 6081 guardrail. All traffic engineering was strictly controlled by DOTD, which directed all the details down to the placement of all warning signs, barricades, and cones. Arnold complied with all DOTD directives. Both lay and expert witnesses testified the transition period between removal of the old and installation of the new guardrails was average for the industry and reasonable.

It is well-settled that DOTD has a non-delegable duty to maintain safe highways and shoulders. DOTD’s standard of care in a highway area under construction is somewhat less than the standard required for a highway area not under construction. DOTD’s duty is to exercise reasonable care to warn motorists of any dangerous conditions in a construction zone. Reasonable care requires that DOTD erect barricades, signs, and adequate warnings to alert the motoring public to extremely dangerous, trap-like hazards; unusual obstructions; perilous conditions; and road defects. Poland v. Glenn, 24,959 (La.App.2d Cir.8/18/93), 623 So.2d 227, writ denied, 93-2474 (La.12/2/93), 629 So.2d 1171.

In deciding whether a site presents an unreasonably dangerous condition, the court must weigh the magnitude and probability of injury against the burden of preventing the injury. Faulkner v. State, DOTD, 25,857 (La.App.2d Cir.10/26/94), 645 So.2d 268, writs denied, 94-2901 and 94-2908 (La.1/27/95), 649 So.2d 390. In Faulkner, teenagers entered an unopened portion of Interstate 49 by driving on an unmarked on-ramp and driving around three large concrete barriers marked with a “Road Closed” sign to enter the interstate. After driving on a portion of 1-49 that was essentially complete, marked, and accepted by DOTD, plaintiffs drove onto an incomplete section, and at 60 mph drove off the end of the concrete road into a dirt embankment. DOTD’s liability in Faulkner was based upon a finding of inadequate signing where the plaintiffs entered the interstate and was not based upon conditions where they drove off the road. The court found it would be an impossible burden for the state to warn unauthorized drivers of every possible danger in the unopened highway construction site.

DOTD’s warnings must be sufficient to alert an ordinary, reasonable motorist, having in view the probable traffic, the character of the road and the reasonably anticipated use. DOTD must warn of any dangerous or potentially dangerous conditions in the construction zone. Lam v. State, DOTD, 495 So.2d 359 (La.App. 3rd Cir.1986), writ denied, 497 So.2d 1017 (La.1986). DOTD was not liable in Lam because the bump in the roadway where a railroad crossing was under repair was not an unreasonably dangerous condition. Although there was no bump warning sign, a DOTD employee testified the speed limit was 45 mph, and he had observed relatively heavy traffic pass the crossing with no difficulty.

Whether DOTD warnings are reasonable and adequate depends on location of the danger, the nature of the road and the general situation and Dncircumstances. Dowden v. Mic-State Sand & Gravel, Inc., 95-231 (La.App. 3rd Cir.11/2/95), 664 So.2d 643; writ denied, 95-2864 (La.2/2/96), 666 So.2d 1099. DOTD’s liability in Dowden was based upon DOTD’s authorization for a contractor to ignore the required use of channeling devices, the absence of which caused the accident.

Plaintiffs rely on cases which hold that DOTD must protect drivers who inadvertently drive on the shoulder, one of DOTD’s well-established duties. The cases are distinguishable. In Rue v. State, DOTD, 372 So.2d 1197 (La.1979), the plaintiff left the road for no apparent reason and drove onto the shoulder, where she struck a rut in the shoulder (admitted by DOTD to be dangerous), and lost control of her car. Noting that the purpose of the shoulder is to accommodate cars which intentionally or unintentionally drive thereon, the court found that an errant driver had the right to assume that the DOTD maintained the shoulder in a reasonably safe condition. Even if the plaintiffs conduct was substandard, she could recover from DOTD due to the negligently maintained shoulder. DOTD’s liability in Rue was based on a defect which DOTD admitted was unreasonably dangerous condition.

Equally inapplicable is Campbell v. State, DOTD, 94-1052 (La.1/17/95), 648 So.2d 898, in which plaintiff went to sleep while operating the vehicle in the early morning hours and hit a bridge abutment for which guardrails had been recommended in two previous inspections. Moreover, other bridges on the same highway had been supplied with guardrails. DOTD shared the liability because it did not fulfill its duty of keeping the 121 highway safe. The Campbell case involved an unreasonably dangerous condition which DOTD failed to remedy.

In Hunter v. State, DOTD, 93-0235 (La.1/1/95), 620 So.2d 1149, DOTD’s liability was based upon the finding that a five-mile stretch of Highway 190, which had a four-foot wide median, was unreasonably dangerous to left-turning motorists.

In Petre v. State, DOTD, 2001-0876 (La.4/3/02), 817 So.2d 1107, an extremely intoxicated woman became distracted on a curvy road and drove her vehicle’s wheels off the highway pavement. She tried unsuccessfully to turn back onto the highway and traveled along a roadside ditch until she hit a culvert and driveway perpendicular to the road. The culvert and driveway acted as a launching ramp which caused her vehicle to become airborne for some 122 feet. The vehicle hit two trees and overturned, resulting in injury to herself and death to her daughter. DOTD’s share of liability was based upon the fact that the shoulder had only 18 inches of usable surface before it descended steeply into a ditch, an unreasonably dangerous condition. None of the cases was a construction site.

Even if we accept as true for the purposes of this case the testimony that had the new guardrail been in place, Mrs. Woods would have hit it, there is no liability if there is no unreasonably dangerous condition. Plaintiffs’ arguments that DOTD allowed the guardrails to be down too long and failed to provide crash protection barriers is not supported by the record. All the testimony was that the work was done in an appropriate amount of time. Whether we consider the rail having been removed 1 ^October 25 or October 29, the new guardrail was installed either 15 workdays or 11 workdays (not counting Saturdays, Sundays, and the one wet day on which no work could be done). Using the safety devices which plaintiffs argued should have been in place was unheard of in the industry either in practice or in the literature under the circumstances of this case.

The bottom line is that the clearly-marked column was not an unreasonably dangerous condition for an ordinary, reasonable motorist, even an errant one. Construction signs warning oncoming motorists of the construction were in place for several miles on the interstate. The testimony was that Mrs. Woods had traveled through the construction area driving west toward Shreveport when she remembered a forgotten item. She turned around and drove east to return to Winnsboro. Obviously, she had already seen the construction area that same morning.

Pursuant to DOTD’s detailed instructions, Arnold had placed numerous barrels, cones, and signs to alert drivers to the construction area. Any reasonably attentive, albeit careless, driver could have very easily prepared for the difficulties of traversing the construction zone. The column itself was marked with high-visibility barrels, a barricade, and signs. Obviously, the interstate had very heavy traffic for which DOTD and Arnold prepared with sufficient warnings.

Since the column was over 30 feet from the outside edge of the roadway, the column was just outside the clear zone, the distance considered necessary for an errant driver to recover control and avoid an obstacle. Moreover, it was well-marked and readily apparent to motorists.

| ^Unfortunately, the reason Mrs. Woods left the interstate is not known. She traversed almost the length of a football field (300 feet) before being killed by hitting the column. Whatever caused this digression from the roadway, the column was clearly visible from the interstate, the shoulder, and the median.

It is reasonable to expect inconvenience and some difficulty in passing through a construction area. Motorists have a right to be protected from unreasonable risks. The column, clearly marked with warning devices, was not an unreasonably dangerous condition. Even the most careless or an intoxicated driver should be able to recover sufficiently and steer away from the highly prominent column. Mrs. Woods did not have any type alcohol or other impairing substances in her system when she met her inexplicable death, which has devastated her family.

CONCLUSION

Based upon our review of this voluminous record, we find that the jury was clearly wrong in finding liability on the part of DOTD, for the foregoing reasons. On this record, it is not reasonable to find that the very visible and apparent column, marked with several warning devices, in a well-marked construction zone over 30 feet from the highway, and 300 feet from the point this poor lady started her drift, constituted an unreasonable risk of harm. Costs are assessed to the plaintiffs.

AFFIRMED IN PART AND REVERSED IN PART.

      . The daily log kept by the DOTD inspector stated that the guardrails at # 6081 were removed on October 25. The records were confusing as to this issue. The DOTD inspector had no independent recollection of when the rail was removed. Mr. Arnold and an Arnold employee testified that DOTD’s October 25 entry was erroneous. Arnold did not complete the outside pier protection project until October 28. Since the contractor could not work simultaneously on the shoulder and the inside median, the guardrails at # 6081 could not have been removed until October 29, in their view.

      . In road construction nomenclature, a barricade is a brightly-painted wooden structure which is designed to warn, not protect, motorists. A barrier is a structure designed to serve as a crash attenuator to protect errant motorists. A pier is a support column. Pier protection is a concrete wall built to shield columns just off the shoulder of the road, in this case, on both outside lanes.


author: |, GASKINS, J.

text:
    In re Glenda Ruth GOULD, Plaintiff-Appellee.
    No. 37,400-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Mulhearn and Smith, by LeRoy Smith, Jr. Franklin Guest Home, Tallulah, for Appellant.
    Hammonds & Sills, by Jon K. Guice Leo, Thornhill, Baton Rouge, for Appellee.
    Before BROWN, GASKINS and DREW, JJ.
   |, GASKINS, J.

Franklin Guest Home appeals a trial court judgment ordering the facility to furnish medical records and other documents to Leo Thornhill, brother of Glenda Ruth Gould. Mr. Thornhill was his sister’s agent under a power of attorney. For the following reasons, we affirm in part and reverse in part the trial court ruling.

FACTS

Glenda Ruth Gould was a resident of the Franklin Guest Home (FGH). She had granted an extensive power of attorney to her brother, Mr. Thornhill, to conduct all her business, including gaining access to medical records. On November 12, 2002, Mr. Thornhill filed a motion for production of documents on behalf of his sister. He claimed that she sustained injuries in a recent fall and sought production of medical records and incident reports. He claimed that FGH refused to produce the documents without a court order. He asserted that, under La. R.S. 40:1299.96 et seq., he is entitled to receive the documents. In addition to the medical reports and all incident report forms related to Ms. Gould’s falls from January 1, 2000, to present, Mr. Thornhill also sought production of “2567 survey forms” filed with the Department of Health and Hospitals (DHH). These are documents which set forth deficiencies in the nursing home. Mr. Thornhill claimed that these documents are public records under La. R.S. 44:1 et seq.

After several continuances, on December 9, 2002, a hearing was held to show cause why the documents should not be produced. Mr. Thornhill | ¡^testified that he had provided FGH with his power of attorney and requested production of his sister’s medical records, incident reports, and “2567 survey forms.” He claimed that the facility refused to produce the documents.

FGH argued that La. R.S. 40:1299.96 required a written request for the medical records, and that Mr. Thornhill had not made his request in writing. FGH maintained that it copied the medical records, but that Mr. Thornhill never came to get them. FGH also contended that the incident reports were not part of the medical records. FGH further argued that the “2567 survey forms” are public records filed with the DHH and that the reports could be obtained from that agency.

At the hearing, Mr. Thornhill argued that the statute only required that the facility be furnished with written authorization for production of the documents, and that the power of attorney fulfilled that requirement. He also argued that the incident reports were part of his sister’s medical records. He further maintained that, because FGH had access to the “2567 survey forms,” they also should be produced.

The trial court found that the power of attorney satisfied the statutory requirement of a signed authorization for the records and ordered that FGH produce the documents immediately. Mr. Thorn-hill was granted $250 in attorney fees and FGH was ordered to pay court costs. FGH appealed the trial court ruling.

^REQUEST FOR MEDICAL RECORDS

According to FGH, the trial court erred in ordering the production of medical records under La. R.S. 40:1299.96, where no written request for the documents was made and no payment was tendered for copying and processing, as contemplated by the statute. Under the facts of the present case, this argument is without merit.

La. R.S. 40:1299.96 provides in pertinent part:

A. (1) Each health care provider shall furnish each patient, upon request of the patient, a copy of any information related in any way to the patient which the health care provider has transmitted to any company, or any public or private agency, or any person.
(2)(a) Medical records of a patient maintained in a health care provider’s office are the property and business records of the health care provider.
(b) Except as provided in R.S. 44:17, a patient or his legal representative, or in the case of a deceased patient, the executor of his will, the administrator of his estate, the surviving spouse, the parents, or the children of the deceased patient, seeking any medical, hospital, or other record relating to the patient’s medical treatment, history, or condition, either personally or through an attorney, shall have a right to obtain a copy of such record upon furnishing a signed authorization and upon payment of a reasonable copying charge, not to exceed one dollar per page for the first twenty-five pages, fifty cents per page for twenty-six to five hundred pages, and twenty-five cents per page thereafter, a handling charge not to exceed fifteen dollars for hospitals and seven dollars and fifty cents for other health care providers, and actual postage. The individuals named herein shall also have the right to obtain copies of patient X-rays, microfilm, and electronic and imaging media, upon payment of reasonable reproduction costs and a handling charge of twenty dollars for hospitals and ten dollars for other health care providers. In the event a hospital record is not complete, the copy of the records furnished hereunder may indicate, through a stamp, coversheet, or otherwise, that the record is incomplete, (c) If a copy of the record is not provided within a reasonable period of time, not to exceed fifteen days following the receipt of the request and written authorization, and production of the record is obtained through a court order or subpoena duces |4tecum, the health care provider shall be liable for reasonable attorney fees and expenses incurred in obtaining the court order or subpoena duces tecum. Such sanctions shall not be imposed unless the person requesting the copy of the record has by certified mail notified the health care provider of his failure to comply with the original request, by referring to the sanctions available, and the health care provider fails to furnish the requested copies within five days from receipt of such notice. Except for their own gross negligence, such health care providers shall not otherwise be held liable in damages by reason of their compliance with such request or their inability to fulfill the request.

In order to produce the documents, the statute requires a “written authorization.” FGH equates this language with requiring a written request for production of the medical records. The statute does not require a written request for production of documents and the trial court correctly rejected that reasoning. The statute does not specify in what manner the request for production of the medical records may be made. It is reasonable to conclude that even an oral request, such as made by Mr. Thornhill, would be sufficient. FGH does not dispute that Mr. Thornhill furnished a valid power of attorney from his sister, entitling him to request and receive medical records on her behalf. This was sufficient written authorization from the patient for release of the medical records and documents to Mr. Thornhill.

However, under the evidence presented, FGH simply refused to produce the records without a court order, even though Mr. Thornhill had provided FGH with the power of attorney and requested the medical records. FGH argues that it copied and prepared the records and that Mr. | ¡¡Thornhill failed to go to the facility to retrieve them, yet it presented no evidence to support this argument. Mr. Thornhill disputed this testimony, stating that he went to FGH three or four times and his request for the records was denied. The trial court did not err in finding that Mr. Thornhill’s repeated requests for the medical records were sufficient under the statute, and that FGH was in violation of the statute in refusing to give him the records.

Although FGH also argues that Mr. Thornhill failed to offer payment for the records, as required by the statute, there is no showing that the facility ever copied the records and informed him of the charges. In his motion for production of documents, Mr. Thornhill stated that he stands ready to pay the cost for the copies as specified in La. R.S. 40:1299.96. FGH did not have reasonable grounds for denying the records when it did not specify the amount due for copying the records, despite the plaintiffs numerous requests.

INCIDENT REPORTS AND NURSING HOME SURVEYS

FGH argues that the trial court erred in ordering it to produce the incident reports of Ms. Gould’s falls at the facility and the “2567 survey forms” which were submitted to the DHH. FGH contends that these documents are not medical records. FGH also asserts that the “2567 survey forms” are part of the public record which can be obtained from DHH. The facility maintains that the trial court erred in finding that these documents were medical records under La. R.S. 40:1299.96 and in ordering that they be produced.

|fiMr. Thornhill argues that the incident reports relating to Ms. Gould are part of her medical records. Under La. R.S. 40:1299.96(A)(2)(b), he claims that the documents are “medical, hospital, or other records relating to the patient’s medical treatment, history, or condition.” As to the “2567 survey forms,” he avers that, although these are public records on file with DHH, there is no reason to prevent him from requesting production of the reports from the health care provider who provided the information to DHH.

Regarding the incident reports, if any exist, we see no reason why these documents would not be included as part of Ms. Gould’s records at FGH. As stated above, the statute requires production of medical, hospital, or other records relating to a patient’s medical treatment, history, or condition. If not contained in the medical or hospital records, incident reports of a fall at the facility would, at the very least, be considered other records relating to her medical treatment, history, or condition. Certainly it is expected that Ms. Gould’s records at FGH will contain all information regarding her care at the facility.

As to the “2567 survey forms,” the record does not fully set forth exactly what these documents are. According to the brief filed by FGH, this is a survey form by DHH which sets forth deficiencies in the nursing home. FGH stated that the document is posted on the wall in the nursing home. The facility argues that the forms are public records that could easily be obtained through a public records request from the DHH.

La. R.S. 44:1 et seq., dealing with public records, specifies the definition of public bodies and public records. It specifies those materials |7that are exempt from the Public Records Act. It also states that the custodian of the public records is the public official or head of a public body having custody or control of a public record. Based upon the limited information in the record, it does not appear that FGH is a public body having custody of public records. Also, no evidence was presented that the disputed survey forms would be part of Ms. Gould’s medical or other records at the facility. Therefore, based upon the information before us, we find that the trial court erred in ordering production of the “2567 survey forms” under the authority of La. R.S. 40:1299.96.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court ordering Franklin Guest Home to produce for Leo Thornhill the medical records and incident reports regarding Glenda Ruth Gould. We reverse that portion of the trial court judgment ordering production of the “2567 survey forms’’ generated by the facility for the Louisiana Department of Health and Hospitals. Costs in this court are assessed to Franklin Guest Home.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . The plaintiff states in his brief that Ms. Gould died as a result of head injuries from a fall suffered at Franklin Guest House.

      . We note that the trial court imposed attorney fees and costs in this case. Under the requirements of the statute, sanctions are not to be imposed unless the health care provider is notified by certified mail, the sanctions are referred to, and the health care provider fails to respond within five days of receipt of the notice. In this matter, there was no showing that Mr. Thornhill made such demand upon FGH. However, FGH has not assigned as error the imposition of sanctions. Therefore, the issue is not before us for review.


author: I STEWART, J.

text:
    Mary BRITT, Plaintiff-Appellant, v. Scott L. TAYLOR, D.D.S. and Medical Protective Insurance Services, Inc., Defendants-Appellees.
    No. 37,378-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Gray & Gray by James A. Gray, III, James A. Gray, II, for Appellant.
    Rountree, Cox, Guin & Achee by Gordon E. Rountree, Shreveport, for Appellees.
    Before STEWART, MOORE and TRAYLOR (Pro Tempore), JJ.
   I STEWART, J.

The plaintiff, Mary Britt, appeals a summary judgment dismissing her malpractice suit against the defendant, Scott Taylor, D.D.S. For the following reasons, we affirm the trial court’s judgment.

FACTS

On August 17, 1996, Mary Britt sought treatment from Dr. Taylor for a toothache. Britt was a walk-in patient who had not previously been treated by Dr. Taylor. Dr. Taylor took an x-ray and found the left lower third molar, a wisdom tooth, decayed and in need of extraction. Dr. Taylor extracted the tooth. Thereafter, Dr. Taylor treated Britt for a dry socket, described by Dr. Taylor as a “localized infectious situation,” which developed at the extraction site. Antibiotics and pain medication were prescribed as part of the treatment for the dry socket. By October 8, 1996, the extraction site was healing, but Britt began complaining of pain in her lower left jaw area. Dr. Taylor’s records indicate that he last heard from Britt on November 22, 1996, when she called for more pain medication; he refused to prescribe pain medication without an office visit.

Britt sought treatment on March 13, 1997, from Dr. Brian Smith, an oral and maxillofacial surgeon and the chief of the oral surgery division at Louisiana State University Medical Center in Shreveport (LSUMCS). Britt complained of left facial pain and numbness of the left lower lip and chin. Dr. Smith believed that Britt might be suffering from a neuroma of the left inferior alveolar nerve in the area adjacent to the extraction site. According to Dr. Smith, a neuroma is an abnormal healing of a nerve injury. Dr. Smith | ¡¡performed surgery on June 26, 1997, to remove the neuroma. Although Britt healed well from the surgery, she continued to report feelings of pain.

Britt filed a complaint with the Patient’s Compensation Fund alleging malpractice on the part of Dr. Taylor. After delays apparently resulting from Britt’s failure to timely submit evidence to the medical review panel, an opinion favorable to Dr. Taylor was finally rendered on October 31, 2001. Britt then filed suit against Dr. Taylor and his insurer, Medical Protective Company. The record does not include a copy of Britt’s petition for damages, but it does include Dr. Taylor’s answer in which he denied the allegations in Britt’s petition and asserted that he met the standard of care in his treatment of Britt.

On June 2, 2002, Dr. Taylor filed a motion for summary judgment. Dr. Taylor argued that he met the standard of care as demonstrated by the opinion of the medical review panel and the deposition of Dr. Smith. Dr. Taylor further argued that Britt could not satisfy her burden of proof without a dental expert. In support of the motion for summary judgment, Dr. Taylor offered the favorable medical review panel opinion, the affidavit of a panel member, interrogatories establishing that Britt had not procured an expert, Dr. Taylor’s affidavit and medical records, and the deposition of Dr. Smith with the medical records from LSUMC.

Thereafter, counsel enrolled on behalf of Britt and opposed the motion for summary judgment. Britt argued that there was an issue of fact as to whether Dr. Taylor met the standard of care. In addition, Brit asserted that Dr. Taylor did not inform her of the risk of injury to the inferior [ ¡¡alveolar nerve and thus did not obtain her informed consent for the extraction. Britt offered the depositions of Dr. Taylor and Dr. Smith, her own affidavit, and two articles pertaining to the removal of wisdom teeth in support of her opposition to Dr. Taylor’s motion.

At the hearing on the motion for summary judgment, the trial court sustained Dr. Taylor’s hearsay objections to the articles submitted by Britt and granted the motion for summary judgment. In granting Dr. Taylor’s motion, the trial court referred to the medical review panel’s finding of no causation and concluded that without an expert, the plaintiff would not be able to establish causation and would therefore not reach the issue of informed consent.

On appeal, Britt argues that the trial court improperly applied the law of informed consent and failed to properly consider the deposition testimony of Dr. Taylor and Dr. Smith which established the existence and likelihood of the risk of injury to the alveolar nerve. Brit also argues that the trial court erred in finding no genuine issue of material fact as to whether Dr. Taylor met the standard of care and in relying on the conclusion of the medical review panel regarding causation.

DISCUSSION

Motion for Summary Judgment

The summary judgment procedure is designed to ensure the just, speedy, and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2); Lee v. Wall, 31,468 (La.App.2d Cir.1/20/99), 726 So.2d 1044. A summary judgment is subject to a de novo review on appeal. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191.

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Material facts are those which potentially ensure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606; Demopulos v. Jackson, 33,560 (La.App.2d Cir.6/21/00), 765 So.2d 480.

When the moving party 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 is not required to negate all the essential elements of the adverse party’s claim. Rather, the movant need only point out an absence of factual support for one or more elements essential to the adverse party’s claim. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Hinson v. Glen Oak Retirement Home, 34,281 (La.App.2d Cir.12/15/00), 774 So.2d 1134.

The law is clear that the adverse party may not rest on the mere allegations or denials of his pleading when faced with a properly supported motion for summary judgment. Rather, the adverse party must respond with specific facts showing a genuine issue for trial or else summary judgment 15shall be rendered against him. La. C.C.P. art. 967; Demopulos v. Jackson, supra.

Dental Malpractice

La. R.S. 9:2794(A) provides that a plaintiff in a malpractice action shall have the burden of proving the following:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by ... dentists ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances ....
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

The burden set forth in La. R.S. 9:2794(A) requires the plaintiff to prove the applicable standard of care, the breach of the standard of care, and the causal connection between the breach and the resulting injuries. Orea v. Brannan, 30,628 (La.App.2d Cir.6/24/98), 715 So.2d 108; Hinson, supra.

The fact that an injury occurred does not raise a presumption of negligence. La. R.S. 9:2794(C); Yuska v. HCA Health Services of Louisiana, Inc., 28,878 (La.App.2d Cir.12/11/96), 684 So.2d 1093. Moreover, a physician (or dentist) is not held to a standard of absolute precision. The conduct of the dentist is not evaluated on the basis of hindsight or in light of subsequent events, but it is evaluated in terms of reasonableness under the then-existing circumstances. Yuska, supra; Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App. 2d Cir.1991), writ denied, 595 So.2d 657 (La.1992).

| (¡Britt argues that the trial court erred in granting summary judgment as to her medical malpractice claim. She asserts that there are genuine issues of material fact as to whether her injury was caused by Dr. Taylor during the extraction and as to whether Dr. Taylor’s method of extraction fell below the standard of care.

With regard to causation, Britt correctly points out that while the medical review panel concluded that there was no causative link between the conduct complained of and the resulting damages, the panel also concluded in its reasons that Britt “appears to be part of the very small percentage that suffers from nerve damage.” This latter statement is indicative of a causative link between the extraction of Britt’s wisdom tooth and the resulting nerve injury. As such, the medical review panel’s conclusion regarding causation is suspect and should not have been relied on by the trial court in granting summary judgment.

The record, particularly the deposition testimony of Dr. Smith, establishes that a neuroma or injury to the alveolar nerve which causes numbness and pain is a risk, though rare, associated with the extraction of a wisdom tooth. Dr. Smith further stated in his deposition that the abnormal area, which he believed to be a neuroma, was adjacent to the extraction site. These factors, in addition to the contradictory statements of the medical review panel in its opinion and written reasons, certainly create a genuine issue of material fact as to whether Britt’s damages were caused by the extraction.

17However, Britt failed to come forward with sufficient facts to establish a genuine issue of material fact for trial with regard to whether Dr. Taylor breached the standard of care in extracting her wisdom tooth. Britt points out the fact that Dr. Taylor described the extraction as “simple” and “routine,” whereas Dr. Smith concluded after reviewing x-rays taken prior to the extraction that the extraction would appear to be a “difficult” one and that he would have broken the tooth in half and removed it in segments. Britt argues that this difference of opinion creates an issue of material fact as to whether Dr. Taylor breached the standard of care.

Expert testimony is not required to meet the burden of proof in a medical malpractice case involving an obvious careless act from which a lay person can infer negligence, such as the failure to respond to an emergency, amputation of the wrong limb, or the leaving of a sponge in a patient’s body after surgery. Pfiffner v. Correa, 94-0924, 94-0963 (La.10/17/94), 643 So.2d 1228, rehearing denied. Otherwise, expert testimony is necessary to determine whether the defendant possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991); Hinson, supra. Expert testimony is especially necessary where the defendant in a medical malpractice action has filed a motion for summary judgment supported by expert opinion evidence that his treatment met the applicable standard of care. Lee v. Wall, supra.

Dr. Taylor supported his motion for summary judgment with the opinions of experts who concluded that he met the standard of care. The | «medical review panel, whose opinion was offered in support of the motion for summary judgment, concluded that Dr. Taylor met the standard of care. The affidavit of Jeffrey Jet-er, D.D.S., a member of the medical review panel, was also offered by Dr. Taylor. In the affidavit, Dr. Jeter concluded that Dr. Taylor met the standard of care of general dentistry. He believed the tooth needed to be extracted, that it was not extracted in error, and that there was no indication of abnormal trauma.

Dr. Taylor also offered the deposition of Dr. Smith. When directly asked his opinion as to whether Dr. Taylor did anything wrong, Dr. Smith responded that he did not know and that he neither discussed the matter with Dr. Taylor nor reviewed his records. However, elsewhere in his deposition, Dr. Smith explained that he discussed with Britt the fact that nothing appeared to have been done wrong at the time of the extraction. He noted that the extraction site was well-healed and that he saw no bone cuts, no signs of major trauma, and nothing left behind. Dr. Smith could not explain why the neuroma developed. He did state that numbness can result without there having been any negligence, and he expressed the opinion that a bad outcome does not necessarily mean something was done wrong. Dr. Smith neither stated nor suggested that Dr. Taylor’s performance fell below the standard of care.

In the absence of any evidence, expert or otherwise, that Dr. Taylor breached the standard of care in extracting Britt’s tooth, Britt will not be able to meet her evidentiary burden at trial. Reliance upon Dr. Smith’s opinion that the extraction appeared to be a difficult one is not sufficient to|9create an issue of fact for trial inasmuch as Dr. Smith did not indicate or suggest that Dr. Taylor did anything wrong in extracting Britt’s tooth. Dr. Taylor met his burden of showing an absence of factual support for an element of Britt’s malpractice claim, namely that Britt would be unable to prove that he breached the standard of care. Britt then failed to come forward with sufficient factual support to show that she would be able to meet her evidentiary burden at trial. Accordingly, summary judgment on the claim of malpractice was properly granted.

Informed, Consent

The informed consent doctrine is based on the principle that every adult of sound mind has the right to determine what shall be done to his or her own body. LaCaze v. Collier, 434 So.2d 1039 (La.1983). Where circumstances permit, a patient should be told the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved, the prospects of success, the risks of failing to undergo the treatment or procedure, and the risks of any alternative methods of treatment. Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988), on rehearing.

An action based on lack of informed consent for dental treatment is governed by La. R.S. 40:1299.131, which sets forth the plaintiffs burden of proof as follows:

E. In any action for damages in which it is alleged that a patient underwent a dental treatment or a course of dental treatment without his informed consent, the plaintiff shall have the burden of proving, by a preponderance of the evidence, that:
(1) The defendant dentist failed to disclose a risk of death, |10brain damage, quadriplegia, paraplegia, the loss or loss of function of an organ or limb, or disfiguring scars associated with such dental treatment or course of dental treatment which would ordinarily have been disclosed under the same or similar circumstances by dentists with the same or similar training and experience;
(2) Such undisclosed risk did occur; and
(3) A reasonably prudent person in the patient’s position would not have undergone the dental treatment or course of dental treatment had he been properly informed.

La. R.S. 40:1299.131(E). The plaintiff bears the burden of proving the existence of a material risk unknown to the patient, the physician’s failure to disclose the material risk, and that the disclosure of the material risk would have led a reasonable person in the patient’s position to either reject the treatment or choose a different course of treatment. Yuska, supra; Roberts v. Cox, 28,094 (La.App.2d Cir.2/28/96), 669 So.2d 633.

A physician’s (or dentist’s) duty to disclose all material risks encompasses those risks which a reasonable person in the patient’s position would attach significance to in deciding whether to proceed with or forego a proposed therapy. Hondroulis, 553 So.2d at 412. A two-step process exists to determine whether a risk is material. First, the plaintiff must define the existence and nature of the risk as well as the likelihood of its occurrence. This requires “some” expert testimony. Second, the plaintiff must show that the probability of the type of harm is a risk which a reasonable person would consider in deciding on treatment. Expert testimony is not required for this determination. Id.

The plaintiff is also required to prove a causal connection between the failure to disclose the material risk and the damage to the patient. Due tol^the likelihood of a patient’s bias in testifying in hindsight, the supreme court has adopted an objective standard of causation which asks whether a reasonable patient in the plaintiffs position would have consented to the treatment had the material risk been disclosed. Hondroulis, 553 So.2d at 412; Elkins v. Key, 29,977 (La.App.2d Cir.10/29/97), 702 So.2d 57.

Britt argues that Dr. Taylor failed to inform her of the risk of injury to the inferior alveolar nerve and that had she known of this risk of injury, she would have consulted an oral surgeon rather than allow Dr. Taylor to perform the extraction. Britt asserts that the risk of injury to the inferior alveolar nerve is a material risk that was unknown to her.

Dr. Taylor admitted that he did not inform Britt of the risk of injury to the inferior alveolar nerve. In his affidavit, he describes the risk of injury as a “very, very remote risk” and states that he has never had such an injury occur. In his deposition, which Britt submitted in opposition to the motion for summary judgment, Dr. Taylor stated that he would inform patients of the risk of severing or injuring the inferior alveolar nerve “if it was apparent that there was the remotest possibility of severing a nerve.” He further stated that he was not aware of any possibility of injuring the plaintiffs nerve during the extraction, so he did not advise her of this risk of injury.

In his deposition, Dr. Smith indicated that he warns patients of the possibility of numbness as a result of an extraction. When asked whether one would have to warn a patient about the risk of a neuro-ma, Dr. Smith replied, “Not really. Very, very rare.” Dr. Smith stated that he had seen no [^neuromas in his own practice, and he described the injury as a “very uncommon” and “rare” problem.

While it is clear that Dr. Taylor did not warn Britt of the risk of injury to the inferior alveolar nerve, the evidence offered in opposition to summary judgment does not create an issue of fact as to whether the risk of injury was a material risk which Dr. Taylor should have advised Britt to obtain her informed consent. The expert testimony offered in support of and in opposition to Dr. Taylor’s motion for summary judgment establishes that there is a risk of injury to the inferior alveolar nerve, but that such a risk is very remote and rare and need not be disclosed. The law does not require disclosure of all known risks, particularly such risks which are slight and immaterial. See Hondroulis, 553 So.2d at 418. Such a remote risk is not the type which a reasonable person in the plaintiffs position would consider in deciding whether to proceed with, forego, or delay an extraction of a very decayed wisdom tooth; otherwise extraction of wisdom teeth would be rare occurrences.

Finding no issue of fact as to the materiality of the risk of injury to the inferior alveolar nerve, we must conclude that summary judgment was properly granted in favor of Dr. Taylor as to the informed consent claim.

CONCLUSION

For the aforementioned reasons, we affirm the trial court’s summary judgment dismissing the claims of Mary Britt against Dr. Scott Taylor. Costs of the appeal are assessed to the appellant.

AFFIRMED.


author: j PEATROSS, J.

text:
    Mary MOBLEY, Plaintiff-Appellee, v. Gary MOBLEY, Defendant-Appellant.
    No. 37,364-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Kammer & Huckabay, Ltd., by Charles H. Kammer, III, Shreveport, for Appellant.
    Susan D. Scott, Shreveport, for Appel-lee.
    Before GASKINS, PEATROSS & MOORE, JJ.
   j PEATROSS, J.

This is an appeal from a judgment of the trial court enforcing the stipulated damages provisions contained in a prior consent judgment regarding child support payments. Gary Mobley appeals, arguing that the stipulated damages provisions constitute usurious interest and/or are manifestly unreasonable and against public policy and should not, therefore, be enforced. He further asserts that the trial court erred in refusing to allow him to put on evidence of Mrs. Mobley’s actual damages resulting from his failure to make timely payments under the consent judgment. Finding that the trial court erred in refusing to allow Mr. Mobley to present evidence of actual damages to counter the enforcement of the stipulated damages provisions, we reverse the portion of the judgment finding that the stipulated damages provisions were not manifestly unreasonable or against public policy and awarding stipulated damages to Mrs. Mobley and, further, remand the matter for an evidentiary hearing on the reasonableness of the stipulated damages in accordance with this opinion. In all other respects, the judgment of the trial court is affirmed.

FACTS

Mr. and Mrs. Mobley were awarded a final divorce on October 7, 1999, and, shortly thereafter, entered into a consent judgment whereby Mr. Mobley agreed, inter alia, to pay child support in the amount of $972.59 per month. The consent judgment was signed on November 24,1999, by both counsel, the parties and the trial judge.

Less than two years later, Mrs. Mobley filed a rule to accrue back support, which she alleged to be over $9,900 through June 2001. She also | ^sought an income assignment to have Mr. Mobley held in contempt and punished accordingly and ordered to pay attorney fees and costs. On August 14, 2001, another consent judgment was entered between the parties and signed by Mr. Mobley’s new counsel and the trial judge. This consent judgment fixed past due child support in an amount over $10,000; awarded nearly $450 for past due medical, dental, etc., expenses; provided for legal interest in the amount of $972; awarded attorney fees to Mrs. Mobley’s attorney in the amount of $1,800; and ordered Mr. Mobley to pay all court costs.

A payment plan was agreed to whereby Mr. Mobley was to liquidate the substantial arrearage by issuing four post-dated checks, of $250 each, in the months of August and September 2001 plus remain current in his ongoing support. He was also to pay Mrs. Mobley $1,500 the first day of every month beginning October 1, in addition to his regular child support obligation, until all arrearages, attorney fees, etc. had been paid in full. Mr. Mob-ley also agreed in the judgment to have his payments directly deposited into a bank account established by Mrs. Mobley sp that they would be credited to the account on or before the due date of each payment.

Mr. Mobley further agreed that, if he failed to “timely deposit any payment when due ... whether a payment for regular support or his payment of $1,500.00 toward the arrears, he shall be assessed a penalty of $25.00 per day for each missed payment, etc.” Mr. Mobley also agreed to a ten percent penalty if he was in default on payment of the medical or extra-curricular expenses within the 15-day period. Finally, he agreed that, if he failed to | «exercise his visitation without making advance arrangements acceptable to Mrs. Mobley to change his visitation days, he would pay yet another $25 per day penalty for “each missed day of scheduled visitations.”

Mr. Mobley, however, was unable to comply with the payments to which he agreed. Another rule to accrue past support was filed on March 26, 2002, which alleged he was in default of his previous consent judgment obligations for nearly $3,000 in regular support obligations, but, more significantly, for over $18,500 in stipulated damages for non-payment of support, medical expenses and for failure to exercise visitation. Mr. Mobley filed a counter-rule seeking a determination that the stipulated damages provisions should be declared unenforceable or, in the alternative, to the extent that they were enforceable, that the trial court reduce the amount of stipulated damages to compensate Mrs. Mobley for her “actual damages.”

Following a hearing on the rule, the trial judge denied the relief sought by Mr. Mobley in seeking a declaration of unen-forceability of the stipulated damages provisions. The trial judge specifically found that the stipulated damages provisions were reasonable and not against public policy or in violation of the Civil Code provisions on usury or excessive interest. He further held that this ruling “eliminate[d] the need for evidence on the issue of actual damages as same would not be relevant.” He then awarded Mrs. Mobley unpaid support, attorney fees, costs and interest in the amount of $11,683.84 and $900 in attorney fees. Further, Mr. Mob-ley was found in contempt and ordered to face 90 days in jail, with 1 day suspended, |4execution of which was deferred for three months to give him an opportunity to purge himself of contempt. Finally, the trial judge assessed and determined the amount of stipulated damages due by Mr. Mobley to Mrs. Mobley to be $45,258.22 for untimely payment of support, $583.63 for untimely payment of his share of medical and extra-curricular expenses and $850 for failure to exercise scheduled visitation. This appeal ensued.

DISCUSSION

Mr. Mobley raises the following four assignments of error on appeal (verbatim):

1. The trial court committed reversible error by finding that the penalty provision was enforceable and not against public policy.
2. The trial court committed reversible error by finding that the penalty provision was not usurious.
8. The trial court committed reversible error by finding that the penalty provision was not penal and manifestly unreasonable.
4. The trial court committed reversible error by not allowing evidence on the amount of actual damages incurred by the Appellee as a result of the Appellant failing to make timely payments on a money judgment.

Finding merit in Mr. Mobley’s fourth assignment of error regarding the denial of his request to adduce evidence of actual damages to counter Mrs. Mobley’s attempt to enforce the stipulated damages provisions, we begin our discussion with that issue.

As previously stated, the stipulated damages provisions at issue in this appeal are contained in a consent judgment regarding, inter alia, the payment of child support by Mr. Mobley and his exercising of visitation with his children. A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. It has binding | ¿force from the voluntary acquiescence of the parties, not from the court’s adjudication. Gulledge v. Gulledge, 32,561 and 32,562 (La.App.2d Cir.8/18/99), 738 So.2d 1229, citing Martin Forest Products v. Grantadams, 616 So.2d 251 (La.App. 2d Cir.1993), writ denied, 619 So.2d 580 (La.1993) and Williams v. Williams, 586 So.2d 658 (La.App. 2d Cir.1991).

La. C.C. art.2005 provides that:

Parties may stipulate the damages to be recovered in case of nonperformance, defective performance, or delay in performance of an obligation.
That stipulation gives rise to a secondary obligation for the purpose of enforcing the principal one.

Article 2005 replaced former article 2117, substituting the term “stipulated damages” for “penal clause.” No matter how the clause is labeled, it is essentially a clause designed to both fix the damages caused by nonperformance of the principal obligation and act as a constraint to encourage performance of that obligation. Philippi v. Viguerie, 606 So.2d 577 (La.App. 5th Cir.1992), writ denied, 609 So.2d 226 (La.1992). Such a clause, however, is not a vehicle for recovery of punitive damages, as opposed to compensatory damages. Id.

Stipulated damages may be modified by the court if they are so manifestly unreasonable as to be contrary to public policy. La. C.C. art.2012. In Carney v. Boles, 25,905 (La.App.2d Cir.9/21/94), 643 So.2d 339, writ denied, 94-2592 (La.12/16/94), 648 So.2d 391, a panel of this court explained that stipulated damages should reasonably approximate the damages suffered by the obligee and not be penal. Further, “the court must determine the reasonableness of the amount of stipulated damages by | (¡inquiring whether the parties attempted to approximate actual damages in confecting the stipulated damages provision of the agreement.” Id., citing American Leasing Company of Monroe, Inc. v. Lannon E. Miller & Son, General Contracting, Inc., 469 So.2d 325 (La.App. 2d Cir.1985). In addition, comment (e) to ar-tide 2005 states that “[a] stipulated damages dause is given effect if the court deems it to be a true approximation of actual damages.”

It is also clear, however, that the obligee is not required to adduce proof of actual damages when attempting to enforce a stipulated damages clause. La. C.C. art.2009 states that:

An obligee who avails himself of a stipulated damages clause need not prove the actual damage caused by the obligor’s nonperformance, defective performance, or delay in performance.

The comments to the article explain that the idea of stipulated damages necessarily requires that the plaintiff/obligee have the advantage of not having to prove damages. Comment (d), however, states:

[ t]his article does not prevent a defendant [obligor] from proving that a plaintiff [obligee] who seeks to avail himself of a stipulated damages provision actually has sustained no loss. It merely shifts the burden of proof on the issue of damages from the plaintiff [obligee] to the defendant [obligor], (Emphasis added.)

Again, enforcement of a stipulated damages clause requires that the court inquire as to the reasonableness of the amount of damages stipulated by inquiring whether the parties, by the clause, truly attempted to approximate actual damages. American Leasing Company of Monroe, Inc., supra. Proof of actual damages by the plaintiff is not a prerequisite to such a 17determination, but we conclude that article 2009 allows for evidence of actual damages or proof that the plaintiff suffered no loss from the defendant to show that the stipulated damages provision is manifestly unreasonable as provided in article 2012. We note that the trial court is not bound by the proof of actual damages as shown by a defendant/obligor. Stipulated damages may exceed, to some degree found reasonable by the court, actual damages. Id.

In the case sub judice, Mr. Mobley requested that he be allowed to put on evidence of actual damages in an effort to show that the stipulated damages were so high as to be manifestly unreasonable and against public policy. His request was denied, with the trial court deeming the stipulated damages provisions reasonable and stating in the judgment that any evidence of actual damages from the defendant would not be relevant. To the contrary, since stipulated damages are to be an approximation of actual damages, any evidence of actual damages offered by Mr. Mobley would be relevant and would serve as the benchmark for the trial court’s required determination of reasonableness. Indeed, as previously stated, article 2009 and the comments thereto indicate that the burden is on the defendant to counter enforcement of a stipulated damages clause. We conclude, therefore, that it was error for the trial court to make a finding of reasonableness of the stipulated damages without allowing Mr. Mobley to present evidence that the stipulated damages were unreasonably high in light of damages actually suffered by Mrs. Mobley. The matter must be remanded to the trial court for an evidentiary hearing at which Mr. Mobley lRshall be allowed to adduce evidence of actual damages to counter enforcement of the stipulated damages provisions and after which the trial court shall make a determination of the reasonableness of the stipulated damages. This finding renders moot any discussion of Mr. Mobley’s other three assignments of error.

DECREE

Since we find that the trial court erred in refusing to allow Gary Mobley to present evidence of actual damages to counter the rule to enforce the stipulated damages provisions, the portion of the judgment of the trial court finding that the stipulated damages provisions are not manifestly unreasonable or against public policy and awarding such stipulated damages to Mrs. Mobley in the amount of $46,691.85 is reversed. The matter is remanded with instructions for the trial court to conduct an evidentiary hearing to determine the reasonableness of the stipulated damages, allowing Mr. Mobley to adduce evidence of actual damages to counter the rule to enforce the stipulated damages provisions. In all other respects, the judgment of the trial court is affirmed. Costs of appeal are assessed to Mary Mobley.

REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. IN ALL OTHER RESPECTS, AFFIRMED.