author: PETERS, J. h GREMILLION, J.,

text:
    STATE of Louisiana, THROUGH DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Timoth R. TODD, et al.
    No. 01-0374.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 4, 2002.
    Rehearing Denied Feb. 12, 2003.

      Lawrence E. Marino, Oats & Hudson, Lafayette, LA, for Plaintiff/Appellant. State of Louisiana, Through Department of Transportation & Development.
    Brent G. Sonnier, Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, LA, for Defendants/Appellees, Ti-moth R. Todd, Pat S. Todd, Thomas Ansel-mi, and J.C. LaCaze.
    Dawn M. Fuqua, Mangham, Hardy & Stevens, Lafayette, LA, for Defendant/Ap-pellee, Phillips Petroleum Company.

      Court comprised of HENRY L. YELVERTON, OSWALD A. DECUIR, JIMMIE C. PETERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

The State of Louisiana, Through the Department of Transportation and Development (DOTD), brought this action against a number of defendants to recover certain expenses it incurred in removing contaminated soil and ground water on immovable property located in Natchitoch-es Parish, Louisiana. DOTD appeals the trial court’s grant of exceptions of no cause of action and prescription in favor of defendants Timoth R. Todd, Pat S. Todd, Thomas Anselmi, and J.C. LaCaze.

DISCUSSION OF THE RECORD

The facts giving rise to this litigation are not in dispute. In April of 1989, DOTD expropriated immovable property in Natchitoches Parish, Louisiana, for use in developing Louisiana Highway 1. A service station had been located on one of the tracts, and beneath the surface were several underground storage tanks. Excavation of these underground tanks in April of 1993 revealed that leakage from the tanks had occurred, resulting in gasoline contamination of the adjacent soil and groundwater. Because tests taken at the direction of the Louisiana Department of Environmental Quality (DEQ) revealed the existence of a number of chemicals at levels greater than allowed by DEQ, it required DOTD to remediate the site by removing the contaminated soil and ground water.

After DOTD took the steps necessary to meet DEQ requirements, it brought this action against Timoth R. Todd, Pat S. Todd, Thomas Anselmi, Vernice Wright, J.C. LaCaze, Dwayne Brossett, and Phillips Petroleum Company, prior owners of the property, in an effort to recoup its expenses associated with the site remediation. | ¡¡.This appeal arises from the trial court’s grant of exceptions of no cause of action and prescription filed by Timoth R. Todd, Pat S. Todd, Thomas Anselmi, and J.C. LaCaze. In its appeal, DOTD raises five assignments of error. The first four assignments of error relate to the grant of the exception of prescription, and the fifth assignment of error relates to the grant of the exception of no cause of action on an indemnity claim. To dispose of this appeal, we need consider only the fifth assignment of error.

OPINION

The trial court granted the defendants’ exception of no cause of action, concluding that DOTD did not state a cause of action for indemnification under an unjust enrichment theory. The peremptory exception of no cause of action is provided for in La.Code Civ.P. art. 927(A)(4) and presents the appellate court with a question of law which we review de novo. Jones v. Tezeno, 99-1693 (La.App. 3 Cir. 3/1/00), 758 So.2d 896. Its purpose is to test the legal sufficiency of a plaintiffs petition by determining whether the plaintiff has a remedy in law based on the facts alleged. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993).

No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Simply, if the petition alleges sufficient facts to establish a case cognizable in law, an exception of no cause of action must fail.

Jones, 758 So.2d at 899 (citations omitted).

Thus, the inquiry on appeal is whether DOTD alleged facts in its petition under which Louisiana law would afford it a remedy, and not whether DOTD could prevail at trial.

lain its pleadings, DOTD asserts that, pursuant to its obligation to construct and maintain Louisiana highways, it expropriated the property at issue and the defendants were either the owners at the time of expropriation or prior owners of the property. DOTD further asserts that “a gasoline or petroleum product storage, sales, and distribution facility, a retail gasoline or service station, and/or a quick-stop or convenience store or market” was being operated on the property at the time of the expropriation. In conjunction with the business, according to DOTD’s pleadings, there existed “USTs, pumps, distribution islands, underground piping, and pits” on the property. Additionally, DOTD asserts that all ancestors in title to the property were involved in operating a gasoline or service station at the location and contributed to the hazardous situation remediated at the insistence of DEQ.

In its pleadings, DOTD asserts that when work began on the premises, the contractor encountered soil that appeared to be contaminated. DEQ required that tests be performed, and these tests confirmed soil contamination. DOTD and the contractor then developed and implemented a remediation plan approved by DEQ. The cost of the development and implementation of this plan is the subject of this litigation. In its pleadings, DOTD alleges a cause of action under La.R.S. 48:276(13) as well as under the principles of general indemnity for unjust enrichment. The trial court concluded that La.R.S. 48:276, which became law in 1995, could not be applied retroactively. This ruling has not been challenged on appeal. Thus, we are required to evaluate only whether DOTD stated a cause of action for indemnity for unjust enrichment.

An indemnity claim is a quasi-contractual obligation based on the equitable Lprinciple that “where there is an unjust enrichment of one at the expense or impoverishment of another, then the value of that enrichment or else, in some cases, the amount of the impoverishment must be restituted.” Minyard v. Curtis Prods., Inc., 251 La. 624, 650, 205 So.2d 422, 432 (1967). In Nassif v. Sunrise Homes, Inc., 98-3193, pp. 2-3 (La.6/29/99), 739 So.2d 183, 185, the supreme court stated the following concerning the action for indemnity:

Indemnity in its most basic sense means reimbursement, and may he when one party discharges a liability which another rightfully should have assumed. Black’s Law Dictionary 769 (6th ed.1990); 42 C.J.S. Indemnity § 2 (1991). It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. 42 C.J.S. Indemnity at § 32. The obligation to indemnify may be express, as in a contractual provision, or may be implied in law, even in the absence of an indemnity agreement. Id. at § 29. An implied contract of indemnity arises only where the liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed. Bewley Furniture Co., Inc. v. Maryland Cas. Co., 285 So.2d 216, 219 (La.1973). Thus, because the party seeking indemnification must be without fault, a weighing of the relative fault of tortfeasors has no place in the concept of indemnity. Id.

An indemnity claim based on unjust enrichment principles is recognized “to fill a gap in the law where no express remedy is provided.” Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1 Cir.), writ denied, 526 So.2d 1112 (La.1988). In such a claim, the plaintiff has the burden of proving five elements: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the resulting impoverishment; (4) an absence of “justification” or “cause” for the enrichment and impoverishment; and (5) a lack of another remedy at law for the plaintiff. Baker v. Maclay Props. Co., 94-1529 (La.1/17/95), 648 So.2d 888.

In considering these five elements to the equitable principle of indemnity, we [5must resort “to justice, reason, and prevailing usages.” La.Civ.Code art. 4. When we do so, DOTD’s cause of action fails on the first element of proof, that of enrichment. The transaction wherein DOTD became the owner of the property at issue was not a “sale,” but rather a “taking.” DOTD deposited into the registry of the trial court the value of the property as established by its experts hired for the specific purpose of establishing the property’s value.

Concerning property expropriated for highway purposes, La.R.S. 48:453(A) provides that “[t]he measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.” (Emphasis added.) In other words, an increase or decrease in value of the property expropriated for DOTD’s use is not to be considered in establishing the measure of compensation paid to the landowners. Additionally, La.R.S. 48:453(C) provides that “[t]he owner shall be compensated to the full extent of his loss.” (Emphasis added.)

In the matter before us, remediation was made necessary by DOTD’s subsequent use of the expropriated property. Just as the landowner would not have been able to claim compensation for any increase in value of the property based on DOTD’s use, DOTD cannot claim reimbursement because its use caused the property to lose value. Accepting DOTD’s argument could lead to a result not intended by the expropriation concept. If a situation were to arise where the cost of the remediation exceeded the amount paid the landowner in the expropriation proceedings, the landowner would effectively have to pay DOTD for having his property expropriated.

| ^Because the well-pleaded facts of DOTD’s petition do not state a cause of action for indemnity for unjust enrichment, we find no error in the trial court’s grant of the exception of no cause of action. Therefore, we find no merit in this assignment of error. This conclusion dispenses with the necessity of considering the other assignments of error.

DISPOSITION

We affirm the trial court’s grant of the exception of no cause of action. We assess all costs of this appeal to the State of Louisiana, Department of Transportation and Development, to the extent allowed by law.

AFFIRMED.

GREMILLION, J., dissents and assigns reasons.

PICKETT, J., dissents for the reasons assigned by Judge GREMILLION.

h GREMILLION, J.,

dissenting.

I respectfully dissent from the majority decision affirming the trial court grant of the exception of no cause of action. Accepting the well pleaded facts of the petition as true, I would find that DOTD has alleged sufficient facts to establish a cause of action for indemnity based on unjust enrichment. DOTD, as required by DEQ, was impoverished by remediating the damage to the site caused by the leakage from the USTs owned by the previous property owners. The property owners were obviously enriched since they were relieved of the obligation to pay for the remediation and there was a causal connection between their enrichment and DOTD’s impoverishment. The facts of the petition further establish that there was an absence of cause or justification for the enrichment or impoverishment. There was no valid juridical act between the property owners and DOTD which would justify its impoverishment. Finally, DOTD has no other remedy at law which would allow it to recoup the amounts expended on the remediation.

Finally, I respectfully disagree with the majorities’ interpretation of La.R.S. 48:453(A). As stated by the majority, the statute provides the measure of compensation for expropriated property and directs that the value be assessed [¿‘without considering any change in value caused by the proposed improvement.” In my opinion, the loss of value caused the property was not the proposed improvement, but existed at the time the property was expropriated. In this situation, La.R.S. 48:453(A) has no application to this case. Accordingly, I would hold that the trial court erred in finding that DOTD has failed to state a cause of action and would consider the other issues presented on appeal.

      . Timoth R. Todd owned the site from October 6, 1988, until its expropriation by DOTD; Pat S. Todd and Vernice Wright each owned an undivided interest in the property from April 1, 1982, until October 29, 1982; Thomas Anselmi and Dwayne Brossett each purchased an undivided interest in (he property on October 29, 1982, but transferred their interests the same day; J.C. LaCaze owned the site from June 19, 1963, until April 2, 1982; and Phillips Petroleum Company owned the site from March 24, 1962, until June 19, 1963.

      . Louisiana Revised Statutes 48:276 was added by Acts 1995, No. 1088, § 1, effective June 29, 1995.


source: Caselaw Access Project

author: h PEATROSS, J. BBROWN, C.J.,

license: Public Domain

text:
    Tammy Jo Calvert BOREN, Managing Conservator of the Minor, Robert Victor Calvert, Plaintiff-Appellant, v. ABC INSURANCE COMPANY, Royal Ford Lincoln-Mercury, Inc., the Estate of Larry T. Wynder, Jr. and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.
    No. 36,586-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Charles B. Bice, Winnfield, for Appellant, Tammy Jo Calvert Boren.

      Williams Family Law Firm, L.L.C., by Joe Payne Williams, Payne Williams, Natchitoches, for Intervenor/Appellant, Wanda Wynder, Individually and on behalf of her minor daughter, Chelsea Jene Wyn-der.
    Richard P. Ieyoub, Attorney General, Richard A. Bailly, Assistant Attorney General, for Appellee, State of Louisiana, Department of Transportation and Development.
    Before BROWN, PEATROSS & DREW, JJ.
   h PEATROSS, J.

This appeal arises from a jury finding that the road in the area of milepost 83.5 on U.S. Highway 84 in Winn Parish was not defective and did not create an unreasonable risk of harm to either Larry Wyn-der, Jr. (“Wynder”) or Michael Allen Calvert (“Calvert”), who were both killed when their vehicles collided on this road. A lawsuit was filed by the families of both decedents against, among other defendants, the State of Louisiana, Department of Transportation and ' Development (“DOTD”), alleging the failure to properly maintain the road where the accident occurred. Both the plaintiff representing the decedent Calvert and the plaintiff-in-tervenors representing the decedent Wyn-der (collectively “Plaintiffs”) appeal the judgment of the trial court following the jury verdict. For the reasons stated herein, we affirm.

FACTS

On September 20, 1996, at approximately 7:45 a.m., a white Ford pickup truck driven by Wynder left the eastbound lane of U.S. Highway 84 in the area of milepost 83.5 in Winn Parish, rotated counterclockwise and collided with a westbound Dodge pickup truck driven by Calvert. The impact killed Calvert instantly. Wynder later died at the accident scene. There were no eyewitnesses and it had been raining the morning of the accident.

Calvert was survived by one son, Robert Victor Calvert, who was ten years of age at the time of his father’s death. Robert’s mother, Tammy Joe Calvert Boren, brought suit on Robert’s behalf against DOTD for the wrongful death of Calvert. Subsequently, Wanda Wynder, the widow of |2Wynder, intervened both individually and on behalf of Chelsea Jene Wynder, the minor child of Wynder, against DOTD for the wrongful death of Wynder. Plaintiffs alleged that the road in the area of milepost 83.5 on U.S. Highway 84 was defective and created an unreasonable risk of harm to Calvert and Wynder; that DOTD knew or should have known, through actual or constructive knowledge, of the unreasonable and dangerous condition of the road; and that DOTD failed to correct the condition.

A jury trial began on October 29, 2001, in the Eighth Judicial District Court in Winnfield, Louisiana. At trial, all witnesses were called by Plaintiffs, with DOTD presenting no witness testimony. Duaine Evans (“Evans”), a witness for Plaintiffs, was accepted by the court as an expert in the fields of traffic safety and accident reconstruction. Approximately six months after the accident, Evans investigated the road at milepost 83.5 and he testified that he found ruts in the road in the eastbound lane, the lane in which Wyn-der was traveling. He concluded that the differential rut depth for the right and left wheels produced a lateral force which caused Wynder’s truck to pull to the right and Wynder had responded to the pulling force by steering to the left toward the westbound lane. According to Evans, this steering to the left caused the vehicle to go out of control and to rotate counterclockwise as it entered the westbound lane. When Wynder’s vehicle entered the westbound lane, Calvert’s vehicle hit the passenger side of Wynder’s vehicle.

Evans also testified that water in the ruts could possibly accumulate, creating a ponding condition on the road. He explained that the crown in |athe road had been distorted because the ruts would not allow water to run off the road. Instead of running off the road, the water accumulated between the two ruts in the eastbound lane. Finally, Evans testified that the ruts violated the DOTD’s published standards of proper road maintenance. He admitted, however, that he did not have the means to take a measurement of the depth of water that might accumulate in the depression formed by the ruts in the area where Wynder most likely lost control of his vehicle.

Next, Billy Gorham (“Gorham”), maintenance superintendent for the Winn Parish DOTD, testified that he inspected the road in the area of milepost 83.5 on U.S. Highway 84 a few days before the accident. He testified that he was aware of the DOTD standards regarding road repair, but made no repairs because he did not notice a rutting condition in the road that required remediation under DOTD maintenance standards.

Both officers investigating the accident testified regarding the conditions of the road at milepost 83.5 on U.S. Highway 84. Deputy Stanly Martin of the Winn Parish Sheriffs Department testified that there were ruts in the road and that, on the morning of the accident, the rain filled the ruts with water, creating a ponding condition on the road. Deputy Martin testified that these ruts had existed over the previous year and that they were in the eastbound lane. He admitted, however, that he never reported to DOTD the rutting conditions he observed and he never measured these ruts. The other investigating officer, Louisiana State Trooper Steven Rachal, | testified that he observed tire grooves in the road, but not any deep ruts. Trooper Rachal further testified that he did not know why Wynder’s vehicle went out of control, but he noted that a contributing factor to the accident was the wet road surface.

A list of interrogatories was provided to the jury at the conclusion of the trial. The jury only responded to the first interrogatory, finding that the road in the area of milepost 83.5 on U.S. Highway 84 was not defective and did not create an unreasonable risk of harm to either Calvert or Wynder. In light of this finding, the jury did not answer the remaining interrogatories regarding fault, apportionment of fault and damages. On November 9, 2001, the trial judge rendered judgment in favor of DOTD, dismissing with prejudice all demands of Plaintiffs. The trial judge denied both Plaintiffs’ motions for judgment notwithstanding the verdict and, alternatively, motions for a new trial. This appeal ensued.

On appeal, Plaintiffs raise the following assignments of error:

1. The jury committed manifest error and was clearly wrong when it answered interrogatory number one in the negative and held that the road located at milepost 83.5 of U.S. Highway 84 was not defective and not the cause of the accident on September 20,1996; and
2. Because the jury answered interrogatory number one in the negative, the jury failed to consider the remaining interrogatories and, since the record is incomplete and before this court, this court should consider all the remaining issues presented by the unanswered interrogatories and decide this matter on a de novo review of the record.

DISCUSSION

A jury’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880; Rosell v. ESCO, 549 So.2d 840 (La.1989). When findings are based on determinations regarding the credibility of witnesses, the manifest error and clearly wrong standard demands great deference to the trier of fact’s findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear on the listener’s understanding and belief in what is said. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell, supra. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may well find manifest, error or clear wrongness, even in a finding purportedly based upon credibility determination; but, where such factors are not present and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must, instead, review the record in its entirety to determine whether the jury’s finding was clearly wrong or manifestly erroneous. Stobart, supra. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.' The reviewing court must always keep in mind that, “if the | atrial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Stobart, supra, citing Housley v. Cerise, 579 So.2d 973 (La.1991)(quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.

In the case sub judice, Plaintiffs urge that the jury committed manifest error and was clearly wrong when it answered the first interrogatory in the negative and held that the road in the area of milepost 83.5 on U.S. Highway 84 was not defective and did not create an unreasonable risk of harm to either Wynder or Calvert. Plaintiffs argue that the evidence presented proved that the road was defective and did create an unreasonable risk of harm. After reviewing the record in its entirety, we hold that there was a reasonable basis for the jury’s finding, and, therefore, the judgment of the trial court is neither manifestly erroneous nor clearly wrong.

The record reflects that the jury’s finding is based on reasonable evaluations of witness credibility and. reasonable inferences. In addition to listening to the testimony of all witnesses at trial, the jurors also reviewed all the exhibits introduced into evidence. Among the evidence introduced was a photograph showing the extensive damage to the vehicles, including Wynder’s vehicle, which was almost torn in half. Based on the photographs of the vehicles, the testimony of 17the investigating officers, the testimony of the DOTD maintenance supervisor and the testimony of the expert witness, the jury could have reasonably inferred that the speed of at least one of the vehicles was far in excess of a safe speed for the rainy weather conditions the morning of the accident. Consequently, the jury could reasonably conclude that there were factors which actually caused the accident, other than the condition of the road. Evans, Plaintiffs’ expert witness, testified that the combined speed of the two vehicles, at impact, was as high as 100 miles per hour, and the damage to the two vehicles could have occurred with combined impact speed as low as 80 miles per hour. Evans testified, however, that he did not know the exact point where Wynder’s vehicle began going out of control. At trial, the trial judge also noted that he had a problem with Evans’ testimony as to the “flow of the traffic of the vehicle down the hill,” since Evans produced no scientific data on this issue for the court. Moreover, there were questions raised as to Evans’ methods of measurement and the scientific basis for his conclusions. There was considerable speculation as to what may have happened in the accident and the jury had to determine if the expert witness testimony was credible.

In contrast, Gorham testified that, a few days before the accident, he examined the surface of the road and did not notice a rutting condition that was sufficient enough to require remediation under DOTD maintenance standards. In addition, a DOTD maintenance schedule, which was admitted into evidence, showed that routine maintenance in the area of the crash site was conducted on 45 separate occasions in the four years and nine months ^preceding the day of the crash. The jury chose to accept this testimony as more credible than that of Evans.

The jury also weighed the credibility of the two investigating officers. Trooper Rachal testified that he observed tire grooves in the road, but not deep ruts, while Deputy Martin testified that he observed deep ruts. Again, after hearing this testimony, the jury made a determination of which view of the evidence to accept and we will not disturb this determination on appeal.

Plaintiffs, citing Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967), argue that the testimony of a witness which stands uneon-tradicted must be accepted as true and that, because DOTD called no witnesses, the testimony of Plaintiffs’ witnesses must be accepted as true. Plaintiffs’ reasoning assumes that the testimony of their witnesses was uncontradicted. Testimony, however, can be contradicted by other evidence or proof. Merchants & Farmers Bank & Trust v. Smith, 559 So.2d 845 (La.App. 3d Cir.1990), writ denied, 563 So.2d 865 (La.1990). If the factfinder is presented with two kinds of proof, each kind tending to establish completely different facts, it is the function of the factfinder to make a determination of facts from the conflicting proofs. The jury examined both the testimony and exhibits in the instant case and determined that certain witness testimony conflicted with other testimony and exhibits. The jury simply concluded that some evidence was not credible and made its findings accordingly.

The jury, after hearing all the testimony and reviewing all the exhibits, determined the credibility of the witnesses and made a reasonable inference that the road in the area of milepost 83.5 on U.S. Highway 84 was [3not defective and did not create an unreasonable risk of harm to Wynder and Calvert. As previously stated, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra. The jury had a choice of two permissible views as to the cause of the accident in the instant case and it found certain evidence to be more credible than other evidence. The jury’s finding in the case sub judice is reasonable in light of the record reviewed in its entirety. The jury was not manifestly erroneous or clearly wrong in its finding; and, therefore, we hold that Plaintiffs’ first assignment of error is without merit. Since we find that Plaintiffs’ first assignment of error is without merit, we preter-mit discussion of the second assignment of error.

CONCLUSION

For the foregoing reasons, the judgment on jury verdict against Plaintiffs, Tammy Jo Calvert Boren, Wanda Wynder and Chelsea Jene Wynder, is affirmed. Costs of this appeal are assessed to Plaintiffs, Tammy Jo Calvert Boren, Wanda Wynder and Chelsea Jene Wynder.

AFFIRMED.

BBROWN, C.J.,

Dissenting,

The only evidence produced about the physical characteristics of the road at the scene of the collision was presented by plaintiffs/appellants. DOTD called no witnesses at trial.

The crown of the road is designed to allow water to drain off the road. In this instance, however, ruts in the eastbound lane of the highway prevented drainage and allowed ponding. Plaintiffs expert, Duaine Evans, testified that the differentials in rut depth produced a lateral force pulling Larry Wynder’s pickup truck to the right. Wynder responded by turning back to the left and lost control of his truck. According to Evans, the depth of the ruts in the eastbound lane were in excess of limits published in DOTD’s guidelines for corrective maintenance.

According to Deputy Martin, the water was over the road when he arrived at the scene. Martin testified that there were ruts in the eastbound lane causing water to accumulate. Trooper Rachal did not contradict this testimony.

Billy Gorham was the Winn Parish maintenance superintendent for DOTD. He testified that he traveled each road in the parish every two weeks, including U.S. Highway 84 from Winnfield west to the Natchitoches Parish line. He inspected the road at that area on June 24, July 8, August 19, and September 3, 1996. At the accident site, he had seen water standing in ruts during rain conditions; however, he never got out and measured the depth of the ruts. He just looked at them when he went by. He concluded that they were not deep enough for repairs. Gorham further testified that itLwould have taken his crew only a half day to correct such defects as claimed by Duaine Evans.

No credibility issue was presented requiring a resolution of one witness’s testimony versus another’s testimony on the physical condition of the road.

The crux of the majority opinion is that “the jury could have reasonably inferred that the speed of at least one of the vehicles was far in excess of a safe speed.... Consequentially, the jury could reasonably conclude that there were factors which actually caused the accident other than the condition of the road.” (Emphasis added). This sounds like comparative fault. However, the speed of the two vehicles combined was between 80 and 100 miles per hour. Each vehicle could have easily been traveling 40 to 50 mph. It would have been speculation for the jury to have inferred that one vehicle was driving too fast for the conditions. This court should not hypothesize about what the jury may have speculated.

There is simply no reasonable basis for the jury’s conclusion. I respectfully dissent.

      . The crown is built into the middle of the road to give the road a slight slope, causing water to run off the road.


author: 1, CARAWAY, J.

text:
    Dorothy J. JONES, Plaintiff-Appellant, v. RUSKIN MANUFACTURING, A Division of Tomkins Industries, Inc., Defendant-Appellee.
    No. 36,548-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Frank M. Ferrell, Shreveport, for Appellant.
    Dorothy J. Jones, In Proper Person.
    Cook, Yancey, King & Galloway, by Scott L. Zimmer, Shreveport, for Appellee.
    Before CARAWAY, PEATROSS and KOSTELKA, JJ.
   1, CARAWAY, J.

The plaintiff in this worker’s compensation case alleges that she contracted an occupational disease from fumes from paint, diesel, and other substances while in the employ of the defendant. The worker’s compensation judge (“WCJ”) found that the plaintiff did not have an occupational disease and denied benefits. For the following reasons, we affirm.

Facts

The plaintiff, Dorothy Jones, worked for the defendant, Ruskin Manufacturing, from August 27, 1984 to February 2, 1999. Ruskin is a business engaged in the manufacturing of metal louvers.

Jones has complained that she contracted an occupational disease, neurotoxicity, as a result of alleged exposure to toxic fumes at Ruskin’s factory. Whenever Jones is exposed to perfumes, colognes, or any type of fumes, she allegedly has “seizure-like” spells. Fumes were emitted into the air as a result of welding and painting activities that occurred at the facility. Other fumes were also released into the factory.- On February 1, 1999 and February 2, 1999, Jones alleged that the constant inhaling of the fumes caused her to have the “seizure-like” episodes or spells and rendered her unable to work.

Adele Baker, Calvin Boston, Darren Lee and David Williams, all of whom were Jones’ co-employees, testified that employees were exposed to welding fumes, paint fumes, vehicle exhaust fumes, and fumes from chemicals used in the plant. All four co-employees knew of Jones’ alleged | ¡.allergies to perfumes and colognes. They further testified, however, that vents and fans removed most of the air contaminants and that none of them had personally suffered any of the symptoms complained of by Jones.

Larry Smith, a plant manager at Ruskin, testified that he had knowledge of Jones’ alleged condition and that Jones had provided him with records from Min-den Medical Center, which stated that Jones should not be exposed to paint fumes. He further testified, however, that no place in the factory was free of fumes.

The record shows that Jones had previously complained of the “seizure-like” episodes and had stated that she was allergic to cologne and perfume. On March 13, 1978, Jones was treated by a physician named Dr. McKellar because of “dizziness, fainting, and ‘falling out’ spells.” On April 13, 1978, Jones was treated at the Louisiana State University Medical Center Walk-In Clinic because she complained that she “fell out” and was dizzy. On November 2, 1980, Jones sought treatment at the Louisiana State University Medical Center emergency room where she again complained of fainting spells. The record also shows that, before her employment with Ruskin, Jones completed a form entitled, “Job Placement Medical Questionnaire” and answered “yes” to the question, “Did you ever have reactions to chemicals?”

While employed at Ruskin in September of 1990, Jones was treated by Dr. Richard Burton, a neurologist, for “black-out spells” which had allegedly been occurring since 1983 or 1985. Dr. Burton performed an EEG and an MRI, both of which revealed that Jones’ brain was normal.

laOn January 10, 1995, Jones was treated by Dr. Carlos Irizarry, a family practitioner, who opined that Jones should not be around perfumes or colognes. He did, however, recommend more testing but Jones failed to obtain further testing.

On February 6, 1995, Jones was treated by Dr. Peter Boggs of the Asthma-Allergy Clinic for alleged allergies to perfumes and colognes. Dr. Boggs’ diagnosis was that Jones did not have any allergies and that her problems were psychiatric.

On February 10, 1995, Jones was treated by Dr. Benjamin V. Nguyen, a neurologist. Dr. Nguyen performed an EEG, which revealed no abnormal brain wave activity. He diagnosed her “falling out spells” as pseudo-seizures and recommended that she see a psychiatrist.

On May 1, 1995, Jones was treated by Dr. Michael F. Zambie of the Allergy and Asthma Clinic. Dr. Zambie diagnosed her as having “Allergic Rhinitis,” but noted that her “spells” were very unusual. He further noted that a doctor in Colorado would be the only doctor who could properly diagnose Jones’ problem.

On May 31,1995, Jones was treated by a psychiatrist, Dr. James H. Phillips. Dr. Phillips diagnosed Jones as having a conversion disorder and stated that she could return to work without restrictions.

On April 17, 2001, Jones was treated by Dr. William J. Nassetta, a specialist in occupational medicine. Dr. Nassetta made the following assessment in his report:

“In my office during the examination, Ms. Jones had an episode very similar to the one described in her medical Drecords. It occurred at the end of the examination, while she was comfortably sitting on the examination table. There was no perfume in the room. Ms. Jones had just been told that she ‘was fine’ after the examination, and was free to go. Her legs began shaking, then her arms, her eyes were closed, then opened and rolled around and back. She slurred her speech, but could be understood and asked for water. Ms. Jones was given a sip or two and she revived readily after shaking for approximately one minute. She became imbalanced and held onto the wall when escorted out of the room and was offered a wheelchair. The nurse took her to the car by way of a wheelchair, and when she climbed out she was able to readily stand without difficulty. She stated, ‘now you can see what I live with everyday.’ Although she was accompanied by someone who drove her to the interview, it is important to note that the patient denies this ever happening while she drives, and she continues to do so without worry about it, but she has an ‘allergy’ to gasoline.
During the examination, a ‘dramatic’ sway was noted when asked to stand with her arms in front of her for the neurologic exam, and she appeared to ‘kick out’ lower extremities bilaterally after elicitation of the individual patellar reflex with hammer. Both legs kicked out simultaneously with testing. Otherwise, her examination was benign. She was not asked to close her eyes during the Romberg exam, since she began such a significant sway prior to closing them. Her exaggerated appearing reflexes and sway was very atypical, and would not be expected to occur in a neurologically impaired person who was completely balanced during her ambulation to and from the interview and examination rooms, and able to drive an automobile.
In a visit to Dr. Sullivan, date unknown the client said, she first noticed some sensitivity to perfumes and colognes when she was in her thirties, she noticed the problem getting worse over the last six years. If the problem began in her thirties, as it appears in the medical records reviewed, it would have been occurring for the last twenty years, not ‘since 1989 or 90’ as she stated. From the medical records, it can be noted that her symptoms began years before she started work at the Ruskin Manufacturing Plant.”
‡ ‡ ‡ ‡
“The only physician to give Ms. Jones a diagnosis related to potential exposure to chemicals is Dr. Rea. He arrived at his diagnosis without any objective information in | Bregards to specific exposures in Ms. Jones’ workplace. Additionally, non-validated, unaccepted testing procedures were utilized.
Given the facts that:
• Ms. Jones’ ‘seizures’ pre-dated her work at Ruskin Manufacturing by some years;
• All objective neurological testing by multiple practitioners has been negative;
• There were no known, documented over-exposures to chemicals in the work environment;
• There is no peer-reviewed scientific literature to support this type of disorder with the alleged exposures;

It is my professional opinion that within a reasonable degree of medical certainty Ms. Jones’ condition is unrelated to her work at Ruskin Manufacturing.”

Dr. William Rea, a board certified physician in environmental medicine, testified by way of a deposition. Dr. Rea concluded that Jones had chemical sensitivities, neu-rotoxicity, chronic fatigue, and food sensitivity. In his opinion, her condition was related to her long-term exposure to fumes while employed with Ruskin. Dr. Nancy Didriksen, a psychologist, testified that Jones suffered from toxic encephalopathy, a brain injury caused from exposure to toxic substances.

A portion of Jones’ testimony was adduced at the hearing. The other portion, however, was adduced by way of a deposition because Jones continued to have her “seizure-like” episodes at the hearing and in the presence of the WCJ. Jones also testified that she did not have the “seizure-like” spells prior to her employment with Ruskin. She further testified that she had worn perfume up to 1990 or 1991.

| (After thoroughly reviewing all of the above evidence, the WCJ found that Jones did not have an occupational disease. Jones appealed, asserting that the WCJ erred in not finding that she contracted an occupational disease while in the employ of Ruskin.

Discussion

Under the Workers’ Compensation Act, La. R.S. 23:1031.1 provides, in pertinent part, the following:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

The findings of the WCJ will be affirmed unless the judgment is manifestly erroneous. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Stobart v. State Through Department of Transportation, 617 So.2d 880 (La.1993).

When the judgment is based on a credibility call, great deference must be given to the WCJ’s findings. Stobart, supra. A credibility call may )7be reversed only when documents or objective evidence so contradict the story of the witness, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit it. Rosell v. ESCO, 549 So.2d 840 (La.1989); Cox v. Roofing Supply, Inc., 36,275 (La.App.2d Cir.8/14/02), 825 So.2d 1271. In the absence of such a showing, the WCJ’s choice between two permissible views of the evidence will not be disturbed. Cox, supra, citing Billington v. General Motors, Corp., 31,585 (La.App.2d Cir. 2/24/99), 728 So.2d 966; Hymes v. Monroe Mack Sales, 28,768 (La.App.2d Cir.10/30/96), 682 So.2d 871.

The causal link between the employee’s occupational disease and work-related duties must be established by a reasonable probability. Shields v. GNB Technologies, Inc., 33,911 (La.App.2d Cir.10/4/00), 768 So.2d 774. Expert testimony is required to support a finding of an occupational disease. Shields, supra.

The WCJ, in oral reasons for judgment, found that Jones’ “seizure-like” spells preexisted her employment at Ruskin, and she weighed the testimony of Dr. Didrik-sen and Dr. Rea against the findings of Dr. Nassetta. The WCJ was “particularly impressed” with Dr. Nassetta’s expert opinion and found him to be more credible than Dr. Didriksen and Dr. Rea. Dr. Rea’s opinion was based upon Jones’ description of her work environment and not upon objective evidence obtained from the Ruskin facilities. As a result, the WCJ found that Jones failed to meet her burden of proof by a preponderance of the evidence that a causal connection existed between her condition and her employment. Additionally, the WCJ concluded that |sJones’ condition was a “continuation of a pre-existing condition unrelated to her work environment” and was not an occupational disease.

From our review of the extensive medical evidence, we cannot conclude that the WCJ’s choice of Dr. Nassetta’s opinion over the opinion of Dr. Rea was clearly wrong and manifestly erroneous. Likewise, the WCJ’s reliance upon the evidence indicating that Jones’ chemical sensitivity pre-dated her employment and was related to exposure to chemicals outside of the workplace justifies a conclusion that the causal connection of the alleged occupational disease with Jones’ employment was not substantiated. Accordingly, we defer to the trier-of-fact’s reasonable conclusions in this case and affirm the judgment.

Conclusion

For the foregoing reasons, the judgment of the WCJ in favor of Ruskin Manufacturing and against Dorothy Jones is affirmed. Costs are assessed to Dorothy Jones.

AFFIRMED.


author: | YELVERTON, J.

text:
    Michael ASHMORE, et al. v. Rapides Parish Sheriff William E. HILTON, et al.
    No. 02-816.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.
    Rehearing Denied Feb. 12, 2003.

      Edward Allen Kaplan, Attorney at Law, Alexandria, LA, for Plaintiffs/Appellees, Michael Ashmore, Patricia Ashmore, Amanda Ashmore.
    Henry Gregory Walker Jr., Walker, Passman & Michiels, Alexandria, LA, for PlaintiffiAppellee, Amanda Ashmore.
    Randall Brian Keiser, Reiser, Auzenne & Boudreaux, Alexandria, LA, for Defendant/Appellant, City of Pineville.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   | YELVERTON, J.

The City of Pineville appeals a trial court judgment which found it liable to Amanda' Ashmore who alleged that she was raped by a trustee working for the City when she was doing community service work. Amanda answered the appeal seeking an increase in the award of damages and claiming that the trial court erred in dismissing her 42 U.S.C. § 1983 claim.

FACTS

On October 9, 1996, Amanda and her brother were sentenced by the Pineville city judge sitting as a juvenile court to perform 16 hours of community service. They were instructed to report to the City of Pineville Police Department on two Saturdays to fulfill their community service obligations.

The first Saturday they went to the Pineville Police Department was October 12, 1996. On that day, .Amanda was assigned to work at Kees Park helping the ladies in the kitchen during the Catahoula Lake Festival. Her brother washed cars at the police station. They missed the next Saturday because they overslept, so they were required to report the following Saturday, October 26,1996.

On October 26, Amanda was assigned to work at the Main Street Community Center. A police officer drove her there. Once inside, a lady told her to help a man hang wallpaper. Amanda identified the lady as Dot Mikels. Dot was the manager of the community center. Amanda identified the man that she was assigned to help as Jerry Bass, a trustee who was incarcerated at the Rapides Parish Detention Center. The City and the Rapides Parish Detention Center had entered into an agreement in 1994 for the use of inmates outside of the detention facility.

| ¡Amanda was helping Bass hang wallpaper when a church group came in to use the facility. Amanda testified that Dot told them to go outside while the group was there. Amanda alleged that Bass told her to go into another building outside to clean up their mess. Once inside he pushed her down on a white drop cloth and raped her. Amanda was sixteen at the time.

Amanda never told her parents about the incident until almost a year later when she blurted it out while she and her sister were arguing. Her mother immediately called the police department and reported the incident. Shortly thereafter, her parents filed suit on her behalf against the City of Pineville, its chief of police, and Rapides Parish Sheriff William Earl Hilton. In 1999, upon reaching the age of majority, Amanda prosecuted the claim in her own name. Sheriff Hilton and former Chief of Police Jay Barber were subsequently dismissed, so the matter proceeded to trial solely against the City.

Trial was held on March 13 and 14 and June 13, 2001. The trial court found that Amanda was raped and that the City was responsible for her resulting injuries. It awarded her $3,365.64 in special damages and $150,000 in general damages. The court declined to find that the City was responsible for damages pursuant to 42 U.S.C. § 1983. The City appealed the judgment, and Amanda answered the appeal seeking an increase in general damages.

TRIAL COURT’S DETERMINATION THAT RAPE OCCURRED

The City argues that the trial court erred in finding that Amanda was raped because there was not sufficient evidence to prove it. The City would like to frame this error as a question of law of whether there was sufficient evidence, but we find [¡¡that the issue is simply whether the trial court’s factual finding that Amanda was raped was manifestly erroneous based on the evidence introduced at trial.

Even in a criminal setting where the elements of the crime must be proven beyond a reasonable doubt, “[t]he testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense.” State v. Dickerson, 01-1287, p. 11 (La.App. 5 Cir. 6/26/02), 822 So.2d 849, 856. Therefore, a victim’s testimony in a civil case is sufficient to establish her case where the burden of proof is by “a preponderance of the evidence” standard which is less burdensome than the “beyond a reasonable doubt” standard required in criminal cases. Miller v. Leonard, 588 So.2d 79 (La.1991); Chatelain v. La. Dep’t of Transp. and Dev., 586 So.2d 1373 (La.1991).

A trial court’s findings should not be overturned absent manifest error or unless clearly wrong. Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072. “Where two reasonable views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 1079.

Our careful reading of the record reveals that Amanda’s version of the rape was always consistent. Also, members of Amanda’s family testified with consistency regarding the circumstances under which they discovered that Amanda had been raped.

Bass testified. He denied that the incident occurred. He denied ever seeing Amanda. He also denied that anyone helped him hang wallpaper. There were other parties who remembered Amanda in the presence of Bass for a substantial amount of time. Dot Mikels testified that she saw Amanda helping Bass hang wallpaper and that |4she told both of them to move when a church group came into the center. Steven Schultz, a cousin of Amanda who was employed by the City in October 1996, testified that he transported both Bass and Amanda from the community center at the end of the day, with the three of them sitting in the front seat of his pickup together.

Dr. James Quillan, a psychologist who treated Amanda in 1997 after the rape was revealed, stated that he believed she was assaulted because she struck him as a straightforward youngster. While we note that the City has set forth examples of situations when Amanda was untruthful, we attribute these situations to the fact that she was a young teenager at the time dealing with difficult family problems. As observed by Dr. Robert Dorio, a clinical and forensic psychologist, Amanda did not necessarily view departures from societal norms in the same way as other people due to her socioeconomic status.

The trial court made a credibility decision to believe Amanda’s testimony that she was raped. To disturb this finding would amount to a substitution of our credibility determination for its, which we are not in a better position to do. We find no error in this finding of facts, and so we will address the remaining issues in this case.

LEGAL STANDARD

The City argues that the trial court erred in not assessing fault to other parties and applying the wrong legal standard when it found that a resort to Veazey v. Elmwood Plantation Assocs. Ltd., 93-2818 (La.11/30/94), 650 So.2d 712, would be appropriate. We agree.

In Morrison v. Kappa Alpha Psi Fraternity, 31,805 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, writs denied, 99-1607, 99-1622, 99-1668 (La.9/24/99), 747 So.2d 1120, 749 So.2d 634, 635, the second circuit explained its approval of comparing the fault of an intentional tortfeasor with negligent parties. The court stated:

Plaintiffs argue that the trial court erred in allowing the jury to apportion fault to Jessie Magee, an intentional tortfeasor, and in refusing to instruct the jury on fault apportionment as set forth by the supreme court in Veazey
A divided supreme court in Veazey, supra, held that generally, negligent tortfeasors should not be allowed to reduce their fault by the intentional act of another when they had a duty to prevent such intentional conduct. Veazey involved the interpretation of La. C.C. art. 2323, Louisiana’s comparative fault provision, prior to its overhaul by the legislature in 1996.
In the 1996 Extraordinary Legislative Session, the legislature amended Civil Code articles 2323 and 2324 to require that fault be allocated to all persons causing a plaintiffs injuries (La.C.C. art. 2323) and to limit liability of each wrongdoer, with certain exceptions, to their percentage of fault. (La.C.C. art. 2324).
In Keith v. United States Fidelity & Guaranty Company, 96-2075 (La.05/09/97), 694 So.2d 180, the supreme court held that the 1996 revision of the La.C.C. art. 2323 was procedural and to be applied retroactively.
La. C.C. art. 2323 as amended by Act Three of 1996 provides in part:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or | ^percentage of negligence attributable to the person suffering the injury, death or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.... Given the clear pronouncement of our
supreme court on this issue, we find that the trial court properly instructed the jury to compare the fault of all involved actors.

Morrison, 738 So.2d at 1112-13 (footnotes omitted)(emphasis in original).

Also, in Wallmuth v. Rapides Parish Sch. Bd., 01-1779, 01-1780 (La.4/3/02), 813 So.2d 341, at footnote 2, the supreme court approved this court’s finding that the trial court committed legal error by refusing to assess the intentional tortfea-sor with any fault and, therefore, conducting a de novo review. Even more recently, the supreme court has removed any doubt that Louisiana Civil Code Article 2323 “clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.” Dumas v. La. Dep’t. of Culture, Recreation & Tourism, 02-563 (La.10/15/02), 828 So.2d 530, 537. As was done in Wall-muth, 813 So.2d 341, we will conduct a de novo review of the evidence and assess fault accordingly.

There is no doubt that Bass, as the perpetrator of the rape, should be assessed with fault. We will also discuss the fault of other persons who might be responsible.

The City tries to place blame on the Office of Juvenile Probation, arguing that it knew that the City had a policy in place that it did not accept female juvenile probationers. Jay Barber, the acting chief of police in October 1996, testified that he |7was not aware that juveniles were being assigned to the City police department to fulfill community service obligations.

On the other hand, David lies, who was head trustee at the City police department, testified that he supervised both adults and juveniles who were doing community service work. He also stated that when there were female juveniles, they worked up front at the dispatch desk. He did testify that there were hardly ever any female juveniles brought to the police department.

Larry Spotsville, the chief juvenile probation officer, testified that the City accepted juveniles for some period of time but he thought at some point the City no longer wanted to accept juveniles for community service. He thought this decision was made sometime between 1995 and 1998.

Janie Melder, who worked with the juvenile probation office filling out disposition sheets on the juveniles, testified that she only knew to send juveniles to the police department and from there they would be assigned to various places.

Tracy Ferris, who was also employed with the juvenile probation office and assigned community service, testified that there were several places juveniles were sent, including the City police department. Although she never personally sent females to the police department, she did not remember the City having a policy in place of not wanting females for community service.

The fact is that Amanda was assigned to the police department, and it accepted responsibility for her on two occasions. There is no evidence that the police department tried to decline accepting her or her brother as community service workers. The police department actually assigned both Amanda and her brother duties and transported her to the places she was assigned to work.

| Jfhe City has not established that it had a policy in place of not accepting juveniles for community service. It has not established that even if there was such a policy, this policy was communicated to the juvenile probation office. Even if it did tell the juvenile probation office that it no longer wanted juveniles, the evidence is not even clear when this decision was made; it could have been made long after Amanda was assigned to the City police department.

The City also argues that it was never told that Bass had the propensity to harm females and, therefore, the Sheriff should take blame for not advising it or even permitting him to participate in the trustee program. A review of the record reveals that there was not any evidence introduced by anyone that Bass presented a problem to females or that the Sheriff knew about it. Therefore, we cannot say that the Sheriff had a duty to warn the City.

Furthermore, the trustee work agreement between the detention center and the City specifically provided that it was the City’s responsibility to supervise the trustee when he was working for the City. The agreement provided: “A commissioned officer shall be assigned and shall be responsible at all times for directly supervising the work performed by inmates.” There is no doubt that Bass was not supervised by a commissioned officer when he was asked to leave the community center and go outside in the company of a teenage girl. It was the City’s responsibility at that time to supervise Bass. Both Dot and her husband Robert, who was the public works director for the City, were commissioned officers. Robert testified that he supervised Bass most of the time, but he apparently was not around on October 26. Dot knew Bass was a trustee, but yet she sent him and Amanda out together with no supervision when the church group arrived.

In Sloan v. Dailey, 95-906 (La.App. 3 Cir. 12/6/95), 664 So.2d 792, this court explained that a town, which is the supervisor and beneficiary of work performed by criminal defendants who are sentenced to perform community service, has an obligation to provide the community service workers with a working place and conditions which are reasonably safe considering the nature of the work. Also, although the town is not required to insure the safety of the community service workers, it must exercise reasonable care to protect them against an unreasonable risk of foreseeable harm. Id.

Therefore, we find that the evidence establishes that the only responsible parties for this rape were Bass and the City. We will make a determination of each party’s fault.

APPORTIONMENT OF FAULT

The factors to be considered when allocating fault among tortfeasors include those set out in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

With these factors in mind, it is our opinion that the majority of the fault should lie with the City. The City had a signed contract with the detention center that | inrequired it to supervise the trustee workers at all times, but instead it knowingly allowed a teenage girl to work side-by-side with a trustee and then promoted a situation where the teenage girl was left alone with the trustee who took advantage of the circumstances. Had the City simply never allowed Bass ¿nd Amanda alone together, this rape would never have occurred. Therefore, we find the City 70% at fault and Bass 30% at fault.

Louisiana Revised Statute 9:2792.8

The City claims that even if it was negligent then Louisiana Revised Statute 9:2792.8 provides that there is no cause of action for general damages, only medical expenses. The City claims that the trial court erred in concluding that there was evidence of “gross negligence” resulting in the City’s responsibility for general damages.

Louisiana Revised Statute 9:2792.8(D) provides:

A community service worker shall have no cause of action for damages except for the payment of medical expenses, against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation therein, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.

We agree that this statute limits the liability of those conducting and supervising community service programs to medical expenses unless the injury was caused by an intentional or grossly negligent act. After reviewing the supreme court’s analysis of “gross negligence” in Ambrose v. New Orleans Police Dept. Amb. Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, the trial court in the present case stated that:

[I]rrespeetive of who is charged with the duty of supervising inmate[s], one can fathom that even the most careless man would be accustom[ed] to believing that inmates should not be left alone and unsupervised with a young girl and that the failure to perform such supervision is wanting of diligence. Furthermore, it is believed that had a careless man exercised even slight care or any diligence and supervised either Amanda or Bass, Amanda would probably not have undergone this traumatic experience.

The following is the supreme court’s definition of “gross negligence”:

Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” “There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning.” Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence.

Ambrose, 639 So.2d at 219-20 (citations omitted)(alteration in original).

The trial court found that the actions of the City were grossly negligent in failing to supervise an inmate-trustee who was working unsupervised and alone with a young girl. The trial court noted that “[w]hen inmates are incarcerated, they are secured in a facility and placed under supervision of guards for a reason. For the [City] to allow this unsupervised inmate to work amongst the citizens of Louisiana, especially alone with a young girl, defeats the very purpose of incarcerating that inmate.”

We agree that the actions of the City in failing to have a commissioned officer directly supervising Bass at all times and in allowing Bass to be alone with a teenage | i2girl, who was also its responsibility as a community service worker under its control, was grossly negligent. Therefore, we agree with the trial court that the City is also responsible for any general' damages in addition to medical expenses.

GENERAL DAMAGES

Both the City and Amanda complain about the general damages award. The trial court found that a reasonable award for general damages in this case was $150,000.

The assessment of the appropriate amount of damages by a trial court or jury is a determination of fact which is entitled to great deference on review. Wainwright v. Fontenot, 00-492 (La.10/19/00), 774 So.2d 70. “ ‘[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.’ ” Id. at 74 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994)).

While it is true that Amanda had discipline problems and problems in school before the rape, she clearly experienced difficulties after the rape, as one would expect. She was ashamed about the whole event. Her mother testified that she became very violent and angry during the time period after the event. The rest of her family confirmed this observation.

The history taken by Dr. Quillan revealed that Amanda suffered with depression, was often unkempt and socially constricted, had sleep problems, was very anxious, and had low energy. After testing, Dr. Quillan confirmed his suspicions that she suffered with major depression as a result of the event. Dr. Quillan even noted |isin later sessions that Amanda may have post-traumatic stress disorder as a result of Bass’s release from jail.

Dr. Quillan noted that the situation had caused significant anxiety problems, none of which were helped by family problems. The magnitude and character of the symp-tomology changed substantially following the rape.

We cannot say that the trial court’s award of $150,000 general damages was an abuse of discretion. It is apparent that the rape has caused tremendous emotional and social problems for Amanda. Since the record also reveals that Amanda had a lot of problems before the rape, we will not increase the trial court’s award.

42 U.S.C. § 1983

In her answer to the appeal, Amanda claims that the trial court erred in dismissing her claim for damages and attorney’s fees under 42 U.S.C. § 1983. Amanda has argued that the City had juveniles in its custody, but had no policies or procedures in place to ensure their safety, thereby violating her constitutional rights. The court disagreed and found that the rape occurred solely due to the negligence of the City in failing to supervise Bass.

“[A] municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury.” Leatherman v. Tarrant County Narcotics and Intelligence Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). “Further, the policy must be established by a showing that the municipality’s decision maker with final authority regarding the policy had issued a proclamation, policy or edict or that a custom was established through a course of conduct by the practices of municipal officials which are so permanent or | uwell-estab-lished so as to virtually constitute law.” Taylor v. City of Shreveport, 26,820, pp. 3-4 (La.App. 2 Cir. 4/7/95), 653 So.2d 232, 236, writ denied, 95-1131 (La.6/16/95), 655 So.2d 333.

Municipal liability under Section 1983 attaches only when the official responsible for establishing final policy with respect to the subject matter in question, makes a deliberate choice to follow a course of action from among various alternatives. Thus, mere negligence on the part of local governmental final policy-makers does not give rise to governmental liability under Section 1983. A municipality may be held liable under Section 1983 for failing to adopt a policy when that failure rises to the level of “deliberate indifference” to the need for such a policy. Under this test, a governmental entity can be held liable if in the light of the duties assigned to specific officers or employees, the need for such a policy is so obvious, and the absence of such a policy is so likely to result in violations of constitutional rights, that the governmental entity’s policy-makers can reasonably be said to have been “deliberately indifferent” to the need for the policy. Mere negligence by policy-makers in the face of unconstitutional behavior by municipal employees is insufficient to establish municipal liability under Section 1983.”

Hicks v. Bexar County, Texas, 973 F.Supp. 653, 682 (W.D.Tex.1997) (footnotes omitted).

In this case, it is clear that the City had no policy in place for the juveniles doing community service. However, other than this incident, there is no evidence to suggest that the City needed to establish a policy. There was no testimony or evidence to suggest that any other juveniles performing community service work under the supervision of the City had any problems. Therefore, we agree with the trial court that Amanda has failed to prove a claim for damages under Section 1983.

For these reasons the judgment of the trial court is modified insofar as it failed to allocate fault to Jerry Bass, and amended in its amount to take into account our assessment of fault as to Bass and reduced fault as to the City of Pineville. Judgment is rendered finding fault on the part of Jerry Bass, and allocating 70% of the fault to LRthe City of Pineville and 80% of the fault to Jerry Bass. The judgment against the City of Pineville is reduced to 70% of $153,365.64. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed to the City of Pineville.

MODIFIED IN PART; AFFIRMED IN PART; AND RENDERED.