author: I-i STEWART, J. bBROWN, C.J.,

text:
    STATE of Louisiana, Appellee v. Johnie A. JOHNSON, Appellant.
    No. 38,415-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 14, 2004.
    Rehearing Denied Aug. 12, 2004.

      Stephen A. Glassell, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Laura 0. Wingate, Sean D. Miller, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   I-i STEWART, J.

The defendant, Johnie Johnson (“Johnson”), was convicted of a responsive verdict of manslaughter in a bench trial. The trial court sentenced him to 40 years at hard labor, the maximum sentence. On appeal, defense counsel raises only sentencing errors. However, finding no error by the trial court, we affirm the defendant’s conviction and sentence.

FACTS

On September 29, 2001, officers were alerted via a 911 call that Jami Hairston (“Hairston”) had been kidnapped from her residence in Blanchard. The emergency call was placed by her teenage son, Eugene Murphy. He informed the dispatcher that his mother was taken by Johnie Johnson, her former live-in boyfriend. Officers began looking for the suspect’s truck. Before it was found or the officers reached the residence, the young man called back to say that his mother was in the backyard and that she was dead.

When the officers arrived, they discovered that Hairston (also referred to in the record as Jamie Hairston and Jami Harri-ston) had been shot in the side and the head. In the meantime, Johnson, formerly a Caddo Parish sheriffs deputy, called a fellow deputy and told him that he had just shot his former girlfriend. He also called his former wife’s residence and told his daughter, who answered the telephone, that he had killed Hairston. When his former wife came to the telephone, he gave her specific details about the events leading up to the killing.

He agreed to meet the deputy at his parents’ residence where he was taken into custody without incident. He was subsequently charged with | ^second degree murder and elected to have a bench trial after waiving his right to a trial by jury on the record.

Hairston and Johnson had lived together for about four years before they broke up in late August of 2001. However, on September 9, 2001, Johnson came to the house to finish moving the remainder of his property. As he and Hairston stood in the driveway, they began to argue. Eugene begged Johnson to leave and threatened to call the sheriff; however, Johnson responded that if the sheriff showed up, he would “put a bullet between his eyes.” Apparently, this was not the first time that Johnson had made such threats concerning law enforcement or concerning other men with whom he thought Hairston was involved.

At trial, Eugene testified about the relationship between his mother and the defendant. He gave details of the day of the killing. He stated that on the day of the murder, his mother came in the door being followed by Johnson. Her hair was messed up and her face was red as she told him to get his gun and call 911. However, Johnson grabbed her and carried her back outside. As Eugene went to get his gun, he saw Johnson’s truck leaving.

Johnson testified on his own behalf. He explained that his relationship with the victim began when he was summoned to her residence on a domestic disturbance call involving a prior live-in boyfriend. He admitted that he left his wife and became estranged from his parents to move in with the victim and pursue this relationship. However, Johnson blamed Hairston for ruining his marriage, finances, and career, and he | ^determined that he was not going to let her ruin him further. He asserted that he killed his former girlfriend because she initiated sex with him while they were in the shed in the backyard and then told him she was going to report that he raped her.

The trial judge found Johnson guilty of a responsive verdict of manslaughter. The trial court sentenced him to the maximum term of 40 years at hard labor. The trial court denied a motion to reconsider sentence and this appeal ensued.

DISCUSSION

Excessive Sentence

The substance of Johnson’s three assignments of error on appeal is the alleged excessiveness of the trial court’s sentence. He asserts that the circumstances of this case do not merit the maximum sentence for manslaughter. He argues that the trial court erroneously put weight on the method of the shooting and the fact that he did not stay away from the victim after the couple ceased living together.

The state argues that the trial court knowingly spared Johnson of a life sentence by returning a manslaughter verdict, and that the trial judge thoroughly considered all the testimony and circumstances surrounding the case when he gave the maximum sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or |4mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). In the instant case, the record shows an adequate factual basis for the sentence imposed.

Whether the sentence imposed is too severe depends on the circumstances of the ease and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991).

|,.Although Johnson may be correct in stating that the trial judge did not enumerate or specifically discuss the factors found in La. C. Cr. P. art. 894.1 during the sentencing hearing, the record is replete with evidence that supports the imposition of the maximum sentence by the trial judge. In fact, the trial judge stated he had considered the testimony and the circumstances that gave rise to this murder. Prior to imposing sentence, the court heard extensive testimony from both the state and the defense.

The remarks made by the judge indicate that he found no mitigating circumstances. He also noted that although he had ruled that the killing was manslaughter, it was a homicide that impacted not only the victim’s life, but her family’s as well. The victim’s family members read statements outlining the impact that her death had on them, particularly the victim’s two sons and her invalid father. Of particular note is the fact that the trial judge stated that the defendant should have seen that this situation would be “blowing up miles before it got to this point.”

He also noted that the defendant had shown no remorse. The record shows that he carried the victim out of her house, as she begged him to stop, and after she had told her son to get a gun and call 911. Once outside, he held her by the arm hard enough to cause severe bruising and shot her first in the side and then in the head. He then left without rendering any aid or calling to report that she needed assistance.

More important, however, are the judge’s remarks regarding why he was not going to give him a lighter sentence. He stated that “more tragic results would occur.” The judge was obviously referring to the behavior of | ñthe defendant in weeks prior to the killing. Johnson had lived with the victim for over four years and had moved out of her residence about a month before this incident. Approximately three weeks before the killing, he had returned to the residence. After a heated argument, the victim had called 911. Several witnesses testified that he had made threats to kill his boss, the sheriff, because he thought the victim might be having a relationship with him. He also thought that she might be having relations with the man who owned the health club where the victim worked out and another male friend of the victim, and had threatened to kill them.

Not only did Johnson admit at the sentencing hearing that he had indeed threatened to kill some of these people, he also admitted that he had indicated he would not be taken into custody but would die a “death by cop.” Testimony showed that he discussed this with another officer and this behavior led to his subsequent dismissal from the sheriffs office. This scenario certainly gives plenty of evidence to support the judge’s concern that this career law enforcement officer was truly a dangerous man who had no respect for human life.

During the sentencing hearing, the defense counsel tried to show that other defendants had received light sentences in similar situations. State v. Telsee, 425 So.2d 1251 (La.1983), indicates that this comparison of sentences is a way to make sure that the maximum sentences are reserved for the worst offenders. That court stated:

Another factor is comparison of the defendant’s punishment with the sentences imposed for similar crimes by the same court and other courts. Rummel v. Estelle, supra, 445 U.S. 263 at 295, 100 S.Ct. 1133 at 1150, 63 L.Ed.2d 382 (1980), Powell, J., dissenting; Coker v. Georgia, supra, 433 U.S. 584 at 593-94, 97 S. CT. 2861 at 2866-67, 53 L.Ed.2d 982 (1977); Gregg v. Georgia, supra, 428 U.S. 153 at 179-80, 96 S. CT. 2909 at 2928, 49 L.Ed.2d 859 (1976); State v. Sims, supra, 410 So.2d 1082 (La.1982); State v. Williams, supra, 397 So.2d 1287 (La.1981). Such a comparison helps to assure that a defendant’s sentence will be proportional in comparison with other offenders — that the maximum sentences will be reserved for the most egregious or blameworthy of offenders, and that others of similar conduct will not receive sentences lighter than the defendant’s. [FN2] Cf. State v. Jones, supra, 398 So.2d 1049 (La.1981). See Terrebonne v. Blackburn, 646 F.2d 997, 1006 (5th Cir.1981), Johnson, J. dissenting; Hart v. Coiner, supra, 483 F.2d 136 (4th Cir. 1973).

It should be noted that research into this comparison does not yield much since the maximum sentence for manslaughter was raised to 40 years only in 1992. However, this court since that time has upheld the maximum sentence decisions of trial courts. This comparison shows that the maximum sentences were given in situations similar to Johnson’s conduct.

In State v. Hudson, 33,357 (La.App.2d Cir.5/10/00), 760 So.2d 591, a 25-year-old man was given 40 years for killing a male acquaintance who made a sexual overture to him. He had no prior criminal history.

In State v. Hall, 36,335 (La.App.2d Cir.9/18/02), 828 So.2d 120, the 58-year-old appellant’s maximum sentence was upheld in the conviction for killing his girlfriend with whom he had lived for 15 years. His prior criminal history included convictions for battery, theft, and simple robbery.

In State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, this court upheld the 40-year sentence where the defendant had kidnapped the victim and killed him as part of a plan to commit robbery. This defendant had no adult criminal history.

This court stated in Black, supra, that: A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of | Rdiscretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Madison, 535 So.2d 1024 (La.App. 2d Cir.1988).

This court will not disturb the trial court’s order that gives Johnson the maximum sentence. Johnson’s behavior before the incident and at the time of the killing showed that he had little, if any, regard for human life or the law, despite his career as a law officer. He received great lenience from the court by being convicted of the lesser crime of manslaughter instead of second degree murder. The sentence is harsh, but the sentence imposed is lawful. Considering this record and the totality of the circumstances of this case, the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to the sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which is not constitutionally excessive.

CONCLUSION

We find no error in the trial court’s imposition of the maximum sentence of 40 years for manslaughter under the facts of this case. The conviction and sentence are affirmed.

AFFIRMED.

BROWN, C.J., concurs with written reasons.

bBROWN, C.J.,

Concurring.

At sentencing the trial court took a view inconsistent with its manslaughter verdict. The court moved from finding provocation and sudden passion on defendant’s part to a Mafia-style killing. This appeal is based entirely upon this inconsistency.

According to defendant, the victim had asked him to bring over her son’s fishing gear. While at the victim’s home, defendant readied for removal a shed he owned. He also brought the payment books for her car and breast implants. Defendant told the victim he would not continue to pay her debts. They went to the shed and a sexual act occurred. Afterwards, the victim told him she was going to claim rape and have him arrested. Defendant follows her to the house where she told her son to get a gun and call 911. Defendant’s gun was in his truck. Defendant grabs the victim, goes to his truck, gets his gun, and shoots her twice in rapid fire. Defendant leaves, calls a Caddo Parish Sheriffs Deputy, reports the shooting, and surrenders without incident.

Defendant, who was charged with second degree murder, waived trial by jury. At a bench trial, he is found guilty of manslaughter. The trial court stated that it believed defendant’s story of consensual sex and the victim’s threat to falsely claim rape. Specifically, the trial court concluded that “[it was] of the opinion that this [shooting] was a sudden thought to kill her, that he was provoked enough to cause his blood to boil in sudden passion.” Defendant does not appeal this verdict.

li>As an experienced law officer, defendant should have seen this coming. He met the victim on a call. She was upset because a former live-in boyfriend had not been arrested on a domestic complaint. Thereafter, while living with George Rankin, she initiated contact with defendant, who was married, father of twins, and working three jobs. Defendant left his family and moved in with the victim. What she did with defendant, she did to him. In August, she met Scott Kelly and began a relationship with him. Defendant moved out in September. Once without debt, defendant is now broke and fired from his position as a deputy. The atmosphere is stressful and explosive. It is an old story repeated too often.

At sentencing the trial court said, “One shot to the body and one shot to the head. That’s more Mafia training than law enforcement training.” That is also murder rather than manslaughter. It is the maximum sentence for manslaughter to which defendant objects.

It is difficult to resolve the verdict and sentencing statements of the trial court. An unnecessary death has occurred which, even under defendant’s version, could have been murder. I will not look beyond the trial court’s discretion to sentence within the statutory range.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and CARAWAY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: I,STEWART, J.

license: Public Domain

text:
    Gary D. HOWARD, Plaintiff-Appellant, v. HOLYFIELD CONSTRUCTION, INC., Defendant-Appellee.
    No. 38,728-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 14, 2004.
    Rehearing Denied Aug. 12, 2004.

      Robert M. Hanna, Shreveport, for Appellant.
    Crawford & Anzelmo by Donald J. An-zelmo, Monroe, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   I,STEWART, J.

This is an appeal by Gary D. Howard (“Howard”) from a decision by the Office of Workers’ Compensation denying him the right to select a treating physician, supplemental earnings benefits (SEB), and penalties and attorney fees. For the following reasons, we reverse in part, amend in part, affirm in part, and remand.

FACTS

A trial on the merits was first held in this matter February 20, 2002, where the following facts were established:

1. Howard was an employee of Holy-field Construction, Inc. (“HCI”) on February 7, 2000.
2. On February 7, 2000, Howard sustained injuries from an accident arising out of the course and scope of his employment for HCI.
3. Howard’s weekly wage was $480.00.
4. Howard’s weekly indemnity for temporary total disability benefits (“TTD”) was $320.00.

At the conclusion of the trial the Workers’ Compensation Judge (“WCJ”) dismissed Howard’s case and its demands on the basis of finding a violation of La. R.S. 23:1208. Howard appealed that decision, and this court reversed the WCJ’s finding and remanded the matter for further proceedings. See Howard v. Holyfield, 36,734 (La.App.2d Cir.3/18/03), 839 So.2d 1277. The facts of this matter are discussed more fully in Howard, supra. We will not be unnecessarily repetitive here.

Upon remand, the WCJ held that Howard did not prove that he was entitled to TTD, examination by his choice of upper extremity specialist, or penalties and attorney fees in connection with those claims. However, the | ?WCJ ruled in favor of Howard, awarding him a $2,000.00 penalty, and $500.00 attorney fees for HCI’s failure to timely pay the retroactive adjustment of Howard’s TTD which was made necessary based on HCI’s recalculation of Howard’s weekly wage and TTD rate. This appeal ensued.

DISCUSSION

Standard of Review

Factual findings in workers’ compensation matters are subject to the manifest error or clearly wrong standard of appellate review. Crotwell v. Holloway Sportswear, 32-038 (La.App.2d Cir.06/16/99), 740 So.2d 748. In applying the manifest error or clearly wrong standard, the court must determine not whether the trier of fact was wrong, but whether the factfinder’s conclusion was a reasonable one. We find the WCJ manifestly erred by denying Howard’s claim for supplemental earnings benefits (SEB).

Supplemental Earnings Benefits (SEB)

Howard contends that the WCJ committed manifest error in her determination that the issue of SEB was not properly before the court. The form 1008 shows that “disability status” is checked as a part of the “Bona-fide Dispute.” Pointing to the opening arguments and eviden-tiary disputes in the record, Howard asserts that SEB were firmly pronounced as an issue before the court. Moreover, SEBs are a lesser included element of TTD. La. R.S. 23:1221(3)(c)(i); Graham v. Georgia-Pacific Corp., 26-165, (La.App.2d Cir.9/23/94), 643 So.2d 352; Clark v. Bobby L. Clark Trucking, 28, 405 (La.App.2d Cir.6/26/96), 679 So.2d 157.

| ¡¡The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993); Caparotti v. Shreveport Pirates Football Club, 33, 570 (La.App.2d Cir.8/23/00), 768 So.2d 186. An employee is entitled to receive SEB if he sustains a work related injury that results in his inability to earn ninety (90%) or more of his pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in an inability to earn that amount under the facts and circumstances of the individual case. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the claim for SEB or establish the employee’s earning capacity, must prove by a preponderance of the evidence that the worker is physically able to perform a certain job which was offered to the employee or was available in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, supra.

The record reveals that Howard suffered an extensive injury to his right wrist that required surgery and treatment over a long period of time. Even when he attempted to use the wrist as per Dr. Bailey’s instructions, Howard continued to experience pain after he was released to light to medium duty on the job. Howard was not only evaluated by Dr. Bailey, but by Dr. Craig Springmeyer, an orthopedic surgeon who was selected by Lisa Anderson, the case manager assigned to Howard’s case by LUBA. We|4believe that Howard met his burden to show that he was unable to earn 90% of his pre-injury wage. In compliance with Dr. Bailey’s light to medium duty limitation, HCI agreed to modify Howard’s heavy duty work. This modification demonstrated that Howard was certainly unable to earn 90% of his pre-injury wage as a heavy duty carpenter elsewhere. Nonetheless, the record also reflects that Howard was unable to perform the light to medium duty job for prolonged periods without substantial pain. As a result, he has shown his entitlement to SEB.

The WCJ accorded great weight to the video tape which allegedly depicted Howard using his right hand. The “use” to which the WCJ referred depicted Howard working in short intervals of two or three minutes, but it mostly showed him standing around drinking beer and talking. The work that Howard did in the video was not inconsistent with the gradual attempt to return to the full use of his wrist as per Dr. Bailey’s instructions. Upon the initial review of this tape, the WCJ determined that it demonstrated that Howard was faking his injury. However, we rejected that view in the first appeal of this case. Upon remand, the WCJ used the same tape to conclude that even if the tape did not support the conclusion that Howard was faking, it supported the conclusion that Howard could indeed work and was not entitled to SEB. This finding was clearly erroneous.

When Howard returned to work on June 11, 2001, he attempted to work and use his right arm as per Dr. Bailey’s instructions. Unfortunately, he began to experience pain to the point that he could no longer continue. Instead of seeking to afford Howard further opportunity to work a sedentary yob, HCI sent Howard home and would not allow him to work at all. We conclude that HCI’s lack of patience in working with Howard was done in bad faith based on the belief that Howard was faking or exaggerating his injury. However, this was not a case involving a subjective injury, but an undisputed CTS complication. HCI did not give Howard an opportunity to perform a sedentary job before giving up on him as a carpenter. At a minimum, HCI could have placed Howard in a minimum wage job, reducing its SEB liability.

Attorney Fees

The WCJ has great discretion to award or deny penalties and attorney fees, and her decision will not be disturbed absent abuse of discretion. Awards of penalties and attorney fees in workers’ compensation cases are penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams v. Rush Masonry Inc., 98-2271 (La.6/29/99), 737 So.2d 41. The fact that an employer may be subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. Sharbono, supra, at 1389. Further, penalties and fees are never assessed automatically against the losing party. Williams, supra, at 46.

However, La. R.S. 23:1201(F) provides for the imposition of penalties and attorney fees when indemnity or medical benefits due to the |ficlaimant are not paid timely. However, this does not apply if the claim is reasonably controverted, or if such nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201(F)(2). In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Brown v. Texas-La Cartage, Inc., 98-1063, (La.12/1/98), 721 So.2d 885, 890. The question is whether the defendant “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time which they refused to pay all or part of the benefits allegedly owed.” Brown, supra at 890.

As to the issue of TTD, we find no abuse of discretion by the WCJ in her imposition of the maximum $2,000.00 penalty or $500.00 in attorney fees. However, because we find bad faith on the part of HCI in accommodating Howard when he returned to work in a light to medium duty capacity and subsequent denial of SEB, we amend the previous award of fees and penalties to award an additional penalty of $2,000.00 and award an additional $1,000.00 in attorney fees.

WCJ’s denial of claimant’s right to choose physician.

Howard asserts that the WCJ committed legal error by denying his request for treatment by his choice of upper extremity specialist. We disagree. It is evident that Dr. Bailey was very liberal in his care and treatment of Howard before he released him to return to work in a modified capacity. The record shows that although Howard was experiencing pain, 17Pr. Bailey determined that Howard could return to light duty work and continue to use his wrist because Dr. Bailey believed that Howard’s pain would abate over time. A workers’ compensation claimant is not entitled to change his choice of physician, merely because the first physician has released a claimant to return to work, even where, as here, the release occurred while the claimant was still experiencing pain. Lang-Parker v. Unisys Corp., 2000-0880 (La.App. 1 Cir. 10/5/01), 809 So.2d 441. We find no error in the court’s refusal to allow Howard to choose another doctor.

CONCLUSION

Based on the foregoing, we reverse the WCJ’s denial of SEB, amend the award of penalties and attorney fees, affirm the WCJ’s denial of Howard’s request to choose a physician, and remand for a determination of the proper amount of SEB.

REVERSED IN PART, AMENDED IN PART, AND AFFIRMED IN PART, AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.


author: h STEWART, J.

text:
    TSC, INC. & Larry L. Taylor, Plaintiffs-Appellants, v. BOSSIER PARISH POLICE JURY, et al., Defendants-Appellees.
    No. 38,717-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 14, 2004.
    Rehearing Denied Aug. 12, 2004.

      Joseph W. Hendrix, Shreveport, for Appellants, TSC, Inc., Larry Taylor and Patricia K. Taylor.
    Rountree, Cox, Guin & Achee by Gordon E. Rountree, New Orleans, Patrick R. Jackson, for Appellees, Bossier Parish Police Jury, Attorney General Charles C. Foti (Successor to Richard P. Ieyoub), Jeff Rogers, Henry Mitchell, Jimmy Cochran, Wayne Hammack, William Altimus and Jerome Darby.
    Before STEWART, DREW and HARRISON (Pro Tempore), JJ.
   h STEWART, J.

This matter involves review of a zoning decision by the Bossier Parish Police Jury pertaining to land along the Red River which the plaintiffs, Larry Taylor and TSC, Inc., sought to have rezoned for development of a residential subdivision. After the police jury voted against rezoning, the plaintiffs filed suit alleging that the police jury’s decision was arbitrary and capricious and that the police jury lacked authority to zone the land at issue. Upon entertaining cross motions for summary judgment, the trial court ruled in favor of the Bossier Parish Police Jury and dismissed the plaintiffs’ claims with prejudice. We affirm the trial court’s judgment.

FACTS

Larry Taylor applied to the Bossier City-Parish Metropolitan Planning Commission (“MPC”) to rezone 65 acres of land with over 2000 feet of frontage along the Red River for the purpose of residential and commercial development. The tract of land is bordered on the west by the Red River and on the east by property owned by the Union Pacific Railroad Company. A double set of railroad tracks runs through the Union Pacific Property. The single means of access to Taylor’s tract is the Taylor River Road which runs from Benton Road and crosses the Union Pacific property. Taylor’s land is surrounded by property either zoned 1-2, a heavy industry district, or used for industrial purposes.

|?A small northern section of Taylor’s land is zoned R-A, a residence-agriculture district, and the larger southern section is zoned 1-2. Taylor filed four applications for rezoning as follows:

(1) App. No. P-9-02: To change the northernmost tract zoned R-A, residence-agriculture district, to B-3, a community and central business district, to develop a restaurant, boat launch, and boat storage facility.
(2) App. No. P-10-02: To change the largest section of the tract consisting of approximately 45 acres zoned 1-2, a heavy industry district, to R-l, a one-family residence district, to develop a residential subdivision.
(3) App. No. P-11-02: To change a small tract zoned R-A, a residence-agriculture district, to R-2, a multiple-family residence district, to build townhouses.
(4) App. No. P-12-02: To change a small tract zoned 1-2, a heavy industry district, to R-A, a residence-agriculture district, for use of the area as a dirt pit during construction of the subdivision.

A map of the area shows the northernmost section of land as that designated for commercial development, followed to the south by the area proposed for townhouses, then the residential subdivision, and finally the dirt pit.

The rezoning request of App. No. P-9-02 was granted. However, the other three applications were denied by the police jury following a public hearing on July 24, 2002, when both Taylor and opponents to the rezoning were heard.

Taylor emphasized the limited amount of river front footage available for development in Bossier Parish, the need for industrial and residential areas to co-exist in the river front area, and the tax revenues that would accrue to the parish from development of his land as a residential and commercial area. Noting areas in either Bossier Parish or Bossier City [3where residential areas were next to industrial areas, Taylor asked to be treated equally to others in application of the zoning ordinances. Taylor’s case also emphasized the buffer areas between his land and the surrounding industrial districts, including the levee which his land sits behind and his plans to construct a 4 foot berm with an 8 foot fence. In addition, there would be a gate at the entrance to the subdivision approximately 300 feet from the double railroad tracks and a road for commercial traffic to by-pass the residential area.

Businesses operating in the surrounding heavy industrial districts opposed rezoning on the grounds that residential and commercial development would not be compatible with the existing heavy industry. Industrial operations surrounding Taylor’s land include Hanson Aggregates West, Inc., a sand and gravel terminal which utilizes the railroad; West Viking Drive, L.L.C., which leases land adjoining Taylor’s to Builders’ Supply Company for a ready-mix concrete plant; Reliant Energy, which conducts an operations center to the north of Taylor’s land and has a high pressure pipeline along the southern edge of its property; Union Pacific Railroad; and O.S. Johnson, which operates an asphalt business on Union Pacific property. These opponents raised concerns that noise, odors, and hours of operation of industrial businesses would negatively impact a nearby residential subdivision and result in various community relations problems in time. There was also concern for the safety of children who might wander onto industrial property and get hurt. Other reasons for opposition were increased traffic in the area and delays at the railroad |4crossing, where trains sometimes stopped. Train delays and stoppage were of particular concern since this would block entrance to the residential subdivision, possibly endangering lives in the event of an emergency. Additionally, the existence of an oil well and pipeline on Taylor’s land and the high pressure gas line nearby raised environmental and safety concerns.

Following the denial of the three applications for rezoning, Taylor filed a “Petition for Judicial Review, Writ of Mandamus, and Damages” naming the police jury and the individual members who voted against rezoning as defendants. Taylor alleged that the police jury’s decision was arbitrary and capricious and without any substantial relationship to health, safety, or general welfare of the municipality. In a supplemental petition, Taylor added the attorney general as a defendant and sought declaratory and injunctive relief on the theory that the police jury lacked authority to zone his land. Taylor alleged that Act 527 of 1978, which enacted La. R.S. 33:106.1, repealed both the broad zoning authority of Bossier Parish over certain tracts of land outside the incorporated area of Bossier City and parish ordinances for regulation of such land. He further alleged that restoration of this authority by amendment of La. R.S. 33:106.1 in 2001 did not allow for regulation of his land since the police jury had not passed new ordinances. As an alternative theory, Taylor alleged that Section 19:47 of the Bossier Parish Zoning and Land Use Regulations is unconstitutional for lack of objective language and standards to guide the police jury’s decisions.

|sThe police jury and Taylor filed cross motions for summary judgment. The police jury asserted that Taylor would not be able to meet the burden of proving that the denial of rezoning was arbitrary or capricious. The police jury asserted that it acted in good faith and for legitimate reasons including the incompatibility of residential and heavy industrial areas, terribly inadequate access to the proposed subdivision, the safety and traffic problems related to access and the presence of the railroad tracks, and the safety concerns due to the presence of the oil well and pipelines on the property. The police jury also asserted that Act 527 of 1978 did not repeal authority to zone the land at issue, and alternatively, that if so, the 2001 amendment of La. R.S. 33:106.1 restored that authority. Finally, the police jury asserted that the attack on the constitutionality of the ordinance was insufficiently pled. Taylor’s motion pertained to the legal issues surrounding the authority of the police jury to zone his land.

After a hearing, the trial court rendered a judgment denying Taylor’s motion for summary judgment, granting the police jury’s motion for summary judgment, and dismissing Taylor’s claims with prejudice. In a thorough and well-reasoned written opinion, the trial court concluded that Act 527 of 1978 limited the policy jury’s authority over certain “large lots” outside incorporated limits of Bossier City but did not affect the zoning ordinances which governed the whole of zoning within the five mile boundary outside the corporate limits of the city. Once the legislature reinstated the authority over these “large lots” in 2001, regulation of these lots fell within the purview of the ordinances already in effect. The trial 1 ficourt also concluded that Taylor did not come forward with evidence to corroborate his arguments that the police jury’s decision was arbitrary and capricious. Taylor now appeals.

DISCUSSION

The eight assignments of error asserted by Taylor raise three issues for review. These issues are the trial court’s denial of Taylor’s motion for summary judgment on the authority of the police jury to zone his land; the granting of the police jury’s motion for summary judgment and failure to find that the actions of the police jury were arbitrary and capricious and amounted to a compensable taking of Taylor’s land; and the failure to find the ordinance unconstitutional for lack of objective standards.

We will conduct a de novo review of the trial court’s ruling on the summary judgment motions utilizing the often repeated and well-known principles that govern the trial court’s consideration of whether summary judgment is appropriate. See La. C.C.P. arts. 966-967; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226.

Taylor’s Motion for Summary Judgment

Taylor sought summary judgment on the grounds that the police jury lacked authority to zone his land. The basis for this argument is Act 527 of 1978 which enacted La. R.S. 33:106.1 to provide, in relevant part, as follows:

§ 106.1. Planning commissions; exempt subdivisions; septic tank and field drains permitted
[7A. Notwithstanding any other provisions in this Chapter to the contrary, no parish, regional, or other planning commission, except those of the parishes of Assumption, Cameron, St. Charles, St. James, Lincoln, Plaquemines, St. Tammany, Washington, and St. John the Baptist, and those of any city or municipality within said parishes and except those covering a jurisdiction with a population greater than three hundred thousand, shall have jurisdiction over the following subdivisions of land except with respect to requirements for utilities, drainage and street planning dimensions, composition, and alignment:
(1) Any parcel of land situated outside an incorporated area which is owned wholly by one owner or co-owners and is divided into single-family lots of a minimum square footage of twenty-five thousand square feet, with a minimum width of 125 feet of frontage, provided that the size of the lots can support Office of Health and Environmental Quality requirements for individual sewerage disposal systems and individual water systems after consideration of recognized standards of suitability.

Act 527 further provided, “All laws or parts of laws in conflict herewith are hereby repealed.” Act 527 was approved by the governor on July 12, 1978. Bossier Parish was not among the list of excepted parishes.

On April 11, 1978, prior to enactment of La. R.S. 33:106.1, Ordinance 783 of 1978 was adopted and made part of the Code of Ordinances of Bossier Parish. Subchapter A of Chapter 19 of Ordinance 783 is entitled “Zoning and Land Use Regulations for that Unincorporated Part of Bossier Parish Lying Within Five Miles of The Bossier City Corporate Limits.” These provisions govern zoning of all land lying within five miles of the Bossier City corporate limits, a category inclusive of the land at issue. This zoning authority derived from Act 189 of 1954 which gave Bossier City and the police jury the power to create the MPC and to formulate a master plan for the development of land within Bossier City and within five miles of the city.

IsThe issue presented is whether Act 527 of 1978 repealed Chapter 19 of Ordinance 783. As did the trial court, we find that it did not. Chapter 19 is a broad zoning ordinance for regulation of the entirety of the land lying within five miles of the corporate limits of Bossier City. It is not specific to the land affected by Act 527, which limited the jurisdiction of the MPC and police jury only with respect to designated parcels of land outside incorporated areas. Other than this narrow jurisdictional limitation, the jurisdiction of the police jury over land lying outside the incorporated area of Bossier City remained intact, and the parish ordinances, specifically Ordinance 783, remained in effect. However, the ordinance could not be utilized to regulate for purposes in conflict with Act 527. While the police jury lacked jurisdiction as provided in La. R.S. 33:106.1, it maintained jurisdiction over other land outside the corporate limits of Bossier City for purposes of regulation in accordance with Ordinance 783. As such, we perceive no conflict between Chapter 19 of Ordinance 783 and the limitation of jurisdiction in Act 527 of 1978 which would have necessitated repeal of the ordinance.

Taylor relies on Attorney General Opinion No. 78-1088 of August 21, 1978, which answers whether the authority of the MPC is in conflict with or repealed by Act 527. The opinion states that Act 527 restricts MPC power as to “some property located outside the unincorporated area of Bossier City” and concludes:

[T]hat section of Act 189 of 1954 giving the Bossier City-Parish Metropolitan Planning Commission extensive powers in an unincorporated area within five miles of the corporate limits of Bossier City will be partially repealed by Act 527. Regarding |9those parcels of land exempted from planning commission regulation in Act 527, the Commission will only have jurisdiction with respect to requirements for utilities, drainage and street planning dimensions, composition and alignment.

This comports with our view of Act 527 as limiting the jurisdiction of the MPC and police jury over some parcels of land, Nothing in the attorney general opinion supports Taylor’s position regarding repeal of Ordinance 783. As stated, this ordinance is not limited only to those parcels of land affected by Act 527, but rather applies to all land in the unincorporated part of the parish lying within five miles of the Bossier City limits. Since the MPC and police jury lacked jurisdiction to regulate those parcels of land designated by Act 527, except for specified purposes, the provisions of Ordinance 783 would not apply to those parcels of land but would continue to apply to other land within five miles of Bossier City’s corporate limits.

We find that Ordinance 783 was not repealed by Act 527, and we also find that amendment of La. R.S. 33:106.1 in 2001 to include Bossier Parish among the list of excepted parishes restored full jurisdiction enabling the MPC and police jury to regulate all land lying within five miles of Bossier City corporate limits pursuant to Chapter 19 of Ordinance 783. As stated by the trial court:

[T]he zoning ordinances ... were not affected by Act 527 of 1978. Act 527 merely negated the Police Jury’s authority over “large lots.” It did not affect those regulations which governed the whole of zoning within the five mile boundary outside the corporate limit. The regulations had not been repealed, rather it was the authority over specific types of property that was repealed. Once this authority was reinstated by the legislature, the “large lots” simply fell into the purview of the ordinances which were already in place. Therefore, the MPC and the Police Jury had authority to make zoning decisions about Mr. Taylor’s property when he applied to them for rezoning considerations.

[inFor these reasons, we find no merit to Taylor’s argument that the police jury lacks authority to regulate zoning of his land. Taylor’s claims for declaratory and injunctive relief based on the police jury’s lack of authority were properly denied.

Police Jury’s Motion for Summary Judgment

The police jury asserted that Taylor would not be able to meet the burden of proving that the denial of rezoning was arbitrary and capricious. Under La. C.C.P. art. 966(C)(2), when the mover will not bear the burden of proof at trial on the matter before the court on summary judgment, his burden is to point out an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to meet his evidentiary burden at trial, there is no genuine issue of material fact for trial. La. C.C.P. art. 966(C)(2).

The law governing review of a zoning decision was set forth by the Louisiana Supreme Court in Palermo Land Co. v. Planning Commission of Calcasieu Parish, 561 So.2d 482, 491-492 (La.1990) as follows:

Zoning is a legislative function. The authority to enact zoning regulations flows from the police power of the various governmental bodies....

As early as 1923, this court set forth the proper scope of judicial review of zoning decisions. In State ex rel. Civello, 154 La. 271, 97 So. 440 (La.1923), this court stated:

It is not necessary, for the validity of the ordinance in question, that we should deem the ordinance justified by considerations of public health, safety, comfort, or the general welfare. It is sufficient that the municipal council could reasonably have had such considerations in mind. If such considerations could have justified the ordinances, we must assume that they did justify them.

| nit is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot — not the courts. Id. 97 So. at 444. See Village of Euclid v. Amber Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), in which Civello is cited with approval and quoted. See also, Hernandez v. City of Lafayette, 399 So.2d 1179, 1182 (La.App. 3d Cir.1981), wherein the Third Circuit correctly noted, “even where no competent evidence to support a zoning decision was adduced in front of the governing body, the resulting legislation will nevertheless be upheld if the result is supported by evidence adduced at trial.” Id. at 1182.

A challenge to a zoning decision in Louisiana is a de novo proceeding in which the issue is whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law.... Whether an ordinance bears the requisite relationship to the health, safety and welfare of the public is a factual question which must be determined from the evidence in the record. If it appears appropriate and well founded concerns for the public could have been the motivation for the zoning ordinance, it will be upheld.

The differing needs of each parish, according to its size, population, level of industrial and commercial development, and the rapidity of growth of such development, will naturally result in different planning and zoning regulations in each parish. The need for change through rezoning or reclassification will depend on the same factors, thus rezoning decisions are properly left to those officials who are most familiar with the needs of each community. Judicial review of zoning decisions acts merely as a check on this legislative power granted to parish officials to ensure that there is no abuse of power. Courts will not and cannot substitute their judgment for that of the legislative authority.

(Footnotes and some citations omitted.)

In ruling on the motion for summary judgment, the trial court considered the records and transcripts from the police jury proceedings, affidavits by the six members who voted to deny Taylor’s request for rezoning, depositions of the four members who voted in favor of rezoning, a plat of Taylor’s property, the applicable ordinance, Taylor’s affidavit, and affidavits of persons familiar with the railroad crossing. This evidence shows that both the MPC and police jury took into account various safety, [^health, and welfare concerns and considered the long-term impact of a residential area located in the middle of heavy industrial zones in denying the requested rezoning. The incompatibility of a residential subdivision and the surrounding land zoned or used for heavy industrial purposes was a major factor in the denial of Taylor’s applications. Though Taylor proposed buffer zones as a solution to this concern, one jury member, Bill Altimus, stated in his affidavit that he did not believe the buffer zones sufficiently addressed the compatibility issue. Industrial uses, hours of operation, and noise were all taken into account as potential causes of problems between industrial and residential areas. The existence of an oil well near the south end of the proposed subdivision and a pipeline which would run through the subdivision were also factors that raised environmental concerns pertaining to the health and safety of residents in the proposed subdivision. The single means of access to the subdivision over the Union Pacific railroad tracks and the traffic and safety problems that would result from trains stopped on the tracks blocking access to the subdivision were also significant factors in the denial of rezoning. The depositions of the six members of the police jury who voted against rezoning shows that safety and public welfare concerns were the grounds for their decision and that they conducted a thorough and deliberate consideration of Taylor’s applications. In addition, the four members who voted in favor of rezoning indicated in their depositions that there were legitimate reasons for voting against rezoning and that those who voted against rezoning did so in good faith.

| ^Considering this evidence, we find that the defendants met their summary judgment burden of showing an absence of factual support for Taylor’s claim that the actions of the police jury in denying his request for rezoning were arbitrary and capricious. We also find that Taylor failed to come forward with factual support sufficient to establish that he will be able to meet Ms evidentiary burden at trial of proving that the denial of his applications for rezoning bore no substantial relationship to the public health, safety, or general welfare of the municipality and that the denial was arbitrary and capricious.

Taylor’s argument that other areas have been zoned with industrial and residential areas together does not raise an issue of fact as to whether the denial in this instance was arbitrary and capricious. Neither the map introduced by Taylor nor the arguments of counsel establish that former instances of zoning bear any relationship to the issues before the police jury on Taylor’s applications. Moreover, our review of the applicable ordinances reveals nothing mandating the zoning requested by Taylor.

We also find no merit in Taylor’s argument that the denial of his request for rezoning resulted in a compensable taking by the police jury. Though the trial court did not specifically address this claim, the judgment dismissed Taylor’s action in its entirety. Where a judgment is silent as to a claim or demand, it is presumed that the court denied the relief sought. Stephenson v. Nations Credit Fin. Services Corp., 98-1689 (La.App. 1st Cir.9/24/99), 754 So.2d 1011, 1023. In this matter, the police jury has neither zoned nor rezoned Taylor’s property. No taking has occurred. Taylor 114requested rezoning, and the request was denied. The denial was neither arbitrary nor capricious. We find no basis for this claim.

As stated, zoning is a legislative function, and zoning decisions are made at the discretion of the legislative authorities. Paternostro v. Parish of Jefferson, 289 So.2d 327 (La.App. 4th Cir.1973), writ refused, 293 So.2d 183 (La.1974). “Whenever the propriety of a zoning decision is debatable, it will be upheld.” Palermo Land Co., 561 So.2d at 493. This record establishes that the decision to deny Taylor’s request for rezoning was debatable. The record also establishes that considerations of public health, safety, and general welfare could have, and in fact did, justify the denial. It is not within the province of this court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public. We find no genuine issue of material fact for trial on the issue of whether the denial of rezoning was arbitrary and capricious. Accordingly, the granting of the police jury’s motion for summary judgment was appropriate.

Constitutionality of Ordinance 783

Taylor argues that Sections 19:22 and 19:27 of Ordinance 783 are unconstitutional for lack of objective standards which leaves zoning decisions to the unbridled discretion of the members of the police jury. The police jury argues that Taylor’s allegations are neither specially pleaded nor particularized as required to challenge the constitutionality of a law. While this claim too was not specifically addressed by the court, it is presumed 11Bthat dismissal of Taylor’s action included denial of this claim as part of the judgment.

A similar challenge was made to a zoning ordinance in Paternostro v. Parish of Jefferson, supra, when the parish council denied the plaintiffs request to rezone a single family residential district to a neighborhood commercial district. The court rejected the challenge stating:

[A] change in a zoning classification is a valid exercise of the legislative function, and legislators have discretion in doing so. It follows that the ordinance under consideration is not vulnerable to a charge of unconstitutionality because of the absence of objective standards or guidelines for the councilmen to follow in passing upon applications for changes in zoning....

Paternostro, 289 So.2d at 333.

We agree with the reasoning of Patemostro. The decision of whether to rezone land is one left to the discretion of the police jury. The relevant ordinances, which we have reviewed, set forth parameters to guide the members of the police jury in such discretionary decision-making. Zoning is not a uniform exercise of power to apply mandatory rules. Rather, zoning is fact-intensive and involves considerations specific to the individual circumstances of each case. We find no merit in this claim.

CONCLUSION

For the reasons expressed in this opinion, we affirm the judgment of the trial court dismissing this action by T.S.C., Inc., and Larry L. Taylor with prejudice. Costs assessed to plaintiffs-appellants.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, PEATROSS, DREW and HARRISON, JJ.

Rehearing denied.

      . Larry Taylor is president of TSC, Inc. These two plaintiffs are referred to collectively in the opinion as "Taylor.”

      . Members of the police jury named as defendants were William Altimus, Jeff Rogers, Henry Mitchell, Jimmy Cochran, Wayne Ham-maclt, and Jerome Darby.


author: h CARAWAY, J.

text:
    Ressie PAMPLIN and Alvin Pamplin, Plaintiffs-Appellees v. BOSSIER PARISH COMMUNITY COLLEGE, Defendant-Appellant.
    No. 38,533-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 14, 2004.
    Rehearing Denied Aug. 12, 2004.

      Charles C. Foti, Attorney General, Louisiana Department of Justice, by Mark E. Posey, Assistant Attorney General, for Appellant.
    Patricia N. Miramon; Shreveport, for Appellees.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   h CARAWAY, J.

In this case, a student at the community college slipped and fell while walking on a campus sidewalk. The section of the sidewalk was composed of a metal plate providing a drain under the walkway. The metal plate was wet with condensate. A jury determined that the institution was liable for its student’s accident and awarded damages. The institution appeals, asserting, inter alia, that it had no prior notice of the condition of the metal drain plate and that no prior accidents had occurred on the drain in question or on similar drains around the campus. Finding that the plaintiffs failed to prove that the defendant had prior knowledge or constructive notice that the sidewalk’s condition presented a risk of injury, we reverse.

Facts

On January 18, 2000, Mrs. Ressie Pamp-lin, a retired homemaker, seriously injured her ankle after leaving a college bookstore and slipping on a metal plate (hereinafter the “Drain Plate”) covering a drain area between the concrete portions of the campus sidewalk. Mrs. Pamplin was enrolled part-time at Bossier Parish Community College (“BPCC”) and visited the bookstore early that morning to buy the textbook for her computer class. The weather conditions were clear, but nevertheless, the Drain Plate in question was wet, presumably due to condensate.

Mrs. Pamplin and her husband, Alvin, filed suit on October 20, 2000, alleging that the Drain Plate where she fell was “wet and slimy with dew or rain and weather conditions,” and that the “metal was a less tractive surface.” Further, the petition alleged that the Drain Plate “was not made of |2a slip-resistant material,” and that these conditions created an unreasonable risk of harm.

On January 19, 2001, The Board of Supervisors of Community and Technical Colleges (hereinafter “the State”) on behalf of BPCC answered the petition, asserting as its defense that it could not be liable for the Drain Plate’s condition because it neither owned the premises nor had assumed responsibility for their condition. The State’s answer revealed that the campus was leased from the Bossier Parish School Board (hereinafter the “School Board”) in 1997.

Following the State’s answer, plaintiffs filed their amended petition adding the School Board as a party defendant on January 24, 2001. The School Board answered the suit and ultimately asserted a peremptory exception of prescription. The trial court dismissed it from the proceedings after finding that the Pamplins’ claim against the School Board did not relate back and therefore was prescribed. This judgment was not appealed.

As shown by the photographs of the Drain Plate in the appendix to this opinion, the metal plate was approximately one foot wide. The plaintiffs do not claim that the Drain Plate was not flush with the level of the concrete. Rather, they asserted at trial that raised diamond-shaped traction bumps on the Drain Plate had been worn down by the pedestrian traffic. Other similar drains were installed along the sidewalks of the campus.

Although the School Board had previously operated BPCC on' this same property, in 1997 BPCC became a state institution. Since the State |3began operating BPCC, its employees testified that no other slip and fall had occurred as a result of moisture on the metal plates. Joe St. Andre, who had worked at BPCC in different capacities for the School Board and the State since 1989, testified that he had no knowledge of any such accident occurring on the small campus during that time. The plaintiffs presented no evidence from either the School Board records or its personnel showing accidents from the various metal drains on the campus in the years before 1997.

Regarding the lease itself, the State cited Paragraph 15 regarding maintenance of the leased premises, which provided:

15.
The lessor shall be responsible for maintaining the entire building and site in good condition throughout the term of the lease. Lessor shall make all such repairs to the premises as may become necessary because of breakage or other damages not attributable to the negligence of the Lessee, its agents, or its employees. Lessor shall be responsible for any damages to Lessee’s employees, agents, invitees, visitors, and property and/or equipment that are a result of Lessor’s negligence to properly maintain the premises.

The matter was set for a jury trial on September 22, 2003. In late August, the State moved for summary judgment, arguing that it neither owned the premises upon which the accident occurred, nor assumed responsibility therefor under the particular provisions of its lease agreement with the School Board. Appellant argued in the alternative that it had no actual or constructive notice of any defect in the premises. The trial court denied this motion before trial.

|4A week before trial, the State filed a motion in limine to exclude the introduction of any evidence of subsequent remedíal measures that were taken after Mrs. Pamplin fell. This evidence concerned discovery responses showing strips of adhesive tape that were applied to the Drain Plate at some point in time. The State’s motion was denied and evidence regarding the adhesive tape, as thoroughly reviewed below, was introduced at trial.

After a four day trial, the jury returned a verdict in which it determined the State to be 90% at fault for the accident and the School Board to be 10% at fault. The jury awarded damages to Mr. and Mrs. Pamp-lin. This appeal ensued.

Discussion

The State’s first assignment of error complains that the trial court erred in denying its motion for summary judgment. This questioning of the trial court’s denial of its motion for summary judgment is procedurally misplaced. In Hopkins v. American Cyanamid Co., 95-1088 (La.1/16/96), 666 So.2d 615, our Supreme Court instructed that appellate review of a trial court’s denial of a motion for summary judgment is foreclosed after a full trial on the merits. The court stated:

The court of appeal decided this issue, not based upon the record, but upon the pleadings and evidence ' presented in support of the pre-trial motion for summary judgment. This was emmeous for the following reason: once a ease is fully tried, the affidavits and other limited evidence presented with a motion for summary judgment — later denied by the district court — are of little' or no value. Appellate courts should not rule on appeal after a full merits trial on the strength alone of affidavits in support of a motion for summary judgment that was not sustained, in the district court. In such cases, appellate courts should review the entire record.

\rjd. at 624. Accordingly, in view of this ruling, while the issues of the State’s duty and notice are properly before us by the appellant’s argument, the evidence presented at the time of the pre-trial interlocutory ruling and the de novo standard of review for summary judgments are no longer pertinent. We will consider the issues raised in the State’s argument in view of the evidence presented at trial under the manifest error standard of review.

The State first claims that because the School Board owns the property and did not shift maintenance responsibility for the sidewalk to the State in the lease, the State has no liability under La. C.C. art. 2317.1 or La. R.S. 9:2800(C) as the custodian of the property and breached no other duty to the plaintiff. This argument fails to recognize that, whether under Article 2317.1 or under Civil Code Article 2315, the State owes a similar duty to protect its students from the risk of harm of a known defective condition on its campus. We will therefore examine fault under both of these articles.

Article 2317.1 Fault

An individual is responsible for the damage caused by things in his custody. La. C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect 1 ¡¡which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise such care. La. C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Brown v. Williams, 36,863 (La.App.2d Cir.7/31/03), 850 So.2d 1116, 1120, writ denied, 03-2445 (La.11/21/03), 860 So.2d 555.

The State’s argument disputing Article 2317.1 fault, which served as the predominant controversy at trial, centered over the “garde” of the sidewalk which it leased from the School Board. The Louisiana Supreme Court has ruled that in the cases involving a bifurcation between the ownership and possession of a defective thing, such as in the lease setting, “[w]hether the law imposes a duty of garde ... is a factual inquiry.” Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La. 1991). In other words, contrary to the State’s argument, the court is not presented with a question of law in this context regarding duty or with a question which is decided solely by the language of the lease to which the plaintiffs were not Lprivy. The lease setting creates a factual dispute regarding the “duty of garde,” resulting in Article 2317.1 fault against either the lessor or lessee. Some appellate rulings have even gone so far as to pronounce “that ‘custody’ or ‘garde’ of a thing cannot lie in both an owner and a lessee simultaneously.” Guillory v. Foster, 634 So.2d 1372, 1375 (La.App. 3d Cir.1994); Tannehill v. Joguyro, Inc., 97-571 (La.App. 5th Cir.4/9/98), 712 So.2d 238, writ denied, 98-1275 (La.6/26/98), 719 So.2d 1060.

From the verdict finding the School Board at fault, it does appear that the jury placed the “duty of garde” for the Drain Plate on the School Board, there being no other relationship between the School Board and Mrs. Pamplin from which a duty could otherwise arise. Nevertheless, with the elimination of strict liability, the “duty of garde” in a lease setting under Article 2317.1 has become overshadowed by the issue of notice or knowledge of the defect. This notice or knowledge of the defect now creates a negligence duty to protect guests on the leased premises from known defects which is uniformly applicable to both lessor and lessee alike.

|sTherefore, we need not determine whether the jury was correct in placing the duty of garde on the School Board and finding it at fault in this case. The general tort duty of the State in relation to its students under Article 2315 provides a similar analysis for negligence whether or not the State had garde of the sidewalk.

Article 2315 Fault

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under La. C.C. art. 2315 for the act or inaction of a defendant, such as the State. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-276.

The duty element of this case asks whether the State had a duty to conform its conduct to a specific standard. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Posecai v. WalMart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762.

|flIn defining the duty of the State in this case, there are two important relationships to consider. First, regardless of whether the State had the actual garde of the sidewalk, it clearly had the possession and use of the sidewalk for the two-and-one-half years prior to the accident. Second, the State had a relationship with its students who are invited to use its campus and the sidewalk access to its facilities.

From these circumstances, we find that the State owed a duty under Article 2315 to Ms. Pamplin which is comparable to the duty of a custodian under Article 2317.1. The State’s duty was to act to protect its students from any unreasonable risk of harm that could arise from a defective condition on the campus which was known to the State.

The State’s second argument is that it did not breach this duty because it lacked notice of the condition of the Drain Plate. Since the State had the continuous use of the sidewalk and had the maintenance duty regarding the removal of trash from the sidewalk, we believe that a constructive notice element not unlike the test of Article 2317.1 is included within the knowledge aspect of the State’s duty and was required to be shown by the plaintiffs, in the absence of the State’s actual knowledge. Therefore, if, “in the exercise of reasonable care,” the State should have known of this problem with the Drain Plate, it may be found negligent for the breach of its duty.

Plaintiffs had the burden at trial of establishing that the State knew or should have known that a dangerous condition existed as the result of the Drain Plate that posed an unreasonable risk of harm to its students. linPlaintiffs argued that the notice was shown by the fact that the wet and slippery condition of the Drain Plate had always existed before the accident due to the weather, thus giving notice to the State. Additionally, while plaintiffs’ expert did not state that the diamond shaped traction bumps on the Drain Plate were a defective design, he did testify that the steel traction bumps were worn. No evidence of scientific testing comparing the traction of the metal and the concrete was presented.

To the contrary, the State presented evidence that no accidents involving any of the similar drain plates located along the sidewalks of the campus had ever occurred since it took over campus operations from the School Board in 1997. Also, current employees of the State who were formerly employed at BPCC by the School Board before 1997 gave testimony that no other slip and fall accidents had occurred on a drain plate during the many years prior to 1997. The evidence showed that the Drain Plate was stable and flush with the adjoining concrete.

The most important ruling of our highest court concerning publicly maintained sidewalks is Boyle v. Board of Supervisors of Louisiana State Univ. and Agric. & Mechanical College, 96-1158 (La.1/14/97), 685 So.2d 1080. The decision found that a sidewalk irregularity at LSU did not present an unreasonable risk of harm, a threshold issue which the State in this case has not assigned as error. Nevertheless, the ruling also has important implications for the issue of notice.

Inin Boyle, the court reversed a finding of liability on the public entity for a trip and fall caused by a crack in the sidewalk between two concrete slabs resulting in one slab being approximately one-inch higher than the other. The court said:

Courts have consistently held that state entities are not liable for every irregularity in a street or sidewalk. This Court, in White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949) reversed the lower courts and held that a slab of sidewalk which was one-half an inch to two inches lower than the contiguous slabs did not present an unreasonable risk of harm to a plaintiff who was walking along the sidewalk and tripped on the irregularity. In so holding, the Court stated:
[A] municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury.
For determining what is a dangerous defect in sidewalk ... there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonable (sic) safe condition for persons exercising ordinary care and prudence. White, supra [43 So.2d] at 620.

Id. at 1082. (Citations omitted).

Significant to our inquiry here regarding notice, is the fact that the one-inch expansion joint depression in Boyle presented a clearly visible problem which had existed for a number of years giving the defendant opportunity to discover it. See, Boyle v. Board of Supervisors of Louisiana State Univ. and Agric. & Mechanical College, 95-1803 (La.App. 1st Cir.4/4/96), 672 So.2d 254 (prior ruling of court of appeal finding that LSU had constructive notice of the sidewalk defect). Thus, in Boyle, under the risk-utility balancing test with an openly apparent irregularity being an | ^undisputed fact, our highest court overruled the trier-of-fact and determined on policy grounds that not every visible and discoverable irregularity in a sidewalk results in the imposition of fault. With the issues of constructive notice and unreasonable risk of harm clearly intertwined in the Boyle ruling for visible irregularities in sidewalks, the court partially justified its conclusion of no liability by stating that “the fact that the first accident did not occur during the defect’s existence of several years while heavy traffic provided the exposure, is a factor to be taken into consideration along with the size of the defect, in determining the relative risk of injury.” Id., 685 So.2d 1080, 1083. See also, Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

In contrast to LSU’s ability to constantly observe the defect in Boyle, the alleged defect in this case was not obvious. Only during rain or other weather conditions, might the State have discovered that the less tractive surface of the Drain Plate presented a risk of harm. There was no evidence that a State employee had actually slipped in wet conditions or 'experienced a problem with traction on the Drain Plate.

Regarding the issue of constructive notice, the defect in this case is comparable to the latent defect in the large old tree in the ruling in Loescher v. Parr, 324 So.2d 441 (La.1975). In that case, Parr and his neighbors testified that the tree appeared healthy. It had obviously withstood the tests of nature over a long time. Before the Louisiana Supreme Court established in Loescher the new theory of strict liability under its interpretation of Civil Code Article 2317, the lower courts did not find that, in the exercise of | ^reasonable care, the owner of the tree had the affirmative duty to test the tree’s condition for a latent defect which an old tree might reasonably be expected to have developed. See, opinion of lower court, Loescher v. Parr, 312 So.2d 347 (La.App. 1st Cir.1975). The owner of the tree was not negligent because the old tree could have been tested. Instead, the owner could rely on his observation which reasonably indicated that the tree did not present an unreasonable risk of harm.

In this case, the State’s observation of the condition of the sidewalk, even in damp weather conditions, also did not indicate that its students were experiencing a risk of harm. Under these circumstances, the State, in the exercise of reasonable care, was not required to have taken action by which it might have learned of the condition which caused this accident. Accordingly, we do not find that the State knew or, in the exercise of reasonable care, should have known, that the Drain Plate was defective.

Finally, in brief to this court, the Pamplins argue for the first time that they proved that a slip-resistant tape was applied to the Drain Plate before the accident and that this was evidence of the State’s prior actual knowledge of the problem. This contention is contrary to their argument to the trial court for the allowance of post-accident remedial evidence and their factual argument to the jury. Moreover, the factual contention is not supported by the record.

In the presentation of plaintiffs’ case, the State’s maintenance man, Roy Roby, was called to testify. In his testimony, he described a taping procedure for the Drain Plate which he performed and continuously |umonitored. He stated that the skid-resistant tape would become unglued and ragged by the pedestrian traffic and that he would routinely replace the tape.

As to the critical issue of the time of commencement of the procedure, plaintiffs’ counsel established in the questioning of Roby that he had first performed the procedure at the directive of his immediate superior, Joe St. Andre. From St. Andre’s testimony it was clear that he had first observed the tape on the Drain Plate after the accident and after the time he had taken the job as Director of Physical Plant in the summer of 2000. Yet, St. Andre was unsure whether the tape was on the Drain Plate when he became Director of Physical Plant.

During the State’s questioning of Roby, however, his testimony made a turn in the timing of the taping. Unexpectedly, Roby remembered that the State’s employee, David Francis, had first instructed him to implement the taping of the Drain Plate. He also revealed that both he and Francis had worked in maintenance services before January 2000, when the accident occurred. Roby, however, was unsure when the taping of the Drain Plate first occurred in relation to the accident date.

Neither the State nor the plaintiffs called Francis as a witness. Nevertheless, from Roby’s testimony and the testimony of Raymond Carney, the following information about Francis was presented at trial. Francis was employed at BPCC by the State on the date of the accident. Carney, who had worked at BPCC since the fall of 1999, became the environmental, health, and safety director at the school in July 2000, six months after the accident. Carney testified that although the job and title of environmental, |1fihealth and safety director was not employed prior to his first taking that role, safety duties were carried out prior to July 2000 by Francis. When Francis left BPCC at some time after the accident, Carney took over his former duties regarding campus safety.

From this testimony, any slight inference which the plaintiffs now first argue to this court that the skid-resistant tape could have been placed on the Drain Plate prior to the accident is overwhelmed by evidence indicating that Francis directed its placement by Roby after the accident. The plaintiffs presented evidence that no tape or remnants of tape were on the Drain Plate on the date of the accident. Plaintiffs’ photos (see appendix), taken by plaintiffs’ counsel after the accident, show no tape over the raised diamond metal plates. Roby’s maintenance procedure of taping the entire Drain Plate and routinely re-taping it unquestionably had not begun prior to the accident. When arguing the admissibility of this taping evidence, the plaintiffs asserted La. C.E. art. 407’s allowance for subsequent remedial measures for proof of the issue of garde. It was not asserted that the evidence established that the taping occurred prior to the accident and was thus relevant to the issue of the State’s actual pre-accident knowledge of the need for better traction on the Drain Plate. Finally, in plaintiffs’ argument to the jury, counsel described Roby’s testimony as follows:

... Mr. Roby testified that at the time of Ms. Pamplin’s accident he was unaware of any warning signs or anything to indicate that the area would be wet or slippery. Mr. Roby testified that he put the non-skid tape out over the particular area where Ms. Pamplin fell after she fell. ... (Emphasis supplied).

| ^Accordingly, the plaintiffs’ newfound position that the jury could have determined that the State had actual knowledge of the condition and taped the Drain Plate before the accident finds no support from the record.

Conclusion

From our determination that the plaintiffs did not present evidence of the State’s prior knowledge or notice of the condition of the Drain Plate, the judgment in favor of the plaintiffs is reversed. Costs of appeal are assessed to plaintiffs.

REVERSED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

STEWART and MOORE, JJ., would grant rehearing.

APPENDIX

      . A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of "manifest error” or unless it is "clearly wrong.” Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993).

      . We note that while both parties have now cited with approval to this court the application of La. R.S. 9:2800(C) for governing the liability of public entities with "garde” over a defective thing, the jury was only instructed by the trial court, over no objections by the parties, under Articles 2317 and 2317.1 of the Civil Code. Nevertheless, since the addition of knowledge as an element under Art. 2317.1 has effectively eliminated strict liability in Louisiana, the two statutes are virtually the same. Williams v. City of Baton Rouge, 02-682 (La.App. 1st Cir.3/28/03), 844 So.2d 360. We will refer to this liability for the custodian of a thing in this opinion as Article 2317.1 fault.

      . In the landmark ruling in Loescher v. Parr, 324 So.2d 441 (La.1975), although the issue of garde under La. C.C. art. 2317 was undisputed, the court noted that “the things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them.” Id., p. 449 fn. 7. This concept was further reviewed in a setting where ownership and possession of the defective thing was separated in two parties in Ross v. La Coste de Monterville, 502 So.2d 1026, 1032 (La. 1987), and the court held:
      [W]e conclude that an owner of a thing who transfers its possession, but not its ownership to another, continues to have the garde of its structure and is obliged to protect others from damage caused by structural defects arising before the transfer.

      . In Mix v. Krewe of Petronius, 95-1793 (La.App. 4th Cir.5/22/96), 675 So.2d 792, the city/lessor was found liable for the defective lighting along the steps of the auditorium it leased to the Krewe of Petronius. While the Krewe's duty owed to its invitee, the plaintiff, was considered, the city was held solely liable. The court ruled that "Petronius must have had the ‘right of direction and control' such as would have allowed it to change the lighting and repaint the landing to provided a visual contrast.” Id. at 796. In contrast, the court in Guillory v. Foster, 634 So.2d 1372 (La.App. 3d Cir.1994), found the lessee, and not the lessors, liable for a trip and fall from a board which the lessee affixed to the dance floor of its lounge as part of the railing around the band.

        . Even in those contexts where the lessor has contractually placed responsibility on the lessee and has no garde of the premises, La. R.S. 9:3221 nevertheless recognizes liability on the lessor who "knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”

      . Since the State does not contest whether the Drain Plate was defective, we make no finding regarding that issue.