source: Caselaw Access Project

author: 11 TRAYLOR, J. [ 1 VICTORY, J.,

license: Public Domain

text:
    Annette TOSTON, as Curatrix of Syvella Toston and Tutrix of Tyra Toston v. James D. PARDON, Nelson R. Carr, Progressive Security Insurance Company, Illinois National Insurance Company, State Of Louisiana, through Department of Transportation and Development.
    No. 2003-C-1747.
    Supreme Court of Louisiana.
    April 23, 2004.
    Rehearing Denied June 25, 2004.
   11 TRAYLOR, J.

We granted this writ to determine whether the court of appeal performed its review under the proper standard. For the foregoing reasons, we find that the court of appeal misapplied the manifest error standard of review. Accordingly, we find that the trial court was not manifestly erroneous in finding that the State of Louisiana, through the Department of Transportation and Development (“DOTD”), was a cause-in-fact of the plaintiffs injuries. We also find that the trial court was manifestly erroneous in finding that defendant, James Pardon, an intoxicated driver who failed to yield the right of way, was not negligent. Accordingly, we reapportion Pardon’s fault to 20% and DOTD’s fault to 80%.

FACTS AND PROCEDURAL HISTORY

This automobile accident occurred at the “T” intersection of Lanes Ferry Road on State Hwy. 2 near the Bayou Macon Bridge in East Carroll Parish. At 8:40 p.m. on LApril 9, 1997, James Pardon (“Pardon”), the driver of a Ford F-350 one ton dually pick-up truck, was approaching the intersection traveling north on Lanes Ferry Road. He testified that he observed the stop sign and stopped. Pardon then proceeded to make a left turn onto Hwy. 2 and collided with a 1987 Mercury Cougar driven by Nelson Carr (“Carr”). The guest passenger in Carr’s vehicle, Syvella Toston (“Syvella”), was severely injured.

Syvella’s mother, Annette Toston, in both her capacity as curatrix of her daughter, and as tutrix of her granddaughter, sued the drivers of both vehicles and their respective insurers, the East Carroll Parish Police Jury, and DOTD. Pardon, his insurer, and the police jury were dismissed prior to trial, leaving the DOTD as the only remaining defendant at trial.

DOTD is the custodian of the east-west Hwy. 2 and is responsible for the signing of the intersection, which requires the Lanes Ferry Road traffic to stop. The dimensions for the accident scene reveal that Bayou Macon Bridge is located approximately 160 feet to the west of the intersection. The bridge is 207 feet long. The south railing of the bridge rises to a height of 36 inches above the deck of the bridge. Lanes Ferry Road rises up at a slope as it extends onto the right of way for Hwy. 2 to the intersection. The stop sign on Lanes Ferry Road is located down the slope approximately 27 feet from the intersection.

At the time of the accident, Pardon was on his way home from Sweet Pea’s Bar. He spent the afternoon and evening there, playing video poker, drinking beer and at one point, eating some pizza. Pardon knew the Lanes Ferry Road vicinity well because he had a hunting camp in the area.

Officer Harwell, the state trooper investigating the accident, testified that he smelled a strong odor of alcohol about Pardon. Pardon was taken first to the hospital |3in Lake Providence and then to the North Monroe Hospital, where a blood sample obtained at 11:55 p.m. revealed a blood alcohol level (“BAL”) of 0.15g% alcohol. At trial, DOTD’s expert toxicologist testified that another blood sample drawn earlier (at 10:10 p.m.) was 0.227g% alcohol. Using the two BAL figures, the toxicologist extrapolated the range of Pardon’s BAL at the time of the accident to have been between 0.215g% and 0.293g% alcohol, which he characterized as “grossly intoxicated.”

After the accident, Pardon consistently maintained that, in spite of his intoxication, he remembered stopping at the intersection and looking both ways on Hwy. 2 before attempting the left turn. Pardon actually described stopping twice in his deposition testimony. The first time was back from the intersection at the stop sign. He then indicated that he eased forward and stopped a second time. To show where he last stopped, during a pre-trial deposition, Pardon marked a red “X” on a photograph to show the location of his truck’s front bumper about three feet from the intersection. He identified the photo at trial and again indicated that location as an approximation of his final stopping point.

Pardon testified at trial that the only headlights he saw as he made his stop at the intersection were on the far west side of the bridge. On that opposite side of the bayou, another parish road traverses Hwy. 2 north and south and apparently a store or other place of business is located off the road. Pardon testified that he thought the car headlights turned off at the other parish road. As to what he remembered seeing moments before the collision, Pardon admitted that he had thought “at one time that [Carr] did not have his lights on.” Describing his entry into the intersection, Pardon answered as follows:

Q. Now. The first time you stopped, did you look for traffic?
14A. Yeah.
Q. Which way did you look?
A. Looked back toward East Carroll.
Q. That’d be to your right?
A. Yeah.
Q. Did you look to your left?
A. Yeah.
Q. Did you see any headlights or any lights of an approaching vehicle on Hwy. 2 from your left?
A. When I looked that time, I pulled up again, then, I looked toward East Carroll again and I looked back, and I thought I seen something coming, but it, you know, it just disappeared and I just eased out there and that’s when we had the wreck.
Q. I want to make sure I understand the sequence. You pulled up to the stop sign. You say you looked right and left at the stop sign. You saw no lights. Is that correct? Do I understand that right?
A. Yep. (Yes)
Q. Then, you say you pulled up at or around where you marked the x in that photograph I just showed you, DOTD-58. You said you looked to your left?
A. Toward East Carroll, yeah.
Q. To your right and then again to your left?
A. And, I looked to my left and then, I started easing out and that’s when we had the wreck.

Plaintiffs highway safety design expert, Dr. John Glennon, testified that the proximity of the bridge to Lanes Ferry Road, the opaqueness of the bridge railing, the overall geographical terrain, and relatively low elevation of Lanes Ferry Road, all coalesced to effectively “hide” an eastbound car proceeding down Hwy. 2 from the view of a driver proceeding down Lanes Ferry Road. He stated that the sight problem, | ¡(primarily caused by the bridge’s railing, exists when the driver’s point of vision is from 15 to 30 feet away from the intersection.

Dr. Glennon discussed the safety standards for the design and regulation of the highway intersection established by the American Association of State Highway and Transportation Officials (“AASHTO”). He stated that the AASHTO standard for the driver’s observation point while stopping at an intersection is 20 feet from the edge of the pavement of the intersection roadway (hereinafter the “AASHTO Location”). That standard takes into account the fact that a motorist may not always stop at the nearest location to the intersection where his field of vision would be best. From that point on Lanes Ferry Road, Dr. Glennon determined the intersectional sight distance for an object approaching the intersection at the height of the headlights of the Carr vehicle. The average driver sitting at an eye level of 3/4 feet above the ground at the AASHTO Location could only see easterly a distance of 320 feet to a point on the west end of the bridge. Beyond that point, the bridge railing would block the driver’s vision of the headlights. According to Dr. Glennon, AASHTO recommends 550 feet of sight distance for the intersection.

Dr. Glennon testified that the State could compensate for the lack of sight distance by posting a 35 mph advisory speed on Bayou Macon Bridge, which would be an appropriate speed for the 320 foot sight distance; paint a stop bar that would be at a point close enough to the intersection so that drivers can see down Hwy. 2; or install a large fish-eye mirror which would allow drivers to see approaching traffic in those places where visibility poses a problem.

In the DOTD’s cross-examination of Dr. Glennon and the plaintiffs other highway safety design expert, Dr. Morris Bron-stadt, an issue was raised regarding the utilization of two AASHTO factors. First, while AASHTO utilized a standard driver Leye height of 3 feet 6 inches, Pardon’s eye height in his large truck was 5 feet 3)4 inches. Dr. Glennon, however, testified that Pardon’s enhanced eyesight in his truck would give him a sight distance of more than 320 feet, but nowhere near the 550 feet recommended by AASHTO. Second, AASHTO allows for a 51-inch object height for the oncoming vehicle and makes no distinction for determining the sight distance in daylight or darkness. This object height roughly corresponds with the top of the Cougar in this case, which is 53 inches high. Nevertheless, Dr. Glennon’s 320-foot sight distance calculation was based upon a 3)4 foot driver eye height and an object height of only 26 inches, which corresponded to the headlight height of the Cougar. At the AASHTO Location twenty feet from the intersection, Dr. Bronstadt’s distance calculation for seeing the top of the Cougar was 530 feet from the 5-foot 3)4-inch vantage point of Pardon’s truck. Dr. Bronstadt also admitted on cross examination that one section of the AASHTO standards handbook contains a statement indicating that the beams of a headlight can be seen farther at night than the top of the car can be seen during daylight, but qualified this testimony because in his opinion the bridge railing would hinder a motorist’s ability to continuously see the headlights.

DOTD’s expert in accident reconstruction, Dr. Mike James, testified that, based on his SMACK reconstruction, Carr’s ve-hiele was going 45-55 mph and Pardon’s truck was going 18-22 mph at the time of impact. He testified that the vehicles were turned at an angle when they collided, and that the damage in the side of the Cougar was caused by the forward momentum of Pardon’s truck. Pardon’s truck “rode up on” Carr’s vehicle, crushing the “A pillar,” which attaches the roof to the hood of the |7car, eighteen inches. A cap or lug nut from the truck’s front tire was imbedded in the door of the Cougar. The truck’s right front tire flattened on impact, leaving gouge marks near the cen-terline of the road. According to Dr. James, the impact occurred very close to the centerline Hwy. 2. The force of Pardon’s truck, which weighed 5,700 pounds empty and was also carrying an arc welding machine in the cargo bed that day, moved the Cougar sideways, bringing it to rest in a ditch. Pardon’s truck spun around and ultimately came to rest farther down Lanes Ferry Road. Dr. James estimated the truck’s post-impact speed at 5 to 10 miles per hour as it rolled back down Lanes Ferry Road.

Dr. Glennon testified that in his opinion, the physical evidence of the collision indicated that Pardon’s truck was traveling at approximately 5 to 8 mph as he pulled out onto Hwy. 2. Dr. Glennon disputed the SMACK’s results and testified that based on his calculations, if the truck was traveling at 22 mph, the car and the truck would have ended up in different positions, farther to the north. He characterized the collision between the pick-up truck and the Cougar as “ha[ving] all of the characteristics of a vehicle that has pulled out from a side road at a very slow speed ...” and that the slow speed of Pardon’s truck tended to suggest that Pardon had stopped before entering the intersection. On the other hand, when Dr. James employed Dr. Glennon’s estimate of 6.7 mph for Pardon’s truck into the SMACK program, the re-suiting collision produced a maximum crush of six inches on the Cougar door, compared to eighteen inches of actual crush produced by the accident.

Dr. James also conducted two tests which were presented on a video tape showing vehicles moving along Hwy. 2 at night. The camera was located in two positions on Lanes Ferry Road, one at the stop sign where the sight distance would be approximately 27 feet from the intersection (hereinafter the “Stop Sign Location”). The | pother sight location was 10)6 feet from the intersection which would have been the nearest stopping point to the intersection (hereinafter the “Nearest Location”). At the Nearest Location, which would place the front of the truck three feet from the intersection, the video showed that the oncoming vehicle lights would have been almost constantly within view well beyond the western end of the bridge and visible for over twelve seconds.

Plaintiff additionally presented evidence that DOTD had notice of problems with the Bayou Macon Bridge as early as 1972, when the East Carroll Police Jury requested a “study of the inability to view eastbound traffic” on the bridge. Former state representative, Jess Smith, and James McDaniel, formerly the parish highway superintendent, testified at trial concerning the above problems with the intersection. Mr. Smith sent a letter to the DOTD administrator advising that church members at the Lanes Ferry Road Baptist Church, situated at the corner of the intersection, experienced accidents at that intersection and asking that the DOTD eliminate the problem. Additionally, the pastor and a deacon from the Lanes Ferry Road Baptist Church testified about their concern over the possibility of accidents caused by the “blind spot” on the bridge. Finally, Ronald Pippen and Greg Johnson, both local farmers who lived nearby, testified about a “near miss” accident that they had one night as they pulled onto the highway from the parish road.

At trial, plaintiff argued that the sight obstruction at the bridge was the sole cause of the accident as it presented the same danger for both sober and drunk drivers and that the accident would have occurred even if Pardon had been sober. After a five-day jury trial and two hours of deliberations, the jury found that DOTD was negligent, assigning the State 100% fault for the accident. Pardon and the parish were found to be without fault. The jury awarded damages totaling $11,097,935.31. Thereafter, |9because of adjustments by the trial court to the past medical damage award and to the general damage awards pursuant to the statutory cap set forth in La.Rev.Stat. 13:5106, the total judgment was reduced to $7,127,964.99.

The DOTD appealed the judgment and the court of appeal, in an en banc decision, reversed and found Pardon to be 100% at fault in causing the accident. Toston v. Pardon, 36,8800 (La.App. 2 Cir. 5/14/03), 847 So.2d 119. The court of appeal found that the jury was manifestly erroneous to conclude that Pardon was not the cause-in-fact of the accident, stating:

First, at the 20-foot AASHTO Location, the line of sight which Pardon had available extended back to the west, almost to the end of the bridge, 320 feet and more. That indicates that the sight problem existing at the intersection was only a partial factor in Pardon’s ability to recognize the movement of traffic in his negotiation of the intersection after stopping at that point. He was not totally blinded, and as his truck would have begun its movement forward to the intersection from that point, he would be able to see the Carr vehicle. It is unreasonable to view the evidence as establishing that Pardon had no opportunity to see the approaching vehicle as he stopped or moved slowly within the final 20 feet before reaching the intersection.
Therefore, as his testimony indicates, he knew that he could not reach a safe point for viewing traffic on Hwy. 2 until he stopped at the nearest point to the intersection. Third, a stopping point so that Pardon’s vision was at the 20-foot mark or further back near the stop sign establishes the more significant fact that he did not stop at the point nearest the intersection where his vision wpon stopping would be completely unimpaired. Fourth, Pardon’s vision, his attentiveness, and his response time, more probable than not, were impaired by the effect of his intoxication. (Emphasis in original).

DISCUSSION

We granted writs in this case primarily to review whether the court of appeal correctly applied the manifest error standard in reviewing whether DOTD was a cause-in-fact of the accident.

|10In a tort action against DOTD, whether based on strict liability or negligence, the plaintiff must show: (1) the property which caused the damage was in the custody of the DOTD; (2) the property was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the risk; and (4) the defect in the property was a cause-in-fact of the plaintiffs injuries. Bessard v. State, Dep’t. of Transp. & Dev., 94-0589, p. 3 (La.11/30/94), 645 So.2d 1134, 1136. The analysis under either theory is the same. Id. In this case, there is no dispute that DOTD had custody of Hwy. 2 and had knowledge of a possible defect in the intersection as early as 1972.

DOTD’s Liability

The DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. Cormier v. Comeaux, 98-2378, p. 6 (La.7/7/99), 748 So.2d 1123, 1127. This court has stated that the DOTD’s duty is to design and provide a controlled intersection that did not present an unreasonable risk of harm to motorists. Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. DOTD has no duty to bring old highways up to modern AASHTO standards, unless a new construction or major reconstruction of the highway had taken place. Aucoin v. State Through Dep’t. of Transp. & Dev., 97-1938, 97-1967 (La.4/24/98), 712 So.2d 62. Nevertheless, DOTD has a duty to correct conditions existing on old highways that are unreasonably dangerous. Cormier, 748 So.2d at 1131.

Initially, we affirm the trial court’s finding that the DOTD presented an unreasonably dangerous condition. Both the jury and the court of appeal found that this intersection presented an unreasonably dangerous condition, and that finding is supported by the record. The testimony of Dr. Glennon and Dr. Bronstadt clearly In establishes that the opaqueness of the bridge railing, the dip in the highway before it before it reaches the bridge, and the indication that the stop sign location is inadequate to provide a motorist with guidance on the optimal stopping location in order to see clearly down Hwy. 2 coalesce to establish an unreasonably dangerous intersection. The testimony from both lay and expert witnesses was unanimous that a driver had to proceed with much caution in order to cross the intersection safely. Accordingly, the intersection at Lanes Ferry Road and Hwy. 2 presented an unreasonable risk of harm.

Plaintiff primarily argues that the court of appeal misapplied the standard of review by recreating its own version of facts based on its interpretation of conflicting evidence. Accordingly, plaintiff asserts that the court of appeal erroneously overturned the jury decision that the defect on Hwy. 2 was the cause-in-fact of the accident. We agree that the court of appeal erroneously applied the manifest error standard of review and that the intersection at Hwy. 2 and Lanes Ferry Road contained a defect which was a cause-in-fact of the accident.

The initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. Netecke v. State, through Dep’t. of Transp. & Dev., 98-1182 (La.10/19/99), 747 So.2d 489, 497 A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. Id. at 498. The act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. Id. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Id.

Whether an action is the cause-in-fact of the harm is a factual determination that is left to the factfinder. In Mart v. Hill, 505 So.2d 1120 (La.1987), this court posited a two-part test for the appellate review of facts:

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

When the district court has allowed both parties to present their experts before making its factual determinations, the fact-finder’s choice of alternative permissible views cannot be considered to be manifestly erroneous or clearly wrong. Stobart v. State, Dep’t of Transp. & Dev., 617 So.2d 880, 883 (La.1993). However, 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 find manifest error even in a finding purportedly based on a credibility determination. Id. at 882.

Our review of the record convinces us that the jury was presented with ample evidence with which to reasonably conclude that the sight obstruction was a cause-in-fact of the accident. The court of appeal relied heavily on Dr. James video nighttime study which demonstrated the driver’s field of vision for the movement of a car proceeding easterly along Hwy. 2. However, the jury could have reasonably relied on plaintiffs rebuttal concerning the questionable quality of both videos, and a background conversation in which the cameraman asked Dr. James whether the second video was better. The jury could have reasonably inferred from the background voice in the second video tape that Dr. James attempted multiple times to get the almost unobstructed view that the final video presented. Moreover, as plaintiff noted on cross examination, the approaching vehicle disappears from sight in both videos for roughly five to seven seconds, which confirms the testimony of Dr. Bron-stadt and Dr. Glennon to the effect that the bridge railing hides the headlights of an approaching vehicle, if only momentarily-

| ^Additionally, the court of appeal emphasized that some testimony revealed that Pardon would have been able to continually see the vehicle from the Nearest Location without taking into account that the jury heard conflicting evidence on this issue at trial. According to Dr. Bronstadt, plaintiffs expert in bridge design, the guard railing would continue to obstruct a driver’s view of the headlights even at the Nearest Location. Dr. Bronstadt opined that, just because a motorist can see the top of the car in daylight does not mean that they are going to see the headlights, particularly at night and particularly where a sight obstruction such as a guardrail exists. Photographs of the accident scene confirm that the intersection was not well-lit; a motorist would be unlikely to see the top of a vehicle under the circumstances. The jury could have reasonably relied on the fact that this was a nighttime accident; and inferred from the evidence that Pardon could not see the tops of other vehicles in the poorly lit intersection.

Moreover, Dr. Glennon, on cross-examination, only admitted that Pardon may have had the “opportunity” to see the car in time to judge whether there was sufficient time to pull out. Dr. Glennon never testified that he thought Pardon had a full, clear unobstructed view from his eye height at the Nearest Location. The fact that Pardon had an “opportunity” to see the Carr vehicle does not conflict with testimony and video footage that, at the Nearest Location, a person with Pardon’s eye height may be able to see headlights appear and then momentarily disappear, if he was looking at the right moment.

Even at the AASHTO Location, the record contains conflicting evidence which the jury may have reasonably relied. According to the court of appeal, Dr. Glennon’s testimony regarding the sight obstruction under AASHTO standards does not apply to Pardon because Dr. Glennon’s calculation did not employ Pardon’s 5 foot 3/6 inch 1 uobservation height and only considered the view of the 26 inch headlights of the Carr vehicle. However, this rationale does not take into account that Pardon’s vehicle was weighed down with an arc welding machine, located in the cargo bed. The court of appeal also overlooked Dr. Glen-non’s testimony that, even at Pardon’s enhanced position at 5 foot 3/6 inches, Pardon would not have the AASHTO recommended 550 feet of sight distance. Although Dr. Glennon admitted that Pardon would have a sight distance of more than 320 feet, he believed that Pardon’s sight distance would be nowhere near the 550 feet recommended by AASHTO. Dr. Glennon also testified that Pardon would have had to be 40 or 50 feet back from the intersection in order to see the headlight beams continuously through the bridge rail.

After hearing from numerous expert and lay witnesses on both sides, the jury concluded that the sight obstruction was a cause-in-fact of the accident. Therefore, the court of appeal misapplied the standard of review by completely rejecting the reasonable basis in the record to support the jury’s finding that DOTD was a cause-in-fact of the accident. Following our review of the record, we find no manifest error in the jury’s finding that plaintiffs accident was caused in part by DOTD’s breach of a duty it owed to the plaintiff. Accordingly, we reverse this portion of the court of appeal decision.

Pardon’s Liability

DOTD contends that the trial court erred in not assessing any fault to Pardon for the accident despite evidence presented that he was severely intoxicated and familiar with the area. We agree and find that Pardon’s negligence was a substantial factor which contributed to the accident.

To determine Pardon’s liability for this accident, the duty-risk analysis requires proof that: (1) the defendant had a duty to conform his conduct to a specific standard; |1K(2) the defendant’s conduct failed to conform to the appropriate standard; (3) the defendant’s conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct a legal cause of the plaintiffs injuries; and (5) proof of actual damages. Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, 1230.

In this case Pardon had a duty to yield the right of way to all vehicles which are approaching so closely as to constitute an immediate hazard. La.Rev. Stat. 32:123(B) defines the duty of the motorist approaching an intersection regulated by a stop sign: The jurisprudence indicates that stopping is only half the duty, the other half is not to proceed until the determining that the way is clear. Guillot v. Valley Forge Ins. Co., 99-1044, p. 4 (La.App. 8 Cir. 12/8/99), 753 So.2d 891, 894. The second duty is heavier and requires an even greater degree of care when the intersection is blind, or partially obstructed. Continental Ins. Co. v. Duthu, 235 So.2d 182, 186 (La.App. 4 Cir.1970). A driver entering a superior highway where his view is obstructed is under a duty to proceed with extraordinary caution. Taylor v. State, 431 So.2d 876, 879 (La.App. 2 Cir.1983). A left turn is one of the most dangerous maneuvers a motorist may execute and, before attempting, a motorist must ascertain whether it can be completed safely. Theriot v. Lasseigne, 93-2661, p. 8 (La.7/5/94), 640 So.2d 1305 ,1312.

Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard. (Emphasis added.)

[^Moreover, Pardon also had a duty not to drive while intoxicated. Various criminal and civil statutes proscribe the act of driving a motor vehicle while under the influence of alcohol. La.Rev. Stat. 14, Sections 32.1, 39.1, 39.2, and 98. A finding of gross intoxication alone does not mandate a finding of liability and is merely a factor to consider under Louisiana’s comparative negligence scheme. Petre v. State ex. rel. Dep’t of Transp. & Dev., 01-0876 (La.4/3/02), 817 So.2d 1107, 1114; Briggs v. Hartford Ins. Co., 532 So.2d 1154, 1158 (La.1988).

The breach of duty in this case is clear. The avoidance of accidents still depends on the judgment and capability of the individual driver. Louisiana Rev. Stat. 32:123(B) clearly provides that a motorist approaching an intersection has a duty to yield the right of way to all vehicles approaching on the highway. Pardon testified that he had crossed the intersection many times, that he hunted in the area often, and knew a motorist had to be careful because of the sight obstruction. It is clear from the record that Pardon knew full well of the sight obstruction and the potentially hazardous situation, yet he proceeded into the intersection without first ascertaining whether the headlights from the “turning” vehicle had, in fact, turned. With regard to Pardon’s breach of his duty not to drive while intoxicated, the expert testimony was uncontroverted that Pardon’s BAL at the time of the accident was that of a “grossly intoxicated” person.

Based on the evidence presented, we also find that Pardon’s failure to yield combined with his gross intoxication was a cause-in-fact of the accident. Pardon’s own misjudgment, undoubtedly affected by his intoxicated state, in failing to ascertain whether the momentary light was an approaching vehicle establishes that he was a cause-in-fact of the accident. As previously noted, Pardon testified several times at trial that he saw lights appear and then disappear:

117Q. Now, Mr. Pardon, I need to know what happened. Did the lights disappear and reappear? Did you see lights before impact? Or, did you not see lights before impact as you continued to look left and ease out into Lanes Ferry Road?
A. I seen lights and then, I didn’t see no lights.
Q. And, then, you never saw them again? Is that your testimony?
A. As far as I know, that’s the way it was.

This testimony, which was repeated twice at trial, establishes that Pardon failed to yield the right of way to the approaching Cougar. Pardon’s testimony is additionally supported by Dr. Glennon and Dr. Bronstadt’s opinions that, at Pardon’s eye level, the Cougar’s headlights would have appeared and then disappeared momentarily due to the sight obstruction presented by the guardrail. Accordingly, we conclude that Pardon’s failure to yield the right of way and his gross intoxication was a substantial factor in bringing about the accident.

Thus, we affirm the portion of the court of appeal judgment which finds that Pardon’s negligence was a substantial factor in causing this accident.

Apportionment of Fault

Having found that the trial court was clearly wrong in failing to find Pardon at fault for this accident, we must reallocate fault.

After an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement v. Frey, 95-1119, p. 8-9 (La.1/16/96), 666 So.2d 607, 611. In applying the manifest error standard of review to the factfinder’s allocation of fault in Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1985), this court stated as follows:

|1RIn determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
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 fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Our application of the Watson standards convinces us that the majority of the fault rests with DOTD. Pardon’s conduct in traversing the intersection is a less direct cause of the accident when compared to the DOTD’s awareness of the danger that the sight obstruction presented to all drivers. Here, the jury clearly found credible Dr. Glennon and Dr. Bronstadt’s testimony that the bridge railing effectively “hid” the headlights of the Cougar. Moreover, it is clear that DOTD had knowledge of this danger as early as 1972. By contrast, Pardon’s failure to yield the right of way resulted a lesser awareness of the danger involved because his sight was, at the very least, momentarily obstructed by the bridge railing. Moreover, DOTD created a more substantial risk to all drivers by failing to fix the defective intersection employing any number of the simple and inexpensive remedies suggested by Dr. Glennon. It is undisputed that numerous accidents or near misses have occurred at this intersection, creating substantial risk to all drivers who attempt to traverse the highway. Finally, DOTD clearly had superior capacity to prevent the accident by accurately measuring and fixing the sight obstructions to provide the driver with more guidance. When weighing with DOTD’s superior capacity to remedy the situation with more accuracy than any individual driver could ascertain, DOTD’s knowledge of the defect, and the I ^substantial risk involved each time a driver attempts to maneuver through the intersection, it is clear that the majority of fault rests with DOTD.

Based on our analysis of the Watson factors, we conclude that DOTD was more at fault than Pardon. We find that Pardon was not less than 20% at fault but no more than 50% at fault. Accordingly, we allocate Pardon’s fault to 20%, which is the lowest amount the trial court could have reasonably allocated to Pardon, and DOTD’s fault to 80%.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeal insofar as it found Pardon’s negligence was in part a cause-in-fact of the accident. However, we reverse the court of appeal’s failure to assign fault to DOTD, and reallocate fault accordingly. The DOTD and Pardon are determined to be at fault, 80% and 20% respectively. The case is remanded to the district court to confect appropriate monetary judgment based upon the fault percentages.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

VICTORY, J., dissents and assigns reasons.

WEIMER, J., dissents for the reasons assigned by VICTORY, J.

[ 1 VICTORY, J.,

dissenting.

I dissent from the majority opinion because I agree with the court of appeal’s decision which found James Pardon, the drunk driver, to be 100% at fault in causing this accident. Toston v. Pardon, 36,880 (La.App. 2 Cir. 5/14/03), 847 So.2d 119.

The intersection of Hwy. 2 and Lanes Ferry Road is certainly not ideal, based on the proximity of the bridge to 'Lanes Ferry Road, the opaqueness of the bridge railing, and that fact that a car must proceed past the stop sign on Lanes Ferry Road to within 10-15 feet of the intersection in order to see clearly down Hwy. 2. However, Pardon testified that he had traveled this intersection frequently, was familiar with the road at daytime and at nighttime, and was aware of the potential sight obstruction. The expert testimony was un-controverted that if Pardon stopped where he said he stopped, i.e., the point nearest the intersection, which is where the law required that he stop and where he knew from past experience that he needed to stop in order to see oncoming traffic, he would have seen Carr’s vehicle. In addition, all of the lay witnesses testified that if a driver was careful and proceeded with caution, the intersection could be crossed safely. This fact is self-evident as there was no evidence presented that an unusual number of accidents had ever occurred at this intersection. Most significantly, expert testimony established that a person with Pardon’s blood alcohol level at the time of the accident, between 0.215g% and 0.293g% alcohol (approximately two and | ¡>a half times the legal limit), would be grossly intoxicated to such an extent that it would have a thousand fold effect on his attention and reaction time.

Undoubtedly, thousands of people travel this intersection every month, many of them at night, without incident. Yet, this tragic accident occurred because a highly intoxicated driver, familiar with the intersection, simply failed to yield to traffic on Hwy. 2.

Accordingly, I respectfully dissent.

      . SMACK is a computer program developed by the federal government for use by engineers, physicists and accident reconstructors which replicates the mechanics of an accident based on inputting certain variables such as vehicle size and weight, physical damage, and speed; in this Case, the program generated a model consistent with the damage pattern on both vehicles and the physical evidence found at the accident scene.

      . After the DOTD filed its suspensive appeal but before the appeal was heard, the plaintiff and the DOTD entered into a settlement agreement whereby the DOTD paid plaintiff's claims against National Union Insurance Company of Louisiana, the excess insurance carrier for the State.


author: | TRAYLOR, J.

text:
    In re Judge Monty L. DOGGETT.
    No. 2004-O-0319.
    Supreme Court of Louisiana.
    May 25, 2004.

      Steven R. Scheckman, Special Counsel, Mary F. Whitney, Asst. Special Counsel, Office of Special Counsel.
    Nancy E. Rix, Commission Legal Counsel, Hugh M. Collins, PhD, Chief Executive Counsel, Judiciary Commission of Louisiana.
    Elizabeth A. Raison, New Orleans, Robert M. Contois, Jr., Monty Doggett, Gerard F. Thomas, Jr., Natchitoches, Counsel for Respondent.
   | TRAYLOR, J.

This judicial disciplinary proceeding comes before the court on the recommendation of the Judiciary Commission of Louisiana (“the Commission”) that Judge Monty L. Doggett of the 10th Judicial District Court, Parish of Natchitoches, be removed from office. The Office of Special Counsel (“OSC”) conducted an investigation, and then filed Formal Charge No. 0194 against Judge Doggett, accusing him of persistent public intoxication while performing judicial duties. After a hearing, the Commission determined that Judge Doggett violated Canons 1, 2 A, 8 A(2),3 A(3), and 3 A(7) of the Code of Judicial Conduct and La. Const, art. V, § 25(C). The Commission then recommended to the court that it remove Judge Doggett from the bench. After a thorough review of the evidence, we find that Judge Doggett’s persistent public intoxication while performing judicial duties warrants removal from office.

FACTS AND PROCEDURAL HISTORY

Judge Doggett was elected to judicial office in 1996, and was re-elected to a second term in October 2002. In June 2002, the OSC received an anonymous | {.complaint that Judge Doggett “has been in a drunken state while at the courthouse” on “more than one occasion during the past few months.” The complaint further alleged that court had to be canceled one day because Judge Doggett was “too drunk to come out of chambers into the courtroom,” and that the judge’s memory and concentration were impaired by alcohol to the extent that his judicial decisions have been affected. The complainant also suggested that Judge Doggett’s condition is well known to courthouse employees, elected officials, and lawyers in the Natchi-toches community.

In response to the initial inquiry about the complaint, dated October 11, 2002, Judge Doggett admitted that he is an alcoholic and has been so for more than thirty years. Judge Doggett pointed out that he has had significant periods of sobriety, but he also admitted that he had relapsed on several occasions. Nevertheless, Judge Doggett suggested that he was “on the road to recovery.”

On December 10, 2002, the Commission filed a recommendation of interim disqualification in this court, having found that Judge Doggett’s continuation on the bench posed a “substantial threat of harm to the public and to the administration of justice.” By order dated December 19, 2002, this court accepted the Commission’s recommendation and disqualified Judge Doggett on an interim basis with pay.

On February 26, 2003, the Commission filed Formal Charge No. 0194 against Judge Doggett, alleging that his alcoholism and his inability to maintain sobriety have resulted in his inability to perform judicial duties and his significant delay in deciding cases, including five cases specified in the Formal Charge.

Judge Doggett answered the Formal Charge on March 28, 2003. He admitted that he is an alcoholic and that his illness has interfered with his ability to properly | ¿perform his judicial duties; however, he denied any willful or intentional conduct. Judge Doggett maintained that his alcoholism is not permanent and is curable, and he pointed out that “it can be handled with proper treatment that he has and is receiving.”

Prior to the hearing on the Formal Charge, the parties stipulated to the admission of Judge Doggett’s medical records detailing his treatment for alcoholism and alcohol-related illnesses. The parties further stipulated that if called to testify, the medical professionals who generated the records would testify in accordance with the information contained therein.

The Commission conducted a hearing on the Formal Charge on October 17 and 18, 2003. Numerous witnesses testified that Judge Doggett is good judge when he is not drinking, and that he is a nice person. Nevertheless, the witnesses also testified that Judge Doggett has appeared visibly intoxicated on the bench and in chambers. On these occasions, Judge Doggett slurred his speech, was disoriented and unable to focus, was shaky, and walked in an unsteady manner.

On one occasion, Deputy Burl Lee, a bailiff employed by the 10th Judicial District Court, personally witnessed Judge Doggett drinking at the courthouse. Deputy Lee testified that one Saturday when court was in session, he saw the judge reach into his desk drawer, pull out a bottle, and take a drink from it. This occurred after Judge Doggett had put on his robe and was about to enter the courtroom to take the bench. Deputy Lee later went into the judge’s office to see what he had been drinking and discovered it was alcohol in a soft drink bottle. According to Deputy Lee, Judge Doggett frequently smelled of alcohol or heavy cologne.

| ¿Two law enforcement officers who frequently appeared before the court confirmed that Judge Doggett issued arrest warrants when he was drunk. Kevin Stafford, a juvenile investigator for the Natchi-toches Parish Sheriffs Office, testified that the judge issued warrants even though “he could not visualize the warrant or what it was pertaining to or anything like that. He was unable to find the wording.” State Trooper Steven Pezant additionally testified that Judge Doggett was impaired when he issued a DWI warrant.

At the request of assistant district attorneys concerned over Judge Doggett’s appearance of intoxication, Natchitoches Parish District Attorney Van Kyzar went to the courthouse to personally observe Judge Doggett’s behavior. On the first occasion, Mr. Kyzar testified that Judge Doggett “was slurring his words. He was — although he was able to speak, he was not speaking completely coherently, fragmented sentences.” On one of these occasions, Mr. Kyzar testified there was concern about him leaving the building unaccompanied, but the judge got out of the building and into his vehicle before anyone could stop him. On another occasion, a deputy drove the judge home because of concern over the judge’s intoxicated state.

Due to Judge Doggett’s intoxicated state, court had to be canceled on other days, including the day of the Dyess v. Butler child custody case. Attorney Dee Hawthorne, who represented Mr. Dyess in the matter, testified that when she and her opposing counsel appeared for a hearing they both realized that Judge Doggett was impaired. They did not know how to proceed and, as a result, they consulted with Judge Eric Harrington at the 10th Judicial District Court. After the meeting with Judge Harrington, the two lawyers jointly asked for a continuance of the proceeding. Judge IsDoggett admitted before the Commission that he was intoxicated the day the attorneys appeared and that the case was continued.

On the morning of December 4, 2002, Judge Doggett was impaired by alcohol to the extent that his staff cleared the public from the hallways outside his courtroom so he could be carried out of his office by sheriffs deputies. Despite his staffs efforts, the public saw Judge Doggett as he was escorted from the courthouse. The incident was the subject of a December 6, 2002 front-page article in The Natchitoches Times. Notably, this incident occurred before 10:00 a.m.

Stephanie Kaufman, Judge Doggett’s secretary, estimated that she saw him at work under the influence about twenty times, both in chambers and in the courtroom. Immediately prior to his interim disqualification in December 2002, she saw him impaired with regularity. According to Ms. Kaufman, on a few occasions, Judge Doggett would come in and start court, then take a break and never come back. Ms. Kaufman testified that it was difficult to match a day with an incident because some days Judge Doggett was functional and other days he would leave. On at least one occasion when Judge Doggett left work unexpectedly and did not return, she and another court employee went to Judge Doggett’s home to check on him. Although it was early in the afternoon, Ms. Kaufman testified that Judge Doggett had obviously been drinking. In addition, Ms. Kaufman testified that she believed the courthouse community was aware of Judge Doggett’s problem because attorneys who came in contact with Judge Doggett would ask her if he was okay and mention that they smelled something, usually heavy cologne. She also testified that she was unsure how much the general community was aware of Judge Doggett’s alcoholism, nor if they were aware of the seriousness or the extent of the problem. Finally, Ms. Kaufman testified that although she would not personally object to Judge Doggett’s return to the bench if he | ^participated in Alcoholics Anonymous and was monitored by the Lawyers Assistance Program (“LAP”), she still had trust issues with him because “he told me he did things like [participate in Alcoholics Anonymous] then, and I found out he didn’t.”

In addition to the Dyess case, Charles Whitehead, Jr., an attorney, testified concerning Judge Doggett’s failure to decide some of his cases in a timely manner. He testified that he personally saw Judge Doggett intoxicated in chambers on two occasions. According to Mr. Whitehead, Judge Doggett was intoxicated when he rendered the decision in State v. Todd. Mr. Whitehead testified that while they were in the courtroom, Judge Doggett pointed at Mr. Whitehead and said, “you win,” which he thought was unusual behavior for Judge Doggett. Mr. Whitehead, himself a recovering alcoholic, testified that he offered to take Judge Doggett to Alcoholics Anonymous but that Judge Doggett never responded to his invitation. In total, investigation revealed that Judge Doggett’s alcoholism resulted in significant delays in several cases, including, but not limited to Warner v. Natchitoches Parish School Bd.; State v. Desnee Bullock, C-2621 B; Russell E. Gallaghan, Jr. v. Sidney Thornton; State v. Todd Smith and Tammy Hemperly; and Dyess v. Butler,

Retired Judge Peyton Cunningham, Jr., who is one of two judges who have handled Judge Doggett’s docket since he was disqualified, testified, among other things, as to the effect of Judge Doggett’s failure to keep up with his workload. Judge Cunningham testified that Judge Fred Sexton had “caught up on a tremendous amount |7of work” before Judge Cunningham was assigned to the court. Judge Cunningham described a civil suit for damage to property caused by fire, where the plaintiffs “lost everything they had;” the case was filed on January 2000, and Judge Doggett heard it July 23-24, 2002. Judge Cunningham rendered a decision June 24, 2003, a delay created by Judge Doggett’s debilitated state in 2002.

Finally, Judge Doggett himself admitted that he made judicial decisions while he was impaired and that his condition was obvious to the public. He also admitted that he went to the courthouse more impaired than anyone realized. Judge Dog-gett admitted to these past incidents, but testified that if he were to drink again in the future, it would be obvious and the problem would be reported. Judge Dog-gett testified that he experienced trauma as a child when he witnessed his young brother being hit and killed by an automobile. He described stressful situations in his private life that he faced without drinking since he had received treatment at the Talbott Recovery Center in Atlanta, implying that future stressful events will not cause him to resume drinking alcohol.

Judge Doggett’s alcoholism dates back to 1969, when he was eighteen years of age. He initially sought treatment for alcoholism in the late 1970’s and again in 1989, following which he was able to maintain sobriety for a period of approximately eleven years. In 2000, Judge Doggett started drinking to relieve pain caused by an undiagnosed medical condition. The drinking soon spiraled out of control, even after the source of the pain was cured by surgery to remove a mass of scar tissue in Judge Doggett’s lower abdomen and groin.

In late 2000, Judge Doggett began a long and difficult road to recovery. On December 11, 2000, Judge Doggett was admitted on an involuntary basis to the inpatient alcohol treatment program at Palmetto Addiction Recovery Center in Rayville, | Louisiana as the result of an intervention by Judge Doggett’s wife, Judge Eric Harrington of the 10th Judicial District Court, and Natchitoches Parish Clerk of Court Louie Bernard. After completing the 30-day inpatient program, Judge Doggett checked out of Palmetto against medical advice. Although Palmetto staff recommended that Judge Doggett undertake long-term counseling, there is no record of follow-up. Thereafter, he started drinking “on and off’ until the spring 2002, when things started “deteriorating badly.”

On April 18, 2002, Judge Doggett was hospitalized at Christus Coushatta Health Care Center for four days for treatment for hypovolemia. Judge Doggett abstained from alcohol for approximately two weeks following his release from Christus Coushatta, then relapsed. During an outpatient counseling session with Shreveport psychiatrist Dr. Paul Ware on May 8, 2002, Judge Doggett admitted that he drank a pint of vodka the day before the session. Dr. Ware concluded that Judge Doggett “shows a high relapse potential by history,” and he recommended counseling and five AA meetings per week. Judge Dog-gett was scheduled to attend another session with Dr. Ware on May 16, 2002; however, on the day of the appointment, he canceled and did not reschedule.

Six months later, on October 14, 2002, Judge Doggett was hospitalized at Chris-tus Coushatta once again for treatment of hypovolemia. He reported that he was drinking at least a fifth of vodka per day, seven days a week. By letter to Dr. Hugh Collins dated October 17, 2002, Judge Dog-gett requested an “indefinite medical leave” from his judicial duties. On October 22, 2002, the day after he was discharged from Christus Coushatta, Judge Doggett was admitted on an inpatient basis to The Right |flStep alcohol treatment program at St. Christopher’s Halfway House in Baton Rouge. Despite having gone through the detoxification protocol at Christus Coushatta, Judge Doggett was “very sick” upon admission to The Right Step and had to be carried to his room; when the staff obtained his medical history, Judge Doggett’s alcohol use was noted as “Vodka (fe pint yesterday).” Judge Doggett was discharged from The Right Step on November 20, 2002. His prognosis at that time was described as guarded.

On December 5, 2002, Judge Doggett was readmitted to Christus Coushatta for four days for treatment of hypovolemia, his third such hospitalization in 2002. Judge Doggett reported that he remained sober for three or four days after leaving the Right Step, but then resumed drinking. In a letter to the Commission dated the same day, Judge Doggett admitted that he is “disabled, physically and mentally, to function in any capacity as Judge.” Judge Doggett stated that it was his intention to seek disability retirement benefits from the Louisiana State Employees’ Retirement System, and he asked that he be placed “on voluntary suspension” while his application for disability was pending. Judge Doggett further indicated that he would resign from office when his request for disability was approved.

On December 27, 2002, pursuant to a protective custody order, Judge Doggett was involuntarily admitted to an inpatient program at Brentwood Hospital in Shreveport. His medical records reflect that he informed the staff that he intended “to leave tomorrow after I figure out who put me in here.” Judge Doggett admitted that he drank a quart of vodka the night prior to his admission, and the Brentwood staff observed that he “smells of alcohol and appears unkempt.” The following day, December 28, 2002, Judge Doggett signed a notice requesting that he be released from Brentwood within 72 hours. This request was denied. On December 31, 2002, a physician signed |inan emergency certificate pursuant to La.Rev.Stat. 28:53, certifying that Judge Doggett is “gravely disabled” as a result of substance abuse and was unwilling to seek voluntary admission to a treatment facility. On January 2, 2003, Judge Doggett was evaluated by the coroner to assess whether his involuntary confinement should continue. Judge Dog-gett told the coroner that he was willing to remain at Brentwood on a voluntary basis, and accordingly, the coroner concluded that Judge Doggett “is not a proper subject for emergency admission.” A coroner’s emergency certificate to that effect was signed at 7:50 p.m. on January 2, 2003. Notwithstanding his representations to the coroner, moments later Judge Doggett signed a notice requesting that he be released from Brentwood within 72 hours.

On January 6, 2003, Judge Doggett began attending a daily half-day outpatient treatment program at Woodcrest Healthcare, Inc., a community mental health center in Natchitoches. On January 24, 2003, the Woodcrest staff observed that Judge Doggett was “secretive” and “withdrawn,” that his face was flushed, and that he had a strong odor of cologne about him. In response to questions by the staff on January 27, 2003, Judge Doggett denied repeatedly that he had been drinking. However, on January 29, 2003, Judge Doggett admitted that he had consumed alcohol the day before.

|nOn January 31, 2003, Judge Doggett filed a pleading in this court to amend his response to the Commission’s recommendation of interim disqualification. Judge Doggett represented that he was no longer disabled, that he was not seeking disability from the state retirement system, and that he did not intend to resign from office. Judge Doggett also reported that he had “successfully completed” the Brentwood program and that he was attending the Woodcrest program. Judge Doggett was discharged from the Woodcrest program on February 7, 2003.

On February 28, 2003, Judge Doggett was admitted on an involuntary basis to the inpatient alcohol treatment program at Talbott Recovery Campus in Atlanta, Georgia. Judge Doggett was driven to the Talbott facility by a sheriffs deputy, who at Judge Doggett’s direction stopped on the way so that Judge Doggett could buy alcohol. Judge Doggett informed the Tal-bott staff that he was drinking about a quart of vodka per day prior to his admission, including drinking before going to work.

Judge Doggett was discharged from Tal-bott on May 31, 2003, with recommendations for continuing care to include: (1) attending 90 AA meetings in a 90-day period and four to seven meetings weekly thereafter for the duration of the continuing care contract; (2) obtaining and utilizing a 12-step sponsor; (3) participating in the Louisiana Lawyers Assistance Program (LAP); and (4) participating in Talbot continuing care functions beginning in August 2003 and continuing with one visit per year for five years thereafter. Judge Doggett represents that he has been sober since the day he was admitted to Talbott, and he credits the facility with changing his life. At present time, the Commission stipulates that Judge Doggett has been sober since entering the Talbott facility.

Based on the evidence, the Commission concluded that from 2000 through December 19, 2002, Judge Doggett was significantly impaired on numerous occasions 11gwhile performing judicial duties, which violated Canons 1, 2 A, 3 A(2), and 3 A(3) of the Code of Judicial Conduct. In addition, the Commission concluded that, as a result of his alcoholism, Judge Doggett failed to perform work in a timely manner and issued warrants while intoxicated in violation of Canons 3 A(l) and 3 A(7). The Commission found that Judge Dog-gett’s conduct constituted “persistent and public behavior prejudicial to the administration of justice that brought the judicial office into disrepute,” due to the public nature and press coverage surrounding his conduct. Ultimately, the Commission recommended that Judge Doggett should not be returned to the bench, regardless of whether his removal was termed involuntary retirement as opposed to removal.

Judge Doggett admits and apologizes for his public intoxication, and admits that his conduct violated the relevant portion of Canons 2 and 3, and constituted persistent public misconduct in violation of La. Const, art. V, § 25(C). However, Judge Doggett argues that his misconduct was not willful or intentional according to La. Const, art. V, § 25, and that his misconduct does not warrant removal from office.

DISCUSSION

This court is vested with exclusive original jurisdiction in judicial disciplinary proceedings. La. Const, art. V, § 25(C). La. Const, art. V, § 25 sets forth the grounds for disciplinary action, providing in pertinent part:

li3On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.

In addition to these grounds, this court has recognized that any violation of the Code of Judicial Conduct, without more, may serve as grounds for removal. In re King, 03-1412 (La.10/21/03), 857 So.2d 432, 445; In re Hunter, 02-1975 (La.8/19/02), 823 So.2d 325, 335.

Before this court can impose discipline, the charge or charges against a judge must be proved by clear and convincing evidence. In re King, 857 So.2d at 445; In re Hunter, 823 So.2d at 328. This standard requires that the level of proof supporting the charge or charges against a judge must be more than a mere preponderance of the evidence, but less than beyond a reasonable doubt. In re Hunter, 823 So.2d at 328.

Willful and Persistent Failure to Perform Duty

Judge Doggett first argues that his conduct did not constitute a willful and persistent failure to perform his duty in violation of La. Const, art. V, § 25(C).

The Commission did not find that Judge Doggett’s conduct constituted a willful and persistent failure to perform his duty in violation of La. Const, art. V, § 25(C), nor is such a determination necessary to support the proposed discipline in this case. In re Wilkes, 403 So.2d 35, 40 (La.1981); In re Chaisson, 549 So.2d 259, 266 (La.1989). Because Judge Doggett has admitted to the relevant conduct and admitted that his public intoxication violated the Code of Judicial Conduct and constituted “persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” this court pretermits the issue of whether Judge Doggett’s conduct was a clear and convincing willful and persistent failure to perform | uhis duty. Under these circumstances, this court’s responsibility is limited to determining the sanction to impose for the violations. In re King, 857 So.2d at 445; In re Johnson, 96-1866 (La.11/25/96), 683 So.2d 1196, 1199; In re Decuir, 95-0056 (La.5/22/95), 654 So.2d 687, 692.

Imposition of Discipline

Having pretermitted whether Judge Doggett’s behavior was a willful and persistent failure to perform his duty, we next address whether Judge Doggett’s conduct, as admitted, violated the relevant portions of the Code of Judicial Conduct and is that conduct “persistent and public conduct prejudicial to the administration of justice that brings the office into disrepute” to such an extent that he should be removed from office. We agree with the Commission and find that Judge Doggett’s conduct warrants removal.

Although this court has never addressed removal in a case involving alcohol abuse while performing judicial duties, the guidelines set out in the Louisiana Constitution of 1974 clearly provide this court discretion in determining which types of misconduct warrant removal. As this court stated in In re Whitaker, 463 So.2d 1291, 1303 (La.1985):

The most severe discipline should be reserved for judges who use their office improperly for personal gain; judges who are consistently abusive and insensitive to parties, witnesses, jurors and attorneys; judges who because of laziness or indifference fail to perform their judicial duties to the best of their ability; and judges who engage in felonious criminal conduct.

The conduct recognized in Whitaker, however, is not an exclusive list of the types of conduct for which a judge may be removed from office. In re King, 857 So.2d at 446. Both La. Const, art. V, § 25 and the Code of Judicial Conduct allow removal for a broader range of offenses than the illustrative list set forth in Whitaker. Id.

| ^Judge Doggett first argues that his constituency accepted his alcohol problem and accepted his concomitant conduct on the bench because he was re-elected after his alcoholism was made public; therefore, Judge Doggett maintains that this court should not remove him from the bench based on public intoxication while performing judicial duties. As the Commission noted, it is unclear from the record that the general public knew the extent of Judge Doggett’s battle with alcoholism. General public awareness of the extent of Judge Doggett’s impairment and its effect on his courtroom, however, does not change this court’s exclusive jurisdiction for the discipline of judges and the regulation of the conduct of the judiciary. As stated in In re Huckaby, 95-0041 (La.5/22/95), 656 So.2d 292:

[Rjemoval of a duly elected member of the judiciary is a serious undertaking which should only be borne with the utmost care so as not to unduly disrupt the public’s choice for service in the judiciary. However, this state’s constitution vests this court with the duty to preserve the integrity of the bench for the benefit of that same public by ensuring that all who don the black robe and serve as ministers of justice do not engage in public conduct which brings the judicial office into disrepute.

It clearly falls within the purview of this court’s jurisdiction to discipline judges for misconduct in violation La. Const, art. V, § 25(C) and the Judicial Code of Conduct. We decline to find that a judge is not subject to discipline for conduct in violation of these well established precepts even if his constituency condones such behavior.

Judge Doggett next argues that this court has never removed a judge for deci-sional delays due to medical disability, nor has a Louisiana judge been removed from office for issuing search warrants where no harm was proved. Although Judge Dog-gett acknowledges that his conduct during the course of 2002 falls within the purview of “persistent public conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” he urges that, in considering discipline, this court should take into account what did not occur in this matter. Namely, Judge hsDoggett asserts that this case does not involve fraud, abuse of authority, inability to manage administrative duties, misleading the Judiciary Commission, or engaging in inappropriate political activities. Judge Doggett further urges that discipline for delays in rendering decisions impose sanctions from public censure to 60-day suspension. We disagree with Judge Doggett that the only harm caused by his impairment was the delay in five cases, and find that this argument undermines the seriousness of the misconduct in this case.

This court has only disciplined one other judge for conduct directly arising out of an alcohol problem. In 1987, this court suspended a city court judge for six months without salary for, among other things, striking a law enforcement officer at a public festival and using profane language toward the officer and others. In re Soileau, 502 So.2d 1083 (La.1987). This incident and an earlier, similar incident occurred at times when the judge had been drinking alcoholic beverages for a long period of time without eating. The judge reported his own misconduct and his subsequent nolo contendere pleas to charges of disturbing the peace and simple battery to the Commission.

The instant case is distinguishable from Soileau in several respects. Importantly, there was no evidence that Judge Soileau performed judicial duties while intoxicated. By contrast, court employees, litigants, attorneys, and even a simple visitor to the courtroom had the opportunity to view Judge Doggett presiding while intoxicated. Undoubtedly, the harm to the integrity of the judiciary system is infinitely greater where the “public” conduct occurs in the courtroom and in connection with judicial duties. Therefore, we believe that Judge Doggett’s persistent intoxication while performing judicial duties warrants more than the six-month suspension imposed in Judge Soileau’s case.

l17Other jurisdictions have likewise imposed discipline in cases involving alcohol abuse. In In the Matter of Aldrich, 58 N.Y.2d 279, 460 N.Y.S.2d 915, 447 N.E.2d 1276 (1983), a family court judge was removed from office based on two charges of misconduct during sessions of court which the judge presided while intoxicated. On the first occasion, the judge, while presiding over a juvenile proceeding while intoxicated, used profane and menacing language, and threatened a juvenile with scissors. At a second proceeding conducted at a psychiatric hospital, the judge threatened a security guard with a hunting knife, was so intoxicated that he was incapable of presiding, conducted himself in a bizarre manner, and had slurred and incoherent speech. The proceeding had to be adjourned due to the judge’s intoxication. In removing the judge, the Aid-rich court noted that public confidence was “irretrievably lost.”

Although not abusive to litigants, Judge Doggett’s persistent intoxication while performing judicial duties constituted a gross violation of the Code of Judicial Conduct and La. Const, art. Y, § 25(C). While we recognize that Judge Doggett suffers from a disease, alcoholism is not a defense, but a mitigating factor in disciplinary proceedings. In re Soileau, 502 So.2d at 1090. Judge Doggett is not being sanctioned for being an alcoholic; he is being sanctioned for his inappropriate behavior l1son the bench. Moreover, a judge is subject to a more stringent standard than an attorney. As we stated in In re Haggerty, 257 La. 1, 241 So.2d 469, 478 (1970):

The office of judge is one in which the general public has a deep and vital interest, and, because that is true, the official conduct of judges, as well as their private conduct, is closely observed. When a judge, either in his official capacity or as a private citizen, is guilty of such conduct as to cause others to question his character and morals, the people not only lose respect for him as a man but lose respect for the court over which he presides as well. This court has clearly articulated that one who holds a judicial office must adhere to the highest standards of personal conduct.

While this court recognizes that Judge Doggett’s attempts to achieve and maintain sobriety are mitigating factors in this case, these factors do not excuse or outweigh the number of times which he performed judicial duties while intoxicated. By Judge Doggett’s own admission, this case does not involve isolated incidents of misconduct; rather, the number of times which Judge Doggett presided both in court and in chambers while intoxicated was likely greater than the witnesses who testified at the hearing on the Formal Charge realized. Thus, even though the abusive behavior towards litigants is absent in Judge Doggett’s case, this record reveals more persistent violations than Judge Aldrich’s two isolated incidents of misconduct.

As stated earlier, Judge Doggett’s view that the only harm in this disciplinary proceeding is the delay in five cases seriously minimizes the misconduct in this case. Although delays in five cases is insufficient harm to support removal from the bench, the delays are reflective of Judge Doggett’s persistent performance of numerous judicial duties while intoxicated. Moreover, the issuance of search warrants while intoxicated, regardless of whether the warrants were not improperly executed, derogates from the integrity of the judiciary. The public has a right to a decision by a sober decision-maker. The purpose of the warrants was to ensure a detached and neutral judge reviewed the warrant before executing a search or an arrest. State v. Bastida, 271 So.2d 854, 855 (La.1973) (an informed and deliberate determination of probable cause is to be made by a neutral and detached magistrate). If the judge is so intoxicated when he reviews a warrant for probable cause that he cannot even read the warrant, the harm has occurred.

The most aggravating and determinative factor in this particular case is that Judge Doggett’s misconduct occurred repeatedly in his official capacity. A judge’s persistent intoxication on the bench and in chambers results in “an irretrievable loss of public confidence in his ability to properly carry out his judicial responsibilities.” In the Matter of Aldrich, 460 N.Y.S.2d 915, 447 N.E.2d at 1278. As the Commission noted, regrettably, this court must focus on the position of the judge, not on the individual. Intoxication of a judge while performing judicial duties compromises respect for the judiciary. As this court recently noted in In re: Judge Yvonne L. Hughes, 2004 WL 867701, 03-3408 (La.4/22/04), 874 So.2d 746:

Essential to the [legal] system is the respect citizens have for the judges they have entrusted to issue decrees that impact their lives, their liberties, and their property. When a judge demonstrates a lack of respect for the rule of law, that sacred trust is violated and our entire system of justice is placed at risk. To command respect for the rule of law, a judge must demonstrate respect for the rule of law.

This language applies equally to a judge who repeatedly fails to uphold the integrity of the judicial office. No court would tolerate an attorney or a litigant appearing in court intoxicated, and certainly it is a gross violation for a judge to sit on the bench and perform judicial duties while under the influence of alcohol. This behavior violates the sacred trust placed in judges to make decisions which affect the lives of citizens and places our system of justice at risk. A judge must hold himself to high standards so as to command respect for the office which he holds and the entire judicial system he serves. Although we feel compassion for Judge Doggett’s struggle to maintain | ^sobriety, we must, first and foremost, consider the grave implications which this misconduct casts upon the judiciary. It is for these reasons that this court believes that removal is the appropriate discipline where there has been persistent intoxication while performing judicial duties.

CONCLUSION

Upon review of the record, we conclude that removal is warranted in this case. The repeated performance of judicial duties while intoxicated is a gross violation of Canons 1, 2 A, 3 A(2), and 3 A(3) of the Code of Judicial Conduct and a violation of La. Const, art. V, § 25(C), which brings disrepute to the judicial office. In addition, Judge Doggett failed to perform work in a timely manner and issued warrants while intoxicated in violation of Canons 3 A(l) and 3 A(7).

DECREE

Accordingly, it is decreed that respondent, Judge Monty L. Doggett of the 10th Judicial District Court, Parish of Natchi-toches, is hereby removed from office; and that his office is hereby declared vacant. Respondent is ordered pursuant to La. Sup.Ct. Rule XXIII, § 26 to refrain from qualifying as a candidate for judicial office for five years and until certified by this court as eligible to become a candidate for judicial office. Further, pursuant to La. Sup.Ct. Rule XXIII, § 22, we cast respondent with costs incurred in the investigation and prosecution of this proceeding in the amount of $5312.65.

REMOVAL FROM JUDICIAL OFFICE ORDERED.

      . In the course of this proceeding, the anonymous complainant identified herself as Mrs. Vera Dyess. Mrs. Dyess is the paternal grandmother of the child who is the subject of the Dyess v. Butler custody case that was allotted to Judge Doggett.

      . On February 18, 2004, this court granted Judge Doggett's motion to place his medical records under seal. In re: Judge ABC, 04-0-0297.

      . In addition to testifying with regard to the issuance of warrants, Officer Stafford recalled that there were days when juvenile proceedings had to be canceled because of Judge Doggett's impairment. On these occasions, Officer Stafford testified that the court would have to re-issue subpoenas.

      . According to a letter from Mr. Whitehead to the Judiciary Commission dated September 25, 2002, Mr. Whitehead experienced significant delays in several cases under advisement in Judge Doggett's court. In Warner v. Natchitoches Parish School Bd., briefs were filed and the case was submitted to the court on October 30, 2001, but was not decided until August 6, 2002. In State v. Desnee Bullock, a criminal post-conviction relief application was filed on Februaiy 4, 2002 and required the signing of a simple order. After numerous requests and a client letter to the Judiciary Commission, Judge Doggett finally signed an order dated August 28, 2002, setting the application for a hearing on October 4, 2002. The record does not contain evidence whether this case was ever disposed. Russell E. Gallaghan v. Sidney Thornton was submitted to Judge Doggett on July 5, 2002 and had not been decided as of September 25, 2002.

      . Hypovolemia, also known as intravascular volume depletion, or decreased blood volume, is a medical condition commonly associated with, heavy, long-term alcohol abuse.

      . La.Rev.Stat. 28:53, entitled "Admission by emergency certificate; extension,” provides in pertinent part as follows:
      A.(l) A mentally ill person or a person suffering from substance abuse may be admitted and detained at a treatment facility for observation, diagnosis, and treatment for a period not to exceed fifteen days under an emergency certificate.
      (2) A person suffering from substance abuse may be detained at a treatment facility for one additional period, not to exceed fifteen days, provided that a second emergency certificate is executed. A second certificate may be executed only if and when a physician at the treatment facility and any other physician have examined the detained person within seventy-two hours prior to the termination of the initial fifteen day period and certified in writing on the second certificate that the person remains dangerous to himself or others or gravely disabled, and that his condition is likely to improve during the extended period ...

      . Canon 1 provides, in pertinent part, "A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Canon 2 A provides, "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 3 A(2) provides, "A judge shall maintain order and decorum in judicial proceedings.” Canon 3 A(3)provides, in pertinent part, "A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity ...”

      . Canon 3 A(l) provides, in pertinent part, "A judge shall be faithful to the law and maintain professional competence in it.” Canon 3 A(7) provides, "A judge shall dispose of all judicial matters promptly, efficiently, and fairly.”

      . While the range of sanctions runs the gamut from removal to public censure, at least two jurisdictions, including In the Matter of Aldrich, 58 N.Y.2d 279, 460 N.Y.S.2d 915, 447 N.E.2d 1276 (1983), discussed infra, have previously removed a judge for being intoxicated while on the bench. See, In the Matter of Dearman, 277 S.C. 394, 287 S.E.2d 921 (1982) (removed judge suffering from alcoholism pursuant to a disciplinary rule providing that a judge shall be removed for "habitual intemperance”); Kneifl v. Kneifl, 217 Neb. 472, 351 N.W.2d 693 (1984) (judge suspended without pay for three months based on two isolated incidents which involved cursing and threatening police officers while being booked with DWI); In the Matter of Jett, 179 W.Va. 521, 370 S.E.2d 485 (1988) (judge suspended for sixty days without pay for presiding over one DWI hearing while intoxicated); In the Matter of King, 409 Mass. 590, 568 N.E.2d 588 (1991) (public censure warranted for judge who was publicly intoxicated at a retirement party for court officers, who regularly urinated in public view, and drove while intoxicated); In re Cope, 848 So.2d 301 (Fla.2003) (public reprimand warranted for judge who was publicly intoxicated at an out-of-state judicial conference and who attempted to forcibly enter a woman's hotel room).


author: hPER CURIAM.

text:
    In re Barry J. FONTENOT.
    No. 2004-B-0079.
    Supreme Court of Louisiana.
    May 25, 2004.

      Charles B. Plattsmier, Baton Rouge, Julie B. White, for Applicant.
    D. Carson Marcantel, Baton Rouge, Barry J. Fontenot, Opelousas, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This attorney disciplinary proceeding involves two counts of misconduct filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Barry J. Fontenot, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I-Martin Matter

In May 1998, Virginia Martin contacted respondent at his law office in Opelousas, Louisiana and retained him to represent her and her minor daughter in a personal injury action arising from an automobile accident. Ms. Martin suffered severe injuries in the accident, resulting in considerable medical expenses.

In April 1999, respondent instituted suit on behalf of Ms. Martin and her minor daughter, but withheld service on the defendants. Shortly thereafter, the tortfea-sor’s insurance carrier tendered its policy limits of $10,000 for Ms. Martin’s injuries.

Respondent deposited the check in his client trust account with the intent to negotiate a reduction of Ms. Martin’s medical bills, so she could receive some portion of the settlement funds. However, respondent made little or no effort to have Ms. Martin’s medical bills reduced, nor did he disburse the funds. Rather, the settlement funds simply remained in respondent’s client trust account. During this time, 12respondent took no action as to the claims of Ms. Martin’s minor daughter, and her claim was ultimately dismissed due to respondent’s failure to request service timely.

Respondent eventually closed his law office in Opelousas and relocated to Baton Rouge to take a job with the East Baton Rouge District Attorney’s Office. Respondent did not advise Ms. Martin that he was closing his office, nor did he provide a forwarding address for mail sent to his former office.

During this time, Ms. Martin attempted to contact respondent regarding her case, but was unable to locate him. Likewise, a social worker attempted to contact respondent to determine the status of Ms. Martin’s lawsuit, as it would have an effect on her welfare benefits. Because the social worker was unable to contact respondent, Ms. Martin’s welfare benefits were terminated.

Subsequently, Ms. Martin filed a disciplinary complaint with the ODC. Approximately one year after the complaint was filed, respondent issued a check drawn on his client trust account to Ms. Martin in the amount of $3,338.33. On the same day, respondent also issued a check drawn on his trust account to Ms. Martin’s minor child in the amount of $3,333.33. Additionally, respondent notified Ms. Martin that she had a potential malpractice action against him stemming from his neglect of her minor daughter’s claim. Respondent placed the remaining settlement funds in the registry of the court.

Count II-Orbego Chiropractic Clinic Matter

In August 2000, Susan Saucier, Finance Manager for Ortego Chiropractic Clinic (“Ortego”), filed a complaint with the ODC advising respondent had neglected to laprovide reimbursement pursuant to a medical lien in the total amount of $4,015 for chiropractic services rendered by Orte-go to three of respondent’s clients, Roxanne Thomas, Patrick Jack and Sandra Faye Henry. Ms. Saucier alleged she had made numerous efforts to communicate with respondent regarding the amount owed; however, he refused to respond to her certified letters and numerous telephone calls.

The ODC conducted an investigation into the matter. During the course of its investigation, the ODC obtained recorded statements from respondent’s three clients, Ms. Thomas, Mr. Jack and Ms. Henry.

Ms. Thomas stated that in the fall of 1998, she went to respondent’s law office to seek representation in a personal injury matter against Allstate Insurance Company. She claimed she met with respondent’s secretary, who had Ms. Thomas sign an. employment contract and arranged for her to seek treatment with Ortego. Ms. Thomas claimed she subsequently made numerous efforts to communicate with respondent, but was unable to contact him.

Mr. Jack advised the ODC in his recorded statement that he retained respondent following an automobile accident around late 1998 or early 1999. He recalled that respondent sent him to a chiropractor in Opelousas for nine office visits, but was unable to remember the specific name of the chiropractor. Mr. Jack also stated respondent neglected to appear for a scheduled court date and failed to advise him that his case had been dismissed.

Ms. Henry stated that she retained respondent in December 1997 to represent her in a personal injury matter. She contended that respondent at one point asked her whether she was willing to accept $4,000 for her case, to which she agreed. However, Ms. Henry’s personal injury claim later prescribed. Respondent then gave her a list |4of local attorneys from whom she could seek independent legal advice to determine if she had a legal malpractice claim against him. Ms. Henry eventually retained new counsel and settled her malpractice claim with respondent for $6,000. Although he settled the malpractice claim, respondent admitted he failed to pay Ms. Henry’s outstanding balance at Ortego.

DISCIPLINARY PROCEEDINGS

Formal Charges

Following its investigation, the ODC filed two counts of formal charges against respondent. The ODC alleged respondent’s actions in the Martin matter violated Rules 1.1 (incompetence), 1.3 (lack of diligence), 1.4 (failure to communicate), 3.2 (failure to expedite litigation), 1.15(b) (failure to promptly deliver funds or property owed to a client or third party) and 1.16(d) (failure to protect client interests at termination of representation) of the Rules of Professional Conduct. As to the Ortego matter, the ODC alleged respondent’s actions violated Rules 1.3 (lack of diligence), 1.4 (failure to communicate), 1.15(b) (failure to promptly deliver funds or property owed to a client or third party) and 1.16(d) (failure to protect client interests at termination of representation) of the Rules of Professional Conduct.

Respondent filed an answer. He admitted some of the allegations and requested an opportunity to present a defense and mitigating evidence.

The case proceeded to a formal hearing. At the hearing, the parties entered into a joint stipulation of facts. Respondent admitted to the misconduct as alleged in the formal charges and presented mitigating evidence. In particular, respondent’s wife | (¡testified respondent suffered from depression and was under tremendous pressure during the time of the misconduct due to work and family responsibilities.

Recommendation of the Hearing Committee

In light of respondent’s admission of misconduct, the hearing committee found clear and convincing evidence to support each of the formal charges. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the committee concluded the baseline sanction for this misconduct was a suspension. As aggravating factors, the committee recognized a pattern of misconduct, multiple offenses, and the vulnerability of the victims. In mitigation, the committee found respondent had no prior disciplinary record, was inexperienced in the practice of law and did not act with a dishonest or selfish motive. The committee further identified respondent’s cooperation with the ODC, good character and reputation, remorse, efforts at restitution after the filing of formal charges, and personal and emotional problems.

Based on its findings, the committee recommended that respondent be suspended from the practice of law for a period of nine months, with three months deferred, subject to an eighteen-month period of supervised probation with conditions. In light of respondent’s voluntary withdrawal from the practice of law, Rthe committee recommended the suspension run retroactively from January 1, 2003, which would have had the effect of making respondent immediately eligible to engage in the practice of law.

Recommendation of the Disciplinary Board

The board accepted the committee’s factual findings with only one minor change. The board also adopted all of the aggravating and mitigating factors cited by the committee, although it noted that respondent did not take any significant efforts to make restitution or rectify the consequences of his misconduct until after the institution of formal charges.

|7Based on its review of the record, the board found the appropriate sanction for respondent’s misconduct was a suspension from the practice of law for a period of nine months, with three months deferred, subject to an eighteen-month period of supervised probation. However, the board rejected the committee’s reasoning that the imposition of the suspension should run retroactive to January 1, 2008, noting there was no support in Supreme Court Rule XIX or in the jurisprudence for such a retroactive suspension. The board also adopted the hearing committee’s proposed conditions of probation, with one exception. Additionally, the board determined respondent could satisfy the condition that he obtain additional continuing legal education by attending and successfully completing the Louisiana State Bar Association’s Ethics School program.

Respondent filed an objection to the findings and recommendation of the disciplinary board. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is | ^applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on the stipulation of facts and respondent’s admission to the allegations of misconduct, the record supports the conclusion that respondent failed to pursue client matters, neglected to reimburse medical providers for treatment rendered to clients and failed to protect his clients’ interests at the termination of representation.

Having found evidence of professional misconduct, the next issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s actions caused actual harm to Ms. Martin and the Ortego Chiropractic Clinic by depriving them of funds to which they were entitled for an extended period of time. By simply abandoning his practice with no notice to his clients, respondent caused them undue frustration and created the potential for harm. The baseline sanction for such misconduct is a suspension from the practice of law.

Nonetheless, we recognize there are significant mitigating factors in this case. Taken as a whole, the record demonstrates that respondent’s actions were not the product of a dishonest or selfish motive, but resulted from an unusual combination of personal and emotional problems during the time of the misconduct. Although these 1problems do not excuse respondent’s misconduct, they serve to mitigate the harshness of the sanction.

We conclude the proper sanction for respondent’s misconduct is a suspension from the practice for a period of nine months. However, in light of the mitigating factors, we defer all but three months of the suspension. Following the completion of the active portion of respondent’s suspension, we shall place respondent on supervised probation for a period of eighteen months, subject to the conditions recommended by the hearing committee, as modified by the disciplinary board.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Barry J. Fonte-not, Louisiana Bar Roll number 21279, be suspended from the practice of law for a period of nine months. All but three months of this suspension shall be deferred. Following the completion of the active portion of his suspension, respondent shall be placed on probation for a period of eighteen months subject to the conditions recommended by the hearing committee, as modified by the disciplinary board. Any violation of these conditions or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension ex-ecutory or imposing other discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Ms. Martin’s medical expenses exceeded $75,000. These expenses, along with respondent's legal fees, clearly exceeded the $10,000 policy limits.

      . Ultimately, Ms. Martin was awarded the balance of the settlement funds that had been placed in the registry of the court. As a result, she recovered all but approximately $120 of the $10,000 settlement award.

      .According to the disciplinary complaint, respondent owed the following itemized amounts: Roxanne Thomas — $1,180; Patrick Jack — $1,460; and Sandra Faye Henry— $1,375.

      . According to respondent’s wife, beginning in 1997, she began working in Baton Rouge and later in Dallas. During this time, respondent attempted to maintain his law practice in Opelousas while commuting to Baton Rouge, where the couple’s children were enrolled in school,

      . The committee recommended the following probationary conditions:
      1) That respondent promptly and timely pay all outstanding and past due bar dues and take the required number of continuing legal education credits and comply with all obligations necessary to have his license to practice law reinstated;
      2) That a probation monitor be appointed to monitor respondent's probation and his compliance with respondent’s terms of probation;
      3) That, in the event respondent re-enters the practice of law and establishes a private practice, he attend four (4) hours of continuing legal education in the area of office management and four (4) hours of ethics in each year of his probation in addition to the requisite number of hours mandated under the Supreme Court Rules;
      4) That in the event respondent re-enters the private practice of law that he have his trust account records audited by a certified public accountant on an annual basis and that the accountant provide the probation monitor with a written report of his findings, all at respondent's expense;
      5) That, in the event respondent re-enters the private practice of law, he contact an attorney with ten years or more experience to act as a practice monitor or "mentor” for respondent’s private practice and that the mentor provide the probation monitor with quarterly reports regarding respondent's private practice;
      6) That if respondent is under current treatment by a licensed mental health provider, that the mental health provider submit a report detailing the current status of respondent’s treatment, identify any medication prescribed for respondent, provide a current diagnosis and prognosis and include an opinion as to the respondent’s medical ability to practice law;
      7) That respondent shall not violate the Rules of Professional Conduct during the period of probation; and
      8) That respondent shall pay all costs for these disciplinary proceedings within sixty days of issuance of the Louisiana Supreme Court’s Order of Final Discipline.

      . The committee found that respondent allowed Ms. Thomas’ claim to prescribe. Before the board, respondent pointed out that he did not stipulate that he represented Ms. Thomas or allowed her claim to prescribe. The board agreed with respondent's argument and rejected the committee's finding on this point.

      . The board rejected the committee's proposed condition that respondent’s mental health provider submit a report detailing the status of respondent’s treatment, diagnosis and prognosis. In doing so, the disciplinary board observed that the record did not contain sufficient evidence to establish that respondent suffers from a mental disability.

      . We decline to adopt the committee's recommendation that the suspension be made retroactive to the date respondent “voluntarily withdrew” from the practice of law. Except in cases where a lawyer has been placed on interim suspension, there is no mechanism in Supreme Court Rule XIX for a retroactive suspension.