author: |,WILLIAMS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. M.K.O., Defendant-Appellant.
    No. 36,524-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.

      Gregory L. Kelley, Shreveport, for Appellant.
    Richard P. Ieyoub, Attorney General, Paul J. Carmouehe, District Attorney, J. Thomas Butler, James D. Hood, Assistant District Attorneys, Edward F. Jones, Assistant City Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   |,WILLIAMS, J.

The defendant, M.K.O., appeals a trial court judgment denying his request for expungement of his arrest record. For the following reasons, we reverse and remand.

FACTS

The defendant, M.K.O., was arrested on December 31, 1999 and charged with one count of felony simple criminal damage to property, a violation of LSA-R.S. 14:56. The charges arose from an incident in which M.K.O. damaged several cars in front of a local bar in Shreveport. The Caddo Parish District Attorney’s Office offered the defendant the opportunity to enter a pre-trial diversion program. As a condition of that program, the defendant paid restitution of approximately $5,000. On December 6, 2000, the State dismissed the case because the defendant had successfully completed the diversion program.

On February 12, 2001, M.K.O. filed a “Rule to Show Cause” requesting that his arrest record be expunged pursuant to LSA-R.S. 44:9(B). Following a hearing, the trial court denied the motion. The court concluded that the arrest record had substantial probative value as a prior act for subsequent prosecution. M.K.O. appeals.

DISCUSSION

During the expungement hearing, both the assistant district attorney, on behalf of the State, and the city attorney’s office, on behalf of the Shreveport Police Department, were present. The assistant district attorney informed the trial court that the state was not opposing the request for | ^expungement. The city attorney informed the trial court that the department, as the arresting agency, was not opposing the motion, but it was entering a general objection because “the chief has asked us to.” Thereafter, the trial judge made the following statement:

I know I’m — you drew the wrong judge for any expungment (sic), because I don’t generally like the idea of people hiding behind their bad acts under expungment (sic), and that’s what you’re asking me to do.

The trial judge then questioned the defendant as to whether he was married, employed or had any children. After a short exchange with the defendant concerning his ability to obtain employment with his present arrest record, the trial judge ordered briefs and took the matter under advisement. As stated above, the trial judge subsequently filed “Written Reasons for Judgment,” denying the defendant’s request to expunge his arrest record. The trial court found that the arrest record had substantial probative value as a prior act for subsequent prosecution.

LSA-R.S. 44:9(B)(1) governs the ex-pungement of felony arrest records and provides in pertinent part:

(1) Any person who has been arrested for the violation of a felony offense or who has been arrested for a violation of R.S. 14:324.2, R.S. 14.34.3, or R.S. 14:37 may make a written motion to the district court for the parish in which he was arrested for the ex-pungement of the arrest record if:
(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustain a motion to quash; and
(b) The record of arrest and prosecution for the offense is without substantial probative value as a 13prior act for any subsequent prosecution.

Louisiana courts rely on the defendant’s presumption of innocence under our Constitution and the principle of “fundamental fairness” to conclude that the defendant is entitled to expungement of an arrest record, and the court is required by law to grant relief, if there has been a dismissal of the offense. The statute requires a contradictory hearing with the arresting agency prior to a ruling on the motion by the trial court. State v. Diaz, 582 So.2d 193 (La.1991). See also, State ex rel Wright v. State, 600 So.2d 594 (La.1992).

In the instant case, M.K.O.’s request for expungement was unopposed by the arresting agency, and the district attorney concurred with M.K.O. in his request for expungement. There was no evidence presented, and none appears of record, to justify the trial court’s conclusion that M.K.O.’s arrest for criminal damage to property had substantial probative value as a prior act for a subsequent prosecution.

The Louisiana Supreme Court, in its 1994 ruling in State v. Savoie, 92-1586 (La.5/24/94), 637 So.2d 408, distinguished expungement of the public’s access to an arrest record from destruction of that record. This view has now become embodied in the statute with legislative changes to Subsection B and the addition of Subsection G. Acts 1995, No. 1251 and Acts 1999, No. 1111. Subsection G provides:

“Expungement” means removal of a record from public access Lbut does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry and the Louisiana State Board of Examiners of-Psychologists.

With this definition of expungement, it would appear difficult to show in the contradictory hearing under Subsection B that the proposed expungement of a record, which will remain accessible to all law enforcement agencies, must nevertheless be prevented. Clearly, there was no showing which would prevent expungement in this case. The trial court erred in refusing to grant the defendant’s request for ex-pungement.

Accordingly, the trial court’s judgment denying the motion for expungement is reversed. The matter is remanded to the trial court with instructions to grant defendant’s motion for expungement of his arrest record for simple criminal damage to property.

REVERSED AND REMANDED.

      . Because the defendant is seeking expungement, and a purpose of expungement is to preserve privacy, defendant’s request that we use his initials is granted.

      . Because there is no evidence in the record to support the trial court's conclusion, we decline to address the issue presented in the parties’ appellate briefs as to which party bears the burden of proving that the record of arrest and prosecution for the offense is without substantial probative value as a prior act for any subsequent prosecution.


source: Caselaw Access Project

author: I .WILLIAMS, Judge.

license: Public Domain

text:
    Joe L. BROWN and Mary Brown, Plaintiff-Appellee v. James M. EPPINETTE, M.D., Floyd T. Jones, O.D.; and Karen Beene, M.D., Defendant-Appellee. Louisiana Patients’ Compensation Fund, Intervenor-Appellant.
    No. 36,405-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.

      Brian E. Crawford, Monroe, Jefferson B. Joyce, Baton Rouge, for Appellant.
    Johnny E. Dollar, Monroe, for Appellee, Joe Brown & Mary Brown.
    David H. Nelson, Monroe, for Appellee, Floyd T. Jones, O.D. and Karen Beene, M.D.
    Before BROWN, WILLIAMS and KOSTELKA, JJ.
   I .WILLIAMS, Judge.

The intervenor, Louisiana Patients’ Compensation Fund (“LPCF”), appeals a judgment in favor of the plaintiffs, Joe L. Brown and Mary Brown. The jury found that the defendants, Dr. Floyd Jones and Dr. Karen Beene, were each 50% at fault in the death of plaintiffs’ son and awarded each plaintiff $300,000 in damages. Pursuant to the Louisiana Medical Malpractice Act, judgment was rendered against each defendant in the amount of $100,000 and against LPCF in the amount of $300,000. For the following reasons, we affirm.

FACTS

On February 26, 1994, Joseph A. Brown (“Brown”), eighteen years old, visited the Glenwood Regional Medical Center (“GRMC”) emergency room, complaining of a headache, sore throat and fever. He did not report nausea or blurred vision. Brown was examined by the emergency room physician on duty, Dr. James Eppi-nette, who did not find any neurological deficits or pharyngeal abscesses. Dr. Ep-pinette ordered a CT scan, which did not show any abnormalities. A throat culture was not ordered because prior to going to the hospital, Brown had been taking an antibiotic, Amoxicillin, which would have prevented a reliable test result. Dr. Eppi-nette diagnosed Brown with exudative pharyngitis (sore throat) and prescribed Advil for his headache and fever.

On February 28, 1994, Brown returned to GRMC with complaints of a headache, right eyelid swelling, vomiting and lack of appetite. Dr. Eppinette examined Brown and administered two tests, Kernig’s test, in which the patient lies on his back, brings his • knees to the chest and 12straightens the legs, and a BrudzinsM’s test, where the patient lies on his back and lifts his head. Both tests were negative, indicating a lack of meningeal or nerve root irritation, but not conclusively ruling out meningitis. Dr. Eppinette ordered a complete blood count (CBC) and a test of internal organ functioning. The CBC results showed a slightly elevated white cell count of 13,000 and an elevated serum glucose level. Dr. Eppinette administered a 500 milligram intramuscular injection of Rocephin, an antibiotic, and prescribed Phenergin and Duricef, an oral antibiotic. Dr. Eppinette did not find any clinical indication of bacterial meningitis.

Four days later, on the morning of March 4, 1994, Brown returned to the GRMC emergency room complaining of continuing right frontal and temporal headache. He reported that in August 1993, he was injured in a rodeo accident that caused fractures to the right side of his face. Brown was seen by Dr. Terri O’Neal, who noted his previous two ER visits. Brown told Dr. O’Neal that he had been taking antibiotics and that his throat was less sore, but that his headache had not improved. Dr. O’Neal was concerned about Brown’s severe and persistent headache and contacted Dr. Floyd Jones, the treating physician for Brown’s previous accident. Dr. O’Neal recommended a neurological evaluation.

Dr. Jones examined Brown and reviewed an MRI, which showed mucosal thickening of the right ethmoid sinus. Brown’s mother had raised a concern about meningitis, but Dr. Jones did not find signs of meningeal irritation. Dr. Jones assessed Brown’s condition as a right ethmoid sinusitis. | s Dr. Jones admitted Brown to the hospital, ordered IV Zinacef, an antibiotic, to treat the sinusitis and requested a neurology consult.

After Brown was admitted, he complained of a worsening headache and chills shortly before he vomited. Brown was placed on an IV and given Zinacef, which could also treat meningitis. Zinacef was the fourth antibiotic administered to Brown since his headache symptoms began. Dr. Jones consulted with Dr. Karen Beene, a neurologist, who reviewed Brown’s history and noted that blood test results showed a white cell count of 16,000 at admission. Dr. Beene also noted that Brown’s headache was very significant and was worse when he moved around.

At approximately 7:00 p.m. on March 4, 1994, Dr. Beene performed a spinal tap, which produced six cubic centimeters of clear, colorless cerebral spinal fluid (“CSF”). A culture of the CSF produced “no growth” after 72 hours. Dr. Beene wrote instructions that if the culture was negative after three days, the lab should save the sample and extend testing for 7 to 10 days in case there was bacteria present in low numbers in the culture due to a sinus leak. However, the medical record did not contain a report of the results of any additional culture tests.

On March 6, 1994, Dr. Beene noted a CSF white cell count of 23, with normal glucose and protein. She examined Brown, who felt better but continued to have a headache. Dr. Jones and Dr. Beene diagnosed Brown with ethmoid sinusitis. On March 8, 1994, Dr. Beene noted that Brown’s condition had improved and reported that he could be discharged the following day. Beene wrote in her notes that “this could have been a 14parameningeal infection (sinus ethmoid)-versus partially treated meningitis.” On March 9, 1994, Brown was discharged with a prescription for Ceclor, an oral antibiotic.

On March 11, 1994, Brown’s mother, Mary Brown, awoke to find him gasping for air and bleeding from the nose. Brown was transported by ambulance in a comatose condition to GRMC, where a spinal tap was performed. The CSF showed a white cell count of 10,900, a glucose of 3 and a protein of 803. The hospital’s tests of a CSF culture resulted in a “no growth” report. Several hours later, Brown died. In April 1994, a sample of Brown’s spinal fluid was sent to Puckett Laboratories, where a CSF culture produced two organisms, Peptostreptococcus and Prevotella, demonstrating that Brown’s death was caused by bacterial meningitis.

Subsequently, the plaintiffs, Joe L. Brown and Mary Brown, the parents of Joseph A. Brown, filed a petition for damages against the defendants, Dr. James Eppinette, Dr. Floyd Jones and Dr. Karen Beene. Dr. Eppinette was dismissed from the action before trial. After a trial, the jury found each defendant 50% at fault in causing the death of plaintiffs’ son and awarded each plaintiff $800,000 in damages. Pursuant to the Louisiana Medical Malpractice Act, judgment was rendered against each defendant in the amount of $100,000 and against LPCF in the amount of $300,000. LPCF intervened to appeal the judgment.

DISCUSSION

The defendants contend the jury erred in finding a breach of the standard of care. Defendants argue that the opinion of plaintiffs’ medical | ^expert was not substantiated by the evidence presented and cannot provide the basis for the jury’s finding.

In order for an expert opinion to be valid and merit much weight, the facts upon which that opinion is based must be substantiated by the record. Russ v. Jones, 580 So.2d 1098 (La.App. 4th Cir. 1991). When the expert opinion is based upon facts not supported by the record, the opinion may be rejected. Perkins v. Entergy Corp., 98-2081 (La.App. 1st Cir.12/28/99), 756 So.2d 388.

In the present case, plaintiffs presented the testimony of Dr. Vivian Kattapong, a board-certified neurologist, who was accepted as an expert. Dr. Kattapong testified that she had reviewed the medical records of Brown’s treatment at GRMC in March 1994. Dr. Kattapong opined that Brown showed symptoms and a history consistent with a partially treated bacterial meningitis, which occurs when a person has been given antibiotics in some form that inhibits the growth of bacteria and treats or reduces the infection without completely clearing the condition. Dr. Kattapong further opined that Doctors Beene and Jones did not meet the standard of care in discharging Brown prematurely without providing adequate treatment, and as a result, his condition worsened to a fulminate bacterial meningitis that caused his death.

Defendants contend the chemical testing of Brown’s spinal fluid and the findings of the physical examinations did not show the typical signs of bacterial meningitis. Defendants note that the CSF white cells were 96% lymphocytes, which would indicate an inflammatory response to sinusitis, |fihis glucose and protein levels were normal and the spinal fluid culture did not produce bacterial growth. In addition, Brown’s neck remained supple, his headache was localized on the right side and his Kernig and Brudzinski tests were negative, findings that are inconsistent with bacterial meningitis.

However, Dr. Kattapong addressed these findings by noting that Brown had taken an oral antibiotic, Amoxicillin, for several days before going to the emergency room, that Dr. Eppinette gave Brown an injection of the antibiotic Rocephin and prescribed another oral antibiotic, Duricef, and that the antibiotic Zinacef was given intravenously to Brown two hours before the spinal tap. Dr. Kattapong opined that the CSF test results were not reliable because Brown had received four different antibiotics through various routes of administration, allowing some of the antibiotics to enter the spinal fluid space. Dr. Kattapong explained that the effect was to improve Brown’s test results, giving the CSF a more normal profile and minimizing the chance to produce bacterial growth in the CSF culture.

In addition, Dr. Kattapong testified that the CSF glucose level cannot be considered in isolation. She explained that a serum glucose level should have been obtained within one hour of the spinal tap to determine if Brown’s CSF glucose was within the normal range of 2/3 of serum glucose. Neither Dr. Jones nor Dr. Beene ordered that such a blood test be done at the time. Thus, Dr. Kattapong concluded that without a basis from which to determine the CSF/serum ratio, a physician could not reasonably assume that Brown’s CSF glucose level was “normal.”

17Pr. Kattapong opined that Brown’s protein level was “on the high end” for a person of his age and therefore was not normal. Nevertheless, Dr. Kattapong stated that although atypical, a normal protein level was not inconsistent with bacterial meningitis. Regarding the CSF culture, Dr. Kattapong testified that antibiotics inhibit the growth of bacteria and so the report of no growth after 72 hours did not mean bacteria was not present in Brown’s CSF culture. She opined that in a situation where antibiotics were given, one cannot rely on a 72-hour report of no growth to rule out bacterial meningitis and that the typical differential between lymphocytes and polys expected with a bacterial infection may not be seen in the situation of a partially treated meningitis.

Regarding the findings of Brown’s physical examinations, Dr. Eppinette acknowledged that negative Kernig and Brudzinski tests and a supple neck were not conclusive to rule out bacterial meningitis. Although Dr. Eppinette stated that he would ordinarily expect a global headache with meningitis, the evidence showed that Brown had been taking pain medication which may have relieved his headache except for the area of acute infection, the right ethmoid sinus.

In their brief, defendants challenge Dr. Kattapong’s opinion that antibiotics entered Brown’s spinal fluid and tainted the CSF test results by asserting the lack of medical studies which either indicate that oral antibiotics will permeate the spinal fluid or specify the length of time required for such drugs to affect the CSF. Dr. Eppinette testified that some oral antibiotics have the potential to cross over the blood/brain barrier, the |Rtissue wall between a blood vessel and the brain, and could possibly enter the spinal fluid. Regarding the question of whether the administered antibiotics were present for a sufficient length of time to affect the spinal fluid, Dr. Eppinette opined that Brown’s CSF culture no-growth report was a suspect, tainted test due to the antibiotics introduced before the spinal tap.

Dr. Joaquin Rosales, Jr., a pediatrician and director of GRMC’s pediatric intensive care unit, opined that the IV Zinacef could have been a factor in affecting Brown’s CSF test results. Dr. Rosales testified that Zinacef and Rocephin will cross the blood/brain barrier and the fact that they were given before the spinal tap should have placed Doctors Beene and Jones on notice that the CSF culture results might not be reliable.

Dr. Lowery Thompson, a neurologist and former partner of Dr. Beene, testified that giving Brown IV antibiotics two hours before the spinal tap “probably increased the probability of a false negative result” of the culture test. Thus, the foregoing testimony shows that Dr. Kattapong was not the only physician who expressed the opinion that the previously administered antibiotics would have been in Brown’s body for a sufficient length of time to enter the spinal fluid.

Nor are we persuaded by the defendants’ contention that the test results from the March 11, 1994 spinal tap should have been consistent with the prior CSF test results. The record supports a finding that when the first spinal tap was performed, the bacterial infection was in a low-grade stage and had been inhibited by antibiotics taken by Brown, who then received four days of meningitis-treating intravenous antibiotics, which were stopped |aby the defendants on March 8, 1994. More than 48 hours then passed before Brown was brought back to the hospital in a coma and the final tap was taken as he was dying. In that time period, the more resistant bacteria not completely treated by the IV Zinacef could have resumed' growing unchecked, resulting in the severe infection reflected in the final CSF results.

After reviewing the record, we conclude that there was sufficient medical evidence and testimony presented to support the expert opinion of Dr. Kattapong. Consequently, the jury was not clearly wrong in accepting Dr. Kattapong’s testimony. The assignment of error lacks merit.

Liability

The defendants contend the jury erred in finding them at fault in the death of Brown. Defendants argue that plaintiffs failed to meet their burden of proving a breach of the standard of care.

In a malpractice action based on the negligence of a physician who practices in a particular specialty, the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the same medical specialty. The plaintiff must also prove that the defendant either lacked that degree of knowledge or skill or failed to use reasonable care and diligence in applying that skill, and that defendant’s lack of skill or failure to exercise reasonable care caused plaintiff to suffer injuries that would not otherwise have occurred. LSA-R.S. 9:2794A; Roberts v. Cox, 28,094 (La.App.2d Cir.2/28/96), 669 So.2d 638.

in A physician is not held to a standard of absolute precision. Rather, his conduct and judgment .are evaluated in terms of reasonableness under then-existing circumstances. Credibility determinations, including the evaluation of expert testimony together with the ultimate issue of whether a plaintiff has satisfied his burden of proof, are factual issues to be resolved by the trier of fact and will not be disturbed on appeal in the absence of manifest error. Roberts v. Cox, supra; Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App. 2d Cir.1991).

In the present case, the parties elicited testimony from the physician witnesses concerning the standard of care applicable to the defendants in treating Brown. Dr. Eppinette testified that Doctors Jones and Beene could reasonably have relied on the CSF lab. results, opining that the Zinacef probably would not have changed the spinal fluid chemistry in the time involved and that Jones had not breached the standard of care of a family practitioner in discharging Brown.

Dr. O’Neal, an emergency medicine physician, testified that when Brown appeared at the GRMC emergency room on March 4, 1994, he complained that his headache had not improved since his last visit and that Brown was mildly “photo phobic,” or light sensitive. Dr. O’Neal stated that if meningitis or partially treated bacterial meningitis are part of the differential diagnosis, the standard of care requires a thorough physical examination, lab work and a careful evaluation of the patient to determine if meningitis is likely and if so, the condition should be treated. Doctors Rosales and Eppinette agreed that if Dr. Jones and Dr. Beene believed they inwere treating meningitis, then they breached the standard of care in discharging Brown.

Dr. Karen Beene testified that after she had examined Brown and reviewed the MRI showing fluid in the right ethmoid sinus, she thought ethmoid sinusitis might be the cause of Brown’s symptoms, but also considered meningitis as a possibility. Dr. Beene stated that she was aware that Brown had received IV antibiotics 1/6 hours prior to the spinal tap, but did not think the results were unreliable because of her belief that the antibiotic would take a longer period to enter the spinal fluid.

Dr. Beene testified that the presence of 23 white cells in the CSF was “technically” above the normal range, but less than she would expect for bacterial meningitis. Dr. Beene opined that the CSF lab results did not show a probability of meningitis, but demonstrated a parameningeal reaction due to the sinus infection in close proximity to the meninges. Dr. Beene testified that she had instructed the lab, in the situation where the 72-hour culture report was negative, to hold Brown’s CSF cultures for seven to ten days to check for bacterial growth related to a possible CSF leak, but that she never heard a reply or followed up on the cultures.

Dr. Beene stated that she did not consider any effect of the IV antibiotic as significant and had relied on the 72-hour culture report of no growth as evidence there likely was not an infection of the meninges. Dr. Beene testified that she had considered the possibility of bacterial meningitis, but after the lab results and Brown’s response to antibiotics, she | ^.believed the most likely diagnosis was ethmoid sinusitis and that discharge was appropriate.

Dr. Floyd Jones, a family practitioner, testified that he was contacted by Dr. O’Neal regarding Brown’s condition and that after a physical exam, he admitted Brown for a neurological consult. Dr. Jones stated that based upon the information at the time, his assessment was right ethmoid sinusitis with a possibility of meningitis, but the plan was to treat the sinuses. Dr. Jones testified that when he ordered Brown be given IV Zinacef, he did not consider it a “meningitis drug” and did not think the antibiotic would make the spinal tap results unreliable.

Dr. Jones acknowledged that the CSF white cell count was mildly elevated, but stated that since he already believed that sinusitis was a “good” diagnosis to explain Brown’s condition, the 23 white cell count seemed reasonable along with the other lab and clinical findings. Dr. Jones testified that he relied on the CSF glucose reading as normal, that he did not think the Zinacef made a significant impact on Brown’s spinal fluid and opined that the culture report of no growth after 72 hours indicated that there was no medical probability of bacterial meningitis. Dr. Jones stated that he discontinued the IV antibiotic on the evening of March 8, 1994, and approved Brown’s discharge even though the sinusitis was not completely cleared. Dr. Jones agreed that Brown received sufficient doses of Zinacef to begin to treat bacterial meningitis, if it were present.

Defendants contend that Brown did not show any of the classic symptoms of bacterial meningitis, such as rigid neck, brain swelling, l13elevated white cell count or abnormal glucose and protein levels. However, the testimony demonstrated that Brown showed other symptoms of meningitis. Dr. Eppinette testified that Brown complained of vomiting and a sore throat. Dr. O’Neal reported that Brown was photo phobic and had experienced a severe and continuing headache. Further, each physician recognized that the white cell count was not normal.

The trial testimony showed that prior to the March 4, 1994 spinal tap, Dr. Jones ordered that Brown be given intravenous antibiotics and that Dr. Beene was aware this medication was administered. However, neither physician took into account the potential inhibitory effect of the antibiotics in relying on the 72-hour culture report of no growth as evidence that bacteria were not present in Brown’s spinal fluid. Their decision was contrary to the opinion of other physicians, including Doctors Eppinette, Rosales, Thompson and Daniel, all of whom cautioned that the presence of the antibiotics prior to the spinal tap could have tainted the reliability of the CSF culture results.

In addition, both Dr. Jones and Dr. Beene accepted Brown’s CSF glucose readings as normal, even though they failed to have a blood test done within one hour of the spinal tap in order to obtain a serum glucose level with which to compare the CSF glucose. The testimony indicated that without this information, the defendants did not have a sufficient basis to support an interpretation of the CSF glucose level as “normal.” Other physicians stated that another factor that should have been considered in devaluating the CSF glucose level was the fact that Brown had received IV glucose throughout the day of the spinal tap.

Dr. Thompson testified that the peptos-treptococcus, which is found in the sinuses and was grown in culture after Brown’s death, was the same organism that caused his bacterial meningitis. Dr. Thompson acknowledged that the bacteria could have already entered Brown’s CSF at the time of the spinal tap, but he did not believe that had occurred. Further, Dr. Rosales opined that it was possible a partially treated bacterial meningitis of prevotella or peptostreptococcus origin could grow to a fulminate stage and cause death over a period of 30 to 40 hours after intravenous antibiotics were discontinued.

The evidence also showed that Dr. Beene, in response to the potential presence of slow-growing bacteria, requested that the lab hold Brown’s CSF culture for seven to ten days if the 72-hour report was negative. However, the defendants discharged Brown before another culture report was due.

Dr. Kattapong testified that the CSF white-cell count of 23 was not normal, a fact recognized by the other physician witnesses, and was an indication that Brown’s infection had extended into the meninges, causing inflammation consistent with a low-grade bacterial infection proceeding from the sinuses. Dr. Kattapong stated that this was a very dangerous condition which ultimately developed into fulminate bacterial meningitis.

The jury heard the conflicting medical testimony and weighed the credibility of the witnesses. The parties presented competing theories as to the meaning of the evidence and the reasonableness of the medical decisions |1sof the defendants. Based upon this record, the jury could reasonably have found that Dr. Jones and Dr. Beene breached the standard of care by ruling out meningitis as a diagnosis without adequately evaluating the patient’s condition in light of the information available and by prematurely discharging Brown from the hospital before providing the appropriate antibiotic treatment for bacterial meningitis. Consequently, we cannot say the jury was clearly wrong in its evaluation of the expert testimony or in its choice between conflicting interpretations of the medical evidence. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. The costs of this appeal are assessed to the appellant, Louisiana Patients’ Compensation Fund.

AFFIRMED.


author: lbrown, C.J. I-i GASKINS, J.,

text:
    Andrew WATSON, et al, Plaintiffs-Appellants, v. Dr. Steven BRAZEEL and The Medical Protective Company, Defendants-Appellees.
    No. 36,499-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.

      Jay A. Pucheu, Marksville, for Appellants.
    Crawford & Anzelmo, by Brian E. Crawford, Monroe, Jefferson B. Joyce, Baton Rouge, for Appellees.
    Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.
   lbrown, C.J.

On November 17,1995, plaintiff, Andrew Watson, suffered a laceration on top of his foot when it was caught in a garbage press at work. The wound was superficial and of almost no depth — at best one. centimeter. Mr. Watson went to St. Francis Medical Center OccuMed Clinic and was seen by Kalisa Ramsey, a nurse practitioner, and Dr. Steven Brazeel. Mr. Watson claims that the wound was not properly cleaned, became infected and required surgery. Approximately one month later, surgery was performed by Dr. Brian Bul-loch, an orthopedic surgeon, who removed debris or foreign particles from the wound that could be easily seen by the eye. Dr. Bulloch concluded that this debris was from the work injury.

Mr. Watson was given intravenous (IV) antibiotics while hospitalized. On December 20, 1995, he was released from the hospital and was administered IV antibiotic therapy by home health care. He was readmitted to the hospital when he became nauseated and suffered temporary kidney failure as a result of a reaction to the antibiotics. This condition required dialysis, but the problem was eventually resolved.

A medical review panel found that the initial treatment of the wound by all concerned was appropriate; however, the panel found that there were substantial issues of fact concerning the administration of the antibiotics.

On January 26, 1998, plaintiffs, Andrew and Jacquelyn Watson, filed suit against Dr. Brazeel and his insurer, The Medical Protective Company, Ms. Ramsey, Dr. Bulloch, and St. Francis Medical Center. The parties reached a settlement as to the plaintiffs’ claims arising from the administration of the IY antibiotics. The matter proceeded to trial only |gagainst Dr. Bra-zeel and his insurer. It was stipulated that the only issue remaining concerned the initial treatment of the injury and that any damages awarded would be from that date, November 17, 1995, until Mr. Watson’s readmission to the hospital due to the drug reaction on December 28, 1995. The parties also stipulated that Mr. Watson’s medical expenses for this period totaled $23,001.25.

Questioning the credibility of Mr. Watson, the trial court found in favor of defendants. We reverse.

Discussion

There is no dispute in this case as to the applicable standard of care. Dr. Brazeel testified that the standard of care would include inspecting the wound, opening the laceration and checking for foreign bodies and debris. It would also include irrigating the wound with peroxide, saline, water, or any combination of those substances. Dr. Brazeel agreed that ultimately, he was responsible for seeing that the standard of care was implemented.

Ms. Ramsey testified that another nurse in the clinic was to clean the wound with peroxide and saline. Ms. Ramsey stated that she thought the wound had been cleaned because Mr. Watson’s foot was wet when she entered the room. However, she did not personally clean the foot nor did she see anyone else do so. Further, Ms. Ramsey testified that, although a tetanus shot was ordered for Mr. Watson, she does not know if it was actually given. Ms. Ramsey stated that she spread the wound slightly apart and examined it. She denied seeing any debris in the wound. She claimed that after Dr. Bra-zeel determined that sutures were not necessary, an|3antibiotic ointment was applied to the laceration. Ms. Ramsey testified that she instructed Mr. Watson to wash his foot with warm, soapy water every day and to apply antibiotic ointment three times per day.

Ms. Ramsey stated that she had no reason to believe that the standard plan was not followed. She said, “I have to feel confident that the people who work for me and with me in the clinic would have no reason to not execute my plan. That had never happened in the past.” No one testified that these cleaning procedures were done, nor were any such procedures noted or charted in the medical record.

Ms. Ramsey detailed five follow-up visits in November and December 1995 by Mr. Watson in which there was a yellowish discharge from the wound with swelling and continued complaints of pain.

Mr. Watson testified that when he initially went to OeeuMed, no one spread the wound open to look for debris. He said that his foot was merely twisted back and forth. Ms. Ramsey then poured a brown liquid, Betadine, over it. 'He denied being given a tetanus shot and stated that he was not instructed to wash the foot or to apply ointment. He further stated that he did not receive any written instructions regarding wound care. According to Mr. Watson, he was told not to get the foot wet. He returned for follow-up visits because his foot continued to swell. He claims that he was not given any instructions about cleaning the foot until his third visit.

The defense attempted to impeach Mr. Watson with deposition testimony in which he stated that some liquid was poured over his foot. Mr. Watson did not dispute that statement, but reiterated that the only liquid 14used was Betadine. He consistently testified that the foot was not cleaned with any other substance.

Dr. Brazeel said that when he initially saw Mr. Watson, he only looked at the wound to determine if it needed sutures. Dr. Brazeel testified that he did not clean the wound and did not see anyone else clean it. He stated that, “The instructions were clearly given to clean the wound with peroxide.... I would assume that those things occurred.” He also acknowledged that there was no documentation in the medical record that the wound was cleaned. He assumed that Ms. Ramsey had done an adequate examination of the foot.

Dr. Bulloch’s surgical report shows that there were large amounts of black debris inside the wound. He removed from the wound 20 to 40 particles that were between one and two millimeters in size. This “small blackish appearing material” was confirmed in the pathology report to be foreign matter. This material caused aggravation of the soft tissue and bone in Mr. Watson’s foot. Dr. Bulloch believed that this matter was from the time of the initial injury.

Dr. Desormeaux, an internal medicine specialist, testified by deposition on behalf of the plaintiffs. He stated that the medical chart in this case did not provide thorough documentation. He noted that irrigation of the wound and a tetanus shot were ordered, but there is no showing that the orders were carried out. Further, there was no description of how |Bthoroughly the wound was examined. According to Dr. Desormeaux, the record indicates that the wound was to be cleaned with peroxide. However, he stated that the standard of care is to flush the laceration with copious amounts of saline, not just peroxide. Dr. Desormeaux said that there is no documentation in the medical record to substantiate the nature and extent of the treatment received by Mr. Watson. He testified that it could not be proved from the medical record that the wound was cleaned and thus, he opined that Mr. Watson received substandard care. Dr. Desormeaux stated that Dr. Brazeel was ultimately responsible for seeing that all necessary treatment was rendered to Mr. Watson.

Dr. Eugene Benson Scott, II, a family practice physician and a member of the medical review panel, testified that the panel received no information that Mr. Watson’s care in this case was substandard.

The defense can not or will not say what was done before Nurse Ramsey or Dr. Brazeel saw Mr. Watson. They argue that it is plaintiffs’ burden to prove that the clinic’s plan was not followed. Dr. Brazeel further contends that a medical expert must specifically state that there was a breach of the standard of care. The medical charts do not show debridement, irrigation or cleaning of the wound. Mr. Watson testified that this was not done. Mr. Watson’s foot became infected. Dr. Bul-loch found numerous particles of foreign material that had been in the wound since the injury.

We recognize that credibility determinations of a trial court are not to be reversed absent manifest error. However, in this case, we do not find, as did the trial court, that Mr. Watson was inconsistent in his testimony ^concerning how his foot was treated. He consistently stated that only Betadine was used and that his foot was not irrigated with peroxide and/or saline. Although Ms. Ramsey and Dr. Brazeel were also credible witnesses, they could not testify that Mr. Watson’s foot was actually irrigated. Further, Dr. Bulloch opined that the debris which caused the irritation had been in place since the time of injury. There is no direct evidence in this record to dispute Mr. Watson’s claim that his foot was not properly treated. Under these circumstances, we find that Mr. Watson carried his burden of proof. The trial court’s decision to the contrary is reversed.

Comparative Fault

Dr. Brazeel contends that Mr. Watson’s failure to clean the wound and apply the ointment contributed to his injury.

A party asserting comparative fault bears the burden of proof by a preponderance of the evidence that the other party’s fault was a cause in fact of the damage complained of. Begnaud v. Camel Contractors, Inc., 98-207 (La.App. 3d Cir.10/28/98), 721 So.2d 550, writ denied, 98-2948 (La.02/05/99), 738 So.2d 1; Bourgeois v. Bailey, 01-1269 (La.App. 5th Cir.04/10/02), 817 So.2d 240.

In the present case, Ms. Ramsey stated that she instructed Mr. Watson to wash his foot in warm, soapy water daily and to apply antibiotic ointment three times per day. Mr. Watson claims that he was not given these instructions. Instead, he claims that he was told not to get the foot wet. Mr. Watson returned to the clinic within three days, on November 20, 1995, and four times thereafter before a bone scan was performed indicating an |7infection. Under the circumstances, we cannot find any fault on the part of Mr. Watson.

Damages

Plaintiffs argue that, in addition to the stipulated medical expenses of $23,001.25, Mr. Watson is entitled to general damages for pain and suffering and Mrs. Watson is entitled to damages for loss of consortium.

Because the trial court rejected the plaintiffs’ claims and did not reach the question of damages, we must make a de novo determination from the facts in the record. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766; Butcher v. City of Monroe, 31,932 (La.App.2d Cir.05/05/99), 737 So.2d 189, writ denied, 99-1608 (La.09/17/99), 747 So.2d 566.

Mr. Watson testified that his foot was painful and began swelling after the injury. He was on crutches and went to follow-up visits at the clinic on November 20, November 27, December 4, December 12, and December 14, 1995. The foot continued to be swollen and eventually became so painful that he could not put weight on it. He was given whirlpool therapy on follow-up visits. On December 14, 1995, Mr. Watson was admitted to the hospital for surgery. He initially resisted the idea of surgery, but consented when informed that the foot might become gangrenous. Mr. Watson was in the hospital from December 14 through December 20, 1995, and was then discharged to his home with IV therapy. Mr. Watson testified that he was still on crutches and required assistance from his wife to get to the bathroom. He also testified that his wife helped him with his treatments and aided in soaking his foot. By December 28, R1995, Mr. Watson was so gravely ill from his IV antibiotic treatments that he was readmitted to the hospital.

As noted above, plaintiffs are only seeking damages from the date of the injury, November 17, 1995, until Mr. Watson’s readmission to the hospital on December 28, 1995. The parties settled that part of the case involving the problems resulting from the antibiotic treatment. After the treatment for the antibiotic reaction, it appears that Mr. Watson’s foot healed. There are no complaints in this record of any residual disability as a result of the injury.

We find that an award of $30,000 is sufficient to compensate Mr. Watson for his general damages. Compare Summerall on behalf of Summerall v. Ouachita Parish School Board, 27,643 (La.App.2d Cir.12/08/95), 665 So.2d 734 ($30,000 award for severe injury to a boy’s foot); Edwards v. K & B, Inc., 26,002 (La.App.2d Cir.08/17/94), 641 So.2d 1040 ($6,000 award for injury to foot caused by falling merchandise); Davis v. Winn-Dixie Louisiana, Inc., 534 So.2d 150 (La.App. 3d Cir.1988), writ denied, 536 So.2d 1236 (La.1989) ($5,000 award for foot injury caused by falling shopping cart which resulted in hospitalization for one week); Courville v. Piggly Wiggly Bunkie Co., Inc., (La.App. 3d Cir.1993), 614 So.2d 1366 ($30,000 award to lady whose foot was injured by falling merchandise); Sagona v. Harris, 97-0129 (La.App. 4th Cir.06/18/97), 696 So.2d 595, writ denied, 97-1902 (La.10/31/97), 703 So.2d 28 ($30,000 award for severe laceration to foot with infection resulting in long hospitalization, two surgeries, and extended recuperative period).

| gMrs. Watson asserts a claim for loss of consortium in this case. Loss of consortium claims generally have the following seven items: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations; (4) loss of performance of material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of fidelity. Campbell v. Webster Parish Police Jury, 36,391, 36,392 (La.App.2d Cir.09/18/02), 828 So.2d 170. However, not every physical injury will result in a loss of consortium or other general damages. Etheredge v. St. Paul Mercury Insurance Company, 35,832 (La.App.2d Cir.04/03/02), 814 So.2d 119. In the present case, Mrs. Watson did not testify at trial. The parties stipulated that if she had appeared at trial, her testimony would have been the same as that given by Mr. Watson. He stated that after his initial discharge from the hospital, his wife helped him get around the house and aided him in his treatment. Based upon this, we award $500 to Mrs. Watson for loss of consortium.

Conclusion

For the reasons stated above, we reverse the trial court judgment rejecting the medical malpractice claim of plaintiff, Andrew Watson, against defendants, Dr. Steven Brazeel and his insurer, The Medical Protective Company. We find that Dr. Brazeel breached the applicable standard of care owed to Mr. Watson. Accordingly, we enter judgment in favor of Mr. Watson for medical expenses in the amount of $23,001.25 and general damages in the amount of $30,000.00, with legal interest from the date of judicial demand.

| inMrs. Watson is awarded $500 for loss of consortium. Costs in this court and below are assessed to defendants.

REVERSED AND RENDERED.

I-i GASKINS, J.,

dissenting.

I respectfully dissent from the majority’s opinion and would affirm the trial court ruling in favor of the defendants. The plaintiff had the burden of proving that Dr. Brazeel failed to use reasonable care and diligence, along with his best judgment in the application of the requisite degree of knowledge or skill. La. R.S. 9:2794A(2). Although the plaintiffs’ witness, Dr. Desormeaux, stated there was no documentation in the record of the treatment that had been rendered to Mr. Watson, he did not testify that Dr. Brazeel’s treatment fell below the standard of care. While the treatment was not documented as rendered, the appropriate plan for treatment was outlined in the medical records. The fact that Nurse Ramsey noted the foot was wet indicated to her that the usual procedure where the initial nurse flushes the wound was performed. Also, Nurse Ramsey saw no debris when she inspected the wound. The trial court apparently did not give credence to Mr. Watson’s testimony about his treatment. Accordingly, I would affirm.

      . Mr. Watson also testified that he did not get out while recuperating. The defense tried to impeach that statement and the witness acknowledged that he was involved in an automobile accident going to and from church.


author: |, GASKINS, J.

text:
    Perry THOMAS, Plaintiff-Appellant v. The CITY OF MONROE LOUISIANA, The Monroe Police Department, Noe Enterprises, Inc., and Noe Corporation, L.L.C., Defendants-Appellees.
    No. 36,526-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.

      Louis Granderson Scott, for Plaintiff-Appellant.
    Thomas V. Gardner, Jr., Monroe, Nanci S. Summersgill, for Defendant-Appellee, City of Monroe, Monroe Police Department.
    Hudson, Potts & Bernstein, by: William T. McNew, A. Jill Futch, Ashley S. Burch, Monroe, for DefendanNAppellee, NOE Corporation, L.L.C.
    Before STEWART, GASKINS and CARAWAY, JJ.
   |, GASKINS, J.

The plaintiff, Perry Thomas, appeals a decision by the trial court granting a special motion to strike filed on behalf of one of the defendants, NOE Corporation, L.L.C., dismissing the plaintiffs claims of defamation and violation of his civil rights. The dismissal was based upon the trial court’s refusal to consider affidavits submitted by the plaintiff in opposition to the special motion to strike. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiff is the compliance director for the Planning and Urban Development Department, EEO Compliance Division, of the City of Monroe. According to a report by the Monroe Police Department, on November 25, 2000, an officer was approached by a woman leaving a movie theater in Monroe. She complained that, while watching a children’s movie, “How The Grinch Stole Christmas,” she saw a man sitting alone, stroking his genitals, but not exposing them. The offender pointed out by the woman was the plaintiff. The woman left before the police could get her name.

The officer approached the plaintiff, advised him of his Miranda rights, and questioned him about the incident. According to the report, the plaintiff denied the accusation, became very emotional, and then appeared to become ill. The plaintiff was transported to the police substation for evaluation of his medical condition.

According to the officer, once inside the station, the plaintiff collapsed to his knees and said he was a “sick man.” The officer called an 1 ^ambulance. The plaintiff stated that he did not need an ambulance and left the station before it arrived.

A complaint report was generated by the police department, detailing the incident. This report was obtained by a local television station, KNOE TV 8. On November 27, 2000, the station aired a report about the complaint. Another story was broadcast on November 28, 2000. The story stated that meetings were being held by city officials to decide what action to take regarding the allegations against the plaintiff. The second story mentioned a 1989 incident in which the plaintiff was cited by the Northeast Louisiana University Police with battery on police officers, resisting arrest, and trespassing.

On November 26, 2001, the plaintiff filed suit against the City of Monroe, the Monroe Police Department, and NOE Corporation L.L.C. (NOE). The plaintiff claimed that he informed NOE that the police complaint was untrue. However, NOE aired the story, based on the police report, without verifying the existence of the complainant. The plaintiff contended that the complainant did not exist. He asserted that the television station’s actions were designed to embarrass, humiliate, destroy, hurt, and cause economic hardship to him. He also alleged that the station’s actions were in accordance with a long-standing tradition to seek removal of “African-Americans from positions of responsibility by casting doubt upon their abilities, motives, and character.” He claimed that the accusations ^against him were unwarranted, false, malicious, and harmful and that the reports generated gossip, ridicule, and mistrust toward him.

The City of Monroe and the Monroe Police Department filed an answer denying the plaintiffs allegations. NOE filed a special motion to strike under La. C.C.P. art. 971. In the motion, NOE asserted that the news stories concerning the plaintiff were broadcast in furtherance of the station’s right to free speech and concerned issues of public interest in connection with a public official. NOE argued that the plaintiff was required to establish with pleadings and affidavits that he has a probability of success on his claims of defamation. If he cannot show a probability of success, NOE argued that the plaintiffs claim should be dismissed and attorney fees awarded to it.

In its memo in support of the special motion to strike, NOE asserts that the plaintiff is a public official who must meet the “reckless disregard” standard in order to prove defamation. NOE asserts the qualified privilege for public reports based on public records, arguing that even if the police report is not true, NOE could rely on the report as factually correct and the plaintiff could not base a defamation claim on the broadcast of the contents of the report. According to NOE, the station merely reported a complaint alleging misconduct and the news report did not state that the police report was true.

Attached to the special motion to strike was the affidavit of the reporter, Ken Booth, stating that he had no reason to believe that the police report was not true. He also stated the report was obtained pursuant to an | ¿established policy of reporting matters on file as a matter of public record. Attached to the affidavit was a copy of the police report in this incident, a copy of the report in the 1989 incident at Northeast Louisiana University, and a transcript of the televised news stories at issue in this case.

The healing on the motion was held on Monday, March 18, 2002. On Friday, March 15, 2002, the plaintiff filed three affidavits in opposition to the special motion to strike. The plaintiffs actual opposition to the special motion to strike was not filed until the day of the hearing. He urged that he is not a public official and therefore, was not subject to the higher standard of proof under New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). However, even if the higher standard applied, he claimed that there was a reckless disregard for the truth by NOE. Basically, he alleged that there were numerous factors indicating that the police report was false and that NOE took no measures to verify the report.

There is no transcript of the hearing on the special motion to strike. The minutes show that the matter was taken up by the trial court which refused to consider the affidavits filed by the plaintiff. On May 8, 2002, the trial court signed an order granting the defendant’s special motion to strike, dismissing the plaintiffs claims against NOE with prejudice. The trial court did not give written reasons for the judgment. The plaintiff appealed, | (¡claiming that the trial court erred in failing to consider his affidavits and erred in granting the special motion to strike in favor of NOE.

DISCUSSION

The special motion to strike is governed by La. C.C.P. art. 971 which provides:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
B. In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney’s fees and costs to a plaintiff prevailing on the motion.
C. The special motion may be filed within sixty days of service of the petition, or in the court’s discretion, at any later time upon terms the court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.
D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.
IftF. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1)“Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) “Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in recon-vention.

This provision was added by Acts 1999, No. 734, § 1. Section 2 of the Act provides:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly. [Emphasis supplied.]

This provision is virtually identical to the California Code of Civil Procedure Section 425.16. The California provision is an anti-SLAPP 17statute. SLAPP is an acronym for Strategic Lawsuits Against Public Participation. As stated above, the provision is to be construed broadly.

The plaintiff holds a position of responsibility in the city government of Monroe. Allegations of criminal conduct are relevant to an official’s fitness for office. See Monitor Patriot Company v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). Therefore, the complaint against the plaintiff was a matter of public interest, spurring application of the special motion to strike. In order to overcome NOE’s motion, the plaintiff was required to show a probability of success on his claims of defamation and violation of his civil rights by the television station. The plaintiff has not met that burden in this case.

Although the plaintiff did not raise the issue in an assignment of error, he argues in his brief that the provision does not apply in this case because NOE is a corporation and is not a “person” within the contemplation of the article. This argument is without merit.

Corporations are included in the definition of “person” in the Louisiana Code of Civil Procedure. See La. C.C.P. art. 5251(12). Therefore, NOE is a “person” protected by this statute. We also note that La. C.C.P. art. 971 has previously been successfully invoked by television stations in this state. See Stern v. Doe, 2001-0914 (La.App. 4th Cir.12/27/01), 806 So.2d 98; Lee v. Pennington, 2002-0381 (La. App. 4th Cir.10/16/02), 830 So.2d 1037.

a The plaintiff asserts that the trial court erred in failing to consider his affidavits in opposition to the special motion to strike filed shortly before the hearing.

The plaintiff recognizes that the motion to strike is similar to, but not identical to a motion for summary judgment. In a motion to strike, a person who has been sued, arising out of an act in furtherance of the person’s exercise of free speech and in connection with a public issue, may seek to strike the claim. The plaintiff must then present affidavits showing a probability of success on the claim.

The plaintiff also argues that, although a motion for summary judgment specifies a time limit for filing opposing affidavits, the same is not true for a special motion to strike. According to the plaintiff, there was no time limit by which the affidavits were to be filed. In this case, it appears that because the plaintiffs affidavits were filed a very short time before the hearing, they were not considered by the trial court.

La. C.C.P. art. 971 provides no time limit for serving the opposing affidavits. It is within the trial judge’s discretion to decide whether affidavits are filed within a reasonable time. In this case, while the affidavits were filed the Friday afternoon before the trial on Monday, it is unclear exactly when the affidavits were transmitted to the defendant. Since the time line is unclear, and because the result of La. C.C.P. art. 971 is harsh, we will consider the affidavits for this de novo review.

Even if the plaintiffs affidavits had been considered, he still would not have carried his burden under La. C.C.P. art. 971 of establishing a 1 ^probability of success on his claims of defamation and violation of his civil rights.

Defamation involves the invasion of a person’s interest in his or her reputation and good name. City of Natchitoches v. Employers Reinsurance Corporation, 2002-0147 (La.App. 3d Cir.6/5/02), 819 So.2d 413. A successful claimant in a defamation action must establish five elements: (1) defamatory words; (2) publicátion; (3) falsity; (4) malice; and (5) injury. Connor v. Scroggs, 35,521 (La.App.2d Cir.6/12/02), 821 So.2d 542; Rogers v. Ash Grove Cement Co., 34,934 (La.App.2d 11/02/01), 799 So.2d 841, writ denied, 2001-3187 (La.02/08/02), 808 So.2d 351. Defamatory words are those which harm the reputation of another so as to lower him in the estimation of the community or to deter others from associating with him. Connor v. Scroggs, supra.

When words expressly or implicitly accuse a person of criminal conduct, the words are considered defamatory per se. If the plaintiff proves the publication of defamatory per se words, the elements of falsity and malice are presumed although they may be rebutted by the defendant. Connor v. Scroggs, supra.

Even if the plaintiff makes a prima facie showing of the essential elements of defamation, there is no recovery if the defendant shows that the statement was true or that the statement was protected by an absolute or qualified privilege. Connor v. Scroggs, supra.

On the ground of public policy, the law recognizes certain communications as being privileged, and as such not within the rules |inimposing liability for defamation. A communication may be either (1) absolutely privileged, or (2) only qualifiedly or conditionally privileged. A person may be held liable in damages for libel or slander even though the communication is qualifiedly or conditionally privileged if it can be shown that he was guilty of actual malice. Francois v. Capital City Press, 166 So.2d 84 (La.App. 3d Cir.1964). Courts of this state have held that where a publisher of a news story relies upon a police report, the publisher will not be held liable for defamation, even if the information in the report is inaccurate. See Wilson v. Capital City Press, 315 So.2d 393 (La.App. 3d Cir.1975), writ denied, 320 So.2d 203 (La.1975). In Louisiana, it has been held that a newspaper has a qualified or conditional privilege to report the fact that a person has been arrested and to report the charges for which he is being held, provided that the report does not assume the guilt of the accused person and is not otherwise defamatory. Francois v. Capital City Press, supra.

In the present case, NOE did not report that the plaintiff had been arrested and did not state that the allegations against the plaintiff were true. It merely reported, pursuant to a police report, that a complaint had been made against the plaintiff. NOE had a qualified privilege to rely upon the police report.

The plaintiff argues that NOE either knew that the report was false or should have investigated the report further. Based upon the affidavits supplied by the plaintiff, this argument is not supported by the record.

InThe affidavit of Charles Owens stated that he attended the movie, sat directly across the aisle from the plaintiff, did not see any inappropriate behavior by the plaintiff, and did not see any females close to the plaintiff or in a position to see the plaintiff while he was in the theater.

The affidavit of Robert Kelly, Jr., former police chief of Richmond, Louisiana, former member of the Army military police, and an investigator for the Fourth Judicial District Indigent Defender Board, pointed out several factors that indicated to him that the police report should not have been generated. He said that it was unusual and uncommon for a police report to be generated when there was no arrest, no witness, and no victim. He said that in the absence of these factors, the generation of a police report serves no recognizable law enforcement function.

The third affidavit was that of the plaintiff, claiming that the female complainant did not exist and denying the allegations of sexual misconduct. He claimed that NOE put pressure on city officials to take action against him and made the news reports even after the plaintiff warned NOE that he would file a lawsuit against the station for defamation if the police report was broadcast. According to the plaintiff, NOE then did nothing to verify the police report. He also stated that the report was not obtained in the usual routine briefing to area news media.

According to the plaintiff, these affidavits establish that NOE had actual knowledge that the statements regarding the plaintiff were false, or that NOE recklessly disregarded the truth.

|iaNOE merely reported that a complaint had been made to the police regarding the plaintiff. There is no dispute that the police documented and reported such a complaint. Other than the plaintiffs self-serving affidavit, there is nothing indicating that the report was made with actual malice by the defendant. Therefore, even if the trial court had considered the affidavits filed by the plaintiff, the court still could have properly granted the special motion to strike.

CONCLUSION

For the reasons stated above, we affirm in all respects the judgment of the trial court in favor of the defendant, NOE Corporation, L.L.C., granting its special motion to strike and dismissing with prejudice the claims of the plaintiff, Perry Thomas. Costs in this court are assessed to the plaintiff.

AFFIRMED.

      . The plaintiff named as defendants NOE Enterprises, Inc. and NOE Corporation, L.L.C. NOE Corporation, L.L.C., indicated that NOE Enterprises, Inc., KNOE, Inc., and WNOE, Inc. were merged into NOE Corporation, L.L.C. in 1996.

      . In New York Times Company v. Sullivan, supra, the United States Supreme Court held that the First and Fourteenth Amendments to the United States Constitution requires a federal rule that prohibits a'public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

      . The court reserved a ruling on the issue of attorney fees.

      . La. C.C.P. art. 5251(12) provides:
      Except where the context clearly indicates otherwise, as used in this Code:
      is) “Person'' includes an individual, partnership, unincorporated association of individuals, joint stock company, corporation, or limited liability company.


author: I,DREW, J.

text:
    SUCCESSION OF Ona Louise EPPINETTE and Jesse Cleveland Eppinette.
    No. 36,546-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2002.
    Samuel P. Love, Jr., for Appellants, Charles William Eppinette, Charlene To-ney and Bobbie Laverty.

      Mary Alice Bryant, Monroe, for Appel-lee, Jimmie Louise Underhill.
    Before STEWART, KOSTELKA and DREW, JJ.
   I,DREW, J.

Several heirs appeal a judgment ordering a partition in kind of immovable property in their parents’ succession. We affirm.

FACTS

Ona Eppinette and Jesse Eppinette were married on September 28, 1935. Five children were born during their marriage: Bobbie Eppinette Laverty, Charles Eppinette, Jesse Eppinette Vinet, Mary Eppinette Hall and Jimmie Eppinette Un-derhill. Mrs. Eppinette had one child, Charlene Toney, prior to the marriage. Mr. Eppinette had one child, Lorine Harris, prior to the marriage.

Ona Eppinette died on March 19, 1996. After her death, Jesse Eppinette continued living in the family home on two acres of land in Richland Parish. When a relative was no longer able to care for Jesse Eppi-nette during the evening, his daughter Jimmie Underhill began staying with her father during the night. Ms. Underhill lived in Swartz and worked in Monroe at the time. She stayed in her parents’ home for a little over a month before moving her mobile home onto her parents’ property in May of 1997. Ms. Underhill testified that she did this with her father’s permission. Charles Eppinette testified that he had no objections to Ms. Underhill doing this, although he claimed that she was going to place the trailer beside their parents’ house. According to Charles Eppinette, Ms. Underhill moved the mobile home to a location that was 25 feet from the house and no more than 20 feet from a barn on adjacent property owned by him. Charles Eppinette acquired this property, totaling about 41 acres, through a 1983 credit deed from his father.

pMr. Eppinette was placed in a nursing home approximately eight months after Ms. Underhill moved her mobile home onto the property; he died on May 6, 1998. All of the Eppinettes’ children survived them. The Eppinettes’ succession consisted of two acres of land in Richland Parish, a home on this land, and furniture and fixtures located in the home or in the possession of some of the heirs.

PROCEDURAL HISTORY

On May 3, 1999, Ms. Underhill filed a petition for possession in the succession of her parents in which she sought a partition of the two acres owned by her parents. She requested the issuance of a rule ordering her siblings to show cause why a notary should not be appointed to make a partition/appraisal of her parents’ property and why her share should not include the portion on which her mobile home was located.

Charles Eppinette, Charlene Toney and Bobbie Laverty filed an answer and a rule to show cause on May 17, 1999. They sought, among other things, to have Ms. Underhill’s mobile home removed from their parents’ property, and the appointment of a surveyor so that the immovable property could be apportioned by lots. The parties ultimately agreed on the appointment of a surveyor, Frank Messinger, and the sale of movables belonging to the succession.

Trial was held in this matter on September 10, 2001. The trial court provided reasons for judgment on January 4, 2002. The trial court stated it desired a partition in kind. The trial court noted that Mes-singer had divided the property into six tracts because the original intent was for the heirs to ^remain co-owners of the home, which the trial court believed was no longer possible in light of the poor relationships between some of the heirs. Messinger was ordered to redraw the plat to reflect five tracts. Tract 1 was to represent the tract on which Ms. Underhill’s mobile home was located. The tract adjacent to Charles Eppinette’s property was to be designated as Tract 2.

A judgment was rendered on February 6, 2002. A partition in kind was awarded, with Ms. Underhill receiving the tract (# 1) on which her mobile home was located. Charles Eppinette was awarded the tract (# 2) adjacent to his property. Tracts 3, 4, and 5 were to be divided by chance among the three remaining heirs. In accordance with the reasons for judgment, if Charles Eppinette declined Tract 2, then Tracts 2, 3, 4, and 5 were to be divided by chance among Charles Eppi-nette and the three remaining heirs.

Charles Eppinette filed a motion for new trial on February 11, 2002. He requested that the trial court order Ms. Underhill to rotate her mobile home so that his tract would be similar to the shapes of the other tracts. The motion for new trial was denied.

DISCUSSION

The trial court has discretion to direct the manner and conditions of effecting the partition so that it will be most advantageous and convenient to |4the general interest of the co-heirs. La. C.C. art. 1336. See also, Tri-State Concrete Co., Inc. v. Stephens, 406 So.2d 205 (La.1981).

La. C.C.P. art. 3461 states, “The petition for the partition of a succession shall be filed in the succession proceeding, as provided in Article 81(2). In all other respects and except when manifestly inapplicable, the procedure for partitioning a succession is governed by the provisions of Articles 4601 through 4614.” La. C.C.P. art. 4606 provides, “Except as otherwise provided by law, or unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind.”

Partition in kind

Appellants argue in their first assignment of error that the trial court erred in its division of the succession property. The two-acre parcel at issue has a southern boundary of 210’ along the northern right-of-way line of U.S. Highway 80. A western boundary of 420’ is just west of Eppinette Road. The northern boundary (210’) and the eastern boundary (420’) are both adjacent to 41 acres of property owned by Charles Eppinette. As per orders of the trial court, Messinger revised the preliminary plat to reflect five tracts of 0.4036 acres each. Four of the tracts have roughly rectangular shapes and frontage along Eppinette Road of between 90.32’ and 97.6’. The tract awarded to Charles Eppinette, Tract 6, is shaped like an upside-down “L.” It is the only tract adjacent to his property (which is to the north and east of the disputed parcel), and its frontage along Eppinette Road is 36.87’. .

| ¡^Appellants complain that Ms. Underhill should be ordered to rotate her mobile home so that the property can be divided into five tracts of equal shape and frontage along Eppinette Road. Messinger agreed at trial that if the mobile home was turned so that it was no longer parallel to Eppi-nette Road, then each tract could have equal footage along that road.

As noted by the trial court in its reasons for judgment, Ms. Underhill incurred “considerable expense” in moving her mobile home onto the succession property. The land needed to be cleared and soil added to raise the elevation. A septic system, water meter and butane tank were installed, and the home was hooked up to the electric utility wires. It cost Ms. Underhill approximately $11,000 to move her mobile home to that location. Although her mobile home has wheels on it, Ms. Underhill would still incur additional expenses if forced to turn her mobile home. She guessed that it would cost $800 to do so. She would have to remove and then reconnect her mobile home to various utility systems, and she would have to remove and rebuild her patio and fence.

Upon our review of this record, we cannot conclude that the trial court abused its discretion in ordering the property to be partitioned in accord with Messinger’s revised plat.

Southern Boundary

Appellants complain in their second assignment of error that the trial court erred in accepting an incorrect survey. Appellants argue that the plats prepared by Messinger have the fence line of the property, and not the northern right-of-way, as the point of origin. Appellants add that if the | spoint of origin reflected in the 1983 credit deed is the northern right-of-way line, then Underhill’s mobile home is on Charles Eppinette’s property. Appellants fail to direct this court to any evidence in the record supporting this assertion, We note that Messinger testified that he began the property survey from the northern right-of-way line of Highway 80 after surveying the entire Section 8 to determine the location of that line.

Appellants further argue that Messinger has some concerns about the point of origin of the tract. Messinger wrote a letter to the court, dated February 6, 2002, in which he stated:

There is also some concern as to the point of beginning of this tract. The deed calls for this tract to begin at the northern right-of-way of Highway No. 80. Other tracts, not this one, begin at the centerline of Highway No. 80. If this could be addressed now, it might eliminate additional hard feelings.

We first note that this letter has the same date as the revised plat, so Messing-er was obviously aware of this issue when he presented the trial court with the revised plat dividing the property into five tracts as ordered by the court. This issue was also raised at the September 2001 trial during appellant counsel’s cross-examination of Messinger:

Q: Your — just one other quick — your survey here is in direct conformity with the legal description as set forth in the deed that was filed in the record, is that correct?
A: Yes, sir.
Q: And the property line, the south part of the line begins — it does not begin in the middle of Highway 80, does it?
A: No, sir, there’s some confusion as to that. I believe Mr. Eppinette referred to or thought that it should start in the middle of the highway, there’s a few deeds that did, but this particular less and except did not that (sic) covers this particular tract.

17Finally, this issue was again raised at the hearing on the motion for new trial.

Messinger acted reasonably in relying upon the language in the 1983 credit deed to determine the parcel’s point of beginning. The accuracy of the 1983 deed is not before this court. Accordingly, the trial court did not err in accepting the plat as drawn by Messinger, notwithstanding the surveyor’s perplexing transmittal letter.

DECREE

At appellants’ costs, the judgment is AFFIRMED,

      . Charlene Toney testified at trial that she was renouncing her interest in the succession. Lorine Harris has also apparently renounced her interest in the succession, but there is no statement of such in the record. The trial court ordered the attorneys to complete the recognition of the renunciations.


author: | .WILLIAMS, Judge.

text:
    Lina BADER, et al., Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, et al., Defendant-Appellee.
    No. 36,536-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2002.
    J. Patrick Hennessy, Shreveport, Patrick A. Stegall, for Appellant.
    Arthur R. Carmody, Jr., Shreveport, for Appellee, -Kansas City Southern Railway Company and William C. Swaty:
    Kenneth Mascagni, James R. Sterritt, Shreveport, for Appellee, City of Bossier City.
    Louisiana Department of Justice, by James R. Dawson, Assistant Attorney General, for Appellee, State of Louisiana, through Department of Transportation and Development.

      Before WILLIAMS, KOSTELKA and HARRISON (Pro Tempore), JJ.
   | .WILLIAMS, Judge.

The plaintiffs, Lina Bader and Munir Bader, individually and as administrator and tutor of the minor children, Amal Bad-er, Bader Bader, Dana Bader and Eman Bader, appeal a judgment granting summary judgment in favor of the defendant, State of Louisiana Department of Transportation and Development (“DOTD”). The district court found that the State had not assumed any duty to maintain the rail crossing where the accident occurred. For the following reasons, we affirm.

FACTS

On June 14, 1998, a van driven by Lina Bader was struck by a train owned by Kansas City Southern Railway Company (“KCS”) at a railroad crossing in Bossier City, Louisiana. The collision occurred where Alfred Lane, an east-west city street, crosses the KCS railroad tracks a short distance to the east of U.S. Highway 71 (Barksdale Boulevard), which runs north-south and parallel to the tracks. As a result of the accident, Lina Bader and her four children, Amal Bader, Bader Bad-er, Dana Bader and Eman Bader, were injured.

The plaintiffs, Lina and Munir Bader, individually and on behalf of their minor children, filed a petition for damages against the defendants, KCS, its engineer William Swaty, the City of Bossier City (the “City”) and DOTD. In October 2000, the DOTD filed a motion for summary judgment arguing that it did not have a duty to maintain the crossing where the injury occurred. The City filed an amended answer asserting third party fault.

At the hearing on the motion, counsel for plaintiffs, DOTD and the City presented argument. The court rendered judgment granting DOTD’s |?motion for summary judgment. The district court held that plaintiffs failed to show that DOTD had assumed a duty to maintain the crossing. In its written opinion, the court also stated that the remaining defendants were not precluded from attempting to establish fault by the State. Plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting DOTD’s motion for summary judgment. Plaintiffs argue that an issue of fact exists regarding the question of whether DOTD assumed a duty to maintain the rail crossing and its approaches in a reasonably safe condition.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. LSA-C.C.P. art. 966(C)(2).

The party opposing summary judgment cannot rest on the mere allegations of his pleadings, but must produce factual support which could satisfy his evidentiary burden at trial. If he does not produce such evidence, then there is no genuine issue of material fact and the mover is entitled to summary judgment. Article 966(C)(2). Appellate courts review summary [¡Judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Re sources v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

To establish a breach of the state’s duty to provide a reasonably safe road, the plaintiff must prove: (1) the thing which caused the damage was in the care or custody of the state; (2) a hazardous condition existed; (3) the state had actual or constructive knowledge of the condition; and (4) the state failed to take corrective action within a reasonable period of time. Moore v. Kansas City Southern Railroad Co., 31,080 (La.App.2d Cir.10/28/98), 722 So.2d 296. A governing authority with jurisdiction over a particular roadway has a legal duty to make that highway reasonably safe for travel. LSA-R.S. 32:235; Fry v. Southern Pacific Transp. Co., 30,540 (La.App.2d Cir.6/24/98), 715 So.2d 632.

Generally, the state does not have a duty to provide protection devices at railroad crossings on non-state, or off-system, roads. Webb v. Southern Pacific Railroad Co., 617 So.2d 618 (La.App. 3rd Cir.1993). The state may assume a duty to upgrade the warning devices for an off-system crossing by selecting it for improvement prior to the accident or by agreeing to install warning signs at such a crossing. Archon v. Union Pacific Railroad, 94-2728 (La.6/30/95), 657 So.2d 987; Rick v. State DOTD, 93-1776 (La.1/14/94), 630 So.2d 1271.

In 1973, Congress enacted the Highway Safety Act, 49 U.S.C. § 203, which created the Federal Railway-Highway Crossings Program to provide 14funding to the states for the cost of construction projects to eliminate hazards of railway-highway crossings. 23 U.S.C. § 130. In return, the state must conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require protective devices and establish and implement a schedule of projects for this purpose. Duncan v. Kansas City Southern Railway, 2000-0066 (La.10/30/00), 773 So.2d 670.

In the present case, DOTD moved for summary judgment alleging that the Alfred Lane railroad crossing was not part of the state highway system and was not under the state’s control, such that DOTD did not owe plaintiffs a duty to maintain the crossing. DOTD submitted the affidavit of Bruce Eásterly, the agency’s administrator of district four, which encompasses Bossier Parish. Easterly testified that the railway crossing at Alfred lane did not traverse a roadway included as part of the state highway system. Easterly stated that DOTD did not have any responsibility for the care or maintenance of this crossing.

In his deposition, Easterly testified that where Alfred Lane intersects US-71, which is part of the state highway system, DOTD would help maintain the road surface, such as repairing a pothole in that part of Alfred Lane within DOTD’s right-of-way. However, Easterly stated that Alfred Lane was a Bossier City street and not under the control of DOTD.

William Shrewsberry, Jr., the DOTD highway-railway safety engineer, testified by deposition that one of his primary duties was to administer DOTD’s participation in the Federal Railroad Safety Program, which allocates federal funds through the states with the goal of increasing | Bthe safety of rail crossings with warning enhancements such as flashing lights, gates or other signals. Shrewsber-ry explained that an “on-system” highway is a roadway designated by the Louisiana legislature for maintenance by DOTD for the needs of commerce and that an on-system rail crossing is a place where a railroad track crosses a state highway. Shrewsberry stated that for on-system rail crossings, DOTD maintains the roadway approaches up to the track cross ties, including installation of advance warning signs and pavement markings.

Shrewsberry described an “off-system” road as one that was not part of the state highway system, but was maintained by a parish or city. He stated that an off-system crossing was a place where a parish or city street crosses a railroad track. For an off-system crossing, the parish or city maintains the roadway approaches to the crossing, including warning signs and pavement markings.

Shrewsberry explained that for projects done under the Federal Railroad Safety Program, DOTD was required to collect information and keep an inventory database for all public rail crossings in the state. If a crossing needed a safety upgrade, then DOTD would get an agreement with the involved railroad for the work needed. For an off-system crossing, the responsible city or parish would be required to make a commitment to maintain and repair the advance warning signs and pavement markings on the approaches to the crossing. Then DOTD would request federal funding for the project and upon approval,, the railroad would install the signs or other warning devices. Shrewsberry stated that a parish or city agreement [fiwas needed because DOTD did not perform maintenance of the off-system roadways.

In opposing the motion for summary judgment, the -plaintiffs concede that DOTD did not undertake to place warning signs at the Alfred Lane crossing, but contend DOTD assumed a duty to maintain this off-system crossing because state employees conducted inspections and surveys of the-public rail crossings in Bossier City and throughout the state and collected the information in an inventory database. However, Shrewsberry’s testimony indicated that DOTD compiled information and kept the database of rail crossings to satisfy federal requirements for preserving the state’s eligibility to receive federal railroad safety funds for crossing upgrades.

Plaintiffs have not produced authority to support their contention that DOTD’s activities in administering the federal grant program constitute an assumption of a duty to maintain railroad crossings on streets which are under the jurisdiction of local parish or city governments. To the contrary, the deposition testimony demonstrated that for off-system railroad crossings, federal funding was contingent upon the consent of the city or parish to maintain the warning signs and pavement markings installed on their roads. Thus, plaintiffs cannot show that DOTD was obligating itself to maintain the warning devices at the Alfred Lane crossing by performing its statutory duties to facilitate the distribution of federal railroad safety funds.

Plaintiffs assert that DOTD has a responsibility to maintain the Alfred Lane crossing because DOTD’s right of way along Barksdale Boulevard extends onto Alfred Lane at the approach to the railroad crossing. Plaintiffs |7aIso contend DOTD may be responsible for the placement of warning signs in its right-of-way on Alfred Lane and on Barksdale Boulevard.

Shrewsberry testified in his deposition that part of Alfred Lane is within DOTD’s right-of-way and that DOTD would repair a pothole in its right-of-way. He stated that DOTD would keep the right-of-way reasonably clear and maintain the travel lanes where the city street connected to the state highway. However, Shrewsberry testified that DOTD would not have responsibility for warning signs placed on the city street approach to the Alfred Lane crossing, even though the street intersected a state highway in close proximity to the crossing.

Regarding the lack of an advanced warning sign on the approach to the Alfred Lane crossing from Barksdale Boulevard, Shrewsberry testified that the Manual of Uniform Traffic Control Devices (“MUTCD”) did not require an advance warning sign in that area because the distance from the intersection turnout to the center line of the train track was 100 feet or less. Shrewsberry explained that in this situation, the crossbuck in place at the crossing was deemed sufficient warning because vehicles would be approaching from the intersection at a relatively slow speed.

Concerning the placement of “parallel track” signs on Barksdale Boulevard, Shrewsberry stated that DOTD’s responsibility to install such a sign would depend on the safety guidelines provided in the MUTCD. He testified that in this particular corridor, there was very good visibility from Barksdale Boulevard to the railroad crossing, so that a driver on the state highway would know of the railroad track and crossing. Shrewsberry stated |sthat under the provisions of the MUTCD, a parallel track warning sign would not be necessary on Barksdale Boulevard in the area of Alfred Lane.

The deposition testimony and authority presented do not support the plaintiffs’ contention that the presence of Alfred Lane within DOTD’s right of way created a duty on the part of DOTD to maintain warning devices at the Alfred Lane crossing or place an advance warning sign on the approach to the off-system crossing. Rather, the evidence shows that pursuant to the MUTCD safety guidelines, DOTD was not obligated to install warning signs on the crossing approach or on Barksdale Boulevard.

Based upon this record, we must conclude that the plaintiffs have failed to produce evidence which would satisfy their burden of proving that the off-system railroad crossing at Alfred Lane was in the care or custody of the state, or that DOTD assumed a duty to maintain the warning devices at this crossing. Consequently, we cannot say that the district court erred in granting the motion for summary judgment. The assignment of error lacks merit.

Preclusive Effect of Summary Judgment

The plaintiffs contend the district court erred in declining to enter a judgment which would preclude the remaining defendants from attempting to establish fault on the part of DOTD. An appeal is the exercise of a party’s right to have a judgment of a trial court revised or reversed by an appellate court. LSA-C.C.P. art.2082. An appeal may be taken from a final judgment, from an interlocutory judgment which may cause irreparable injury and from certain reformed judgments. LSA-C.C.P. art.2083. An |9appeal lies from the judgment itself, not from the reasons for judgment. Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35.

Here, the plaintiffs seek to appeal a decision which is not part of the signed judgment, but is stated in the court’s written opinion. The judgment itself addresses only the motion for summary judgment and does not refer to the issue of whether the remaining defendants may assert fault on the part of DOTD. Thus, the issue of third-party fault is not properly before this court. Consequently, we cannot consider the issue on appeal.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting the motion for summary judgment is affirmed. Costs of this appeal are assessed to the appellants, Lina Bader and Munir Bader, individually and as legal representatives of their minor children, Amal Bader, Bader Bader, Dana Bader and Eman Bader.

AFFIRMED.