author: WHIPPLE, J. McDONALD, J. GUIDRY, J.,

text:
    Dr. John MUNSON, Bevil Knapp and Ron Knapp, Individually and on Behalf of the Estate of Mildred Lucile Munson v. LAKEWOOD QUARTERS LIMITED PARTNERSHIP, B.B.R.C. Investments, L.L.C., and Millenium Management, LLLP, d/b/a Lakewood Quarters Rehabilitation and Nursing Center.
    No. 2006 CA 1428.
    Court of Appeal of Louisiana, First Circuit.
    July 18, 2007.
    Russell Ramsey, New Orleans, Counsel for Plaintiffs/Appellants, Dr. John Munson, Bevil Knapp and Ron Knapp.
    Paul Lauve, Baton Rouge, Counsel for Defendant/Appellee, Lakewood Quarters Limited Partnership.

      Before: CARTER, C.J., WHIPPLE, GUIDRY, McDonald, and McClendon,, jj.
   WHIPPLE, J.

|Jn this action for damages for the injury and death of a nursing home resident, the trial court maintained the defendant’s exception of prematurity, finding that the claim had to be first submitted to a medical review panel pursuant to the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq. (“the MMA”). For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Dr. John Munson, Bevil Knapp and Ron Knapp, filed a suit for damages in the district court, individually and on behalf of the Estate of Mildred Lueile Munson (“Ms. Munson”). Plaintiffs alleged that Ms. Munson had been a resident of Lakewood Quarters Rehabilitation & Nursing Center and/or Lakewood Quarters Assisted Living, when she was injured on June 12, 2004. According to the petition, Ms. Munson was known to be disabled and in need of close supervision and care. The petition further alleged that on June 12, 2004, an employee of Lakewood Quarters Rehabilitation & Nursing Center and/or Lakewood Quarters Assisted Living attempted to transport Ms. Munson from her room to the dining room by wheelchair. However, according to the petition, the employee failed to adequately secure Ms. Munson, who was discovered on the floor of her room, having suffered severe injuries to her cervical spine. Plaintiffs further alleged that Ms. Munson died as a direct result of these injuries.

Lakewood Quarters Limited Partnership, owner of Lakewood Quarters Assisted Living, then filed a dilatory exception raising the objection of prematurity. In its exception, Lakewood Quarters Assisted laLiving contended that Ms. Munson was a resident of the assisted living facility and not the nursing home. It further contended that, as evidenced by the Certificate of Enrollment filed with the exception, it was a qualified health care provider at the time of the alleged negligence and that, as such, plaintiffs were required to first submit their claim to a medical review panel pursuant to LSA-R.S. 40:1299.47, prior to commencing any court proceedings.

Following a hearing on the matter, the district court maintained the exception of prematurity and dismissed plaintiffs’ suit without prejudice. From this judgment, plaintiffs appeal. '

DISCUSSION

The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116, 119. Accordingly, a malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been screened by a pre-suit medical review panel. LSA-R.S. 40:1299.47(A) & (B)(l)(a)(i); Spradlin, 758 So.2d at 119. The burden of proving prematurity is on the exceptor, in this case, the defendant health care provider. Therefore, defendant must show that it is entitled to a medical review panel. Williamson v. Hospital Service District No. 1 of Jefferson, 2004-0451 (La.12/1/04), 888 So.2d 782, 785.

[40n appeal, plaintiffs argue that because Ms. Munson was not receiving medical care or treatment for any specific condition at the time of her injury, their claims are not governed by the MMA and, therefore, the prior submission of these claims to a medical review panel was not required. In its reasons for judgment, the district court found that because the definition of “malpractice” included any tort based on healthcare or professional services rendered, including the loading and unloading of the patient, the allegations of plaintiffs’ petition were covered by the MMA.

However, as set forth in the Louisiana Supreme Court’s opinion in Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460, 467-468, the fact that the alleged negligence involved the loading or unloading of a nursing home resident is not enough to alone establish that the negligence constitutes malpractice mandating the application of the MMA.

In Richard, a nursing home resident, who was a ninety-two-year-old double amputee, was alleged to have been negligently allowed to fall out of her wheelchair, and the court addressed whether this allegation was a medical malpractice claim under the MMA. In its analysis, the Supreme Court held that because the MMA limits the liability of health care providers in derogation of the general rights of tort victims, any ambiguities in the MMA should be strictly construed against coverage. Richard, 835 So.2d at 468. As noted by the court in Richard, the MMA defines “malpractice” as:

[A]ny unintentional tort or breach of contract based on health care or professional services rendered or which should have been rendered by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs Land medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

LSA-R.S. 40:1299.41(A)(8); Richard, 835 So.2d at 468. Next, the court acknowledged that the nursing home’s staffs alleged act of negligently allowing the nursing home resident to fall from her wheelchair clearly involved the “handling of a patient, including loading and unloading of a patient,” which came directly under the MMA’s definition of “malpractice.” However, the court then quoted from Price v. City of Bossier City, 96-2408 (La.5/20/97), 693 So.2d 1169, 1172-1173, as follows:

While clearly an act of malpractice can occur in the rendition of professional services, the patient must still be in the process of receiving “health care” from the doctor or hospital when the negligent rendition of professional services occurs.

Richard, 835 So.2d at 468.

The Supreme Court further observed that in the case of a nursing home, a resident is not always receiving medical care or treatment for any specific condition, but can always be said to be “confined” to the nursing home. Thus, the Court concluded, while the alleged act in Richard did involve the handling of a patient under LSA-R.S. 40:1299(A)(8), it did not necessarily constitute medical malpractice unless the negligent act was related to medical treatment. Richard, 835 So.2d at 468.

The Richard court cited with approval the following six-part test of Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303, 315-316, for determining whether a negligent act by a health care provider is covered under the MMA: (1) Whether the particular wrong is “treatment related” or caused by dereliction of professional skill; (2) whether the wrong requires ^expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional. Richard, 835 So.2d at 468-69.

The court concluded its analysis by observing that the first issue, whether the plaintiffs allegations of wrongdoing were related to treatment and were caused by dereliction of professional skill, was a key issue that could not be determined on the record before the court. Specifically, the court stated that it could not determine from the record whether the resident was placed in the nursing home for any specific treatment of a particular condition, rather than for 24-hour custodial shelter, or whether the resident was on her way to or from any medical treatment when the accident occurred. Richard, 835 So.2d at 469. The court further found that many of the other Coleman factors could not be decided on the record before it. Accordingly, the Richard court remanded the case to the trial court for a determination of whether the allegations of negligence constituted allegations of medical malpractice under the Coleman test. Richard, 835 So.2d at 469.

After the Richard opinion was rendered, other cases have dealt with the issue of whether a fall from a wheelchair or while being transferred or handled constituted allegations of medical malpractice, requiring initial review by a medical review panel. In Pender v. Natchitoches Parish Hospital, 2001-1380 (La.App. 3rd Cir.5/7/03), 844 So.2d 1107, 1108, a long-term care unit patient allegedly fell from her wheelchair when left |7alone and unrestrained, struck her head and died. On remand from the Supreme Court, the Third Circuit Court of Appeal considered whether these allegations constituted medical malpractice in light of the Supreme Court’s pronouncements in Richard. The plaintiffs therein had alleged that the decedent had physical problems, including challenges with balance, a history of falling, a history of mental confusion, and residual left-sided weakness and had further alleged that the need for adequate restraints and precautions had been reiterated by the plaintiffs to the hospital. Pender, 844 So.2d at 1109. Given these allegations alone, the Third Circuit concluded, as did the Supreme Court in Richard, that the record was inadequate to make a determination of whether the alleged negligence constituted medical malpractice under the Coleman factors and, thus, whether the matter had to be first submitted to a medical review panel. Accordingly, the appellate court remanded the matter to the district court for a full evidentiary hearing on the applicability of the Coleman factors to the particular facts of that case. Pender, 844 So.2d at 1110.

In McLemore v. Westwood Manor Nursing and Rehabilitation, L.L.C., 37,450 (La.App. 2nd Cir.8/20/03), 852 So.2d 1170, 1171, a nursing home resident was allegedly dropped by certified nursing assistants and sustained a severely broken leg, but was then placed in his bed without medical attention. In analyzing the allegations of the petition in light of the Coleman factors, the Second Circuit Court of Appeal concluded that these allegations did constitute allegations of negligence related to medical treatment. The court distinguished the case before it from Richard, noting that the petition did not simply encompass the alleged “dropping,” but also further alleged that the resident was then placed in his bed “without medical attention.” The court further noted that the petition included allegations of | ¿failure to treat the resident, failure to provide appropriate care under the circumstances, and failure to administer proper medical treatment. McLemore, 852 So.2d at 1178. Thus, the court concluded, the allegations of the petition were of negligence that was sufficiently treatment-related or caused by dereliction of professional skill as to require that the matter be first presented to a medical review panel. McLemore, 852 So.2d at 1174.

In Jordan v. Stonebridge, L.L.C., 03-588 (La.App. 5th Cir.11/25/03), 862 So.2d 181, 182-183, writ denied, 2003-3520 (La.3/19/04), 869 So.2d 851, a three-hundred-ten-pound, mentally handicapped resident of a .convalescent center, who had no use of his left leg and required assistance with all activities of daily living, fell and broke his leg when an orderly attempted to transfer him from his wheelchair to a shower chair. In applying the Coleman factors to determine whether the alleged negligence constituted medical malpractice, the Fifth Circuit Court of Appeal concluded that the actions of the orderly were not treatment-related and did not require professional skill. The court noted that the resident’s plan of care, which required two orderlies to handle the transfer from the wheelchair to the shower chair, did not evidence that the resident was undergoing medical treatment, but, rather, merely described how his day-to-day activities were to be handled. The court determined that the alleged negligence was not medical malpractice, and, thus, the plaintiff was not required to submit the claim to a medical review panel. Jordan, 862 So.2d at 184.

In Williamson, a patient was being pushed in a wheelchair upon discharge from the hospital when a wheel fell off the wheelchair, causing her to fall. Williamson, 888 So.2d at 783-784. The Louisiana Supreme Court applied the Coleman factors and concluded that the alleged wrong was neither treatment-related nor caused by a dereliction of professional skill | gwithin the meaning of the MMA. Thus, the court concluded that the claims did not fall within the provisions of the MMA and the plaintiff was not required to submit the claim to a medical review panel. Williamson, 888 So.2d at 789-790.

Finally, in Jackson v. DeSoto Retirement and Rehabilitation Center Inc., 40,482 (La.App. 2nd Cir. 12/14/05), 917 So.2d 727, 728-729, a nursing home resident allegedly fell or was dropped, resulting in a fractured hip and complications which allegedly led to his death. The record revealed that the nursing home patient suffered from weakness and dementia, required assistance with activities of daily living and personal hygiene, and was at risk for falls. The Second Circuit Court of Appeal, in applying the Coleman factors, concluded that the case was governed by the MMA. Specifically, the court determined that the degree of assistance the nursing home resident needed with daily activities was a matter for the nursing home to determine by its expertise. The court further found that expert medical opinion would be required to determine if the nursing home had breached the standard of care. Thus, the court maintained the nursing home’s exception of prematurity on the basis that the matter had to first be presented to a medical review panel. Jackson, 917 So.2d at 733.

In reviewing the pertinent jurisprudence following Richard, as set forth above, we agree with the Second Circuit that McLe-more was clearly distinguishable from Richard, in that the allegations in McLe-more involved more than the dropping of the resident in an attempted transfer from the bed to a wheelchair and specifically included allegations of failure to provide appropriate care or to administer proper medical treatment. These additional | ^allegations readily bring the claim within the ambit of medical malpractice and the pre-screening requirements of the MMA. See McLemore, 852 So.2d at 1173-1174. Additionally, we agree that the facts in Williamson were somewhat easily removed from the realm of medical malpractice in that the situation involved the hospital’s alleged failure to properly repair a wheelchair. Williamson, 888 So.2d at 789-790.

However, the results reached in the Jordan and Jackson cases appear at first glance to be somewhat inconsistent. Both cases involved nursing home residents who suffered from numerous disabilities and required assistance with activities of daily living. See Jackson, 917 So.2d at 733; Jordan, 862 So.2d at 182. Nonetheless, while the Second Circuit determined that the resident’s fall was governed by the MMA in Jackson, the Fifth Circuit in Jordan determined that the resident’s fall therein was not covered by the MMA. See Jackson, 917 So.2d at 733; Jordan, 862 So.2d at 184.

However, one distinguishing fact that the Jordan court seemed to rely upon was that the resident in that case had a specific plan of care which detailed how the resident’s day-to-day activities were to be handled. The court noted that the orderly’s alleged failure to carry out activities as specified in the plan of care simply' did not rise to the level of medical treatment or the requirement of professional skill. Thus, the court concluded that the mishandling of the resident in a routine transfer from his wheelchair to his shower chair occurred in the course of his 24-hour custodial care at the nursing home rather than as a part of medical treatment. As such, the court |nheld that the claim was not governed by the MMA. Jordan, 862 So.2d at 184.

In the instant case, the allegations of the petition are simply that Ms. Mun-son, who was disabled and in need of close supervision and care, fell from her wheelchair when an employee of defendants, attempting to transport Ms. Munson from her room to the dining area, failed to adequately secure her in her wheelchair. Based on these allegations alone, we conclude, as did the Supreme Court in Richard and the Third Circuit in Pender, that the record before us is inadequate to establish that the alleged negligence was related to treatment or was caused by a dereliction of professional skill and, thus, constituted medical malpractice. See Richard, 835 So.2d at 469, and Pender, 844 So.2d at 1110. As in the Richard case, neither the petition nor the record before us discloses whether Ms. Munson was placed in the nursing home for any specific treatment of a particular condition, rather than 24-hour custodial shelter, or that Ms. Munson was on her way to or from any medical treatment when the accident occurred. Richard, 835 So.2d at 469. Accordingly, we must conclude that, on the record before us, Lakewood Quarters Limited Partnership has failed to carry its burden of proving that this claim is governed by the MMA and that it is accordingly entitled to a medical review panel. See Williamson, 888 So.2d at 785.

l^For these reasons, the district court’s judgment maintaining the exception of prematurity filed by Lakewood Quarters Limited Partnership must be reversed. This case is remanded for a full evidentia-ry hearing on whether the alleged negli-genee herein constitutes medical malpractice under Coleman. See Richard, 835 So.2d at 469, and Pender, 844 So.2d at 1110.

CONCLUSION

For the above and foregoing reasons, the April 4, 2006 judgment, maintaining the exception of prematurity and dismissing plaintiffs’ claims without prejudice, is reversed. This matter is remanded for further proceedings consistent with the views expressed herein. Costs are assessed against Lakewood Quarters Limited Partnership

REVERSED AND REMANDED.

McDONALD, J., dissents and assigns reasons.

GUIDRY, J., dissents in part and concurs in part and assigns reasons.

CARTER, C.J., concurs.

McCLENDON, J., concurs without reasons.

McDONALD, J.

dissenting:

|!While the majority is correct in its interpretation of Richard, most of the observations are dicta. In Richard the supreme court’s primary focus was determining whether a claim against a Medical Malpractice Act (MMA) qualified nursing home had to be brought pursuant to the provisions of the MMA or could be brought under the Nursing Home Residents’ Bill of Rights (NHRBR). The court cited varying views by different courts and “harmonized” the two. Having decided Richard, the supreme court has settled this issue. The majority points out that Jackson and Jordan seem to be in conflict. Then distinguishing Jordan, the majority fails to further address Jackson.

I believe the facts as alleged in the present case sound in tort just as the petition in Jackson. As the court pointed out in Jackson, “Regardless of how the plaintiff has styled his action, it is readily apparent that it is an action in medical malpractice.” Jackson at 732. Paragraph XIII of the present petition asks for much of the same relief as requested by the plaintiff in Jackson. However, the Jackson court found that the patient’s nursing home records indicated that he suffered from weakness and dementia, required supervision and assistance with daily living activities, and was at risk for falls. Paragraph VIII of the petition claims that Ms. Munson “was known to be disabled and in need of close supervision and care...” She was bfound on the floor of her room just as the patient in Jackson was discovered lying on the floor in his bathroom. The facts in this case seem almost exactly like those in Jackson. As that court pointed out:

Using the factors set forth in Coleman, supra, the totality of these circumstances tends to show that the degree of care that was or should have been provided for Mr. Edwards is a question whose answer requires expert medical knowledge. The medical records indicate that one of the reasons Mr. Edwards was in DeSoto Retirement was because he needed assistance with various daily activities, and the degree of assistance was a matter for DeSoto Retirement to determine per its expertise. Jackson v. DeSoto at 733.

Similarly, Ms. Munson was disabled and in need on close supervision and care. Whether Lakewood provided the degree of care that was necessary for Ms. Munson is a question requiring expert medical knowledge.

For these reasons I respectfully dissent.

GUIDRY, J., dissents in part and assigns reasons.

GUIDRY, J.,

dissenting in part.

hi respectfully disagree with the majority’s decision insofar as it remands this matter for the holding of another eviden-tiary hearing on the exception. The ex-ceptor has already had an opportunity to present the requisite evidence to sustain its burden of proof at the first hearing.

      . The named defendants were: Lakewood Quarters Limited Partnership; B.B.R.C. Investments, L.L.C.; Millenium Management, LLLP; Lakewood Quarters Assisted Living, L.P.; and Lakewood Quarters L.L.P. However, the exception of prematurity was filed only by Lakewood Quarters Limited Partnership, as owner of Lakewood Quarters Assisted Living.

      . We note that despite Lakewood Quarters Assisted Living’s assertion that Ms. Munson was a resident of the assisted living facility and not the nursing home, the Certificate of Enrollment filed in the record lists Lakewood Quarters Assisted Living as a nursing home.

      . The definition of "malpractice” quoted above differs slightly from the definition quoted in Richard because the definition was amended by Louisiana Acts 2001, No. 108, § 1, which was in effect at the time of the alleged negligent acts at issue. The definition of "malpractice” was again amended by Louisiana Acts 2006, No. 694, § 1, after the alleged negligence herein.

      . The court also concluded that the remaining Coleman factors did not support a finding of medical malpractice. Williamson, 888 So.2d at 790-791.

      . We note that in a case factually distinguishable from the present case, this court in McKnight v. D & W Health Services, Inc., 2002-2552 (La.App. 1st Cir. 11/7/03), 873 So.2d 18, 20, addressed whether the death of a nursing home resident who was allowed to wander off the premises and died as a result of injury, heat exhaustion and exposure, constituted a claim for malpractice under the MMA. This court noted that the decedent was a resident of the nursing home because he was generally in a confused state and was physically unable to care for himself. Thus, applying Richard and Coleman, this court determined that the allegations supported the conclusion that the negligence was treatment-related in that "the care of physically and mentally incapacitated patients is the type of health care for which nursing homes are generally dedicated” and that a claim based on failure to provide sufficient treatment is clearly linked to treatment. McKnight, 873 So.2d at 23.


source: Caselaw Access Project

author: DOWNING, J. HUGHES, J., McCLENDON, J.,

license: Public Domain

text:
    ARKEL CONSTRUCTORS, INC. v. DUPLANTIER & MERIC, ARCHITECTS, L.L.C., Thomas S. Meric, Jr., the State of Louisiana Through the Division of Administration, Office of Facility Planning and Control, and Schrenk & Peterson Consulting Engineers, Inc. Professional Construction Services, Inc. v. Arkel Constructors, Inc. and American Casualty Company of Reading.
    Nos. 2006 CA 1950, 2006 CA 1951.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 2007.

      Murphy J. Foster, Steven B. ' Loeb, Yvonne R. Olinde, Baton Rouge, Counsel for Plaintiff/Appellee Arkel Constructors, Inc.
    Michael F. Weiner, Daniel S. Terrell, Mandeville, Counsel for Third-Party Defendant/Appellant Professional Construction Services, Inc.
    Terrence L. Brennan, New Orleans, Counsel for Defendant/Appellee Duplantier & Meric Architects, L.L.C., Thomas S. Meric, Jr., and Schrenk & Peterson Consulting Engineers, Inc.
    Pamela Miller Perkins, J. Michael Lamers, Allen Harvey, Baton Rouge, Counsel for Defendant/Appellee State of Louisiana Through Division of Administration, Office of Facility Planning & Control.
    Richard E. King, David M. Moragas, New Orleans, Counsel for Defendant/Ap-pellee Maryland Casualty Company.
    Before: PETTIGREW, DOWNING, McClendon, hughes and welch, JJ.
   DOWNING, J.

| aThis dispute arises out of a construction project in Baton Rouge for work on the Louisiana Department of Environmental Quality’s Laboratory Building. The issues before us concern: (1) the appealability of the trial court’s judgment denying the motion to compel arbitration; (2) whether the trial judge, rather than the arbitrator, has the authority to determine if the party requesting arbitration is in “default” and; finally, (3) whether the trial court erred in finding that Professional Construction Services, Inc. (PCS), the requesting party herein, was in default and waived arbitration by filing suit without reserving its rights to arbitration.

BACKGROUND FACTS

Arkel ’ Constructors, Inc. (Arkel), the general contractor, filed suit in March 2005 against the' State as owner of the project, the structural engineering firm, the architectural firm, and various insurers, alleging that its performance on the project had been delayed due to defective drawings and specifications and improper administration regarding the installation of vinyl sheet piling. The subcontractor responsible for the vinyl sheet piling installation, PCS, was not a named defendant in Ark-el’s suit. However, in September 2005, PCS filed a separate suit against Arkel and its surety to recover monies allegedly owed to it by Arkel pursuant to its performance of the contracted work. The two suits were consolidated by consent judgment in February 2006.

Shortly thereafter, PCS filed an exception of prematurity and a motion to compel arbitration and to stay proceedings pending arbitration. PCS asserted that Arkel, as general contractor, entered into a contract with PCS, as subcontractor, and that contract contained an agreement to arbitrate any disputes that might arise under, or are related to, the subcontract for the ^performance of the work on the project. PCS urges that the arbitration clause in the contract with Arkel is clear and unambiguous and the claims of both parties seek compensation and/or damages as a result of the work under the subcontract; therefore, the matter must be submitted to binding arbitration.

Arkel, without denying the existence or applicability of the arbitration clause in the subcontract with PCS; opposed the motion, urging that PCS, in filing its own suit on the contract without asserting the arbitration clause or its right to arbitrate the dispute had, in effect, waived its right to arbitration. At a hearing held in May 2006, the trial court ruled, first, that PCS was in “default” for having filed its suit without asserting its -right to arbitration. The trial court also held that, upon finding that PCS was in “default,” the court, and not the arbitrator, is the proper party to determine the issue of whether arbitration had been waived. The trial court then ruled that PCS had waived its right to arbitration.

PCS appeals the ruling denying the motion to compel arbitration and denying its exception of prematurity. Specifically, PCS asserts the trial court erred in deciding the issue of waiver,'which it claims is for the arbitrator to determine. Alternatively, PCS asserts the trial court erred in determining that PCS was in “default” and that its actions constituted a waiver to its right to arbitration.

APPEALABILITY

This court, on its own motion, noting that the judgment appealed appears to be a non-appealable ruling, previously issued a rule to show cause why the appeal should or should not be dismissed. This rule was referred to this panel, to be ruled on at this time.

The ruling denying arbitration appears to be, by definition, an interlocutory ruling — one that does not determine the merits, but only | .¡preliminary matters in the course of the action. LSA-C.C.P. art. 1841. Pursuant to LSA-C.C.P. art.2083, as amended by 2005 La. Acts, No. 205 § 1, effective January 1, 2006, which removed the provision that interlocutory judgments that “may cause irreparable harm” are appealable, now provides an interlocutory judgment is appealable only when expressly provided by law.

Cases decided prior to the aforementioned amendment to LSA-C.C.P. art. 2083 consistently held that rulings denying a motion to compel arbitration were immediately appealable. In Collins v. Prudential Ins. Co. of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829, our supreme court held that an order compelling arbitration was not appealable. However, the court specifically noted in that opinion that Section 16 of the Federal Arbitration Act directs that orders denying arbitration would be immediately appealable. The supreme court reiterated that holding in Aguillard v. Auction Management Corp., 04-2804, 04-2857, p. 5 n. 5 (La.6/29/05), 908 So.2d 1, 6 n. 5: “A judgment denying a request for arbitration has been held to be an appealable, interlocutory order.” (Emphasis added.) See also Shroyer v. Foster, 01-0385, p. 3 n. 4 (La.App. 1st Cir.3/28/02), 814 So.2d 83, 86 n. 4, citing Collins, 99-1423 at p. 8, 752 So.2d at 830, and Stadtlander v. Ryan’s Family Steakhouses, Inc., 34,384, pp. 2-3 (La.App. 2nd Cir.4/4/01), 794 So.2d 881, 884-885, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790. These cases were based on the implicit reasoning that to deny an immediate appeal of a motion denying arbitration would cause irreparable harm to the party asserting its contractual right to arbitration. With the omission of this language in the amended version of LSA-C.C.P. art.2083, an immediate appeal of an interlocutory ruling must be specifically provided by law. In the absence of legislation expressly authorizing an appeal of an interlocutory | ¿judgment, a party must now seek review under the appellate court’s supervisory jurisdiction. LSA-C.C.P. art. 2083, Comments-2005 (a)(b).

In a decision rendered by this court after the effective date of the amendment to LSA-C.C.P. art.2083, we again reiterated and applied the holding in Aguillard, that a judgment denying a request for arbitration is an appealable, interlocutory order, without any mention of the amendment to LSA-C.C.P. art. 2083. Johnson v. Blue Haven Pools of Louisiana, Inc., 05-0197, p. 4 n. 1 (La.App. 1st Cir.2/10/06), 928 So.2d 594, 596 n. 1. In our most recent decision concerning an appeal of the denial of a motion to compel arbitration, this court merely addressed the merits of the issues before it, without mentioning the interlocutory nature of the judgment before it, nor addressing the issue of appeal-ability. Lafleur v. The Law Offices of Anthony G. Buzbee, P.C., 06-0466 (La.App. 1st Cir.3/23/07), 960 So.2d 105. However, in Wooley v. Amcare Health Plans of Louisiana, Inc., 05-2025, p. 10 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 674, we held that Act 205, which amended LSA-C.C.P. art. 2083, was procedural and should be applied retroactively. It appears clear that the amendment to LSA-C.C.P. art. 2083 now prohibits an immediate appeal from a motion denying a request for arbitration, despite any contrary indications in the jurisprudence.

Moreover, this matter warrants the exercise of our supervisory jurisdiction. The record reveals that PCS filed its notice of appeal well within the thirty days allowable ■ to seek writs. ■ Moreover, to deny review at this time would force PCS to litigate an entire matter before exercising its opportunity to appeal the decision to deny arbitration; which, if successful, would render the entire litigation futile. Finally, we are mindful of the strong public policy, both in Louisiana and nationally, favoring arbitration and the enforcement of arbitration agreements. Lafleur, 06-0466 at p. 4, 960 So.2d 110, Snyder 7v. Belmont Homes, Inc., 04-0445, p. 4 (La.App. 1st Cir.2/16/05), 899 So.2d 57, 61, writ denied, 05-1075 (La.6/17/05), 904 So.2d 699. All of these factors support, in the interest of judicial economy, our converting this appeal into an application for supervisory writs, which we hereby consider. See State, Dep’t. of Social Services v. Howard, 03-2865, p. 2 n. 1 (La.App.. 1st Cir.12/30/04), 898 So.2d 443, 444 n. 1

STANDARD OF REVIEW

The determination as to whéther to stay or compel arbitration is a question of law. The standard of appellate review for questions of law is simply to determine whether the trial court was legally correct or incorrect. Johnson, 05-0197 at p. 5, 928 So.2d at 597.

PUBLIC POLICY FAVORING ARBITRATION

The positive law of -Louisiana favors arbitration, and any doubt concerning the scope of arbitrable issues should be resolved in favor of arbitration. Aguillard, 04-2804 at p. 6, 908 So.2d at 7. Such favorable treatment echoes the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., which unquestionably embodies a liberal federal policy favoring arbitration agreements. Id. at p. 7, 908 So.2d at 7-8. One of the basic reasons for the existence of arbitration agreements is to allow the parties to achieve speedy settlement of their differences out of court. This purpose would be thwarted if, before being required to perform under the arbitration agreement, parties were permitted to litigate in order to secure an initial judicial determination (preliminarily to arbitration) that procedural formalities of the agreement have been complied with. Bartley, Incorporated v. Jefferson Parish School Board, 302 So.2d 280, 283 (La.1974).

| «APPLICABLE LAW

This matter is governed by Louisiana’s Binding Arbitration Law, LSA-R.S. 9:4201 et seq. As our courts have stated many times, the starting point for the interpretation of a statute is the language of the statute itself. International River Center v. Johns-Manville Sales Corporation, 02-3060, p. 2 (La.12/3/03), 861 So.2d 139, 141. Where suit is brought prior to the invocation of the arbitration clause, as was done in this case, LSA-R.S. 9:4202, entitled “Stay of proceedings brought in violation of the arbitration clause” applies:

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

(Emphasis added). Thus, once a party applies for a stay (pending arbitration), and shows (1) that there is a written arbitration agreement, and (2) the issue is referable to arbitration under that arbitration agreement, as long as that party is not in default in proceeding with the arbitration, the court shall stay the trial of the action in order for arbitration to proceed. When a party defaults prior to a suit having been filed, LSA-R.S. 9:4203 provides that the court, upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not at issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

As noted by the supreme court in a case squarely addressing the issue herein, “Section 4203 makes clear that the only two issues with which the trial court may concern itself are (1) whether there is a dispute as to the |amaking of the agreement and (2) whether a party has failed to comply with the agreement. If the trial court determines that those two facts are not in issue, the court ‘shall issue an order directing the parties to proceed to arbitration.’ ” International River, 02-3060 at p. 4, 861 So.2d at 142. In the instant case, there is no dispute (or denial by Arkel) that an arbitration agreement exists, nor that the issue related to the performance of the subcontractor is referable to arbitration. In International River, the same circumstances were presented, and the court addressed the exact issue before us in this matter: “which entity determines whether a contractual arbitration agreement has been waived by a party’s actions — the courts or an arbitrator.” Id. at p. 1, 861 So.2d at 140. Citing the foregoing detailed sections of Louisiana’s Binding Arbitration Law, the court concluded, “[njeither statute allows the trial court to determine waiver issues.” Id. at p. 4, 861 So.2d at 142. The court held, “procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator to decide. So, too, the presumption is that the arbitrator should decide allegations of waiver, delay, or a like defense to arbitrability.” Id. at p. 7, 861 So.2d at 143-44 (Emphasis added). In so holding, the supreme court relied on and cited its earlier decision in Bartley, wherein it held, “[t]he issues of waiver and prematurity address themselves to the arbitrator. They cannot be utilized to prevent the aggrieved party from securing an order directing arbitration, as required by Section 4203.” Bartley, 302 So.2d at 283. See also Aguillard, 04-2804 at p. 24, 908 So.2d at 18.

DECREE

In this case, there is no dispute that an arbitration agreement exists between the parties or that the subject matter in dispute involves the work involved between the contracting parties. Thus, having established before it |inthe existence of an arbitration agreement covering the issues raised by the parties, the trial court erred as a matter of law in determining the waiver issue, which, for all the reasons detailed herein, is clearly a function of the arbitrator. Accordingly, we reverse the judgment of the trial court and render judgment granting a stay pending arbitration, and order the parties to submit to arbitration. Costs of this appeal are assessed to Arkel Constructors, Inc.

REVERSED AND RENDERED.

HUGHES, J., dissents with reasons.

McCLENDON, J., dissents and assigns reasons.

HUGHES, J.,

dissenting.

Iil respectfully dissent from the majority opinion insofar as it reverses the district court’s determination that Professional Construction Services, Inc. (PCS) waived its right to arbitration pursuant to the parties’ prior contract, grants a stay of the district court proceedings pending arbitration, and orders the parties to submit to arbitration.

In the instant case, PCS filed suit on September 13, 2005 in the district court seeking money damages in its favor arising out of a dispute under- the contract between the parties. Thereafter, on November 14, 2005, Arkel Constructors, Inc. (Arkel) filed a “Motion to Transfer and Consolidate Cases for Trial,” which was served on PCS. A hearing on this motion was set for January 30, 2006. The parties entered into a consent judgment on February 24, 2006, agreeing to transfer and consolidate for trial in the district court its own suit with that filed by Arkel. Thus, rather than seek arbitration, PCS agreed to have these matters heard in District Court. These actions indicate an intention to litigate rather than arbitrate. It was not until April of 2006 that PCS filed its “Exception of Prematurity and Motion to ^Compel Arbitration and to Stay Proceedings Pending Arbitration.” Under the circumstances, the district court found as a matter of fact that PCS, the party seeking arbitration and a stay, was in default in proceeding with the arbitration by seeking relief through litigation without reserving its right to arbitration.

This case differs from International River Center v. Johns-Manville Sales Corporation, 2002-3060, (La.12/3/03) 861 So.2d 139. In that case, the party seeking arbitration was not in default. Here, Arkel did not refuse to arbitrate. Rather, PCS chose and agreed to litigate, thus defaulting on and waiving its prior arbitration agreement.

Under this appellate court’s manifest error standard of review, I respectfully submit that we are unable to say that the factual finding by the district court, that PCS was in default and effectively waived its right to arbitration, is erroneous.

McCLENDON, J.,

dissenting.

_JjAlthough, under our current jurisprudence, waiver of arbitration is generally an issue to be decided by the arbitrator, our legislature, by enacting LSA-R.S. 9:4202, clearly chose to maintain the court’s authority to determine whether a party applying for a stay of proceedings pending arbitration has defaulted, and thereby lost the right to stay the court proceeding and compel arbitration. Further, I do not find the holding in International River Center versus Johns-Manville Sales Corporation, 2002-3060 (La.12/3/03), 861 So.2d 139, to be in conflict with this analysis.

In International River, the defendant, applying for the stay of proceedings pending arbitration, was not the party in default. That is, the defendant was not the Lparty who had refused or failed to perform under the written arbitration agreement. The supreme court found that plaintiff, who had sued various parties and pursued the matter for some time before the defendant asked for a stay, was in default. Thus, the supreme court specifically stated that the stay should have been granted.

Clearly, the legislative goal of La. LSA-R.S. 9:4202 was to prevent parties, who forego arbitration and chose to pursue others through the judicial process, from changing their plan mid-suit and deciding arbitration would be more advantageous, to the prejudice of defendants who were willing to arbitrate. Only when a stay is asked for does the statute come into play, and even then only to the extent necessary to determine whether the applicant refused or failed to perform under the arbitration clause such that a default has occurred.

It appears that the applicant for the stay in our case, who behaved similarly to the plaintiff in International River, may have been in default. Thus, the trial court had jurisdiction under La. LSA-R.S. 9:4202 to determine whether the applicant’s actions did indeed amount to default. Further, I do not believe that the trial court’s refusal to grant the applicant’s stay based on said default was erroneous under the circumstances presented herein. Therefore, I believe that the judgment of the trial court should have been affirmed.

      . To the extent that the majority herein interprets International River to remove from the trial court the issue of default under La. R.S. 9:4202, I believe the majority to be incorrect.


author: CHARLES R. JONES, Judge, Ad Hoc.

text:
    Silas RUSHING v. WINN-DIXIE LOUISIANA, INC.
    No. 2006 CA 2016.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 1, 2007.

      Albert A. Bensabat, III, Hammond, for Plaintiff-Appellee Silas Rushing.
    James M. Taylor, Denise M. Ledet, Taylor, Wellons, Politz, & Duhe, APLC, New Orleans, for Defendant-Appellant Winn-Dixie Louisiana, Inc.
    Before: JONES, MURRAY, and TOBIAS, JJ.

      . The Honorable Charles R. Jones, Judge, the Honorable Patricia Rivet Murray, Judge, and the Honorable Max N. Tobias, Jr., Judge, all members of the Fourth Circuit Court of Appeal, are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

   CHARLES R. JONES, Judge, Ad Hoc.

|2The Appellant, Winn-Dixie Louisiana, Inc. (hereinafter “Winn-Dixié”) seeks review of an Office of Workers’ Compensation judgment that awarded the Appellee, Mr. Silas Rushing, $10,410.30 for prescription expenses, $3,370.00 for physician expenses, and $5,000 for attorney’s fees. We affirm.

Facts and Procedural History

On May 8, 1998, Mr. Rushing was injured while in the course and scope of his employment with Winn-Dixie. After the accident, Winn-Dixie began to pay his disability benefits. Mr. Rushing initially sought pain management treatment for his work related injury from Dr. Larry Thirstrup. Subsequently, Dr. Thirstrup could no longer prescribe pain medication because his medical privileges were revoked. In August 2004, Mr. Rushing began treatment with Dr. David Jarrott. Dr. Jarrott retired shortly thereafter, and Mr. Rushing continued treatment with Dr. Scott Chapman, who took over Dr. Jar-rott’s practice. All three doctors were pain management specialists.

On or about November 3, 2004, Mr. Rushing filed a disputed claim for compensation against Winn-Dixie seeking authorization to change his physician. Mr. Rushing also sought reimbursement for medical and prescription expenses he accrued from November 1, 2004 to June 9, 2006. Lastly, he sought to recover attorney’s fees under La. R.S. 23:1121(C). | ¡¡Winn-Dixie did not formally authorize the change of physician until June 29, 2006. At that time it was agreed that Dr. James Denney would assume Mr. Rushing’s pain management treatment.

Trial on this matter commenced on July 20, 2006. At trial, the parties stipulated that from the date of filing his disputed claim for compensation to the date of the trial, Mr. Rushing had incurred $10,410.30 in prescription expenses and $3,370.00 in physician expenses. After reviewing all of the evidence and testimony presented, the Office of Workers’ Compensation entered judgment in favor of Mr. Rushing. Winn-Dixie was ordered to reimburse . him $10,410.30 for prescription expenses, $3,370 for physician’s expenses, and $5,000 for attorney’s fees. Subsequently, Winn-Dixie filed the instant appeal.

Winn-Dixie raises two issues on appeal. In its first assignment of error, Winn-Dixie argues that the Office of Workers’ Compensation committed manifest error in ordering Winn-Dixie to reimburse Mr. Rushing for prescription and physician expenses when Mr. Rushing did not specifically request treatment or reimbursement from Dr. Jarrott or Dr. Chapman. Winn-Dixie’s second assignment of error is that the Office of Workers’ Compensation committed manifest error in concluding that Winn-Dixie was arbitrary and capricious based on its refusal to authorize treatment with the physicians.

Law and Discussion

In a worker’s compensation case, the standard of review for the appellate court is the manifest error standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Further, the reviewing Rcourt “must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety.” Stobart v. State, 617 So.2d 880, 882 (La.1993).

In its first assignment of error, Winn-Dixie argues that the Office of Workers’ Compensation committed manifest error-in ordering Winn-Dixie to reimburse Mr. Rushing’s prescription and physician’s expenses when Mr. Rushing did not obtain prior consent from his employer to change physicians. Winn-Dixie argues specifically that Mr. Rushing neither informed it of his new treating physician, nor did Mr. Rushing submit any documentation that would have informed Winn-Dixie of the identity of his new physician.

After an employee makes his initial physician choice, he must obtain consent from his employer to receive treatment from a physician practicing in the same field as his previous employer. Fenyes v. Highland Park Medical Center, 97-0120, p. 4 (La.App. 1 Cir. 2/20/98), 708 So.2d 493, 495.

La. R.S. 23:1121(B) provides:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice, the employee shall obtain prior consent from the employer or his worker’s compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

|RIn the case at bar, Mr. Rushing initially treated with Dr. Thirstrup, a pain management specialist, for the injury he obtained while in the scope and course of his employment at Winn-Dixie. Subsequently, Dr. Thirstrup’s medical privileges were revoked and Mr. Rushing was left without a physician. Mr. Rushing then elected to continue his pain management treatment with Dr. Jarrott in August of 2004. Shortly thereafter, Dr. Jarrott retired and his practice was assumed by Dr. Chapman. Dr. Chapman also assumed treating Mr. Rushing.

The Workers’ Compensation Judge in her Written Reasons stated .that because Mr. Rushing was left without a treating physician he was entitled to select his physician of choice. The Workers’ Compensation Judge further found that Mr. Rushing was not changing physicians, but that he simply selected a treating physician as was his right pursuant to La. R.S. 23:1121(B). That is, Mr. Rushing did not need to obtain prior consent from Winn-Dixie when he began treatment with Dr. Jarrott and Dr. Chapman because he was not seeking to change his physician. Instead, because Mr. Rushing did not have a physician, he was forced to select one. Once Dr. Thirstrup’s medical privileges were revoked, Mr. Rushing was without a doctor. Dr. Jarrott retired shortly after Mr. Rushing began his treatment. Again, Mr. Rushing did not have a doctor. Dr. Chapman then took over Dr. Jarrott’s practice and Mr. Rushing’s treatment. Mr. Rushing did not choose to discontinue treatment with any of these physicians. For reasons unbeknownst to Mr. Rushing and due to circumstances beyond his control, he lacked a treating physician and was twice forced to re-select a physician.

LThe Louisiana State Supreme Court has held that an injured employee has an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding, Inc., 02-1071, p. 9 (La.1/28/03), 839 So.2d 5, 11. Accordingly, Mr. Rushing made his selection of a physician when he treated with Dr. Jarrott. After Dr. Jar-rott’s retirement, he began treatment with Dr. Chapman. Subsequently, in November 2004, Mr. Rushing made his formal demand requesting a change of physician. Therefore, we find the Office of Workers’ Compensation was not manifestly erroneous in concluding that Mr. Rushing was entitled to reimbursement for his physician’s expenses and prescription expenses for his treatment with Dr. Jarrott and Dr. Chapman.

.In its second assignment of error, Winn-Dixie argues that the Office of Workers’ Compensation committed manifest error in finding Winn-Dixie arbitrary and capricious in awarding Mr. Rushing $5,000 in attorney’s fees. Winn-Dixie asserts that Louisiana jurisprudence requires a specific request for treatment and/or reimbursement in order to assess attorney’s fees. Winn-Dixie maintains that Mr. Rushing did not make a specific request for treatment or reimbursement, therefore attorney’s fees in this matter are not warranted.

“Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts, circumstances presented, or of seemingly unfounded motivation.” Williams v. Rush Masonry, Inc., 98-2271,(La.6/29/99), 737 So.2d 41, 45-46 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890).

|7The Office of Workers’ Compensation awarded attorney’s fees in the instant matter pursuant to La. R.S. 23:1121(C). This section of the statute was repealed in 2003, but it was in effect at the time of Mr. Rushing’s claim. The statute read' as follows:

If the employer or insurer has not consented to the employee’s request to select a treating physician or change physicians when such consent is required by this Section, and its determined by a court having jurisdiction that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee for reasonable attorney’s fees related to this dispute and for any medical expense so incurred by him for an aggravation of the employee’s condition resulting from the withholding of such physician’s services.

The Office of Workers’ Compensation found that “Winn-Dixie presented no evidence at trial that Mr. Rushing’s request to change physicians was investigated, nor did Winn-Dixie offer any evidence controverting the reasonableness or necessity of the treatment.” Furthermore, the record indicates that Winn-Dixie knew about Mr. Rushing’s formal demand to change physicians since November 2004. Winn-Dixie, however, did not approve the change of physician until June 29, 2006.

In Luper v. Wal-Mart Stores, 02-0806, p.8 (La.App. 1 Cir. 3/28/03), 844 So.2d 329, 335, we upheld an award of attorney’s fees based on Wal-Mart’s failure to provide payment for medical expenses incurred by its employee. The employee requested a physician change from Wal-Mart numerous times, yet for a year Wal-Mart failed to authorize the change. We reasoned that since the employee made a request to change physicians |«it was “incumbent upon Wal-Mart to respond in some form or fashion which was never done.” Id. at 336. We also noted that the employee had to retain counsel because Wal-Mart failed to respond to the request for a physician change. Id. at 335.

Similarly, Mr. Rushing requested a change of physician from Winn-Dixie in 2004, yet his request was not authorized until two years later. Mr. Rushing was forced to pay out of pocket expenses for his visits to the doctor and for his prescriptions. Mr. Rushing also had to retain counsel in order to settle this matter.

Based on the evidence and testimony presented at trial, the Office of Workers’ Compensation found that Winn-Dixie acted arbitrarily and capriciously in its refusal to approve Mr. Rushing’s treatment with Dr. Jarrott and Dr. Chapman. Consequently Mr. Rushing was awarded $5,000 in attorney’s fees. We are in accord with the fact finding of the Office of Workers’ Compensation and find that this assignment of error lacks merit. Therefore, we conclude that the Office of Workers’ Compensation was not manifestly erroneous in awarding Mr. Rushing his attorney’s fees.

DECREE

For the reasons assigned herein, we affirm the judgment of the Office of Workers’ Compensation.

AFFIRMED.


author: McClendon, j. GUIDRY, J., GAIDRY, J.,

text:
    Dr. Virendra CHARAN and Hindu Charan, Individually and on Behalf of Deependra Charan, and Anuradha Charan Saxena v. James L. BOWMAN, Paul Bowman, Allstate Insurance Company, Omni Insurance Company and State of Louisiana, Through the Department of Transportation and Development.
    No. 2006 CA 0882.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 1, 2007.

      Daniel C. Vidrine, Todd C. Comeaux, Baton Rouge, Counsel for Plaintiffs/Appel-lees Virendra Charan and Bindu Charan, individually and' on behalf of Deependra Charan and Anuradha Charan Saxena.
    Charles C. Foti,- Jr., Attorney General, Thomas D. Fazio, Special Assistant Attorney General, Baton Rouge, Counsel for Defendant/Appellant Louisiana Department of Transportation and Development.
    Before: PARRO, GUIDRY, GAIDRY, McDonald, and McClendon, jj.
   McClendon, j.

|2The State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a judgment holding it partially liable for an automobile accident that occurred on a bridge in its care, custody, and control during adverse weather conditions. After a thorough review of the record, we reverse.

FACTS AND PROCEDURAL HISTORY

Early on the foggy morning of January 31, 1997, a life-threatening car accident occurred on the Louisiana Highway 1 bridge spanning the Morganza Floodway (the Morganza Floodway Bridge). The driver of a 1995 Ford Ranger pick up truck attempted to pass an eighteen-wheeler on the two-lane bridge and collided head on with a 1988 Volkswagen Fox driven by Deependra Charan. As a result of the accident, the driver of the pick up truck, James L. Bowman, sustained relatively minor injuries. Deependra, however, sustained a traumatic brain injury leaving him in a chronic vegetative state since the accident. Following the accident, Bowman was cited for improper passing, driving under a suspended license, driving while intoxicated (DWI) third offense, and later arrested. He pled guilty to third offense DWI and first degree negligent injuring and was sentenced to five years incarceration for each offense to be served concurrently.

Dr. Virendra Charan and Bindu Charan, the parents of Deependra, filed a petition for damages, individually and on behalf of Deependra, against various defendants, including DOTD. In the petition, the plaintiffs alleged that DOTD was liable based on its alleged negligence in defectively designing and constructing the bridge and in failing to reduce the speed limit and designate the bridge as a no-passing zone. Following a four-day trial, the jury rendered a verdict in favor of the plaintiffs, assessing DOTD with thirty percent fault in causing the accident and awarding the plaintiffs $21,350,000.00 in general and special damages. The 1 ¡¡damage award was reduced to $21,060,932.15, pursuant to an unopposed motion for remittitur pertaining to the amount awarded for past medical expenses.

ASSIGNMENTS OF ERROR

In this appeal, DOTD contends that it was erroneously cast in judgment based on the following specifications of error committed by the jury:

1. The jury erred in finding that the .. .bridge had a defect that created an unreasonable risk of harm on January 31,1997.
2. Alternatively, the jury erred in finding that the alleged defect which allegedly created an unreasonable risk of harm on January 31, 1997 was a cause-in-fact of the accident, including, specifically, whether DOTD had a duty to protect this plaintiff against this risk arising in the manner in which this accident occurred.
3.Alternatively, the jury erred in finding that DOTD had actual or constructive notice of the alleged defect in the bridge [,] which allegedly created an unreasonable risk of harm and had a reasonable time to correct the defect but failed to do so.
• 4. The jury erred in its apportionment of fault between James L. Bowman, Jr. and DOTD and, specifically, erred in not finding Bowman to be 100% at fault in causing this accident.

In answer to the appeal, the plaintiffs primarily ask that the judgment be modified in part to increase the percentage of fault assessed against DOTD to eighty percent.

DISCUSSION

In order to find DOTD liable based on the design, construction, or condition of a state roadway, a plaintiff must prove that (1) DOTD had custody of the thing which caused plaintiffs’ damages, (2) the thing was defective because it had a condition which created an unreasonable risk of harm, (3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs’ injuries. \ ¿Cormier v. Comeaux, 98-2378, pp. 5-6 (La.7/7/99), 748 So.2d 1123,1127; see LSA-C.C. arts. 2317, 2317.1; LSA-R.S. 9:2800.

The parties stipulated at trial that DOTD had the care, custody, and control of the deck and railings of the Morganza Floodway Bridge and that it regulates the traffic flow on the deck of the bridge, including the signage and the determination of speed. In its first assignment of error, DOTD challenges the finding by the jury that the bridge had a defect that created an unreasonable risk of harm.

In deciding whether a site presents an unreasonably dangerous condition, the court must weigh the magnitude and probability of injury against the burden of preventing the injury. Woods v. State, Department of Transportation and Development, 37,185, p. 18 (La.App. 2 Cir. 8/14/03), 852 So.2d 1109, 1121, writ denied, 03-2584 (La.11/26/03), 860 So.2d 1140. Whether an unreasonably dangerous defect caused the plaintiffs’ damages is a finding of fact and an appellate court may not overturn a jury’s finding of fact in absence of manifest error or unless clearly wrong. Shilling ex rel. Shilling v. State, Department of Transportation and Development, 05-0172, p. 7 (La.App. 1 Cir. 12/22/05), 928 So.2d 95, 100, writ denied, 06-0151 (La.4/24/06), 926 So.2d 541.

The Morganza Floodway Bridge was constructed as a result of the passage of several public acts wherein the United States Congress authorized the U.S. Army Corps of Engineers to enter into an agreement with the State of Louisiana for the construction of the Morganza Floodway to control flooding caused by the Mississippi River and its tributaries. The floodway would extend from the Mississippi River north of Morganza, Louisiana, to the At-chafalaya River backwater in the vicinity of Batchelor, Louisiana.

Pursuant to that authorization, the Louisiana Highway Commission, a predecessor of DOTD, ’ entered into Contract No. W1096eng-7114 on August 7, 1940, which provided “that a high level crossing providing facilities equal to those | Kin [the] existing State Route No. 30 [Louisiana Highway 30] be constructed to carry the said existing State Route No. 30 over the said Morganza Floodway and its levees, at the expense of the United States of America.” The then existing Louisiana Highway 30 traversed the area designated for the floodway at ground level.

The 1940 contract was later modified by a supplemental agreement dated October 1, 1948, in which it was acknowledged that the original- contract “has been delayed due to war conditions and has yet to be commenced.” According to the supplemental agreement, the parties found it advisable to combine the • floodway control structure with the proposed high-level paved crossing of Louisiana Highway 30 over the designated floodway, observing that the funds then allotted were insufficient to complete the work and that the “aforesaid combination of structures- will result in decreased total cost to the Government.” Thus, the United States government funded the construction of the combined structure that resulted in the bridge, and in exchange for that funding, DOTD, through its predecessor, the Department of Highways, agreed to “accept, maintain, and operate the completed highway crossing over the • Morganza flood-way.” The design and construction dates for the bridge can be gleaned from a set of construction plans dated 1948 submitted by the plaintiffs and an exhibit submitted by DOTD on which it is stated “[w]ork under this project determined to be complete as of 30 June 1956.”

Through the testimony of James R. Clary, Sr., a civil engineer qualified as an expert in traffic engineering and highway safety, including the sub-specialties of signing, construction, design and maintenance, the plaintiffs presented evidence seeking to establish that the Morganza Floodway Bridge, as constructed, contained a defect that created an unreasonable risk of harm. Clary stated that the bridge was |fidefective because it was not. constructed in conformity with standards applicable at the time. Clary explained that based on Louisiana Highway l’s classification as a “Class A” bridgeway in LSA-R.S. 48:191, which is the highest classification given to a roadway in the statute, DOTD was required to construct the bridge to the equivalent class of roadway in applicable engineering standards.

According to Clary, the “State of Louisiana Department of Highways 1948 Road Design Standards and Miscellaneous Data” (1948 Design Standards) generally provided the standards engineers would follow to design and build roadways at the time the bridge was designed ' and constructed. The 1948 Design Standards classified Louisiana roadways into six numerically designated classes (Class I through VI), with Class I being the highest class in the state. Equating a statutory “Class A” roadway to either a “Class I” or “Class II” roadway under the 1948 Design Standards, Clary stated that the bridge was defective because the 1948 Design Standards required, at a minimum, that the bridge consist of four, 12-foot wide traffic lanes, with 10-foot wide shoulders and a 40-foot median separating the four traffic lanes into two lanes traveling in one direction and two lanes traveling in the opposite direction. Instead, the existing structure consists of two traffic lanes — one lane measuring 11 feet, 3.5 inches wide and the other measuring 11 feet, 1.5 inches wide — with no median separating the lanes for traffic traveling in opposite directions.

In reviewing the evidence presented at trial, we agree with Clary’s opinion that the bridge was not constructed in accordance with the specifications applicable to a Class I or II roadway under the 1948 Design Standards; but Clary was in error in his contention that, by law, DOTD was required to construct the bridge to those levels of classification. The statutory classification of Louisiana Highway 1 as a “Class A” highway did not occur until 1955, at the earliest.

|7The legislative history of LSA-R.S. 48:191 reveals that the statute was amended and re-enacted in 1955 to create and establish a system of state highways consisting of three classifications: “Class A Highways or a Primary System to include 4200 miles; Class B Highways or a Secondary System to include 4300 miles; and Class C Highways or a Farm-to-Market System to include 6750 miles.” Among those classes, Louisiana Highway l.“from a junction with La-US 190 at or near Erwinville through New Roads, Simmes-port and Marksville to a junction with La.US 71 at or near Alexandria” was listed among the highways in “Class A.” Prior to this re-enactment, LSA-R.S. 48:191 simply declared in what manner highways would be deemed included in the state highway system. See LSA-R.S. 48:191 (1950).

Clary also insisted that the bridge should have been built in conformity with a Class I or Class II structure based on his analysis of the traffic counts for the roadway. However, he acknowledged at trial that he could not assess the classification of the roadway based on the traffic counts for 1948 or 1949 “because the road wasn’t built” and no evidence was introduced to show the traffic count for the then existing Louisiana Highway 30. Nevertheless, referring to the anticipated future traffic counts for a Class III roadway as listed in the 1948 Design Standards, Clary declared that the Morganza Floodway Bridge was defective because the 1997 traffic count for the bridge exceeded the projected traffic count for a Class III bridge. According to the 1948 Design Standards, the anticipated future traffic count for a Class III bridge was 1,000 to 3,000 vehicles, but the 1997 annual average daily traffic count for the Morganza Floodway Bridge was 5,100.

Despite his reliance on 1997 figures, Clary admitted that the 1948 anticipated count was based on a 20-year projection. There was no evidence ^presented to show the traffic count of the roadway that existed in the location prior to the construction of the bridge or the actual annual average daily traffic count for the bridge exactly 20 years after its design and construction. Therefore, we find that Clary’s opinion that the bridge should have been built to Class I or II roadway specifications based on the traffic count was not substantiated by the documentary evidence of record.

As observed by this court in Robin v. Mississippi Fast Freight Company, Inc., 97-2556, p. 6 (La.App. 1 Cir. 12/28/98), 744 So.2d 42, 46, writ denied, 99-0688 (La.4/30/99), 741 So.2d 16:

If expert testimony given in response to hypothetical questions is predicated on a statement of unproven facts, it has no probative value and should not affect the outcome of the case. Ultimately, the weight to be given expert testimony is dependent on the facts on which it is based, as well as the professional qualifications and experience of the expert. For an expert opinion to be valid and to merit much weight, the facts on which it is based must be substantiated by the record. If the opinion is based on facts not supported by the record, the opinion may be rejected. (Citations omitted).

Hence, to the extent that Clary’s testimony regarding the bridge was premised on the roadway’s classification under LSA-.R.S. 48:191 or traffic counts, we find the totality of the evidence, particularly the documentary evidence, did not establish that the bridge should have been designed and built to the specifications of a Class I or II roadway. As such, Clary’s testimony was insufficient to prove that the-bridge was defective on that basis.

Clary also opined that the bridge was defective because of DOTD’s failure to construct the bridge in conformity with the specifications outlined in the supplemental agreement with the federal government. Clary testified that it was his belief that the supplemental agreement required the bridge “to have been designed and built similar to the [U.S. 190 bridge in Lottie].” The Lottie Bridge is a four-lane bridge with a median separating two lanes traveling in one direction l9from two additional lanes traveling in the opposite direction. The Lottie Bridge was built during the same time period as the bridge at issue in this appeal.

Article 2(a) of the supplemental agreement states that “[s]aid structure shall generally conform to the applicable portions of the designs employed for U.S. Highway No. 190.. .and shall conform to the applicable portions of the American Association of State Highway Officials’ ‘Standard Specifications for Highway Bridges’ however, immediately preceding that provision, the contract also stipulates that “the Government shall cause a control .structure ... to be constructed. ... Said structure shall afford accommodations for a single track railroad, and a two-lane highway as shown on the General Plan entitled “Morganza Floodway, High Level Crossings .for Louisiana Highway Route No. 30 and The Texas and Pacific Railway (Port Allen branch line).. .which is attached hereto and made a part hereof.” (Emphasis added.) Hence, contrary to Clary’s assertion at trial, the reference to constructing the bridge to “generally conform” to the design of the Lottie Bridge did not mandate that the bridge be designed and built as a four-lane structure. Thus, the evidence does not substantiate or provide a reasonable basis for Clary’s assertion that the bridge was defective on this basis.

Plaintiffs’ expert also asserted at trial that the bridge was defective because it was too narrow. In addition, DOTD should have designated and posted it as a no-passing zone with a lower speed. Plaintiffs argued that the absence of the proper signage in foggy weather rendered the roadway of the bridge defective and caused the accident.

DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. Jacques v. State, Department of Transportation and Development, 2003-2226, p. 9 (La.App. 1 Cir. 9/17/04), 905 So.2d 294, 299, writ denied, 2004-3013 (La.2/18/05), 896 So.2d 36. . It has also been held that DOTD’s statutory duty to keep |10the state’s highways in a reasonably safe condition includes a duty to maintain appropriate signs and traffic signals along the roadway. Lee v. State, Department of Transportation and Development, 97-0350, p. 4 (La.10/21/97), 701 So.2d 676, 678. However, the duty owed by DOTD does not include the obligation to protect a plaintiff against harm that would not have occurred but for the grossly negligent operation of a motor vehicle. Jacques, 2003-2226 at p. 9, 905 So.2d at 299. DOTD is not a guarantor of the safety of all travelers and cannot be held responsible for all injuries resulting from any risk. DOTD is liable only for those damages caused by a defective or unreasonably dangerous roadway of which DOTD had actual or constructive knowledge. Lee, 97-0350 at pp. 3-4, 701 So.2d at 677-78. While design standards may be relevant factors in deciding whether a roadway presents an unreasonable risk of harm, standards alone are not determinative. Boland v. West Feliciana Parish Police Jury, 2003-1297, pp. 11-12 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 817, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231.

It is a plaintiffs burden to prove causation and that DOTD had actual or constructive notice of the hazardous condi1 tion of its highway and failed to take corrective action within a reasonable time: Lewis v. State, Department of Transportation and Development, 94-2370, p. 3 (La.4/21/95), 654 So.2d 311, 313. One is presumed to have constructive notice of a defect or dangerous condition when it is shown to have existed for such a long period of time that knowledge thereof can be presumed, or that it can be said that one should have had knowledge of the condition. Gayle v. Department of Highways, 205 So.2d 775, 780-81 (La.App. 1 Cir.1967), writs refused, 251 La. 932 and 933, 207 So.2d 538 and 539 (1968), application not considered, 251 La. 934, 207 So.2d 539 (1968). The jury’s finding on this element is subject to the manifest error standard of review on appeal. See Lewis, 94-2370 at pp. 4-6, 654 So.2d at 314-315.

lnThe law places a duty on a motorist to ascertain whether the “left side is clearly visible and is free of oncoming traffic,” before the motorist attempts to pass using the left lane. LSA-R.S. 32:75. A driver does not have the right to assume the course of travel is free from danger if he cannot see clearly ahead. If he continues to travel as if he knew there was perfect clearance, he does so at his own risk and peril. Kimble v. East Baton Rouge Parish, 95-1973, p. 8 (La.App. 1 Cir. 5/10/96), 673 So.2d 682, 686. Further, a motorist is held to a higher degree of care in adverse conditions, and his duty to keep his vehicle under control increases in periods of low visibility. Kimble, 95-1973 at p. 8, 673 So.2d at 686-87; Crockett v. United States Fidelity & Guaranty Company, 229 So.2d 169, 173 (La.App. 1 Cir.1969), writ refused, 255 La. 286, 230 So.2d 589 (1970); O’Rourke v. McConaughey, 157 So. 598 (La.App. Orleans Cir.1934). Adverse driving conditions call for unusual caution on the part of motorists. King v. King, 253 La. 270, 280, 217 So.2d 395, 398 (1968). If conditions warrant it, the motorist may be required to slow or pull over and stop until the visibility improves. See Kimble, 95-1973 at p. 8, 673 So.2d at 687. If the adverse condition or defect is open and obvious, defendants may have no duty to protect or warn against the hazard and the condition may not be unreasonably dangerous. Boland, 2003-1297 at p. 12, 878 So.2d at 818.

In Clary’s opinion, the bridge was a harrow one because its width was less than the minimum specified in the “Standard Specification for Highway Bridges” published by the American Association of State Highway Officials (AASHO) in 1949 and 1953. Clary testified that, at the time the bridge was designed and constructed, AASHO outlined the national specifications for the construction of highway bridges. He explained that the AASHO publications did not classify highways; instead, they provided the information needed to design a bridge once 11P.an entity, in this case the state, determined the number of lanes and the traffic volume for the structure.

He testified that in both the 1949 and 1953 editions, AASHO required that the clear roadway of a single bridge must measure at least 26 feet wide, whereas the clear roadway of the bridge in question only measures 25 feet, 10 inches wide. Clary thus opined that “any bridge that is below the very minimum required by the standards at the time it was built which this is one of — is narrower than the minimum. It is a narrow bridge anyway you look at it.”

On cross examination, Clary admitted that he did not measure to the curb and that he only measured at one place on the bridge. He could not comment on whether there were other places on the bridge that measured more than 25 feet, 10 inches, stating “[i]t might. It might not.” Clary also admitted that he did not know if the two inch difference at that point on the bridge would have made any difference in the accident that occurred.

As to the claim that the bridge was too narrow, our review does not reasonably support a finding that the bridge roadway fell below the minimum standards. Even assuming it was too narrow at the point measured, the record contains no specific evidence of the requisite notice to DOTD, and Clary could not say that the narrowness caused the 1997 accident in question.

To support his assertion that the bridge should be designated a no-passing zone, Clary referred to the “Manual on Uniform Traffic Control Devices” (MUTCD) published by the Louisiana Department of Highways in 1949 and revised in 1954. According to the introduction contained in the 1954 edition, the MUTCD provided for the design, location, use and operation of signs, signals and markings and conformed, as far as practicable, with nationally accepted standards.

Although Clary acknowledged that the MUTCD did not have a warrant'mandating that a location be designated as a no-passing zone due to fog, he | ^referred to a provision that described how a no-passing zone should be marked in “zones where overtaking and passing is hazardous.” To show the zone was hazardous, he referenced statements made by Paul Smith, the sheriff of Pointe Coupee Parish, regarding accidents in the area of the bridge.

Sheriff Smith, who assumed office in 1996, testified that he had supervised countless accidents, ranging in severity from fatalities to minor accidents, on the Morganza Floodway Bridge since joining the sheriffs office in 1977. However, the sheriff did not testify that those accidents were specifically caused by the narrowness of the bridge, foggy conditions, or the absence of signs warning the public not to pass and to slow down in adverse weather. Further, the only notification from the sheriff directly to DOTD was a letter written after the accident at issue in this case. Regarding the hazard or danger encountered when traveling on the bridge during foggy weather conditions, Sheriff Smith did state that at times he had stopped and pulled over because “it was, too bad to drive.”

The state police officer who responded to the accident and a witness who observed the accident while traveling behind the Bowman vehicle both testified that on the date of the accident it was very foggy and that foggy conditions often occur in the area of the bridge. Thus, Clary opined that the bridge should have been designated as a no-passing zone to minimize the hazard posed while traveling on the bridge during foggy conditions and that the absence of that designation created an unreasonable risk of harm.

To refute this testimony, DOTD presented the testimony of Rick Robertson, who was accepted as an expert in road design, traffic engineering, accident reconstruction, and hydraulic engineering. Robertson opined that the Morganza Floodway Bridge was built in accordance with the minimum standards required at the time the bridge was built. He further testified that the 1988 edition of the MUTCD was applicable in determining whether the bridge was required to be 114marked and posted as a no-passing zone at the time of the accident. The 1988 MUTCD provides that “no-passing zones shall be established ... on two- and three-lane highways where an engineering study indicates passing must be prohibited because of inadequate sight distances or other special conditions.” Based on the provisions of the 1988 MUTCD, Robertson opined that there were no “permanent” sight restrictions on the bridge and therefore passing was allowable in accordance with the applicable MUTCD edition.

Robertson testified that if a no-passing zone was implemented when conditions did not warrant such an installation, it would simply be disregarded by the motoring public or create conditions of congestion that could be detrimental from a safety standpoint. Robertson did admit, however; that although there áre no specific requirements to provide signing or traffic control measures for fog conditions, it can be done. He also acknowledged on cross examination that other than building a new bridge, the only way to attempt to prevent head-on collisions on the bridge would be to implement a nó-passing zone that would have to be rigorously enforced. He further testified that “a history of bad accidents and at a time period when you became very aware of them and had done a detailed engineering study, ... could be a justification for [implementing a no-passing zone].” DOT'D also presented the testimony of one of its engineers who had performed an engineering study after the accident and determined that implementation of a no-passing zone and reduction in the speed limit was not warranted.

In describing how the accident occurred, Bowman testified:

It was foggy off and on, but you could see pretty much — a pretty good distance in front of you. Like it would get a little foggy and then you could see, you know, it was clear, like there wasn’t any fog at all. And somewhere along the line I come out, like, behind a — I don’t know what kind of truck it was, a fuel truck, whatever, and I went to try to pass it and I never could pass it. Every time I would go to pass it I would see somebody coming.
I * * ⅜ ll.fi
Like right after you get on the spillway — when the road hits the front of the spillway it makes like a little turn and when you get on the spillway you can see all the way to the end of it.
* * «!'
And right after you get on the spillway I could see all the way to the end of it almost. And I didn’t see anybody coming and that’s when I decided to try to pass the truck up then and make my pass.
* * *
And I went to try to make my pass and I was watching between me, the truck, and the wall on my left so I could make the pass. I had my mind mostly on the truck and the wall and when I did decide to look up I still didn’t see nobody. And I was even with the cab of the truck when I looked back up that’s when I seen him approaching me. And nothing I could do.

Later, upon further questioning by the plaintiffs’ attorney, Bowman stated, “I could see a good ways. It was no fog, that’s why I decided to pass. I didn’t see anything, it wasn’t foggy, I didn’t see anybody coming.” On examination by counsel for DOTD, Bowman acknowledged that right before the collision he took his eyes off the road and looked at the truck. When he looked back, he observed Deep-endra’s vehicle for the first time. However, Bowman also testified that if the bridge had been designated a no-passing zone, he would not have attempted to pass the eighteen-wheeler.

Although at times in his testimony Bowman seemed to indicate that the fog was not a factor in causing the accident, there was testimony from other witnesses about the poor visibility caused by fog on the date of the accident. Gracie Amos, who was traveling one vehicle behind Bowman on the date of the accident, testified, “[i]t was a very foggy day.” The state police officer that investigated the accident, Lieutenant Craig Jewell, similarly testified, “[i]t was foggy on the bridge still. Seem like it might have been just a tad bit lighter but it was still very foggy.”

Although the jury was not asked to and did not make a finding of whether hfifog obscured the roadway, considering all of the testimony on that issue, especially that of the state trooper, the independent witness, and Bowman’s testimony that he did not observe the Charan vehicle until just before the crash, it is more likely than not that the jury did find that foggy conditions existed and visibility was low or impaired at the time of the accident. From our review, the record does not support a contrary finding that the roadway was clear. If it did, such a finding on this record would be manifestly in error.

According to the testimony of several witnesses at the trial, including DOTD witnesses Lt. Jewell and Amos, as well as the plaintiffs’ witnesses, Sheriff Smith and Clary, the poor visibility caused by fog in the area of the Morganza Floodway Bridge was a well-known and obvious hazard. The fog was an open and obvious hazard to the witnesses on the day of the accident.

In addition, DOTD introduced evidence of Bowman’s convictions for DWI third offense and first degree vehicular injury. However, DOTD was precluded from introducing any evidence regarding a blood test that Bowman was administered on the date of the accident because the DOTD was unable to prove a sufficient chain of custody.

In recounting his actions prior to the accident, Bowman admitted that on the night before the accident he had been drinking. He could not remember exactly how many beers he had consumed, but said it was at least six. It was established that in his deposition testimony, Bowman stated that he stopped drinking at 2:00 a.m. and that he went to bed between 2:30 and 3:00 a.m. He could not recall those time periods at the time of trial, but he did remember getting up between 6:30 to 7:00 a.m. The accident occurred at 7:48 a.m.

Bowman testified that, on the morning of the accident, he was driving to his job in Houma, Louisiana, to find out about a crew change. Prior to the accident, he stopped at a restaurant at the foot of the bridge to have breakfast and also bought aj^case of beer, but said he did not drink any of the beer. At trial, despite the DWI conviction, he denied being impaired at the time of the accident by either intoxication or sleep deprivation.

Finally, Amos, the witness who was traveling behind Bowman and observed the accident first hand, testified that Bowman had passed her at a high rate of speed before entering the bridge, and was driving erratically at the time of the accident. In describing Bowman’s driving, Amos testified, “while he was trying to pass he must have lost control, his truck became entangled into the bridge and he was fighting it trying to get back into whatever lane.” She further stated, “[Bowman’s truck] was up and down. On the curb, off the curb, into the wall, it was wild.” Amos did not testify that she or any other vehicle had trouble navigating the bridge.

The record before us is devoid of evidence showing that, before the accident in question, DOTD had actual or constructive notice of even one accident specifically caused by foggy conditions on the bridge. General knowledge that fog exists in Louisiana, particularly along waterways and bridges, and general reports of traffic accidents on the -bridge roadway, do not amount to constructive notice that multiple accidents were-being caused by foggy conditions on the bridge and could be avoided by the warning signs. The sheriff did not ask DOTD for warning signs before the accident in question, and the sheriffs testimony did not link the prior accidents to adverse weather conditions or fog. Thus, the lack of notice, actual or constructive, defeats plaintiffs’ claim.

We also note that, at the time the bridge was built, the applicable regulations required the signage sought by plaintiffs only when a driver’s line of sight was impaired, such as a sharp bend in the roadway, or for “other special conditions.” In this case, no such line of sight obstruction or impairment existed on the roadway and the foggy condition at the time of the accident was a physical condition that | iswas open and obvious to the motorists. Given the adverse weather conditions, even in the absence of warning signs limiting passing or the speed limit, Bowman had a heightened duty as a motorist to maintain control of his vehicle and proceed cautiously until the conditions improved, which would include slowing down and not passing until he had a view of the left lane unimpaired by fog or foggy patches. See Kimble, 95-1973 at p. 8, 673 So.2d at 687. Bowman, who also admittedly took his eyes off the road while attempting to pass, had no right to assume that the left passing lane was open before him and to proceed without regard to the safety of others. See O’Rourke, 157 So. at 606. In addition, there was no evidence presented that drivers would have been able to see posted warning signs through the fog.

Under these particular facts, especially Bowman’s DWI conviction and the essentially unrefuted testimony of the independent witness that Bowman was driving erratically and passing in fog, considered in light of the duty placed on a passing motorist and the heightened duty required of a motorist during obvious adverse weather conditions, we find that Bowman was the sole cause of the accident in question. On this record, we find no basis to find that DOTD had or breached a duty to post signs warning drivers of the obvious danger of passing and speeding under the facts present in this case. Thus, plaintiffs failed to meet their burden of proof on causation.

CONCLUSION

Based on the foregoing discussion, we find that the jury erred in finding DOTD liable. We reverse the judgment appealed and dismiss the suit against DOTD. The costs of this appeal are assessed to the plaintiffs.

REVERSED AND RENDERED.

GUIDRY, J., dissents and assigns reasons.

GAIDRY, J., concurs in the result and assigns reasons.

GUIDRY, J.,

dissenting.

hi disagree with the majority opinion finding the jury’s determination that DOTD was partially liable for the life-threatening automobile collision that occurred on the Louisiana Highway 1 bridge spanning the Morganza Floodway on August 31, 1997 is erroneous. I disagree with the majority’s assertion that the plaintiffs failed to prove that DOTD had notice of the defects in a structure that it constructed or that DOTD properly regulated traffic on the structure. DOTD clearly failed to address foggy conditions that were so prevalent and customary as to be the source of countless accidents in the area of the structure, which it could have done by simply designating the area a no passing zone.

In reviewing this matter, our inquiry is whether a reasonable factual basis exists to support the conclusions reached by the jury and whether such a conclusion is clearly wrong. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The plaintiffs’ engineering expert, James Clary, opined that the bridge should have been designated as a no passing zone to minimize the hazard posed while traveling on the bridge during foggy conditions and that the absence of that designation 12created an unreasonable risk of harm. DOTD’s engineering expert, Rick Robertson, admitted that although there are no specific requirements to provide signing or traffic control measures for fog conditions, it can be done. He also acknowledged that other than building a new bridge, the only way to prevent head-on collisions on the bridge would be to implement a no passing zone. He testified, “a history of bad accidents and at a time period when you became very aware of them and had done a detailed engineering study ... could be a justification for [implementing a no passing zone].” The jury was also presented with testimony from local law enforcement officials regarding the history of bad accidents in the area of the structure and the foggy conditions existing in the area. The defendant, James Bowman, testified that he would never have attempted the passing maneuver had the area been designated a no passing zone.

Nevertheless, the majority asserts, “there was no evidence presented that drivers would have been able to see posted warning signs through the fog.” However, designation of the area as a no passing zone is not limited to signage, but could also include reflective markings or striping on the roadway expressly designed to be visible under conditions of low visibility, such as fog. The plaintiffs’ expert, Clary, testified extensively regarding the availability and relatively low cost of providing signage and striping for the roadway to designate the area a no passing zone.

According to the record, the fact and expert witnesses offered the jury two plausible versions of how this accident occurred and two contradictory conclusions regarding the defective condition of the structure. The manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). As the fact finder, the jury was in the best position to review |3the evidence presented and make those findings regarding whether a defective condition existed, notice, and causation. Under the applicable standard of review, where there are two permissible views of the evidence, a fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. See Stobart, 617 So.2d at 882-83.

■ Accordingly, for the foregoing reasons, I respectfully dissent from the majority’s opinion herein.

GAIDRY, J.,

concurring.

hi concur in the result reached by the majority, but I disagree with its position on the issue of notice to DOTD as to any “defective” condition of the bridge and the prevalence of foggy conditions on the bridge. In my view, the determinative factor in this matter is the insufficiency of evidence that any defect or fog was either a cause-in-fact or a contributing legal cause of this tragic accident. I similarly find, based upon the evidence, that the absence of signage played no causal role under the facts of this particular accident.

      . Based on our finding that DOTD was not at fault, we pretermit discussion of the plaintiffs’ answer to the appeal.

      . The State redesignated the newly constructed portion of Louisiana Highway 30 that provided the "high level crossing” as Louisiana Highway 1.

      . At trial, Clary referred to the' 1979 version of the statute and specifically referred to the following parenthetical comment contained in the 1979 statute: "(NOTE: Sections between Raceland and Donaldsonville and between Livonia and Morganza on projected location).”