author: BROWN, Chief Judge.

text:
    Lee Carlton WILLIAMS and Margaret Williams, Plaintiffs-Appellees v. Dr. Jose Romero ENRIQUEZ and The Medical Protective Company, Defendants-Appellees.
    No. 41,200-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., by Donald J. Anzelmo, Monroe, for Appellant Louisiana Patients Compensation Fund Oversight Board.
    Nelson & Hammons, by John L. Ham-mons, A. Cornell Flournoy, Shreveport, Felix J. Bruyninckx, III, Monroe, for Plaintiffs-Appellees.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, Chief Judge.

| defendant, the Louisiana Patient’s Compensation Fund, has appealed from the trial. court’s judgment awarding damages to plaintiffs, Lee Carlton Williams and Margaret Williams, to compensate them for the losses they sustained as a result of malpractice committed by Dr. Jose Romero Enriquez. For the reasons set forth below, we affirm.

Factual and Procedural Background

On May 17, 1991, Lee Williams sustained a hydraulic injection injury to his hand while working on farm equipment in Richland Parish. He was taken to the emergency room at the Richland Parish Hospital in Delhi by his wife Margaret. Dr. Jose Romero Enriquez administered antibiotics and pain medication to Williams and washed the wound with saline solution. Dr. Enriquez sutured a small drain tube in the wound and released Williams with instructions to return the next morning for a dressing change.

Although Williams experienced excruciating pain that evening, he returned to the emergency room the following morning as instructed by Dr. Enriquez. At that time, he was referred to the St. Francis Hospital in Monroe where he underwent emergency surgery performed by Dr. Doug Liles, an orthopedic surgeon. Williams remained in St. Francis for approximately 47 days, undergoing 14 surgical procedures, including the amputation of his right index and middle fingers. Williams’ hand also required reconstructive and plastic surgery as well as a skin graft which involved the sewing of Williams’ hand to his abdomen for seven weeks.

Lee and Margaret Williams filed a medical malpractice claim against Dr. Enriquez in accordance with the Louisiana Medical Malpractice Act, La. |?R.S. 40:1299.41, et seq., for failure to properly diagnose and treat the hydraulic injection injury, specifically, for Dr. Enriquez’s failure to advise Williams of the immediate need for surgical intervention for his wounded hand. On November 18,1993, a medical review panel concluded that there remained material issues of fact not requiring expert opinion, bearing on liability which should be determined by a court. On January 28, 1994, the Williams instituted a medical malpractice suit against Dr. Enriquez and his insurer, the Medical Protective Company. Trial was bifurcated and on the issue of Dr. Enriquez’s liability, the court found in favor of the Williams. This court affirmed the judgment on appeal in an unpublished opinion.

On December 18, 2001, the trial court approved a settlement agreement between Lee Williams and Dr. Enriquez in the amount of $100,000 plus accrued interest, specifically reserving all rights of the Williams to seek additional damages from the Patient’s Compensation Fund (“PCF”) for malpractice. The PCF answered the suit on November 6, 2002. Following trial, the court rendered a judgment that did not specify which portion of the total award was owed to Lee Williams and which sum was owed to Mrs. Williams, nor did the judgment allocate damages by class or category. Thus, this court reversed and remanded as an indeterminate judgment. See Williams v. Enriquez, 40,305 (La.App. 2d Cir.11/17/05), 915 So.2d 434.

On December 29, 2005, consistent with this court’s opinion in Williams, supra, the trial court awarded Lee Williams $450,000 in general damages, $94,248.10 in medical expenses, and $50,000 for past economic |,Joss. Margaret Williams was awarded $50,000 for loss of consortium. The $100,000 payment made by Medical Protective Insurance on behalf of Dr. Enri-quez was deducted from the total general damage award of $450,000 in favor of Lee Williams.

It is from this judgment that the PCF has appealed.

Discussion

Expert Testimony

The PCF argues that the trial court erroneously failed to give the testimony of Dr. Doug Liles, one of Williams’ treating physicians, greater weight than the testimony of two of plaintiffs’ expert witnesses, Drs. John Knight and Scott Garberman.

Dr. Liles testified that he first saw Lee Williams 18 hours after the accident. Dr. Liles observed that the number one factor which determines the outcome for a patient with a high pressure injection injury is the magnitude of the initial injury. Dr. Liles testified that he found hydraulic brake fluid within an inch of each incision he made. Dr. Liles stated that Williams “had a devastating hand injury, no matter when he was seen. I think even if I’d have operated on him initially, he would have had probable loss of a digit and certainly loss of function in the hand,” and “he (Williams) may have loss less digits from earlier surgery. Whether those digits would have been functional is doubtful.” Dr. Liles admitted that he had only one experience with a high pressure hydraulic injection injury.

Dr. Liles testified that the appropriate treatment for Williams’ injury would have been “immediate surgery.” Further, Dr. Liles stated that earlier | ¿surgery would have probably saved at least one finger from amputation with considerably less loss of tissue, and that Williams would have retained more gross function including the ability to grasp a wrench and similar objects.

Dr. John Knight and Dr. Scott Garber-man are both orthopedists specializing in hand surgery, each possessing substantial experience with high pressure hydraulic injection injuries. Neither Dr. Knight nor Dr. Garberman treated Williams. Both physicians testified that, had Williams been treated immediately, he should have been able to return to work and normal functions within three to four months without any tissue loss, no amputation, and only very mild functional loss, leaving Williams largely capable of performing most of the tasks required of a farmer.

Dr. Garberman testified that Williams experienced intense pain, requiring intravenous morphine which is usually reserved for end-stage cancer patients. Dr. Knight testified that most puncture wounds do not require the administration of intravenous or intramuscular narcotics.

Dr. Garberman stated that if appropriate surgical intervention had been instituted between 6 and 12 hours after the injury, Williams would have had approximately a 70% success rate in maintaining the gross motor skills in his hand, and further noted that the failure of Dr. Enriquez to refer Williams for surgical intervention reduced the chances of success to 10%, which amounted to a 60% lost chance of success.

Dr. Garberman emphasized that the negligent delay of referral resulted in Williams suffering permanent disability and loss of function of his right hand, amputation of two fingers, and Williams having to undergo | ¡^extensive reconstruction of the hand in the form of the skin flap. Dr. Garberman and Dr. Timothy Mickel, Williams’ plastic surgeon, agreed that Williams suffered approximately a 91% permanent impairment of his dominant right hand and a 55% permanent impairment of his body as a whole.

Dr. Knight’s testimony did not differ from that of Dr. Garbermans. Dr. Knight unequivocally stated that Dr. Enriquez discharging Williams with instructions to come back the following day directly caused the additional treatment that Williams had to undergo.

Dr. Garberman and Dr. Knight confirmed that the severe psychological problems experienced by Williams, including depression, were a recognized risk of medical malpractice, as were the resulting pain, disfigurement, and disability. They also noted that these psychological issues are real concerns.

While it is permissible for the trier of fact to give greater weight to the testimony of a treating physician over the testimony of a doctor whose examination was made solely for the purpose of giving expert trial testimony regarding a patient’s condition, the factfinder can, after weighing and evaluating all of the medical testimony, accept or reject the opinion expressed by the treating physician. Kennedy v. Thomas, 34,530 (La.App. 2d Cir.04/04/01), 784 So.2d 692; Vaughn v. Progressive Security Insurance Company, 03-1105 (La.App. 3d Cir.03/02/05), 896 So.2d 1207.

As noted by this court in Corley v. State, Department of Health & Hospitals, 32,613 (La.App. 2d Cir.12/30/99), 749 So.2d 926, it is for the | ^factfinder to evaluate conflicting expert opinions in relation to all of the circumstances of the case. Credibility determinations, including the evaluation and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which will not be disturbed on appeal in the absence of manifest error. Id.; Simmons v. West, 29,633 (La.App. 2d Cir.06/18/97), 697 So.2d 688, writ denied, 97-2308 (La.11/26/97), 703 So.2d 647.

We have reviewed the testimony and find that the trial court’s credibility evaluations and inferences of fact were reasonable. While the record shows that Dr. Liles is an excellent physician, it also reflects that Drs. Knight and Garberman are specialists in hand surgery, and have substantially more experience with hydraulic injection wounds to the hand than Dr. Liles. Further, Dr. Liles testified that the proper procedure for an injury such as the one sustained by Williams was immediate surgery. Dr. Liles did not see Williams until 18 hours after the initial injury, a period during which Dr. Enriquez’s malpractice greatly exacerbated the harm caused to Williams’ hand, thus potentially giving Dr. Liles a false impression as to the extent of the initial injury.

General Damages

The PCF next argues that the award of $450,000 in general damages, which amounts to $350,000 after the credit of $100,000 the PCF was entitled to by virtue of the earlier settlement by the insured physician, is abusively high.

17General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms. Nelson v. City of Shreveport, 40,-494 (La.App. 2d Cir.01/27/06), 921 So.2d 1111, writs denied, 06-0453, 06-0600 (La.05/05/06), 927 So.2d 313, 317; Sallis v. City of Bossier City, 28,483 (La.App. 2d Cir.09/25/96), 680 So.2d 1333, units denied, 96-2592, 96-2599 (La.12/13/96), 692 So.2d 376, 1063.

The determination of the appropriate amount of damages is a factual determination entitled to great deference on review. La. C.C. art. 2324.1. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award of damages, but rather to review the exercise of discretion by the lower court. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Before an appellate court may disturb an award of damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case under consideration. Youn, supra; Nelson, supra.

The trial court specifically considered the numerous surgeries that Williams endured; the attendant pain and suffering; the fact that he had his hand sewn to his side for seven weeks; the additional disfigurement of his hand and the resulting mental and emotional anguish; and the increase in the loss of function in Williams’ hand, arm, and body as a whole. We further take note of the testimony of family members as to substantial lifestyle changes Lee Williams has had to make as well as the constant pain he still [ Ssuffers more than 12 years post-accident. We are unable to say that under the fact and circumstances of this case the trial court abused its discretion in fashioning this general damage award.

Medical Expenses

The trial court awarded plaintiffs $94,248.10 for medical expenses. The PCF contends that this finding by the trial court is manifestly erroneous, and must therefore be reversed, or alternatively, reduced to a sum equal to ten to twenty percent of the total medical bills incurred by Williams.

Special damages, such as medical and related expenses, are easily measured. Koehn v. Rhodes, 38,941 (La.App. 2d Cir.09/24/04), 882 So.2d 757; Eddy v. Litton, 586 So.2d 670 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992). A plaintiff may recover past medical expenses that he incurs as a result of an injury due to the fault of another. The plaintiff must prove that, more probably than not, the medical treatment was necessitated by trauma sustained in the accident. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App. 2d Cir.12/19/01), 808 So.2d 1039, writ denied, 02-0493 (La.04/26/02), 814 So.2d 558. A tortfeasor is required to pay for the cost of medical treatment, including overtreatment and unnecessary treatment, unless the overtreatment was incurred in bad faith. Koehn, supra; Vines v. Wood, 34,555 (La.App. 2d Cir.04/04/01), 785 So.2d 126.

In awarding medical expenses, the trial court observed as follows:

At trial, plaintiffs introduced exhibits and medical bills and expenses totaling One Hundred and Six Thousand Seven Hundred Ninety Five 19Pollars and Eight-One Cents ($106,795.81). Some of those bills are not recoverable as items of damage. Plaintiffs would have incurred the emergency room expense at Richland Parish Hospital in Delhi regardless of the treatment by Dr. Enri-quez. Therefore, the total bill of Five Hundred Forty Three Dollars and Thirteen Cents ($543.13) should not be included in the damage award. Additionally, plaintiffs include a medical bill from Richardson Medical Center totaling Twelve Thousand Four Dollars and Fifty Cents ($12,004.50) for treatment rendered to Mr. Williams from October 25, 2005, through November 6, 2002. A review of the medical records indicate that those expenses did not pertain to the events of May 17,1991. Those expenses were incurred by Mr. Williams for treatment of a gastrointestinal problem and a voluntary admission for psychiatric treatment by Mr. Williams as a result of the untimely death of his son which caused him severe anxiety and depression. Therefore those expenses will not be allowed. The total medical expenses calculated by the Court is Ninety Four Thousand Two Hundred Forty Eight Dollars and Ten Cents ($94,248.10).

This assignment of error is without merit. The trial court carefully examined the invoices submitted by plaintiffs and limited its award of medical expenses to those directly related to the injuries which resulted from Dr. Enriquez’s malpractice. We will not disturb the trial court’s award of $94,248.10.

Loss of Consortium

The trial court awarded $50,000 to Mrs. Williams for loss of consortium. The PCF argues that this amount is abusively high.

Damages for loss of consortium are general damages, the assessment of which the factfinder is given much discretion. La. C.C. art. 2324.1; Etheredge v. St. Paul Mercury Insurance Company, 35,832 (La.App. 2d Cir.04/03/02), 814 So.2d 119. Loss of consortium has seven elements: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations; (4) loss of performance of material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of |infidelity. Id.; Bell v. USAA Casualty Insurance Company, 30,172 (La.App. 2d Cir.01/21/98), 707 So.2d 102, writs denied, 98-0712, 98-0766 (La.05/08/98), 718 So.2d 433, 434. Proof of any one of these elements is sufficient to support an award of loss of consortium damages. Whitaker v. Mullinax, 628 So.2d 222 (La.App. 2d Cir.1993), writ denied, 94-0382 (La.03/25/99), 635 So.2d 241; Broussard v. Razden, 98-2576 (La.App. 1st Cir.12/28/99), 763 So.2d 644.

Lee Williams sustained a near total loss of his right hand as a result of the malpractice of Dr. Enriquez. Williams is chronically depressed because he is unable to farm or hunt, and the evidence indicates that this lasting state has taken a large toll on Mrs. Williams.

Margaret Williams testified that she and Lee, who met at church, were married in 1957. Mrs. Williams observed that it was “love at first sight.” Together the Williams had three children: two sons, Donnie and L. C., and a daughter, Debbie. Margaret testified that since their marriage, she and Lee have made their home on his family’s place in Mangham. She worked outside of the home for 40 years as a nurse’s aide and Lee has been a farmer all of his life.

Mrs. Williams stated that family and farming are Lee’s life. Before the accident, he didn’t have many outside activities, although he did have some beagles and enjoyed rabbit hunting with them. From 1957 until Lee’s accident in 1991, a typical day for the Williams would involve them waking up around 5:30 or 6:00 a.m.; her cooking breakfast; Lee and the four boys (she and Lee raised two nephews with their own children) heading off to the Infields; and her cooking lunch for them before heading off to work herself. Mrs. Williams noted that Lee worked outside all day. He farmed cotton, beans, and corn, as well as hay.

At this point in Mrs. Williams’ testimony, one of the attorneys got Lee Williams out of the courtroom so his wife could be candid with the court. Mrs. Williams then testified that after his lengthy recovery period, her husband still cannot do many of the things he used to be able to do without assistance, such as hooking up a tractor or changing a tire. She stated that Lee has pain and discomfort daily and sleeps very little at night, even though he takes something for pain. Personality wise, “he’s almost hell on wheels ... [H]e’s on my case all the time, he sees nothing good in what I do,” stated Mrs. Williams. She noted that there had been a complete change from the way he had been before. Now that he has gotten rid of his cows, Lee does very little other than to mow the yard and sit in the house watching television. Although it has been hard for her to stay in the marriage, she does so because she married him “for better or worse.”

In light of this testimony, we cannot say that the trial court abused its discretion by awarding Mrs. Williams $50,000 for loss of consortium in this ease.

Past Economic Loss

The trial court awarded Williams $50,000 for his economic loss for the year of the accident, 1991, but declined to award anything for economic loss for any of the subsequent years. The PCF concedes that while Williams | iadid have some loss the year of his injury, the evidence does not support the trial court’s $50,000 award.

A plaintiff bears the burden of proving his claim for lost earnings. For purposes of determining this type of damages, the amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim. Driscoll v. Stucker, 04-0589 (La.01/19/05), 893 So.2d 32; Corder v. Lively, 39,780 (La.App. 2d Cir.06/29/05), 907 So.2d 824. This proof may consist only of the plaintiffs testimony. Id. What is required to recover for actual lost wages is proof that the plaintiff would have been earning wages but for the accident in question. Boyette v. United Services Automobile Association, 00-1918 (La.04/03/01), 783 So.2d 1276; Corder, supra. The trial court is accorded broad discretion in assessing awards for lost earnings. Stucker, supra.

Plaintiffs retained economist Dr. Charles Bettinger, an expert in forensic economics and statistics, who testified that Lee Williams had sustained a loss of earnings of $447,467 as a result of his injury. The trial court, in its written reasons for judgment, observed:

Dr. Bettinger’s computation was based on past economic loss with no component for anticipated future lost income or earning capacity. Dr. Bettinger’s opinion was based on his assumption that any losses sustained by Mr. Williams were caused by the accident. Dr. Bettinger did no research to compare plaintiffs operation with other farms in the area. Dr. Bettinger acknowledged that a number of factors affect the profitability of farming operations including factors such as weather, cost of seed, chemicals, fuel, and market demand. However, Dr. Bettinger did not consider those factors in assessing Mr. Williams’ productivity and profitability.
Mr. Williams testified that the size and scope of his farm operation increased substantially after the accident. Mr. Williams testified that he had farmed approximately four hundred and fifty acres for ten to |¶ ¡¡twelve years prior to the accident. Mr. Williams was assisted in his farm operation by his son Donnie and two hired men. Mr. Williams testified that after 1991, he and his son Donnie diversified their farm operation and the year prior to Donnie’s untimely death, Mr. Williams was renting seven hundred to eight hundred acres of his own and he and Donnie farmed sixteen hundred to seventeen hundred acres of cotton, approximately eight hundred acres of corn, and approximately three hundred fifty acres of maize. Mr. Williams testified that he had continued to run a cattle operation but sold his cattle in 1993 or 1994 for reasons unrelated to the accident. Mr. Williams continued to raise yearlings through 2002. Mr. Williams testified that he lost income in 1991, the year of the accident. He testified that he did not lose income in 1992, 1993 or 1994. Mr. Williams testified that in every year through 1999 he had lost no money because of the accident. Mr. Williams testified that after his son Donnie’s death in 2000, he planted approximately seven hundred acres of soybeans and fifty two acres of cotton, which was still more than the four hundred and fifty acres of corn he had planted in 1991. Mr. Williams testified that he did not make money in the year 2000 because of a drought. Dr. Bettinger attributed the 2000 crop loss to the accident.
Dr. Bettinger provided no documentary or other support for his opinions. The underlying assumption by Dr. Bettinger concerning the affect (sic) of Mr. Williams’ injury is contradicted by Mr. Williams’ ability to continue farming and increase the size and diversity of his farm operation. Mr. Williams acknowledged that the only loss incurred as a result of the injury incurred (sic) in 1991. Based upon the record of these proceedings the Court will award plaintiffs the sum of Fifty Thousand Dollars ($50,000) for economic loss. (Emphasis added).

The trial court’s written reasons for judgment clearly show that the court evaluated the expert and lay testimony and decreased the amount of past economic loss based upon Williams’ own testimony that the only year he sustained any economic loss as a result of the accident and his resulting injury was 1991. Contrary to the PCF’s' contention, it is not necessary that past economic loss be proven with exactitude. See Stucker, supra; Corder, supra. This assignment of error is without merit.

| uComparative Fault

The trial court rejected the PCF’s claims of comparative fault.

The PCF asserts that the record contains evidence of two areas of comparative fault.

According to the PCF, the first act of comparative fault was Williams’ unreasonable delay in reaching the emergency room. Mrs. Williams testified that the accident occurred at approximately 5:00 p.m., while Williams testified that the accident occurred sometimes between 4:00 and 5:00 p.m. The emergency room records indicate that Williams did not present until 6:20 p.m. The PCF contends that Williams negligently and unreasonably delayed presenting himself to the emergency room and that this delay was a major cause of any aggravation of the original injury.

The testimony of Lee, Margaret and Terry Williams consistently establishes that immediately following the accident, Williams’ son Donnie telephoned Margaret and Terry, who immediately helped Williams into their vehicle before driving straight to the Richland Parish Hospital. It is not uncommon in an emergency situation for persons involved to fail to note exact times. Other than pointing out the alleged discrepancy in time, the PCF has absolutely no evidence in support of its argument that Williams delayed reaching the emergency room after suffering a severe injury to his hand. Plaintiffs’ actions following Lee Williams’ farm accident were not tantamount to fault and the trial court was not manifestly erroneous or clearly wrong in its factual finding to this effect.

|1sThe second act of comparative fault on the part of plaintiffs, the PCF argues, was their failure to mitigate damages. Mrs. Williams, a nurse’s aide at the hospital in Delhi, testified that she was concerned that her husband was not receiving proper medical treatment from Dr. Enriquez. Based upon her training and this testimony, the PCF argues that Mrs. Williams had a duty to ignore the doctor’s orders and “take steps to mitigate the consequences of the poor treatment.”

An injured plaintiff has the duty to take reasonable steps to mitigate his damages. Aisole v. Dean, 574 So.2d 1248 (La.1991); Etheredge, supra. The burden rests on the tortfeasor to show that the injured plaintiff failed to mitigate his damages. The defendant must show that the plaintiffs conduct after the injury was unreasonable and that the unreasonable conduct had the consequence of aggravating the harm. Etheredge, supra.

It would defy logic for this court to hold Lee Williams, a farmer with a ninth grade education and his wife Margaret, a nurse’s aide, to a higher degree of medical knowledge than the emergency room doctor responsible for his treatment and care. The discharge instructions of Dr. Enriquez directed the Williams to return to the emergency room the following day if necessary and could have even been construed as conveying that there was no need for further treatment. Luckily for all parties involved, the Williams returned to the Richland Parish Hospital emergency room the next morning as directed by Dr. Enri-quez. The trial court did not err in finding no fault on the part of the Williams for their failure to second guess Williams’ treating physician.

1Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to defendant, the Louisiana Patients’ Compensation Fund.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Shannon CLEMENT v. Dusty J. REEVES, et al. Jessica Vidrine v. Lafayette Parish Consolidated Government, et al. Christina Chau v. Dusty J. Reeves, et al.
    No. W2005-616.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 2006.

      D. Keith Wall, Marcantel, Marcantel, Wall, Pfeiffer & Stretcher, Jennings, LA, for PlaintifflRespondent, Shannon Clement.
    G. Frederick Seemann, Lafayette, LA, for Plaintiff/Respondent, Jessica Vidrine.
    Patrick B. Mclntire, Robin L. Jones, Oats & Hudson, Lafayette, LA, for Defendant/Applicant, Lafayette City Parish Consolidated Government.
    Cary B. Bryson, Bryson Law Firm, Lafayette, LA, for Plaintiff/Respondent, Christina Chau.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, GLENN B. GREMILLION, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

| ¶ This matter is on remand from the Louisiana Supreme Court for briefing, argument, and opinion. We originally granted writs in favor of the defendant-relator, Lafayette City-Parish Consolidated Government (LCG), finding that the trial court erred in denying summary judgment in its favor as no genuine issue of material fact existed with regard to the knowledge element in the plaintiffs’ claims against it. Thereafter, the plaintiffs sought supervisory writs from the supreme court, which granted the writs and remanded the matter to us. For the following reasons, we deny the writ finding that a genuine issue of material fact exists, making summary judgment improper.

FACTS

This litigation stems from a December 20, 2002 automobile accident, which occurred in the 7200 block of Landry Road, located in a rural area of Lafayette Parish, at approximately 10:45 p.m. Shannon Clement, Jessie Vidrine, and Christina Chau were passengers in a truck driven by Dusty Reeves. Reeves, who was unfamiliar with Landry Road, lost control of his vehicle and crashed into a ditch when he failed to safely negotiate a ninety-degree turn. As a result, Clement, Vidrine, and Chau (plaintiffs) filed suit against LCG alleging that it failed to maintain the advance turn warning sign which would have warned Reeves of the approaching turn. These three suits were consolidated by the trial court. (Docket Number 2003-1906, consolidated with Docket Numbers 2003-3716 and 2003-6576).

In response, LCG sought summary judgment arguing that the plaintiffs could not prove that it had constructive notice of the downed sign prior to the | -.accident or that it had a reasonable amount of time in which to repair the sign. It further argued that it was immune from liability under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, as a state of emergency had been declared for the State of Louisiana and Lafayette Parish on October 1, 2002, in anticipation of Hurricane Lili. This state of emergency was extended statewide for an additional forty-five days by Governor Mike Foster on October 31, 2002.

Following argument, the trial court denied LCG’s motion finding “too many loose facts floating around to be amenable to summary judgment at present.” A judgment denying the motion was rendered on April 21, 2005. Based on the trial court’s judgment, LCG sought and was granted supervisory writs from this court. A five judge panel granted the writ and made it peremptory using the following language:

We find that the trial court erred in its determination that there were genuine issues of material fact as to the knowledge element of the claim against the defendant-relator, Lafayette City-Parish Consolidated Government (LCG). The testimony offered by LCG was sufficient to shift the burden of proof to the plaintiffs-respondents, Shannon Clement, Jessica Vidrine, and Christina Chau. Clement provided one statement made by Terry Rabón, an LCG department of transportation employee, that could be construed as inconsistent with Rabon’s other testimony that the sign was up and visible at the time of the survey. No other factual support was provided by the plaintiffs. The one seemingly inconsistent statement by Rabón on which plaintiffs rely, falls well short of the showing of factual support required to avoid summary judgment. Accordingly, summary judgment is hereby granted and all claims against LCG are dismissed, with prejudice, at plaintiffs’ cost.

See unpublished writ Clement v. Reeves, 05-616 (La.App. 3 Cir. 8/19/05) (Thibodeaux, C.J., and Ezell, J., dissenting). Thereafter, the plaintiffs sought and were granted supervisory writs from the supreme court, with the matter being remanded to this court for briefing, argument, and opinion. See Clement v. Reeves, 05-2475, 05-2479, 05-2481 (La.3/31/06), 925 So.2d 1249, 1250.

ISSUES

LCG argues that the trial court erred denying its motion for summary judgment as the plaintiffs failed to present any evidence that it had constructive knowledge of the downed warning sign prior to the accident. It further argues that the trial court erred in refusing to recognize its immunity from civil liability as a result of the state of emergency declared in the advance of Hurricane Lili.

SUMMARY JUDGMENT

The law pertaining to summary judgment was discussed by the' Louisiana Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.
A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion |4for summary-judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, motion, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Here, the plaintiffs will bear the burden of proof at trial; thus, LCG is only required to point out that there is a lack of factual support for one or more elements essential to their claim.

NOTICE

The plaintiffs claim that LCG failed to maintain the advanced turn warning sign which led to Reeves’ failure to negotiate the ninety-degree turn and resulted in the crash. The parties do not contest that LCG is responsible for the sign in question, as well as the road on which the accident occurred. Louisiana Civil Code Article 2317 imposes strict liability on the custodian of a defective thing that causes injury to another. To prevail in an action alleging liability under this article, the plaintiff bears the burden of proving: (1) the property that caused the damage was in the “custody” or “garde” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to the person on the premises; (3) the unreasonably dangerous condition was a cause-in-fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk. Cross v. Timber Trails Apartments, 04-1623 (La.App. 3 Cir. 4/6/05), 899 So.2d 853.

In cases brought against public entities alleging liability pursuant to Article 2317, an additional requirement is appended to the knowledge element. In|fithese actions, the plaintiff has the burden of proving that the public entity had actual or constructive knowledge of the defect, was afforded a reasonable opportunity to repair it, and failed to do so. La.R.S. 9:2800(C). Louisiana Revised Statute 9:2800(D) defines “constructive notice” as “the existence of facts that infer actual knowledge.”

LCG argues that there is an absence of factual support for the essential element, that it had actual or constructive notice of the downed sign, was afforded a reasonable time to repair it, and failed to do so. In support of this contention, LCG offers the deposition testimony of Terry Rabón, the department of transportation employee who inspected the sign on October 30, 2002. In his testimony, Rabón testified that he had no independent recollection of the sign in question. However, he also testified that the sign in question was slightly leaning and in need of repair, but still visible and functioning to motorists. Rabón made this determination by inspecting the work order he filled out on the sign in question.

Rabón explained that sign crews are called in when a sign is down and not visible to passing motorist, and is replaced that day. In those instances, he stated that a work order is not filled out. Had the sign been down when he surveyed it, he stated that he would have called the sign crew to replace it that day. Work order 54117 reveals that Rabón surveyed the 7200 block of Landry Road on October 30, 2002. With regard to the subject advance turn warning sign, all that the report shows is that it was to be reinstalled.

In addition to Rabon’s deposition testimony, LCG provided depositions and affidavits of other LCG employees. Jeanella Batiste, the Traffic Services | (¡Coordinator for LCG’s Department of Transportation, affirmed that she reviewed the records of her office and found no complaint of a downed sign in the 7200 block of Landry Road. She stated that the first notice her office had of the downed sign was on January 13, 2003, when Johnny Sonnier, a foreman in the Traffic Services Department, resurveyed the road. Sonnier testified that prior to his resurvey of the road, his department had no notice that the advance turn warning sign was down.

The information provided by LCG is sufficient to make a prima facie showing of an absence of factual support for the essential notice element. Accordingly, the burden of proof is shifted the plaintiffs to show that summary judgment is not appropriate. To do so, the plaintiffs must provide factual support sufficient to show that they will be able to carry their eviden-tiary burden of proof at trial.

Plaintiffs rely on work order 54117 and Rabon’s testimony in support of their claim that LCG had actual or constructive knowledge that the advance turn warning sign was down prior to the December 20, 2002 accident. They argue that Rabón was not credible as a witness, as his testimony was inconsistent and because he was coached to testify that the sign was leaning, rather than down. A review of the testimony they relied on reveals only one statement that could be construed as being inconsistent with his other statements. The plaintiffs point to the following testimony:

Q Now, after Hurricane Lili, when there was a work order that you prepared, did you write “Lili” on the top of the work order if it was related to that?
A Right, right.
|7Q So I’m looking at Work Order No. 54117. It’s (sic) got “Lili.”
A “Lili.”
Q Is that your handwriting?
A That’s it.
Q Now, without looking at any paperwork, is it possible for you here today to remember or recall signs, what conditions the signs were in when you made these work orders?
A Not really.
Q And I’ve got 25 work orders here that y’all have given me. If I were tell (sic) you what was the condition of the stop sign at the corner of Landry Road and St. Pierre (sic) or Riceland Road, I mean, you can’t remember?
A No.
Q So the only way for you to recall today the condition of the sign was if you can figure out what’s in this report?
A Right.
Q You don’t have any independent recollection two years ago or however many months it’s (sic) been—
A No.
Q of what the condition of the sign was; is that true?
A Well, I do know, if I did write a work order for it to reinstall it, it was just leaning. Like I said, if it’s down on the ground, I’ll ask that they go fix it.
Q That’s referring to your report?
A Right.
Q You don’t have any independent recollection—
|SA Well, no.
Q of the sign? I mean there’s thousands of signs?
A Right.

The plaintiffs point to further testimony where Rabón admitted that all he could tell from the work order was that the sign needed to be reinstalled; he could not tell anything else about the sign, whether it was leaning or whether it was down. Based on these inconsistencies, the plaintiffs argue that the best evidence of LCG’s prior notice is the work order itself. They further argue that the credibility of a witness is a question of fact which should be considered by the trial court in ruling on a motion for summary judgment. In Hines, the supreme court stated:

Application of the general rule that a court, ruling on a motion for summary judgment, must accept an affiant’s testimony or affidavit as credible or true is not appropriate in this particular case, where the mover’s testimony absolving himself from liability contains substantive contradictions or discrepancies that would ordinarily tend to call his credibility into doubt if presented to a fact-finder.
While the general rule is that courts entertaining a motion for summary judgment are not to decide credibility issues, the defendant’s differing stories as to the location of the tree that allegedly fell and allowed the cattle to escape found in his deposition testimony sufficiently demonstrates that the defendant cattle owner’s credibility is indeed a genuine and material issue better suited for resolution by trial. The purpose of the summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita [Electric Industrial Co. v. Zenith Radio Corp.], 475 U.S. [574,] 587, 106 S.Ct. [1348,] 1356[, 89 L.Ed.2d 538] [ (1986) ] (internal quotations omitted). The plaintiffs here had the opportunity to depose the defendant to test his veracity, and in our view they were able to “shake” his original version of the facts and raise significant issues of credibility. Cf. Corrugated Paper Products, Inc. v. Longview Fibre Co., 868 F.2d 908, 914 (7th Cir.1989). Accordingly, we find that the plaintiffs have adequately raised a challenge to the defendant’s credibility by pointing out inconsistencies in relevant parts of his testimony, and, therefore, the defendant is not entitled to summary judgment on the issue of rebutting the presumption of negligence against him.

Hines, 876 So.2d at 768-69.

Although summary judgment is favored and should be construed to accomplish the just, speedy, and inexpensive determination of every action subject to it, all doubt must be resolved in favor of the party opposing the motion. La.Code Civ.P. art. 966(A)(2); Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049. Here, we have Rabon’s testimony that he had no independent recollection of the sign in question, as well as the October 30, 2002 work order indicating that reinstallment of the sign was necessary. Opposing this, we have further testimony from Rabón that the sign was leaning only slightly when he surveyed it, because if it had been down he would have called the sign truck to replace the sign that day. Thus, we find that Rabon’s statements present a genuine issue of material fact in that reasonable persons could reach different conclusions based on them. As LOG relies on these statements to absolve itself of liability, we think that it should be left to the trier of fact in a trial on the merits to determine whether he is credible. As the grant of summary judgment would be harsh in this instance, we find that it was properly denied.

LOUISIANA HOMELAND SECURITY AND EMERGENCY ASSISTANCE AND DISASTER ACT

LCG next argues that the trial court erred in finding that it was not immune from civil liability as a result of the state of emergency declared in advance of and in the wake of Hurricane Lili.

LCG argues that it is entitled to immunity as the alleged act of negligence occurred on October 30, 2002, when Rabón inspected Landry Road. It argues that even if the sign was down on October 20, it is entitled to immunity for the way it responded to the emergency as warranted under the Louisiana Homeland |inSecurity and Emergency Assistance and Disaster Act, found in La.R.S. 29:721 et seq.

The definition of “disaster” under the Act includes the result of a hurricane that causes property damage. La.R.S. 29:723(1). As defined, “emergency” includes actual or threatened conditions created by a disaster and includes national and state emergencies. La.R.S. 29:723(2)(a) and (2)(b)(iii). Louisiana Revised Statute 29:735 provides that political subdivisions of the state, such as LCG, shall not be liable for injuries sustained to persons or property of others while engaged in “emergency preparedness activities,” which includes recovery from disasters such as hurricanes. La.R.S. 29:735(3).

Hurricane Lili struck the coast of Louisiana on October 3, 2002. A state of emergency was declared by Governor Mike Foster on October 1, 2002, which was extended for an additional forty-five days on October 31, 2002. A state of local disaster and/or emergency was declared in Lafayette Parish on October 1, 2002, by Walter Comeaux, the City-Parish President of the LCG. The accident in question occurred on December 20, 2002. Governor Foster’s declaration of emergency expired on December 14, 2002. Thus, the subject accident occurred after the state of emergency expired; moreover, the “actual or threatened condition” of Hurricane Lili had obviously long been over by December 20.

Clearly, LCG was provided with immunity from negligence in its efforts to remedy the effects of Hurricane Lili during the state of emergency absent a showing of willful misconduct. Castille v. Lafayette City-Parish Consol. Gov’t, 04-1569 (La.App. 3 Cir. 3/2/05), 896 So.2d 1261, writ denied, 05-0860 (La.5/1305), 902 So.2d 1029. However, at the time the state of emergency ended, LCG was no | ^longer afforded immunity by the Louisiana Homeland Security and Emergency Assistance and Disaster Act. Therefore, we find that the trial court properly denied its motion for summary judgment on this issue.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this writ are assessed to the defendant-relator, Lafayette City-Parish Consolidated Government.

WRIT DENIED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Willie Lee SMALL, Appellant.
    No. 40,998-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Louisiana Appellate Project, by Peggy Sullivan, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, R. Nicholas Anderson, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

It The defendant was charged by bill of information with possession of a Schedule II CDS, cocaine, with intent to distribute. A jury found the defendant guilty as charged. The trial court imposed a sentence of 20 years imprisonment at hard labor. The defendant now appeals, assigning as error that his sentence is excessive. Our error patent review discloses that the trial court failed to order that the first two years of the defendant’s sentence be served without benefit of parole, probation or suspension of sentence. Because the sentence will be automatically corrected by operation of La. R.S. 15:301.1, we affirm, as amended.

The record shows that on April 21, 2003, Deputy James Felts observed the defendant riding a bicycle while making drug deals with several cars. After a brief pursuit, Felt observed the defendant shove a plastic bag in his front right pants pocket. Felt conducted a pat-down search and found 13 crack rocks in the defendant’s front right pants pocket. Felt also found several small bags in the defendant’s back pocket. The defendant was subsequently arrested.

On January 14, 2005, the defendant was sentenced to 20 years imprisonment at hard labor. The defendant filed an untimely motion to reconsider sentence on July 11, 2005. The trial court denied the motion.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its | ^provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

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

Prior to imposing a sentence, the trial court discussed several factors, which were listed in the pre-sentence investigation report. The court noted that the defendant is a fifth felony offender, and recited his convictions on the record. The court also noted that the defendant was 50 years old at the |3time of sentencing. Additionally, the court took into consideration the defendant’s testimony.

Responding to the sentencing guidelines, the court stated that any lesser sentence would be inconsistent with the defendant’s criminal history. The court also stated that the defendant has come close to being the most serious offender in this class of crime. In mitigation, the trial court considered the defendant’s social and educational challenges.

The sentencing range for the crime of possession of a Schedule II CDS, cocaine, with intent to distribute is imprisonment at hard labor for not less than 2 years nor more than 30 years, with the first 2 years to be served without benefits. The court may also impose an additional fine of not more than $50,000. La. R.S. 40:967 B(4)(b). The trial court imposed a sentence of 20 years at hard labor.

Defendant contends that his sentence is excessive because he was 50 years old at the time of sentencing, and he will not be eligible for probation or parole because he is a fifth felony offender.

Considering the totality of the record, we concluded that this sentence is not constitutionally excessive. The defendant is a fifth felony offender who has been convicted of possession of marijuana, sexual assault, two counts of delivery of marijuana, simple robbery, possession of cocaine with intent to distribute, and possession of marijuana with intent to distribute. Because the sentence was tailored to fit the defendant and offense, the court did not err in denying the defendant’s motion to reconsider sentence. We do not find that the sentence imposed is grossly disproportionate to the severity |4of the offense nor is it shocking to the sense of justice. This assignment is therefore without merit.

However, our review of the record reveals that the sentence is illegally lenient. The statute of conviction, La. R.S. 40:967 B(4)(b), provides that a person convicted thereof shall be sentenced to a term of imprisonment at hard labor for not less than 2 years nor more than 30 years, “with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence.” The trial court neglected to direct that any portion of the sentence be served without benefits. The trial court’s failure to state that the first 2 years of this sentence shall be served without benefits will be automatically corrected by operation of La. R.S. 15:301.1.

For the foregoing reasons, the conviction is affirmed and the sentence is amended, and, as amended, affirmed.

AFFIRMED AS AMENDED.


author: PEATROSS, J. BROWN, Chief Judge,

text:
    Randy W. WALLER, Plaintiff-Appellant v. SHELTER MUTUAL INSURANCE COMPANY and J.A. Waller, Defendants-Appellees.
    No. 41,215-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Law Offices of Street & Street by D. Randolph Street, for Appellant.
    Hudson, Potts & Bernstein, L.L.P., by Jay P. Adams, Charles W. Herold, III, Monroe, for Appellee.
    Before BROWN, PEATROSS & DREW, JJ.
   PEATROSS, J.

| t Plaintiff, Randy W. Waller, appeals the judgment of the trial court granting Defendants’ motion for summary judgment dismissing his action in its entirety. For the following reasons, the judgment of the trial court is reversed and the matter is remanded to the trial court for further proceedings.

FACTS

On March 31, 2003, Randy W. Waller (“Randy”) filed suit against his father, J.A. Waller (“J.A.”), and his father’s insurer, Shelter Mutual Insurance Company (“Shelter”) as a result of a fall Randy suffered on September 19, 2002, at 112 Springhill Road, Swartz, Louisiana, property owned by J.A. The petition alleges that Randy fell while exiting an inoperable motor home that J.A. had parked on the property. Randy fell when he stepped out of the motor home onto a wooden block which his father had placed outside the door for use as a makeshift step. The block allegedly rolled when Randy stepped onto it, causing him to fall to the ground. The petition asserts fault and negligence on the part of J.A. for failure to secure the step, failure to warn of the dangerous condition, failure to provide a hand rail and failure to provide adequate lighting.

J.A. and Shelter filed an answer generally denying Randy’s allegations, asserting Randy’s failure to exercise reasonable care as the sole cause of his injuries and, alternatively, asserting the affirmative defense of comparative fault. In August 2005, J.A and Shelter filed a motion for summary judgment in which they relied solely on Randy’s deposition testimony. In his deposition, Randy indicated that .the nonoperational Lmotor home was purchased by J.A. who intended to renovate it and then lease it. To this end, he hired his son Randy to perform some of the repairs on the interior of the vehicle. To gain access to the motor home,' Randy stepped on a wooden block which his father had placed in front of the door. The block was about 7 to 8 inches high and the top of it was about 12 inches below the floor of the motor home. Randy testified he had used it to either exit or enter the motor home anywhere between 60 and 80 different times before the accident.

On the evening of September 19, 2002, Randy went to exit the motor home. He opened the door and noticed that it had just begun to sprinkle. It had gotten dark outside and Randy strained to see the wooden block, but proceeded to step down onto the block with his left foot. He asserted that he stepped on the middle of the block as “best [he] could see.” When he placed his weight on the block, the block rolled to Randy’s left causing him to fall to the ground. As a result of the fall, he shattered his ankle and hurt his back. Despite the rain, Randy denied that the wooden block was slick. He stated that, because he knew the wooden block “probably wasn’t totally safe,” he was always careful in using it. Defendants’ argument for summary judgment centered on the fact that Randy was aware of the danger presented by the wooden block and failed to take the necessary precautions to avoid injury.

In opposition to the motion for summary judgment, Randy submitted his deposition testimony and the affidavit of Dennis R. Howard, a board certified safety professional. Mr. Howard’s affidavit attests to his ^examination of the accident scene, the block of wood and the deposition account of how the accident occurred. From these, Mr. Howard determined that the distance between the ground and the floor of the motor home was too great to be safely accommodated by the wooden block which provided only a seven-inch step. Furthermore, Mr. Howard’s affidavit indicates that the size and shape of the wooden block rendered it unsafe because it was narrower than the doorway it was intended to serve and its configuration caused it to roll or shift underfoot with off-center placement of the user’s foot. The lighting in the area where the motor home was located was poor and would have made the visibility of the block and proper placement of one’s foot upon it more difficult at dusk when the accident occurred. Lastly, Mr. Howard noted that the constant use and subtle irregularities in the ground where the block was located could have caused changes in the stability of the block. Given all of these factors, Mr. Howard concluded that J.A.’s use of the wooden block as a step for the motor home was negligent because it posed a high risk of fall and injury to the user.

After hearing arguments, the trial court granted summary judgment in favor of Defendants, finding that the “defendant was in no better position to detect, evaluate, remove, replace or avoid the wooden block than the plaintiff.” This appeal ensued.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is |4proper. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37; Lambert v. State, 40,170 (La.App.2d Cir.9/30/05), 912 So.2d 426, writs denied, 05-2310, 2311 (La.4/17/06), 926 So.2d 509. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The jurisprudence has recognized that a “genuine issue” is a “triable issue,” an issue on which reasonable persons could disagree. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773; Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. A fact is material for summary judgment purposes when its existence or nonexistence may be essential to claimant’s cause of action under the applicable theory of recovery. La. C.C.P. art. 966; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. In other words, material facts are those which potentially insure or preclude recovery, affect a litigant’s ultimate success or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Debrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App.2d Cir.4/6/05), 900 So.2d 253.

| ¡Applied to the case sub judice, the movers, J.A. and Shelter, had the burden of proof. La. C.C.P. art. 966(C)(2). Since, however, J.A. and Shelter would not bear the burden of proof at trial, their burden did not require them to negate all essential elements of Randy’s action, but, rather, to point out to the court that there is an absence of factual support for one or more elements essential to his action. Id. After meeting that burden of proof, the burden shifted to Randy to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden at trial. Id. If Randy failed to meet that burden, there would be no genuine issue of material fact, and J.A. and Shelton would be entitled to summary judgment. La. C.C.P. art. 966.

The statutory grounds for Randy’s claim are La. C.C. articles 2317 and 2317.1, which provide that an individual is responsible for the damage caused by things in his custody and answerable for damage caused by their defect upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care and that he failed to exercise such care. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Pamplin v. Bossier Parish Community College, 38,533 (La.App.2d Cir.7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266. Furthermore, in | fiorder to constitute a defect or unreasonable risk of harm, the defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Durmon v. Billings, 38,514 (La.App.2d Cir.5/12/04), 873 So.2d 872, writ denied, 04-1805 (La.10/29/04), 885 So.2d 588. The duty of a landowner is not to insure against the possibility of an accident on his premises, but, rather, to act reasonably in view of the probability of injury to others. Wiley v. Sanders, 34,923 (La.App.2d Cir.8/22/01), 796 So.2d 51, writ denied, 01-2661 (La.1/11/02), 807 So.2d 235.

Defendants’ motion for summary judgment was based on the allegation that no genuine issue of material fact existed as to whether the use of the wooden block as a step to enter and exit the motor home presented an unreasonable risk of harm. Specifically, they argued that, because the danger posed by the block had been noticed by Randy, the accident would not have occurred had he been using ordinary care. They argue that Randy’s knowledge of the instability is evidenced in his deposition wherein he admitted to being uncomfortable with the use of the block. Defendants further argued that Randy’s repeated use of the block put him in a position to assess the instability of the block and to act accordingly.

While Defendants’ argument that Randy’s knowledge of the block’s instability justifies an increased level of care which a prudent person should have used in exiting the motor home, we conclude that it does not immunize Defendants from any claims arising out of the use of the block. First, we |7note that there is no indication in the record that Randy failed to use the ordinary care that was required by the circumstances. In his deposition, Randy indicated that, while the block had never before shifted on him, he was always careful to place his foot on the center of the block. He testified that he had done so again at the time of the accident; but, regardless of this precaution, the block shifted under his foot. Furthermore, Randy denied being under the influence of either alcohol or drugs at the time of the accident. Secondly, nothing in the record indicates that Randy was aware of the additional danger posed by the lack of lighting. While he testified that he had entered and exited via the wooden block 60 to 80 times, he was not asked whether he had done so after dark.

Whether a defect presents an unreasonable risk of harm is a mixed question of fact and law that is peculiarly a question for the jury or trier of the facts. It entails innumerable considerations; and, because it requires a balancing of the risk and utility of the condition, it is not a simple rule of law which can be applied mechanically to the facts of any particular case. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. It is “a matter wed to the facts” and must be determined in light of the facts and surrounding circumstances of each particular case. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002.

Bearing these principles in mind, and the evidence submitted by the parties in connection with the motion for summary judgment, we conclude that the trial court erred in granting summary judgment. In opposing the motion for summary judgment, Randy presented sufficient evidence to [ ^create a genuine issue of material fact as to whether an unreasonable risk of harm was presented by the wooden block for use as a step into the motor home under poor lighting conditions after dark. To the extent that the trial court determined that Randy did not exercise the care expected of a prudent person under these circumstances, that factual determination is more appropriately reserved for the trier of fact. While the evidence at a trial on the merits may support a conclusion that Randy did not exercise the ordinary care called for by the circumstances, genuine issues of material fact exist regarding this issue and, therefore, the motion should have been denied.

CONCLUSION

For the foregoing reasons, the summary judgment is reversed and the case is remanded for further proceedings. Costs of this appeal are assessed against Defendants-Appellees, J.A. Waller and Shelter Mutual Insurance Company.

REVERSED AND REMANDED.

BROWN, Chief Judge,

concurs. Some unresolved issues are plaintiffs status as an employee or independent contractor and his responsibility to stabilize the block.


text:
    Catherine TAYLOR, Plaintiff-Appellant v. HOLLYWOOD CASINO, Defendant-Appellee.
    No. 41,196-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, for Appellant.
    William T. Allison, Shreveport, for Ap-pellee.
    Before BROWN, STEWART, and GASKINS, JJ.
   BROWN, Chief Judge.

| ¶ This case arises out of a workers’ compensation claim against Hollywood Casino Shreveport (“Hollywood”). Claimant, Catherine Taylor, alleged that she developed carpal tunnel syndrome while employed as a cocktail waitress at Hollywood from 2000 to 2003. After Hollywood refused her demand for workers’ compensation benefits, both indemnity and medical, Ms. Taylor filed a formal claim for compensation in August 2003. A workers’ compensation judge (“WCJ”) heard the case and awarded the claimant both indemnity and medical benefits as well as penalties and attorney fees. Hollywood now appeals. For the reasons set forth below, we affirm, reverse the penalty award in part, and render.

Discussion

On appeal, Hollywood urges that the WCJ erred in finding that Ms. Taylor carried her burden of proving that she suffered from an occupational disease related to her work at Hollywood. In addition, Hollywood asserts that the WCJ erred in awarding indemnity benefits, penalties and attorney fees and in calculating penalties.

| ¡>In Lee v. Schumpert, 36,733 (La.App.2d Cir.01/29/03), 836 So.2d 1214, 1220-21, this court described the burden of proof for a claimant asserting an occupational disease with the following language:

The claimant asserting an occupational disease must prove, by a preponderance of evidence, a disability related to an employment-related disease, that it was contracted during the course of employment, and that it is the result of the work performed. The causal link between the claimant’s occupational disease and the work-related duties must be established by reasonable probability. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused it. Expert testimony is required to support a finding of an occupational disease. (Citations omitted).

In Fite v. Louisiana Title Company, 02-2607 (La.06/27/03), 852 So.2d 983, the supreme court concluded that medical reports may serve as the required expert testimony for proof of disputed medical matters.

Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App.2d Cir.04/07/04), 870 So.2d 515. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Culotta v. A.L. & W. Moore Trucking Company, 35,344 (La.App.2d Cir.03/05/03), 839 So.2d 1063, writ denied, 03-0998 (La.05/30/03), 845 So.2d 1052.

When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). | sThe manifest error standard applies even when the workers’ compensation judge’s decision is based upon written reports, records or depositions. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992).

Catherine Taylor began working as a cocktail waitress at Hollywood in December 2000. Among other things, her job required her to carry trays holding up to 15 glasses, each described as very thick and heavy. Ms. Taylor indicated that she carried the trays on her fingers with her palm facing up and with her wrist hyper-flexed. Ms. Taylor testified that she had worked in the same capacity for another casino prior to working for Hollywood but had never suffered symptoms of carpal tunnel syndrome. Ms. Taylor testified that sometime around February 2002, she began to suffer pain in her wrists. Subsequently, the symptoms spread and Ms. Taylor began to experience numbness and tingling in her fingers.

On August 27, 2002, Ms. Taylor saw Dr. Michael Acurio, an orthopedic surgeon, complaining of neck pain, numbness and parasthesias into both hands, and occasional pain down her upper extremities. The medical records were submitted into evidence, and reflect that Dr. Acurio was made aware of Ms. Taylor’s work duties at Hollywood. In the “impression” section of the medical record, Dr. Acurio noted degenerative disease in Ms. Taylor’s cervical spine. Later records from 2002 do not reflect complaints of pain in her hands, although she did complain of pain in her neck and down her left arm.

In January 2003, Ms. Taylor reported to Dr. Acurio that she was having numbness and parasthesias in both hands. The doctor’s report states |4that Ms. Taylor said she had been having this pain for approximately two years. Dr. Acurio examined her and reported that she had a positive Phalen’s test for carpal tunnel syndrome. Dr. Acurio gave Ms. Taylor carpal tunnel splints to wear and ordered nerve conduction tests. The tests were performed by Dr. Eric Bicknell in January of 2003; the impression section of this test report states that Ms. Taylor had carpal tunnel syndrome, mild on the right and minimal on the left extremity. On March 11, 2003, Dr. Acurio formally diagnosed Ms. Taylor with bilateral carpal tunnel syndrome and recommended surgery. Ms. Taylor testified that she told her supervisor and the beverage manager at Hollywood about this recommendation, but her employer took no action.

Ms. Taylor testified that on March 17, 2003, she nearly dropped her tray and had to leave work due to severe pain. That was her last complete day of work for Hollywood. Before leaving that day, Ms. Taylor met with Hollywood’s risk manager, John Gallagher. Ms. Taylor testified that she told Gallagher that she needed carpal tunnel surgery and she signed a medical release form. Gallagher concluded that Ms. Taylor’s claim had prescribed because she had symptoms of carpal tunnel for more than six months prior to making the claim.

Ms. Taylor testified that she explained her job duties to Dr. Acurio during the course of her treatment. On March 19, 2003, Dr. Acurio wrote a “To Whom It May Concern” letter stating in part:

Ms. Catherine Taylor is a patient of mine who is employed at Hollywood Casino. In her job capacity, she does significant repetitive motion with her hands. She suffers from carpal tunnel which I feel is related to her repetitive motion.

IsMs. Taylor delivered the letter to Gallagher. Dr. Acurio’s medical record from March 19, 2003, states that Ms. Taylor had decided to proceed with surgery; the note does not mention whether Ms. Taylor was able to work.

On March 24, 2003, Ms. Taylor had carpal tunnel surgery on her left arm, and then on April 14, 2003, she had surgery on her right arm. On June 2, 2003, Dr. Acu-rio restricted Ms. Taylor from working “for four more weeks.” Nevertheless, Ms. Taylor attempted to return to work at Hollywood on June 9, 2003, but was unable to complete a full day because of .wrist pain. Ms. Taylor did not attempt to work at Hollywood again.

On June 16, 2003, Ms. Taylor went to work in the office of another casino. She later became a bartender at that casino. Ms. Taylor testified that she continued to have some pain in her wrists through the time of trial in April 2004.

Prior to commencing employment with Hollywood, Dr. Acurio’s medical records show that Ms. Taylor suffered from degenerative disc disease which sometimes caused her pain in her arms and hands. However, Dr. Acurio’s reports, particularly when coupled with the nerve conduction tests, established that Ms. Taylor also suffered from carpal tunnel syndrome. Although the disc disease may have manifested itself in ways similar to carpal tunnel syndrome both before and after Ms. Taylor’s carpal tunnel surgery, the medical evidence proving that the claimant had carpal tunnel syndrome is undisputed. Further, Dr. Acurio’s records indicate that he was able to distinguish the symptoms of both conditions. As late as November | fi2003, Dr. Acurio noted that Ms. Taylor’s carpal tunnel symptoms had been relieved and that the bulk of her pain was related to her disc disease. Further, Ms. Taylor’s own testimony showed that she was disabled by carpal tunnel syndrome from March 17, 2003, through at least June 9, 2003.

The WCJ had the benefit of all of Ms. Taylor’s medical records and heard extensive cross-examination of her regarding her degenerative disc condition and how that condition affected her prior to and after her carpal tunnel surgery. The WCJ found that this evidence was sufficient to prove that Ms. Taylor’s carpal tunnel syndrome was contracted while she worked at Hollywood and that it was the result of her work duties there. We detect no manifest error in that finding. The medical records show that she complained of arm pain in late 2000 and that her doctor attributed the pain at that time to her degenerative disc condition. Her complaints of arm, wrist and hand pain subsided until August 27, 2002, long after she had commenced working at Hollywood, and only in 2003 was Ms. Taylor diagnosed with carpal tunnel syndrome. The evidence as a whole supports the WCJ’s conclusion that Ms. Taylor’s condition resulted from her employment and duties as a cocktail waitress at Hollywood.

After finding that Ms. Taylor had satisfied her burden of proving that she suffered from a compensable occupational disease, the WCJ awarded Ms. Taylor temporary total disability (“TTD”) benefits from March 17, 2003, the day she stopped working due to pain, through June 9, 2003, the day she attempted to return to work at Hollywood. On appeal, Hollywood contests Ms. Taylor’s proof that she was entitled to these benefits.

17In Collins v. Patterson Drilling, 39,668 (La.App.2d Cir.05/11/05), 902 So.2d 1264, 1268, this court explained how a claimant may obtain an award of TTD benefits:

To obtain an award of TTD, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c). This is the standard of proof which a claimant must satisfy when he files a disputed claim form seeking an award of TTD benefits after the employer or insurer terminates voluntary payments of TTD. (Citations omitted).

To prove a matter by clear and convincing evidence, as required to establish entitlement to TTD benefits, means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Hammock v. Weyerhaeuser, 40,464 (La.App.2d Cir. 12/14/05), 917 So.2d 733.

Ms. Taylor testified that she was forced to leave work due to carpal tunnel pain on March 17, 2003, and that she underwent the first of two surgeries one week later. Ms. Taylor underwent the second surgery some three weeks after that, and in June, Dr. Acurio ordered Ms. Taylor to remain off work “for four more weeks.” Although there is no previous order in the record from Dr. Acurio restricting Ms. Taylor from working, the doctor’s use of “more” in his June order indicates Ms. Taylor’s inability to work during her convalescence from the carpal tunnel surgeries. On this record, the WCJ was not manifestly erroneous in awarding Ms. Taylor TTD benefits for the period designated.

Finally, Hollywood challenges Ms. Taylor’s entitlement to statutory penalties and attorney fees. The penalty and attorney fee provisions in the |sworkers’ compensation law were revised by Act 1204 of 2003, effective August 15, 2003. In contrast to the usual rule in workers’ compensation cases, the law regarding penalties and attorney fees in effect at the time of the withholding of benefits is controlling. McGuyer v. Fidelity & Casualty Company of New York, 39,450 (La.App.2d Cir.03/02/05), 895 So.2d 701. In the instant case, both the injury and the withholding of benefits occurred under pre-amendment law, so the pre-amendment law applies.

La. R.S. 23:1201(F) formerly provided:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars "per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a máximum of two thousand dollars in the aggregate for any claim....
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Lewis, supra. The WCJ has great discretion in awarding or denying penalties and attorney fees. Thomason v. Wal-Mart Stores, Inc., 37,520 (La.App.2d Cir.09/04/03), 852 So.2d 1283, writ denied, 03-2774 (La.12/19/03), 861 So.2d 573. The WCJ’s decision concerning whether to assess statutory penalties and attorney fees will not be disturbed absent an abuse of discretion. Lewis, supra. The provisions of La. R.S. 23:1201(F) provide for multiple penalties for multiple violations of 19compensation and medical benefits. Fontenot v. Reddell Vidrine Water District, 02-0439 (La.01/14/03), 836 So.2d 14.

Hollywood urges that Ms. Taylor never presented the casino with a demand for indemnity benefits or any medical bills and thus no award of penalties or attorney fees was warranted. However, both Ms. Taylor and Hollywood’s risk manager testified that Ms. Taylor informed Hollywood on March 17, 2003, that she had carpal tunnel syndrome that she attributed to her work at Hollywood and that the condition both prevented her from working and required surgery for correction. Hollywood determined that the claim was prescribed, and formally advised Ms. Taylor of that conclusion by letter on the day that she notified the casino of her claim. After Hollywood rejected the claim, Ms. Taylor supplied Hollywood with the letter from Dr. Acurio attributing her carpal tunnel syndrome to her employment, but Hollywood made no response. Hollywood’s assertion of prescription was wrong as a matter of law; prescription did not commence to run until the day Ms. Taylor became disabled from working. Bynum v. Capital City Press, Inc., 95-1395 (La.07/02/96), 676 So.2d 582; Lee, supra. The WCJ was not manifestly erroneous in concluding that Hollywood did not reasonably controvert Ms. Taylor’s claim for medical and indemnity benefits. We detect no error in the WCJ’s decision to award penalties and attorney fees.

However, the amount of the penalty awarded by the WCJ for the withholding of indemnity benefits cannot stand. As this court recognized in Player v. International Paper Company, 39,254 (La.App.2d Cir.1/28/05), 892 So.2d 781, La. R.S. 23:1201(F) allows multiple penalties but does not | incontemplate that a claimant can be awarded a separate penalty for each missed week of indemnity benefits as occurred in the instant case. We amend the award of penalties for missed indemnity benefits to $2,000, the maximum allowed under these facts. Hollywood has not shown manifest error in the WCJ’s additional award of a $2,000 penalty for failure to pay medical benefits or the $3,000 attorney fee award.

Conclusion

For the above reasons, the judgment of the WCJ is amended to reduce the award of statutory penalties for failure to pay indemnity benefits to $2,000. In all other respects, the judgment of the WCJ is affirmed. Costs of this appeal are assessed to appellant, Hollywood Casino.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . Hollywood is now operating as the El Dora-do Resort Casino Shreveport ("El Dorado”).

      . The WCJ concluded that Ms. Taylor had proven that she suffered from an occupational disease that resulted from her work at the casino. The WCJ found that Taylor earned $480 per week and was entitled to indemnity benefits from March 17, 2003, through June 9, 2003, a total of $3,840. The WCJ then ordered Hollywood to pay Ms. Taylor’s medical bills from January 3, 2003, until June 9, 2003, the bills that the WCJ attributed solely to Ms. Taylor's occupational disease.
      Finally, the WCJ found that Hollywood arbitrarily and capriciously denied Ms. Taylor’s claim and awarded her a $12,000 penalty for the failure to pay indemnity benefits, a $2,000 penalty for the failure to pay medical benefits, and attorney fees in the amount of $3,000. On May 20, 2004, the WCJ signed a judgment in accordance with these reasons. Hollywood then took a suspensive appeal. In September 2004, Hollywood sought protection under Chapter 11 of the Bankruptcy Code, and this appeal was stayed. In November 2005, Hollywood notified the OWC that the stay had been lifted and the case is now before this court for review.