author: MOORE, J.

text:
    INTERNATIONAL PAPER, INC., Plaintiff-Appellee v. Cynthia BRIDGES, Secretary Department of Revenue, State of Louisiana, Defendant-Appellant.
    No. 42,023-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Rehearing Denied May 3, 2007.

      Louisiana Department of Revenue, Legal Division, by Frederick Mulhearn, Frank E. Bruscato Jr., Emily Toler, for Appellant.
    Oreck, Bradley, Crighton, Adams & Chase, by Jesse R. Adams, III, Nicole Crighton, Andre Burvant, New Orleans, for Appellee.
    Rainer, Anding & McLindon, by Robert R. Rainer, Baton Rouge, for Morehouse Sales & Use Tax Commission.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

The Louisiana Department of Revenue (“DOR”) appeals the judgment of the district court that affirmed a ruling from the Board of Tax Appeals (“Board”) which held that International Paper, Inc. (“IP”) is entitled to a refund of state sales and use taxes it paid on the purchases of three chemicals used in the manufacture of white paper. For the reasons stated herein, we reverse.

Facts and Procedural History

The somewhat confusing condition of the exhibit record on appeal prohibits a precise factual recitation of the historical and procedural events prior to the appeal in this case. Nevertheless, we are able to piece together what we believe to be a substantially correct exposition of this dispute.

Early in 1997, a representative of IP (who was unnamed) requested a legal opinion from the Revenue Tax Analyst of the DOR regarding' applicability of Louisiana sales and use tax on certain chemicals purchased and used to manufacture white paper. The request sought confirmation of its position that, as a result of the manner in which the chemicals in question become integrated into and benefit the finished product, they are exempt from the Louisiana sales and use tax. The chemicals in question were sodium chlorate, oxygen, and hydrogen peroxide. The author of the letter argued that because the chemicals are recognizable and identifiable components of the final paper products, they should be treated as products for resale and not subject to sales and use tax, rather than treated as | ^processing chemicals subject to the tax.

The DOR responded by letter dated October 31,1997, stating that it had previously reviewed the applicability of sales and use tax to paper-making chemicals in the 1970s. The review resulted in the confection of an agreement signed by most companies in the industry. Under that agreement, the chemicals used in the bleaching and whitening process of making paper, including the three chemicals in question, were taxable because the primary intended purpose of the chemicals is for bleaching and whitening rather than as components of paper products. DOR said that the “primary intended purpose” governed tax-ability, and the DOR would continue to follow the written agreement that bleaching chemicals are taxable.

Shortly thereafter, in mid-December of 1997, IP’s Sales and Use Tax Manager sent a letter to the director of the Sales Tax Division of the Louisiana Department of Revenue requesting a refund of $859,-846.57 plus interest. This amount represented total sales and use taxes IP paid for its purchases of the three chemicals-sodium chlorate, oxygen, and hydrogen peroxide-during the period in question. IP alleged that the chemicals are used in the process of making paper and that they remain in and provide benefit to the final product. The alleged overpayment was made by the IP mill in Bastrop, Louisiana, during the period between January 1, 1995 through March 31,1997.

|sAfter the DOR turned down IP’s request for a refund, IP petitioned (not in the record) the Board of Tax Appeals (“Board”) to resolve the dispute. The matter was docketed, and a hearing was held on June 10, 2003, after which, the Board took the matter under advisement. The Board issued its Written Reasons for Judgment on October 28, 2003, wherein it held that IP was entitled to a refund of the sales and use taxes it paid from January 1, 1995 to March 31, 1997 on the purchase of sodium chlorate, hydrogen peroxide and elemental oxygen (the “Raw Materials”). A judgment in the amount of $738,908.81 plus interest was signed on May 6, 2004. The Board made the following findings of fact and conclusions of law in its Written Reasons for Judgment:

The Issue of IP’s Purchasing Chemical for Further Processing. IP has a manufacturing facility in Bastrop, Louisiana. At that facility IP manufactures light-weight grades of paper for sale to its customers. In the process of making this paper IP converts raw timber into finished paper products. IP converts raw and wood chips into pulp. The raw wood is composed of fiber. The fiber is composed of a number of elements including polymers, lignin, cellulose and hemicellulose. The lignin holds the cells together. The wood is initially processed into brown pulp using the Kraft process. After the Kraft process, the lignin remaining in the pulp causes it to be brown which is unsuitable for the grades of paper that IP produces at the Bastrop facility. To remove the brown color from the pulp, IP uses a process designed to bleach the brown color from the residual lignin in the pulp. The bleaching process is called “short sequence bleaching”. It is the chemical reactions in the bleaching process that are the issue before the Board.
The chemicals at issue are sodium chlorate, hydrogen peroxide and elemental oxygen (the Raw Materials). The sodium chlorate is used to generate chlorine dioxide, which together with the hydrogen peroxide and the elemental oxygen Rare used in the bleaching process. Along with the chemical changes that are brought about by the oxidizing agents, oxygen atoms are bonded to the pulp, especially to the lignin. The incorporation of the oxygen atoms into the molecular structure of the pulp during the bleaching process improves the quality of the pulp and lightens its color to make it suitable for the manufacture of the type of paper that IP seeks to produce.
The question at issue is whether the Raw Materials purchased by IP to oxidize the pulp are “purchases for further processing” and therefore excluded from the sales and use tax. LSA-R.S. 47:301(10)(e)(i) states: “The term ‘sale at retail’ shall not include sales of materials for further processing into articles of tangible personal property for sale at retail ...” The Secretary’s regulation, LAC 61:14301(10) and the case law provides that in order to be “material for further processing,” as contemplated by the above statute, the raw materials or their component molecular parts must meet three criteria: (1) they must be of benefit to the end product; (2) they must be a recognizable and identifiable component of the end product, and (3) they must have been purchased for the purpose of reprocessing into the end product.
Here the question is whether the Raw Materials meet the three requirements stated above. Both parties produced experts on the bleaching process who testified at the hearing before the Board. The experts were in agreement on many things. During the initial “cooking” phase, the Kraft Process, much of the lignin is removed from the raw pulp, but there remains approximately 3.5% to 4.5% lignin in the pulp at that stage, depending on whether the pulp was made from soft wood or hard wood. The problem with the lignin is that it gives a brown color to the pulp which is not satisfactory for the high quality white paper that IP seeks to produce.
The bleaching process is to turn the brown pulp white. It also makes the pulp stronger. This is done by the “short sequence bleaching process” that oxidizes the lignin in the brown pulp. To turn the brown pulp white, two things are done to the lignin. One is to remove chromophores that give the lig-nin the brown color and the other is to bleach the chromophores in the lignin white. All of the lignin can not be removed because if it was then the cellulose would be damaged and the paper would not be usable. IP’s expert testified that IP would like to keep as much lignin in the pulp as possible and still get the desired properties because that would yield more paper. The bleaching process, in essence, bleaches lignin.[sic] The end product is oxidized lignin. After the bleaching process the remaining lignin is approximately 1% to 1.5% of the pulp. The bleaching process removes 50% to 75% of the lignin from | sthe pulp.
Both of the experts that testified agreed that the pulp acquired additional oxygen in the process but disagreed on the source of the oxygen. The expert for IP testified that the source of the oxygen definitely was from the Raw Materials at issue. He also admitted that some of the oxygen in the bleached pulp came from water used in the process. IP’s expert referred to chemical equations that showed that the oxygen from the Raw Materials ended up in the bleached pulp and referred to the writing of other experts in the same field who had performed experiments that proved the same. The expert for the Secretary testified that the source of the oxygen could have been the Raw Materials but that it could also have been the water that is used in the bleaching process. The bottom line is that both experts testified that oxygen from the Raw Materials ended up in the bleached pulp but the expert for IP testified that he knew that fact to a certainty and the expert for the state testified that some of oxygen from of [sic] the Raw Materials ended up in the bleached pulp but the source of the oxygen was just a matter of chance.
The evidence presented to the Board leads it to the following conclusions. The Raw Materials purchased by IP were purchased to be used in the bleaching process. Oxygen is the primary ingredient used in the bleaching process and the Raw Materials were a primary source of that oxygen. A significant amount of the oxygen from the Raw Materials ended up in the bleached pulp and are recognizable and identifiable. The oxygen from the Raw Materials is beneficial to the bleached pulp and those benefits are by design.
It is the ruling of the Board that under the circumstances of this particular case, considering that it is the intention of IP to oxidize the raw pulp and acquire the Raw Materials for the purpose of getting a source of oxygen, the fact that some, of the oxygen in the finished product may come from water does not mean that the Raw Materials are not for further processing as contemplated by the above statute. Therefore, it is the ruling of the Board that the sodium chlorate, hydrogen peroxide and elemental oxygen are purchased for further processing.
The Secretary asserts that IP was a party to an Agreement made in 1984 wherein it agreed that the Raw Materials would be subject to the sales tax. At the hearing, the Secretary was not able to produce a copy of the Agreement. The hearing was held open to allow the Secretary to find and introduce the Agreement if it could be found. Now, the Secretary has located a copy of the Agreement and seeks to introduce it into the record. IP objects to its introduction. The objection is overruled and the Agreement is hereby introduced |fiinto evidence.
The evidence presented at the hearing was uncontradieted that the bleaching process, at the time of the Agreement, used chlorine and the then-used process removed all of the lignin from the pulp. The process that is now used and was used during the period for which the refund is sought, the “short sequence bleaching process”, is materially different. In this newer process the lignin is not completely removed but as much is retained as possible. It is in the remaining lignin that the oxygen in question is found. The Agreement is therefore irrelevant to this case.

Following the Board’s ruling, DOR filed a “Petition for Judicial Review” in the Fourth Judicial District Court in More-house Parish on November 24, 2003, pursuant to La. R.S. 47:1435 and 47:1436(3). The matter was argued at a hearing on August 7, 2006, and the district court took the matter under advisement. The court issued its “Reasons For Judgment” on September 7, 2006, in which it stated that it found no manifest error in the factual findings of the board and that the ruling of the Board is affirmed. A Judgment was signed on September 20, 2006, and “Notice of Judgment” sent on, September 22, 2006.

The DOR filed this appeal on October 2, 2006, raising three assignments of error: (1) that the district court failed to reverse the Board’s incorrect application of the law to the facts by failing to apply the Supreme Court’s “primary purpose” test; (2) that the district court failed to reverse the decision of the Board in the instant case even though the Board subsequently reached a different conclusion in a subsequent IP case involving the same issues and chemicals but a different refund period. DOR argues that the Board in the latter case did apply the “primary purpose” test; and, (3) the district court erred in its apparent agreement with the Board that the 1984 Agreement is irrelevant.

|7Regarding the DOR’s second assignment of error, we observe that a hearing before the Board of Tax Appeals was held on June 20, 2006, regarding a request by IP for recovery of over two million dollars in sales and use taxes that it paid on the purchase of materials used in three of its mills, including the mill in Bastrop. Included among the eight chemicals in question in that case, including water, were the same three chemicals at issue herein. IP made the same claim that the chemicals are used for further processing into articles of tangible personal property for sale at retail. Only the tax period for the requested refund was different. The Board issued its Reasons For Ruling on October 18, 2006, six weeks after the district court’s ruling in the case sub judice, holding that under the test of the Louisiana Supreme Court in Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193 (La.1982), the “principal purpose” for which the materials in question are purchased is, as a matter of fact, for processing the final paper product and not for further processing into articles of tangible personal property for sale at retail. Accordingly, IP’s request for refund was denied. IP has appealed the ruling to the district court.

Discussion

We review this case as a second court of appellate review. The Fourth Judicial District Court is vested with the power of review of the decision of the Board of Tax Appeals. La. Const. Art. V, § 16; La. R.S. 47:1434-35. Thereafter, the ruling of the district court is subject to appellate review by suspensive appeal to this court, in the exercise of appellate jurisdiction over civil matters. La. Const. Art. V, § 10; La. R.S. 47:1435.

|sJudicial review of a decision of the Board is rendered upon the record as made before the board and is limited to facts developed in the record and questions of law. The Board’s findings of fact should be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record. Marathon Pipe Line Company v. Crawford, 2000-2753, p. 5 (La.App. 1 Cir. 2/15/02), 808 So.2d 873, 877, writ denied, 2002-0804 (La.6/7/02), 818 So.2d 774; see also La. R.S. 47:1434. With regard to questions of law, the judgment of the Board should be affirmed if the Board has correctly applied the law and has adhered to the correct procedural standards. Secretary, Department of Revenue v. Calcasieu Refining Company, 2000-1735, p. 6 (La.App. 1 Cir. 9/28/01), 809 So.2d 1023, 1028.

Louisiana Revised Statute 47:1435 addresses appeals involving tax board decisions and provides, as follows:

The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspensive only, in accordance with law. If a suspensive appeal is taken from a judgment of the district court no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
Upon such review, such courts shall have the power to affirm or, if the decision or judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.

Louisiana imposes a tax on all retail sales, which are defined as sales to a consumer or to any other person for any purpose other than for resale as tangible personal property. La. R.S. 47:302 and 47:301(10). The statute [ flalso defines “Tangible personal property” as personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. La. R.S. 47:301(10)(c)(i) (aa) states that the term “sale at retail” does not include sale of materials for further processing into articles of tangible personal property for sale at retail. This exception to the retail sales tax is sometimes called the “reprocessing exception.” The question in this case is whether the three chemicals, sodium cholrate, hydrogen peroxide and elemental oxygen, which were purchased and used by IP in an oxidation process, qualify under the reprocessing exception of La. R.S. 47:301(10)(c)(i)(aa). IP contends that the process using the chemicals is designed to turn “cooked” wood pulp from its natural brown color into the material it needs to make “white paper.” This process, it contends, meets the requirements of “purchases for further processing” because the chemicals were purchased to make the final paper product whiter and stronger, and as a result of the “reprocessing” of these chemicals, identifiable components of the chemicals, namely oxygen atoms, are present in the final product.

By its first two assignments of error, the DOR alleges that the district court erred by failing to reverse the Board on grounds of legal error for the Board’s failure to apply the “primary purpose” test in its determination, and the district court erred by failing to follow a more recent Board ruling applying the “primary purpose” test and ruling in favor of the DOR in an IP case involving the same issues, the same process, and the same chemicals, but a different refund period.

DOR’s second assignment of error is that the district court was bound to follow a subsequent decision of the Board, has no merit. As stated above, |injudicial review of a decision of the Board is rendered upon the record as made before the board and is limited to facts developed in the record and questions of law. The recent decision in question by the Board was not before the district court, nor had the ruling of the Board been rendered when the district court affirmed the Board’s first ruling.

Nor does the later decision of the Board have a reverse stare decisis or res judicata effect either on the prior Board decision or on subsequent judicial review of the prior ruling. It is well settled that administrative agencies are not bound by prior determinations, and their decisions may not be set aside merely because the agency has, on an earlier occasion, reached a contrary result. Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). Likewise, they are free from the application of the judicial doctrine of res judicata even though the agency was performing a judicial function in making the determination. 73 C.J.S. Verbo, Public Administrative Bodies and Procedures 147. On the other hand, the district court has exclusive appellate jurisdiction over decisions of the Board. It is under no compulsion to “rubber stamp” Board decisions. While the district court or court of appeal may consider prior or subsequent rulings of the Board, they have no precedential authority.

While the courts may take prior determinations into consideration, an administrative agency is not bound by its own prior determinations; and an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge. The doctrine of res foidicata in the strict sense, so as to affect a subsequent judicial action, especially is not applicable to determinations Inwhich are not judicial or quasi-judicial or with respect to the determinations of agencies which do not have the power to make a final determination. Kidd v. Board of Trustees of Teachers’ Retirement System of Louisiana, 294 So.2d 265 (La.App. 1 Cir.1974), writ denied, 301 So.2d 46 (La.1974).

DOR’s first assignment of error alleges that the Board failed to apply the “primary purpose” test in its decision, and the district court erred by failing to reverse on that ground. For the following reasons, after review of the record and testimony, we conclude that while the Board ostensibly applied a “purpose” test, its conclusion that the purpose of the “short sequence bleaching” process in which the chemicals in question were used was to process the chemicals in question into the final product was clearly wrong both as a matter of fact and as a matter of law.

In order for the reprocessing exception to apply, four requirements must be met: (1) the material itself must be processed into tangible personal property for sale at retail, (2) the material must become a recognizable, integral part of the end product, (3) the presence of the material as a component of the end product must be of benefit to the end product, (4) the primary purpose for the purchase of the material must be to process it into the end product. The source of these elements include the jurisprudence and the Louisiana Administrative Code. LAC 61:I.4301(C)(i?eía¿¿ Sales or Sale at Retail )(d) reads:

Sales of materials for further processing into articles of tangible personal property for subsequent sale at retail do not constitute retail sales. This exemption does not cover materials which are used in any process by which tangible personal property is produced, but only those materials which themselves are further processed into tangible personal property. Whether materials are further processed or simply used in the processing activity will depend entirely upon an analysis of the end product. Although any particular materials may be fully used, | ^consumed, absorbed, dissipated or otherwise completely disappear during processing, if it does not become a recognizable and identifiable component which is of some benefit to the end product, it is not exempt under this provision. The fact that a material remained as a recognizable component of an end product by accident because the cost of removal from the end product was prohibitive, or for any other reason, if it does not benefit the property by its presence, it was not material for further processing and the sale is not exempt under this provision.

The “primary purpose” test appears to be of jurisprudential origin. The leading cases on this element of the analysis are Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976), and Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193 (La.1982).

In PPG Industries, the issue was whether the purchases of graphite plates used by a chemical manufacturer in producing chlorine gas for retail sale were exempt from taxation under the reprocessing exception because graphite from the anodes appeared in the final chlorine gas product. The graphite blades were used to make anodes so that electricity could pass through salt water brine in such a way as to break down the brine into its component parts. During this process, the graphite blades were consumed, but about sixty percent of the original anodes were present in the finished product. The presence of the graphite in the final product was a by-product of the process of making the chlorine, and it was not economically feasible to remove it. The district court ruled that sales taxes were due on the graphite anodes. The Third Circuit Court of Appeal reversed, holding that the taxes were not due. The Supreme Court granted writs, and reinstated the district court judgment. In its ruling it held that a reasonable interpretation of the reprocessing exception to the retail sales tax statute “is that the substance cannot be regarded as purchased for processing ‘into’ the finished | ^article (and thus, as non-taxable to the manufacturer), when in fact the ‘purpose’ for which it is bought is not for incorporation ‘into’ the manufactured product but rather only to be used in the process of producing the manufactured product for sale ... where the inclusion of the waste residue of the substance results from unintended (although unavoidable) inefficiency of the manufacturing process, is of no benefit to the product sold, and is of the nature of an impurity rather than of an integral part of the finished product.” Id. at 781. (Emphasis added).

In Vulcan Foundry, Inc., supra, the issue was whether coke used by Vulcan Foundry in the process of manufacturing iron manhole covers and rims met the “test [] set out for determining whether an item is subject to sales/use tax is the ‘purpose’ for which it was purchased.” Id. at 1198. Coke is a derivative of coal consisting of nearly 90 percent carbon. To achieve the grade of iron needed for its final product, Vulcan employs a process of melting down scrap iron in a large cylindrical-shaped structure known as a cupola. A five-foot bed of heated coke is placed in the bottom of the cupola. Scrap iron and coke are then added in alternating layers. Cold air and liquid oxygen are injected to increase the temperature to the 2400 to 3000 degrees necessary to melt the scrap iron. The molten iron is drained from the bottom of the cupola, separated from the slag and poured into casting forms.

Vulcan argued that the purpose of using coke is to process carbon into the iron for sale at retail. The grade of iron it needed for the final product must contain between 3.10 and 3.30 percent carbon. Since the scrap iron does not always contain sufficient carbon, and the melting process described above results in a loss of carbon, carbon must be added to |14the iron in some way. One method is to use coke as a heat source because it gives off carbon as it burns. The required carbon content is achieved by varying the ratio of coke to scrap iron in the cupola. Expert testimony in the case indicated that the ratio of coke to iron used in the process was one to eight, or approximately 12½ pounds of coke is used to make 100 pounds of final iron product. Of the 12½ pounds of coke used in the process, there resulted a .46 pound increase of carbon per 100 pounds of iron while 12.04 pounds of the coke went to heat. Stated another way, the expert stated there was approximate^ pound of carbon from the coke per 100 pounds of final product.

The district court and First Circuit Court of Appeal held that the coke was exempt from the sales tax under the reprocessing exclusion, distinguishing the case from PPG Industries, Inc., supra, because in PPG, the residue found in the final product was useless waste material and of the nature of an impurity. Here, the presence of carbon in the final product was beneficial to Vulcan.

The Supreme Court reversed, however, holding that the proper inquiry .is the purpose for which the coke is bought. It concluded that the evidence showed that the coke is purchased for the purpose of heating the scrap iron; the small amount of carbon in the finished product is incidental. The fact that using coke as a fuel has a beneficial side effect does not change the purpose for which it is bought. Accordingly, it held that Vulcan’s purchase of coke is as a “consumer” for a “purpose other than for resale,” that is, for its use as a heat source to melt scrap iron and not for further processing into an article of tangible property for sale at retail.

1 ^Turning now to the case sub judice, we conclude that IP purchases the three chemicals in question as a consumer for a purpose other than for resale. We disagree with the Board’s finding that IP’s process meets the first requirement that the material itself must be processed into tangible personal property for sale at retail. The materials in this case involve only partial elements of the original materials, namely oxygen atoms, and in such minute amounts that they were not purchased for the purpose of resale in the form of tangible property or further processing into the final product. PPG Industries, supra; LAC 61:1.4301.

In Tarver v. Ormet Corp., 91-0361 (La.App. 1 Cir. 4/10/92), 597 So.2d 1172, writ denied, 92-1376 (La.9/18/92), 604 So.2d 964, the First Circuit affirmed the district court’s holding that caustic soda purchased by Ormet Corporation and used in the manufacturing process of alumina and aluminum hydroxide was not a sale at retail. The court concluded that caustic soda used in the Bayer Process contributed oxygen that becomes a recognizable, beneficial and integral part of Ormet’s end products, alumina and aluminum hydroxide. Chemical experiments conducted by Ormet in connection with this litigation proved with certainty that oxygen from the caustic soda forms a recognizable, beneficial and integral part of Ormet’s end products. Importantly, the First Circuit distinguished PPG Industries, Inc., supra, in that the oxygen in the final product was not an incidental, waste by-product, and distinguished Vulcan Foundry, Inc., supra, on grounds that Ormet purchased the material in question, caustic soda, for the purpose of further processing one of its elements, oxygen, into Ormet’s end products. The processing of the oxygen from the caustic soda into Ormet’s end products is absolutely intended, is necessary and beneficial to the end 11fiproducts, and is not incidental. Also unlike the situation in Vulcan, the caustic soda Ormet purchases and uses in the Bayer Process cannot be replaced by another material. There is no substitute for the caustic soda; the oxygen contributed by the caustic soda was an essential, integral part of the alumina and aluminum hydroxide [and] cannot be added or derived from other materials.

We are not persuaded by the analysis and conclusion of the Ormet Corp court. We observe that the court of appeal in Ormet Corp., in order to reach the result, eased the requirement of the test in PPG Industries that required that the raw materials become an integral, recognizable part of the finished product. The court added the phrase to include the raw material “or any of its elements” as a recognizable, integral part of the finished product.

The instant case is similar to Ormet in that, as a result of a process involving chemicals, some oxygen atoms from the chemicals in question are released and bond with some or all of the remaining lignin molecules. This process is not incidental, but intended by IP, because it makes the lignin appear white, increases production, and is beneficial to IP and the final product. We cannot determine from this record, however, just how much oxygen from the original chemicals ends up in the finished product in terms of quantities. Prior to the “short sequence bleaching” process, approximately 86% of the lignin has already been removed by the Kraft Process of “cooking” the pulp mixture. The remaining lignin constitutes li7only 3.5% to 4% of the pulp mixture, of which half to three-quarters of that amount is removed by the “short sequence bleaching” involving the chemicals in question. This process allows IP to keep as much as 1.5% lignin in the pulp mixture, which increases production. But it is important to note that the remaining lignin is not one of the raw materials in question, since it is part of the original wood pulp. All that has occurred is that an additional oxygen atom has been added to each lignin molecule, which causes it to be white. The oxygen present in the remaining lignin from the original three chemicals is therefore far less than 1.5% of the quantity of final product, and the fact remains that there are no intact molecules of the original chemicals sodium chlorate, hydrogen peroxide, and free oxygen found in the finished product.

Although we are not prepared to say that the molecular structure of the original chemicals used in a manufacturing process must remain intact, we conclude that in this case, the presence of oxygen atoms generated by a chemical reaction that end up in the final product, although intended, is simply not enough to escape the conclusion that the chemicals are largely “consumed” in the bleaching process and not passed on into the final paper product.

Regarding the second requirement that the material must become a recognizable, integral part of the end product, we conclude that the Board was not clearly wrong in concluding that the oxygen came from the original chemicals. Although the state’s expert, Dr. Thompson, testified that there has not been a test to determine where the oxygen atoms that bind with the remaining lignin come from and that it would be impossible without some form of tracers to tell, Dr. Genco testified that most of the oxygen atoms 11scame from the chemicals in this dispute, and that without these chemicals the reactions would not occur to allow this to happen.

However, we concluded that the oxygen from the chemicals is not the same thing as the original chemicals generated, and we are not persuaded that because we know the source of the oxygen molecules, the requirement that the original raw material be recognizable and an integral part of the finished product is met. Clearly the oxygen atoms are an integral part of the lignin as a result of the process; however, the oxygen in the lignin is neither sodium chlorate, hydrogen peroxide nor elemental oxygen, but simply atoms of oxygen now bonded to lignin.

We conclude that the expert testimony also established that the chemicals in question were of benefit to the end product, thereby meeting the third requirement of the reprocessing test. IP’s experts testified that by using the newer shorter process involving the chemicals in question, they were able to produce more of the final product by not eliminating all of the lignin, and the addition of oxygen atoms to the remaining lignin in the fibers made the final paper product a brighter and stronger paper. We therefore agree with the Board that the presence of the oxygen from the chemicals made benefited the product and IP.

The fourth factor is that the “primary purpose” of the purchase of the material must be to process it into the end product. The DOR contends that the primary purpose for IP’s purchase of the chemicals in question is “delignification” and the fact that some oxygen atoms from these chemicals bond with the residual lignin is an incidental effect.

According to Dr. Genco, the wood used in the papermaking process starts off consisting of 25% to 26% lignin. The material is sent through a |19delignification process, i.e., the Kraft Process, which reduces the amount of lignin in the wood pulp material to 3½% to 4%. In other words, approximately 85% or 86% of the original lignin is removed before the three chemicals are involved. This Kraft process is followed by the “short sequence bleaching” process, which involves the introduction of the three chemicals in question in several stages. The first stage of the bleaching process involves converting sodium chlorate into chlorine dioxide, the latter being a very unstable chemical such that it would be unsafe to store or transport. Chlorine dioxide is made by adding methane and sulfuric acid to the chlorine dioxide. The chlorine dioxide and water that is mixed with the delignified pulp mixture removes 50% to 75% of the remaining lignin, but also causes oxygen molecules to bond with some of the remaining lignin. After a prescribed period designed to retain 1½% to 2% of the lignin in the mixture, the other chemicals, including hydrogen peroxide and elemental oxygen are added. The chemical reactions involving these chemicals also cause oxygen atoms to bond with the remaining lignin.

The DOR contends that the Board did not use the primary purpose test in reaching its findings. After review, we conclude that the Board found that the primary purpose for IP’s purchase of the chemicals in question was to process the oxygen (oxidation or bleaching) from these chemicals into the final product. The DOR relies heavily on the fairly recent decision by the First Circuit, Cosmar Co. v. Slaughter, 2003-1310 (La.App. 1 Cir. 4/2/04), 871 So.2d 646, writ denied 2004-1558 (La.10/1/04), 883 So.2d 987, for the proposition that “the primary purpose” test is the basis of any determination of whether a transaction is subject to sales and use tax. We conclude that the Board did find that the primary purpose |¡>nfor IP’s purchase of the three chemicals in question was to process oxygen from these chemicals into the final paper product, but this finding is clearly wrong.

The facts in this case are closely comparable to those in Vulcan Foundry, supra. The sodium chlorate is used to make chlorine dioxide, whose purpose is to remove the 50%-75% of the remaining lignin from the pulp material. Some oxidation occurs during this stage, much analogous to Vulcan Foundry, where some of the carbon molecules bonded with the iron. After this process, the remaining very small percentage of the original lignin is of benefit to IP by increasing the volume of pulp mixture. The retention of the lignin is not a result of the process, but the result of stopping the delignification process at a carefully selected point. Since IP needs to make the paper white, and the remaining lignin makes the paper appear brown, the remaining lignin fibers must be bleached. This is achieved by a further process involving the hydrogen peroxide and the elemental oxygen. When the pulp is from softwood, an additional process involving chlorine dioxide is used. Although there is testimony that the process brings about the added benefit of making the paper stronger, it is far from clear whether the added strength of the paper is actually attributable to the oxygen rather than the lignin fibers which are oxidized. The strength appears to be attributable to the process that allows a small percentage of the lignin fibers already in the pulp mixture to remain.

We conclude that the “purpose” for which IP bought the three chemicals in this case is not for incorporation “into” the pulp mixture product but rather to be used in the process of producing the white paper product for sale. That is to say, to process the pulp mixture by removing Inmost of the lignin remaining after the Kraft process, and processing what lignin remains thereafter by oxidation. Although the chemical reactions in the process involve adding oxygen atoms whose origin can be traced to the chemicals or processes in question, the purpose of the chemicals is to process the lignin in the pulp for paper, not to incorporate raw materials (the chemicals) into the paper product. Therefore, IP’s purchase of the chemicals is as a “consumer” for a “purpose other than for resale” for the purpose of removing and modifying lignin already in the wood, and not for further processing the chemicals themselves into an article of tangible property for sale at retail.

DOR also assigned as error the Board’s failure to enforce an alleged agreement between IP and the DOR regarding taxation of purchases of several chemicals used in processing wood pulp, including the three chemicals in question in this case. A copy of what appears to be a fax of a copy of the Compromise and Settlement is in the record on appeal. In the agreement, IP agreed to pay sales and use taxes in the future with respect to the chemicals in question.

Although the agreement covers the chemicals in question without regard to any particular bleaching processes, we agree with IP that the document in the record was not properly authenticated, and therefore constitutes hearsay. DOR did raise the issue of the agreement in its memorandum in support of the petition for judicial review, although the petition itself does not mention the agreement.

Because we conclude that IP is the ultimate consumer of the three chemicals in dispute and therefore is not entitled to a refund of the sales and use taxes paid during the tax period in question, we need not determine the ^viability of the settlement agreement regarding payment of taxes.

Conclusion

Based upon the foregoing analysis, we conclude that the Board erred in finding that IP’s purchases of sodium chlorate, hydrogen peroxide and elemental oxygen were exempt from sales and use taxes. We further conclude that the district court erred in affirming the judgment of the Board. Accordingly, we reverse the judgment of the Board and render judgment in favor of the Louisiana Department of Revenue. All costs of this appeal are assessed against IP.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, PEATROSS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . Most of the relevant materials of the record are contained in two volumes of exhibits, of which there is no table of contents, the pages are unnumbered, and the documents generally do not follow a chronological order or any other format we can glean.

      . The original refund requested was a sum over one million dollars and included taxes paid on additional chemicals which were later dropped from the request. This amount was later adjusted to the amount stated above.

      . There is some confusion regarding the dates of the refund period. The original letter from IP states that the refund period is from January 1, 1994 until the end of March, 1997. In their brief, the state argues that the refund period is from January 1, 1995 through March, 1997, and it alleges that the district court erroneously listed the period as beginning on January 1, 1994, although even in its own "Petition for Judicial Review” the state dates the refund period as beginning on January 1, 1994. However, the monthly reports sent by IP to the DOR regarding the monthly amounts of overpaid taxes for each chemical begin January of 1995 and end with March of 1997.

      . The Ormet court stated that “the test for determining whether a material is subject to the Raw Material Exclusion is whether the material was purchased for the purpose of 'further processing into’ the finished product, such that the material or any of its elements become 'a recognizable, integral part' of the finished product.” Ormet Corp., supra at 1174.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Louis J. TANNER and Ottomese Tanner, Plaintiffs-Appellants v. John C. COOKSEY, M.D. & Ophthalmic Mutual Insurance Company, Defendants-Appellees.
    No. 42,010-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      McGlynn, Glisson, & Koch by Benjamin P. Mouton, Baton Rouge, for Appellants.
    Hudson, Potts & Bernstein, LLP by Gordon L. James, Monroe, for Appellees.
    Before BROWN, GASKINS and LOLLEY, JJ.
   GASKINS, J.

bin this medical malpractice case, the plaintiffs, Louis Jackson Tanner and his wife, Ottomese Tanner, appeal from a jury verdict in favor of the defendants, Dr. John C. Cooksey, and his insurer, Ophthalmic Mutual Insurance Company. For the following reasons, we affirm.

FACTS

Mr. Tanner began seeing Dr. Cooksey, an ophthalmologist, in 1992. Mr. Tanner was diagnosed with glaucoma and cataracts in both eyes. In October 1994, Dr. Cooksey removed the cataract from the left eye and performed a procedure to relieve the pressure in that eye related to glaucoma. Mr. Tanner tolerated the surgery well.

In February 1996, Dr. Cooksey began suggesting that Mr. Tanner have the cataract removed from the right eye. Mr. Tanner declined the surgery. Cataract surgery was suggested in subsequent office visits for the next four years. On November 20, 2000, Mr. Tanner went to Dr. Cooksey with pain in his left eye. The cataract in the right eye had worsened and had become brunescent (brown). Dr. Co-oksey again recommended surgery and told Mr. Tanner that the cataract had progressed to the point that the usual type of surgery, phacoemulsification, was not possible. The cataract would have to be removed through a more difficult procedure called extracapsular cataract extraction (ECCE). Mr. Tanner agreed to the surgery.

Surgery was performed on December 14, 2000. During the course of the operation, the posterior capsule of the eye was ruptured, resulting in bleeding. According to Dr. Cooksey, these ruptures are a risk of ECCE surgery.

IgThe next day, Dr. Cooksey was in Washington, D.C. because at that time, he was also a member of Congress. An optometrist in his office saw Mr. Tanner for his postoperative checkup. Mr. Tanner could only see light with the right eye. The optometrist noted blood between the lens and the front of the iris. The optometrist called Dr. Cooksey, who instructed that Mr. Tanner be given more time to see if the blood would clear and his vision would improve.

At an appointment with Dr. Cooksey several days later, Mr. Tanner could detect hand motion with the right eye. On December 27, 2000, when Mr. Tanner saw Dr. Cooksey, he could still see only hand motion with the right eye and the pressure in the eye was high. However, he reported that a few days earlier, he had been able to see cars on the road in front of his house. Dr. Cooksey could see a small blood clot in the eye. He chose not to refer Mr. Tanner to a retinal specialist at that point because he felt the patient’s vision was continuing to improve.

Dr. Cooksey saw Mr. Tanner on January 2, January 8, and January 15, '2001. The vision in the right eye did not improve. On January 15, 2001, Dr. Cooksey felt that Mr. Tanner might have a choroi-dal detachment and referred him to Dr. Barron, a retinal specialist.

Dr. Barron dilated the eye and did a B-scan, a type of ultrasound, which showed that the retina in the right eye was detached. He performed surgery twice to reattach the retina. The retina was reattached, but vision was not restored to the eye.

|sThe plaintiffs convened a medical review panel which determined that Dr. Co-oksey breached the applicable standard of care by not referring Mr. Tanner to a specialist after the December 27, 2000, visit. The panel was not able to determine if the breach resulted in damage to Mr. Tanner.

The Tanners filed suit against Dr. Cook-sey and his malpractice insurer for damages for loss of vision in the right eye and for loss of consortium. In addition to claiming that Dr. Cooksey breached the standard of care by failing to refer Mr. Tanner to a retinal specialist earlier, they also asserted that Dr. Cooksey breached the standard of care by recommending surgery on the right eye when Mr. Tanner was not complaining of loss of vision in that eye.

The defendants answered, asserting the affirmative defense of patient fault, arguing that Mr. Tanner’s delay in having the surgery increased the risk and played a significant role in the ultimate outcome.

The matter was tried to a jury on March 7-10, 2006, with numerous medical experts testifying on behalf of both sides. Following the close of [¿the defendants’ case, the plaintiffs moved for involuntary dismissal of the defendants’ affirmative defense of patient fault. The trial court denied the motion.

The jury found that the plaintiffs failed to prove that Dr. Cooksey’s treatment and care of Mr. Tanner fell below the standard of care applicable to ophthalmologists, and that as a proximate result, Mr. Tanner suffered injuries which otherwise would not have occurred. The trial court signed a judgment in favor of the defendants, dismissing the plaintiffs’ claims.

The plaintiffs appealed, arguing that the trial court erred in denying their motion for involuntary dismissal of the defendants’ affirmative defense of patient fault. They also maintain that the jury was manifestly erroneous in concluding that Dr. Cooksey’s treatment did not fall below the applicable standard of care for ophthalmologists. Alternatively, they contend that the jury erred in concluding that Dr. Cooksey’s conduct did not cause the injuries suffered by Mr. Tanner.

MOTION FOR INVOLUNTARY DISMISSAL

The plaintiffs argue that the trial court erred in failing to grant their motion for involuntary dismissal after the close of the defendants’ case. They contend that the defendants did not offer evidence to support the allegation that Mr. Tanner failed to act reasonably as a patient in declining to have surgery earlier or that his actions caused or contributed to the loss of vision in the right eye. Therefore, the plaintiffs urge that the defendants failed to prove their affirmative defense of patient fault. The plaintiffs urge that allowing the argument of comparative fault caused the jury to disregard |5Pr. Cooksey’s substandard care and to conclude that Mr. Tanner was at fault.

The motion for involuntary dismissal was not the proper procedural vehicle because this matter was not tried by a judge, but a jury. The plaintiffs should have moved for a directed verdict under La. C.C.P. art. 1810. We will address the efficacy of this assigned error, however, by examining whether a directed verdict should have been granted. La. C.C.P. art. 1810 provides:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

The motion for directed verdict is a procedural device available in jury trials to promote judicial efficiency. The motion is appropriately made at the close of the evidence offered by the opposing party and should be granted when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors | ficould not have arrived at a contrary conclusion. See Clifton v. Coleman, 32,612 (La.App.2d Cir.12/23/99), 748 So.2d 1263, writ denied, 2000-0201 (La.3/24/00), 758 So.2d 151. If there is substantial evidence opposed to the motion, ie., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the case submitted to the jury. While credibility evaluations should not enter the process, the trial court has much discretion in deciding to grant or deny the motion. Brockman v. Salt Lake Farm Partnership, 33,938 (La.App.2d Cir.10/4/00), 768 So.2d 836, writ denied, 2000-3012 (La.12/15/00), 777 So.2d 1234; King of Hearts, Inc. v. Wal-Mart Stores, Inc., 27,137 (La.App.2d Cir.8/23/95), 660 So.2d 524.

On review, an appellate court also considers whether the evidence submitted indicates that reasonable triers of fact would be unable to reach a different verdict. The court of appeal considers the evidence under the substantive law applicable to the nonmoving party’s claim. McNabb v. Louisiana Medical Mutual Insurance Company, 2003-0565 (La.App. 3d Cir.11/5/03), 858 So.2d 808, writs denied, 2003-3344 (La.2/13/04), 867 So.2d 701; 2003-3339 (La.2/13/04), 867 So.2d 702.

The record shows that the defendants offered evidence of patient fault in response to the plaintiffs’ allegations that Dr. Cooksey committed malpractice in suggesting that Mr. Tanner have surgery on the right eye when he was satisfied with the vision in that eye. There was sufficient evidence on this issue for reasonable and fair-minded jurors to reach |7different conclusions. Accordingly, a motion for a directed verdict would have been properly denied.

Based upon the record before us, we find that the trial court did not abuse its discretion in denying the motion, regardless of the moniker assigned to it. There was sufficient evidence as to the defendants’ affirmative defense to allow the matter to be decided by the jury. Further, the jury verdict form shows that the jury did not reach the issue of comparative fault. Accordingly, the trial court’s decision to deny the plaintiffs’ motion is affirmed.

BREACH OF STANDARD OF CARE

The plaintiffs next argue that the jury was manifestly erroneous in finding that Dr. Cooksey did not breach the standard of care when he failed to refer Mr. Tanner to a retinal specialist on December 27, 2000. They cite Dr. Cooksey’s testimony that a rupture of the posterior capsule, which occurred in this case, made retinal tears and detachments more likely. They point to the follow-up visit of December 20, 2000, when Dr. Cooksey did not dilate the eye and saw only a dim reflex in the back of the eye. They claim that there was no way to confirm that the retina had not detached at that time.

|RThe jury’s finding in a medical malpractice case is subject to manifest error review; it cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Ball v. Charter Forest Behavioral Health System, Inc., 41,329 (La.App.2d Cir.8/23/06), 938 So.2d 1092. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirely and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270. See also Fusilier v. Dauterive, 2000-0151 (La.7/14/00), 764 So.2d 74.

Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Ro-sell, supra. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly lflerroneous or clearly wrong. Salvant v. State, 2005-2126 (La.7/6/06), 935 So.2d 646.

In a medical malpractice case, the plaintiff has the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La. R.S. 9:2794(A); Salvant v. State, supra.

Resolution of each of these inquiries are determinations of fact which should not be reversed on appeal absent manifest error. Martin v. East Jefferson General Hospital, 582 So.2d 1272 (La.1991).

Where there are conflicting expert opinions concerning the defendant’s compliance with the standard of care, the reviewing court will give great deference to the conclusions of the trier of fact. Pinnick v. Louisiana State University Medical Center, 30,263 (La.App.2d Cir.2/25/98), 707 So.2d 1050.

Dr. Cooksey testified that he had taken care of Mr. Tanner’s eyes since 1992. In 1997, he began suggesting that the cataract in the right eye be removed. This suggestion was made several times over the years as the 110cataract in the right eye worsened. After an office visit on November 20, 2000, Dr. Cooksey again suggested surgery on the right eye and Mr. Tanner agreed. At that time, Mr. Tanner’s left eye was correctable to 20/50 and his right eye was correctable to 20/30. Dr. Cooksey recommended the ECCE surgery due to the degree of thickening of the cataract.

Surgery was performed on December 14, 2000. During the course of the surgery, the posterior capsule ruptured, causing bleeding in the eye. Dr. Cooksey performed a vitrectomy in response to this complication. According to Dr. Cooksey, the rupture of the posterior capsule made a retinal tear or detachment more likely.

The next day, when the optometrist in Dr. Cooksey’s office saw Mr. Tanner, there was blood between the cornea and the lens in front of the iris. Mr. Tanner could only perceive light with the right eye. He was given an appointment to return to see Dr. Cooksey.

At that appointment on December 20, 2000, Mr. Tanner could only see hand motions. Dr. Cooksey perceived this to be an improvement from light perception only. He thought that Mr. Tanner’s poor vision was due to blood in the front part of the eye, and that when the blood was absorbed, his vision would improve. Dr. Co-oksey did not dilate the eye, but got an indication that the retina was attached. Mr. Tanner was instructed to return in one week.

On December 27, 2000, Mr. Tanner reported that he had experienced a slight improvement in his vision a few days previously, but it did not last. At that point, Mr. Tanner could still see only hand motions. Dr. Cooksey In did not dilate the eye out of concern that it would reactivate bleeding. He noted that Mr. Tanner had a small blood clot in the eye. Dr. Cooksey did not refer to a retinal specialist because he thought Mr. Tanner was continuing to improve. According to Dr. Cooksey, he did not find any clinical indication of a problem with the retina. He stated that he could see a red reflex in the back of the eye which indicated that the retina was attached. He thought he could see the retina “pretty well” without having to dilate the eye.

On January 2, 2001, Mr. Tanner had 20/400 vision in his right eye. On January 8, Dr. Cooksey saw a portion of the back of the eye and thought the eye was continuing to improve. He believed that when the blood cleared, the plaintiff would be able to see.

Dr. Cooksey again saw Mr. Tanner on January 15, 2001. At that time he had become concerned that Mr. Tanner might have a choroidal detachment and referred him to a retinal specialist, Dr. Joseph B. Barron.

Dr. Cooksey testified that he disagreed with the medical review panel opinion that he should have referred Mr. Tanner to a retinal specialist by December 27. He opined that the retina detached between January 8 and January 15 and could not have been diagnosed any earlier.

Dr. Barron testified that when he saw Mr. Tanner on January 15, he noted an afferent defect when the pupil does not react to light. This indicates a possible problem in the back of the eye. He observed a retinal detachment in the right eye which was confirmed with a B-scan test.

|i;»Dr. Barron testified that a rupture of the posterior capsule increases the risk of a retinal detachment. He stated that he does not know when the retina detached or if the delay in referring the patient caused harm.

Dr. Barron performed surgery to reattach the retina on January 18, 2001. A gas bubble was placed in the eye to hold the retina in place. About a month later when the bubble dissipated, the retina detached again. Additional surgery was performed on March 8, 2001, but the vision was not restoréd to the eye. A type of oil was placed in the eye to replace the vitreous. This substance was removed later because it was causing the cornea to decompose.

Dr. Barron eventually referred Mr. Tanner to Dr. Thomas B. Redens, a cornea specialist. He first saw Mr. Tanner on April 28, 2001. He noted that Mr. Tanner had 20/200 vision in the left eye and kerati-tis, or dry eye. Dr. Redens began treating Mr. Tanner for dryness in both eyes which was limiting his vision and causing discomfort.

Dr. Redens observed a pallor or whiteness of the optic nerve in the right eye which he attributed to surgical trauma. He noted the presence of a scleral buckle, a surgical device to hold the retina in place, as well as substantial scarring in the macula. He observed that the vitreous in the right eye was silicone oil from a previous surgical manipulation. Dr. Redens also noted decomposition of the cornea in the right eye which he thought was caused by the silicone oil. Dr. Redens stated that corneal decomposition can cause painful blisters on the eye.

|1sDr. Redens performed a corneal transplant to improve the vision in the right eye. This procedure did not improve Mr. Tanner’s vision. Dr. Redens stated that Mr. Tanner has macular degeneration and that this condition and his corneal pathology were significant contributing factors in Mr. Tanner’s decreased vision. He opined that the surgery by Dr. Cooksey did not cause the ultimate corneal decomposition, but it was a contributing factor.

Dr. Stephan K. Cooper, a member of the medical review panel, testified on behalf of the plaintiffs. Dr. Cooper, an expert in ophthalmology, testified that the medical review panel found that Dr. Cooksey breached the standard of care by failing to refer Mr. Tanner to a retinal specialist by the December 27 office visit. It was noted that Mr. Tanner had persistent hyphema (blood in the eye) which obscured the retina.

According to Dr. Cooper, because of the posterior capsule rupture during the cataract surgery, vitreous material came forward. If not removed, there was a risk of complications, including retinal detachment. A reasonable time to wait for the vision to clear up after the surgery was two weeks. Dr. Cooper stated that the standard of care required that if the back of the eye could not be seen within seven to 14 days, the patient should be referred to a retinal specialist. According to Dr. Cooper, a B-scan was necessary to examine the back of the eye due to the blood in the anterior portion. Dr. Cooper said that the panel did not have sufficient information to determine whether the breach in the standard of care may or may not have contributed to a different outcome.

|14Pr. Robert Lamburg, an ophthalmologist in Missouri, testified on behalf of the plaintiffs. He stated that the follow-up care rendered by Dr. Cooksey on December 20, 2000 was appropriate. He found no fault with the decision not to dilate the eye at that point. However, by the second week after cataract surgery, the risk of causing a hemorrhage from dilation would be small. Because Mr. Tanner could not see after the clot began to clear, that was an indication that there was something wrong in the eye. On December 27, the standard of care required that the eye be dilated. According to Dr. Lamburg, just because Dr. Cooksey could see blurred details in the back of the eye on January 8, 2001, did not mean that the retina was still attached. He points out that the eye was not dilated, and half of the retina could have been detached without Dr. Cooksey being able to see it. He opined that Dr. Cooksey should have either dilated the eye or gotten a B-scan. He noted that in this matter, there was a prolonged period of poor vision with no investigation as to the reason.

Dr. David Newsome, an ophthalmologist from New Orleans, testified that the delay in getting Mr. Tanner to a retinal specialist contributed directly to Mr. Tanner’s loss of any functional vision in his right eye. Dr. Newsome noted that prior to the surgery, Mr. Tanner had 20/30 vision in his right eye. After the surgery, he could barely see light. According to the record, there was blood in the front of the eye, partially blocking the pupil, the eye pressure was high and by December 27, Mr. Tanner still could only see hand motion, even though the clot was clearing. Dr. Newsome said that these factors should have been a red flag that there was something wrong in |1sthe eye that required thorough examination. Dr. Newsome stated that there was scar tissue on the surface of the retina known as proliferative vitreous retinopathy. He claimed that it generally takes four to six weeks for this to form and the presence of this tissue indicates that the retinal problems had been present for several weeks. Dr. New-some opined that the retina detached at surgery or very soon thereafter. He said that the failure to get a B-scan breached the standard of care. If the retinal detachment had been diagnosed and treated earlier, more probably than not, Mr. Tanner would have better vision. He stated that there was no danger in dilating the eye by December 27. He claimed that earlier dilation would have led to earlier detection of the retina problem.

Dr. Michael Holy, a retinal specialist, testified on behalf of Dr. Cooksey and disagreed with the conclusion of the medical review panel. He stated that there was no way to know when the retina detached or whether surgery on December 27, 2000, would have changed the outcome for Mr. Tanner. Noting that on December 20, Mr. Tanner could only see hand motions, Dr. Holy said this was explained by the blood in the eye that would usually absorb if left alone.

He testified that on the December 27 visit, the most obvious reason for Mr. Tanner’s poor vision was the large hemorrhage in the anterior chamber of the eye. He stated that because there was an obvious reason for Mr. Tanner’s poor vision, Dr. Cooksey was not required to investigate every other potential reason for the problem. According to Dr. Holy, the proper treatment was watchful waiting. By January 2, 2001, Mr. Tanner was | ^seeing better later in the day. According to Dr. Holy, this could have been attributable to the blood in the eye settling while Mr. Tanner was in an upright position.

On January 8, when the clot was getting smaller, and Dr. Cooksey claimed to be able to see blurred details at the back of the eye, Dr. Holy believed that Dr. Cook-sey had taken reasonable steps in caring for this patient. Dr. Holy felt that on January 15, when Dr. Cooksey saw something on the back of the eye that did not look right, he acted properly in referring Mr. Tanner to Dr. Barron.

Dr. James Lusk was a member of the medical review panel and voted that Dr. Cooksey violated the standard of care in this ease. However, upon reexamining Mr. Tanner’s medical records and having access to depositions given by Dr. Cook-sey, Dr. Lusk changed his opinion. Dr. Lusk felt that everything that was done in this case was not documented in the medical records. He stated that he mostly relied upon Dr. Cooksey’s clinical findings. According to those findings, Dr. Cooksey doubted that there was a retinal detachment earlier than January 15.

On December 27, Dr. Cooksey saw a red reflex in the back of the eye, indicating that the retina was still attached. According to Dr. Lusk, there was an improvement and possibly a resolution of some of the vitreous blood allowing Dr. Cooksey to see the red reflex in the back of the eye.

Dr. Lusk noted that on the January 8, 2001 visit, Dr. Cooksey saw blurred detail on the fundus of the right eye. According to Dr. Lusk, if there had been a retinal detachment at that time, it would have been visualized. 117The medical records indicated that retinal detail was seen which indicated that the retina was attached. Dr. Lusk stated that this was an item in the medical records that he missed the first time he examined them. Dr. Lusk opined that the detachment happened after January 8. Dr. Lusk stated that, based upon the January 8 visit, Dr. Cooksey was able to rule out a retinal detachment “at least in the important posterior part of the retina.” Dr. Lusk stated that he did not know if Mr. Tanner would have had a better outcome if he had been dilated and examined earlier.

In this case, the jury was presented with conflicting expert evidence about compliance with the standard of care. Drs. Cooper, Lamburg, and Newsome found that Dr. Cooksey breached the standard of care by not investigating the reason for Mr. Tanner’s poor vision by December 27. Dr. Cooper stated that Dr. Cooksey could not see the retina because of blood in the eye and therefore should have referred Mr. Tanner to a retinal specialist to perform a B-scan of the eye. According to Dr. Cooper, two weeks was a reasonable time to wait for the vision to clear.

Dr. Lamburg testified that by December 27, when there was no improvement in Mr. Tanner’s vision, that was an indication that something was wrong. At that point, the eye should have been dilated or a B-scan performed. Dr. Lamburg stated that part of the retina could have been detached and not been visible because only blurred details were observed in the back of the eye.

Dr. Newsome stated that Mr. Tanner’s continued poor vision when the clot was clearing was a red flag that something was wrong in the eye |isthat required thorough examination. He claimed that the eye should have been dilated and examined by December 27. He also found that the scar tissue in the eye usually takes several weeks to form, indicating that the retina detached at surgery or soon thereafter.

On the other hand, Drs. Holy and Lusk found that there was no breach of the standard of care, and that there were indications that the retina was intact as late as January 8, 2001. Dr. Holy stated that there was no way to know when the retina detached and the most obvious reason for Mr. Tanner’s poor vision was the blood in the eye. He said that Dr. Cooksey was not required to investigate every other potential reason for the problem and that Dr. Cooksey referred Mr. Tanner to a retinal specialist as soon as he saw a problem, which was on January 15, 2001.

Dr. Lusk testified that upon further reflection on the medical records and .after reviewing Dr. Cooksey’s deposition, the fact that Dr. Cooksey saw a red reflex on December 27 indicated that the retina was attached. On January 8, Dr. Cooksey saw blurred detail on the back of the eye, again showing that there was no retinal detachment at that time. He concluded that the detachment must have occurred after January 8, 2001.

Further, Dr. Barron testified that there was no way to know when the retina detached.

It is extremely regrettable that Mr. Tanner did not have a good result from his cataract surgery. However, in this matter, the jury was presented with two permissible views of the evidence regarding whether Dr. Cooksey should have referred Mr. Tanner to a retinal specialist after the December 27 |1flvisit. The jury obviously chose to credit one group of experts over another. The objective evidence does not contradict that finding. Accordingly, we do not find that the jury verdict in favor of Dr. Cooksey was manifestly erroneous or clearly wrong.

CONCLUSION

For the reasons stated above, we affirm the jury verdict in favor of the defendants, Dr. John C. Cooksey and his insurer, Ophthalmic Mutual Insurance Company, finding that Dr. Cooksey did not breach the standard of care applicable to ophthalmologists in this case and dismissing the claims of the plaintiffs, Louis Jackson Tanner and Ottomese Tanner. Costs in this court are assessed to the plaintiffs.

AFFIRMED.

      . The medical review panel found:
      The evidence does support the conclusion that the defendant, DR. JOHN C. COOK-SEY, failed to meet the applicable standard of care in the treatment of LOUIS J. TANNER as charged in the complaint. The reason for this conclusion by the PANEL is that:
      1) In view of the patient’s persistent hyphema and the inability to examine the retina, DR. COOKSEY should have referred the patient to a retina specialist by the December 27th visit.
      In complicated cases like this, it is not uncommon for the patient to have a significant reduction in vision even without a detached retina. The most common cause for decreased vision is cystoid macular edema with eventual permanent damage to the macula. The delay in DR. COOKSEY referring this patient to a retina specialist may or may not have contributed to a different outcome; however, this Panel does not have sufficient information to make that determination and would defer to a retina specialist.

      . La. C.C.P. art. 1672, dealing with motions for involuntary dismissal, provides in pertinent part:
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. [Emphasis supplied.]

      . In pretrial proceedings, the plaintiffs filed a motion to strike the defendants' affirmative defense of patient fault and a motion in li-mine. The trial court denied the motion to strike and deemed the motion in limine to be moot.

      . The plaintiffs concede in their brief that, because there were two permissible views of the evidence, the jury was not manifestly erroneous in finding that Dr. Cooksey did not breach the standard of care in recommending cataract surgery. On appeal, they argue only that he breached the standard of care in failing to refer Mr. Tanner to a retinal specialist earlier.


author: LOLLEY, J.

text:
    Dennis C. FORDHAM, et ux., Plaintiffs-Appellants v. NISSAN NORTH AMERICA, et al., Defendants-Appellees.
    No. 41,987-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.
    Culpepper & Carroll, PLLC by Bobby •L. Culpepper, Jonesboro, for Appellants.
    Cook, Yancey, King & Galloway, by Kenneth Mascagni, Michael K. Leachman, Shreveport, for Appellee, Jackson Parish Police Jury.
    Samuel T. Singer, Winnsboro, for Appel-lee, Town of Jonesboro.
    McCranie, Sistrunk, Anzelmo, Hardy, Maxwell, & McDaniel by Lance B. Williams, Metairie, for Appellee, Nissan North America, Inc.
    Before STEWART, MOORE, and LOLLEY, JJ.
   LOLLEY, J.

| tennis C. Fordham and Elinor Durr Fordham appeal a judgment of the Second Judicial District Court, Parish of Jackson, State of Louisiana, which granted the motion for summary judgment filed by the Jackson Parish Police Jury. For the following reasons, we affirm the trial court’s judgment.

Facts

On July 1, 2002, Dennis Fordham was operating a vehicle manufactured by Nissan when he was involved in a one-car accident on Gansville Road in Jackson Parish, Louisiana. As the record reflects, Fordham was proceeding southerly on Gansville Road, when he crossed the cen-terline of the roadway into the lane of oncoming traffic, then he veered off the eastern side of the roadway to the left. He lost control of the vehicle when he left the paved roadway, then he re-entered the road, yawing to the left and then sharply to the right. His vehicle then commenced to slide down the road and flipped over.

Fordham ultimately filed suit against the Jackson Parish Police Jury (the “Police Jury”), alleging that his damages were due to the defective condition of Gansville Road. In response, the Police Jury filed its motion for summary judgment arguing that: (1) it did not have notice of any alleged defect on the roadway; (2) the roadway did not present an unreasonable risk of harm; and, (3) the roadway did not cause the accident. Along with its motion, the Police Jury filed the affidavits of the investigating officer, the road maintenance supervisor, and an accident reconstruction and roadway design expert. After considering the Police Jury’s motion and the | ^opposition filed by Fordham, the trial court entered judgment granting the Police Jury’s motion for summary judgment and dismissing Fordham’s claims against the Police Jury with prejudice. Fordham appeals that judgment.

Discussion

On appeal, Fordham argues generally that the trial court erred in granting the Police Jury’s motion for summary judgment. Fordham urges that the western side of the roadway contained a drop-off of sufficient depth so as to make the road unreasonably dangerous and the Police Jury did nothing about it. He maintains that there exist contested issues of fact, which can only be resolved at a trial of the matter. We disagree.

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs. of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.01/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.01/25/06), 920 So.2d 355.

The burden of proof is on the movant. If, as in this case, the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Williams v. Shoney’s, Inc., 1999-0607 (La.App. 1st Cir.03/31/00), 764 So.2d 1021.

In claims such as this, the law is clear. No person shall have a cause of action against a public entity for damages caused by the condition of things within its care and custody unless such entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so. La. R.S. 9:2800. In order to recover against a public entity for damages due to road defects, the plaintiff must prove by a preponderance of evidence: (1) the thing that caused the damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and, (4) the Rdefect was a cause-in-fact of plaintiffs harm. Johnson v. City of Bastrop, 41,240 (La.App.2d Cir.08/01/06), 936 So.2d 292, citing, Jones v. Hawkins, 1998-1259 (La.03/19/99), 731 So.2d 216. Here, Fordham is unable to demonstrate that the alleged defect (i.e. the drop-off on the western shoulder of Gansville Road) was a cause-in-fact of his harm.

The Police Jury offered several affidavits in order to show an absence of factual support for Fordham’s claim. In response, Fordham failed to show that the alleged defect on the western edge of the roadway was the cause-in-fact of his harm — one of the elements necessary to succeed in his claim against the Police Jury. Primarily, we note that even if there was a defect to the western shoulder of the roadway as Fordham alleges, this defect was not a cause-in-fact of Fordham’s claim. This is clearly evidenced by the affidavit of Deputy Cody Cheatwood, a deputy with the Jackson Parish Sheriffs Office.

Deputy Cheatwood was dispatched to the accident and investigated the scene. His description of the accident is the most complete. He averred that upon arriving at the scene, he inspected the location of the collision and “identified the position of the yaw marks, gouge marks, scrape marks and other features showing the path” of Fordham’s vehicle. According to Dep. Cheatwood:

[i]t was clear that the Fordham vehicle was proceeding south on Gansville Road and crossed into the oncoming lane of travel and departed the roadway to the left or to the east. Yaw marks on the east side or shoulder of Gansville Road show where the vehicle departed the roadway surface. The east shoulder was basically level with the roadway surface where the Fordham vehicle departed the road and where it reentered the roadway. (Emphasis added).

|fiDeputy Cheatwood further stated that:

... the vehicle then reentered the Gans-ville Road, with marks showing where it reentered the road. The marks also showed that the rear of the vehicle then slide [sic] around to the right. The rear tire or tires departed the right hand side or western side of Gansville Road with the vehicle sliding sideways (with the vehicle pointing in an easterly or southeasterly direction and moving in a southerly direction). There was a very slight difference (approximately an inch or less) between the shoulder and the roadway surface where the Fordham vehicle departed the west side of the road. (Emphasis added).

Additionally, the Policy Jury offered the affidavit of Richard Robertson, a civil engineer, who had been previously recognized as an expert in roadway design, traffic engineering, and accident reconstruction. In connection with his investigation of the accident, he reviewed all the materials related to the accident, as well as inspecting the accident scene. He noted that it was clear from all available data that Fordham crossed the road’s centerline into the lane of oncoming traffic and crossed onto the shoulder on the eastern side of the road. Robertson opined that the roadway was not responsible for this initial action by Fordham, and that the shoulder on the eastern side of the roadway contained no defects.

Fordham claims that the defect in the roadway was on the western side and that defect caused him to lose control of his vehicle. However, the Police Jury’s affidavits make clear that Fordham lost control of his vehicle when he crossed the center fine onto the oncoming lane of traffic-for no explainable reason other than his own steering error. It is evident that the claimed defect on the western side of the roadway, whether it existed or not, |fiwas not the cause-in-fact of Fordham’s harm. He offered no evidence that a roadway defect caused him initially to lose control of his vehicle or that a roadway defect existed on the eastern shoulder of Gans-ville Road, where he first left the roadway. Nor did Fordham offer any evidence of a defect in the roadway that caused his vehicle to slide across the roadway until he left it again-this final time on the western side. Only at this point in time does Fordham claim that the roadway was defective, and the only proof to be offered by Fordham are merely his self-serving allegations and photographs purporting to depict a drop-off. We agree with the Police Jury that Fordham’s claims of a defect to the western shoulder of the roadway are immaterial when the series of events are considered. Fordham failed to demonstrate that he would be able to meet his burden of proof as required under La. C.C.P. art. 966(C)(2). Considering that Fordham failed to make such a showing, the trial court properly granted summary judgment in favor of the Police Jury.

The Police Jury further submits that summary judgment was properly granted for another reason, arguing that Fordham also failed to render any evidence indicating that the Police Jury possessed actual or constructive notice of the alleged roadway defect and did not take corrective action within a reasonable period of. However, considering our conclusion herein, the Police Jury’s knowledge of an alleged defect on the western shoulder of the roadway is immaterial. Thus, because that issue is moot, it need not be addressed herein.

| 7Conclusion

For the foregoing reasons, the judgment of the trial court granting the Jackson Parish Policy Jury’s motion for summary judgment is affirmed. Costs of this appeal are assessed to Dennis C. Fordham and Elinor Durr Fordham.

AFFIRMED.

      . He also named Nissan of North America as a defendant. It is not a party to this appeal. Fordham's wife, Elinor, was also a plaintiff in the suit.

      . The trial court dismissed Elinor Fordham's claims as well; however, she is not referred to in this appeal.

      . Fordham does have claims against the manufacturer of his vehicle, Nissan, asserting that some unknown mechanical defect caused his accident. That issue is not before this court on appeal, and we are not addressing or deciding that issue herein.


author: SEXTON, J.

text:
    Tammy Frazier, Wife of/and Timmie Clyde FRAZIER, Plaintiffs-Appellants v. Rosia BRYANT, Garrett Bryant, ABC Insurance Co., Ronald Hughes, Ron’s Lawn Care and XYZ Insurance Co., Defendants-Appellees.
    No. 41,978-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Robert M. Hanna, Shreveport, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, W. Orie Hunter, III, Richard B. King, Jr., Shreveport, for Ap-pellee, Ronald Hughes d/b/a Ron’s Lawn Care.
    Colvin, Weaver & Cerniglia, L.L.C., by Charles E. Weaver, Shreveport, for Rosia Bryant, Loreather Gail Garrett, Loneal Bryant and The American Central Ins. Co.
    Before WILLIAMS, STEWART & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

| -i Plaintiffs, Timmie Clyde Frazier and his wife, Tammy Frazier, appeal the summary judgment granted in favor of Defendants, Rosia Bryant, Dr. Loreather Gail Garrett, Loneal Bryant and the American Central Insurance Company (collectively “the Bryants”), and the summary judgment granted in favor of Defendant Ronald Hughes, d/b/a Ron’s Lawn Care. Mr. Frazier was severely injured when he fell 50 feet from a tree located on Dr. Garrett’s property, which was occupied by the Bryants. At the time of the accident, the Bryants had hired Mr. Hughes, through his business as Ron’s Lawn Care, to remove the tree; Mr. Hughes, in turn, engaged Mr. Frazier for the job. Mr. Frazier was in the process of removing the top portion of the tree when he fell. Finding that no genuine issue of material fact existed as to liability of any of the Defendants, the trial court granted Defendants’ motions for summary judgment and dismissed Plaintiffs’ claims against all Defendants. Plaintiffs appeal. We affirm.

FACTS

Mr. and Mrs. Bryant lived on a property owned by Dr. Garrett, Mrs. Bryant’s daughter, based on a verbal lease between them. Mr. Bryant sought to have a large tree removed from the property because the tree was leaning toward the house and several of the limbs of the tree were near or over the roof. They contacted Mr. Hughes, as proprietor of Ron’s Lawn Care, for 12that purpose. Mr. Hughes then hired Mr. Frazier for the task as he had previously approached Mr. Hughes offering his services in tree removal.

The accident occurred during the removal of the tree. Mr. Frazier had climbed up to the top of the tree and was proceeding to cut away the top limbs. He wore a climbing harness and was attached to a climbing rope that was strung over the top of the tree. Mr. Frazier also had with him a lanyard rope that would have secured him to the tree by going around the tree and attaching to him on both sides. Mr. Frazier, apparently, had not connected the lanyard rope around the tree and was attached only to the climbing rope. Mr. Hughes was using his pickup truck to direct portions of the tree away from the house. Also at the property during the tree removal was Mr. Bryant, Mr. Bryant’s assistant, Mr. Frazier’s father, who is since deceased, Annette Frazier, Mr. Frazier’s sister and her boyfriend. Mrs. Bryant was inside the house during the tree removal.

As the tree removal operation proceeded, Mr. Frazier, from up in the tree, signaled to Annette Frazier, who in turn signaled to Mr. Hughes to pull and to stop. At some point, Mr. Hughes pulled with his pickup truck and the entire top of the tree came down. Mr. Frazier was still attached to the climbing rope and came down with the tree. As a result of his fall, Mr. Frazier sustained a broken left arm, broken ribs and a closed head injury, which resulted in severe brain damage. Plaintiffs allege that the injury left Mr. Frazier with the mental capacity of a 12-year-old. The instant litigation resulted.

[aMr. and Mrs. Bryant, Dr. Garrett and their insurer, American Central Insurance Company, filed an early motion for summary judgment. It was initially granted, but was then set aside by the trial court on Plaintiffs’ motion for new trial. After additional discovery, Mr. Hughes, d/b/a Ron’s Lawn Care, filed a motion for summary judgment and the Bryants filed another motion for summary judgment. The trial court granted both and dismissed Plaintiffs’ claims against all Defendants with prejudice. Plaintiffs appeal.

DISCUSSION

The standard of review for the grant or denial of a motion for summary judgment is de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether or not a summary judgment is appropriate-(l) whether there exists a genuine issue of material fact and (2) whether or not the mover is entitled to judgment as a matter of law. Id. A motion for summary judgment is properly granted only 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). A genuine issue is a triable issue on which reasonable persons could disagree. Jones, supra, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Further, a fact is material when “its existence or Rnonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Jones, supra, quoting Smith, supra.

In a motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966(C)(2). The movant’s burden does not require him to negate all essential elements of the adverse party’s claim; but, rather, the burden on the mov-ant at summary judgment is to demonstrate an absence of factual support for one or more elements essential to the adverse party’s claim. Then, if the non-movant fails to produce sufficient factual support to show he can meet his evidentia-ry burden at trial, there is no genuine issue of material fact. Id.

Plaintiffs assert general negligence claims against Mr. Hughes and the Bryants. Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injures (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corp., 06-477 (La.12/18/06), 944 So.2d 564. A plaintiff must succeed on all elements to establish the liability of a defendant. Id.

| sAfter our de novo review of the record, we find no genuine issue of material fact. Attached to the various motions for summary judgment were the depositions of each Plaintiff, Mr. Hughes, Mr. Bryant and Annette Frazier, and a sworn affidavit of Mrs. Bryant and Mr. Hughes. The trial court struck Mrs. Bryant’s affidavit to the extent any statement exceeded her personal knowledge. Due to the extent of his injuries, Mr. Frazier was unable to remember the accident. According to Mr. Hughes, Mr. Bryant and Annette, at the moment of the accident, Mr. Hughes was pulling because he was instructed to do so. Further, the deposition testimony does not create a genuine issue of material fact that any Defendant exercised such control over the operation as to be liable for the accident. We find nothing in the depositions that create a genuine issue of material fact that would make any Defendant liable under general negligence.

Plaintiffs further maintain that the Bryants are liable for failing to warn Mr. Frazier of any defective condition of the tree. Liability for a thing under one’s ownership or custody is governed by La. C.C. art. 2317.1.

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

An essential element for this liability is that a ruin, vice or defect existed that created an unreasonable risk of harm. Davis v. Diamond Shamrock Refining & Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076. Further, the defect must cause the plaintiffs injury. Id. The depositions and affidavits contained in the record do not create a genuine 1 tissue of material fact that any defect in the tree existed. At most, the depositions suggest that the tree was leaning due to erosion at the base of the tree and nothing indicates that this condition caused Mr. Frazier’s fall.

CONCLUSION

From our de novo review of the record, we conclude that no genuine issue of material fact exists and that Defendants are entitled to judgment as a matter of law. We affirm the trial court’s granting of Defendants’ motions for summary judgment and dismissing them with prejudice. Costs herein are assessed against Plaintiffs, Timmie Clyde Frazier and Tammy Frazier.

AFFIRMED.

      . The original petition named as Defendants Rosia Bryant, Garrett Bryant, Ronald Hughes and ABC Insurance Company. The Defendants' actual names were corrected by two amending and supplementing petitions.