author: HUGHES, J. McDONALD, J.,

text:
    Julie HUSSEY, Gerald Hussey Individually and on Behalf of Their Minor Children, Kellie Hussey and Kimberly Hussey v. Darlene RUSSELL, Individually, and on Behalf of the Estate of Bryan Vidrine, Bryan Russell, Darlene Russell, Daniel Vidrine, State of Louisiana, Through the Department of Transportation and Development, City-Parish of East Baton Rouge, State Farm Mutual Automobile Insurance Company and U.S. Agencies Casualty Insurance Co., Inc. Darlene Russell, Individually and on Behalf of Her Minor Son, Bryan Vidrine v. State of Louisiana, Through the Department of Transportation and Development, City of Baton Rouge/Parish of East Baton Rouge, Julie E. Hussey, U.S. Agencies Insurance Company, and State Farm Fire & Casualty Insurance Company.
    Nos. 2004 CA 2377, 2004 CA 2378.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.
    Writ Denied June 14, 2006.

      Karl J. Koch, Baton Rouge, Counsel for Plaintiff/Appellee Darlene Russell.
    Frank Tomeny III, Jason L. Melancon, Baton Rouge, Counsel for Plaintiffs/Appel-lees Julie Hussey, Kimberly Hussey, and Kellie Hussey.
    E. Wade Shows, Ronnie J. Berthelot, Carlos A. Romanach, Special Assistant Attorneys General, Baton Rouge, Counsel for Defendant/Appellant State of Louisiana, through The Department of Transportation and Development.
    Before: PARRO, WHIPPLE, MCDONALD, WELCH, and HUGHES, JJ.
   HUGHES, J.

11 This appeal arises from an automobile accident in which the state was held partially liable because of the condition of the roadway. The primary issue on appeal is the degree of fault of the state. For the reasons that follow, we affirm the judgment in part, amend the judgment in part, and affirm as amended.

FACTS AND PROCEDURAL HISTORY

This suit arose from an accident in which fifteen-year-old Bryan Vidrine lost control of his vehicle on Louisiana Highway 3034, Wax Road, veering off the roadway, then back onto and across the center line of the highway, striking a vehicle driven by Julie Hussey, whose passengers were her daughters, Kellie and Kimberly Hussey. Bryan Vidrine was killed. Mrs. Hussey and her daughters were injured.

Two lawsuits were later filed; one by Mrs. Hussey and the other by Bryan Vid-rine’s mother, Darlene Russell. The suits were subsequently consolidated for trial, and one of the issues tried was the liability of the Louisiana Department of Transportation and Development (“DOTD”) for the allegedly defective condition of the roadway. It was alleged that the portion of Hwy. 3034 at issue in this case had drop-offs in excess of three inches.

A jury determined that DOTD was 20% at fault and Bryan Vidrine was 80% at fault in causing the accident. Mrs. Russell was awarded $500,000.00 in general damages and $11,000.00 in funeral expenses. Mrs. Hussey was awarded $200,000.00 in general damages, $228,139.00 in special damages, and $293,000.00 for loss of earning capacity. In accordance with the percentages of fault assigned, judgment was rendered ^against the state in favor of Mrs. Russell in the amount of $102,200.00 and in favor of Mrs. Hussey in the amount of $144,227.80, together with legal interest.

It was stipulated that the claims of Kellie and Kimberly Hussey did not exceed the $50,000.00 jury trial amount, and the trial judge alone tried them. With respect to these claims, the trial judge assessed 35% fault to DOTD and 65% fault to Bryan Vidrine, and $50,000.00 was awarded as damages to each of the girls. Taking into account the percentage of fault assigned to the state, the judgment awarded $17,499.99 each to Kellie and Kimberly Hussey, together with legal interest. Additionally, all plaintiffs were awarded certain special costs against DOTD.

The state has appealed, asserting the trial court erred in finding Hwy. 3034 unreasonably dangerous, in allocating 35% fault to DOTD for Kellie and Kimberly Hussey’s damages, in certain evidentiary rulings, and in allocating all costs to DOTD when it was assigned only 20% fault by the jury. Both Mrs. Russell and Mrs. Hussey have answered the appeal and ask for a greater allotment of fault to DOTD, and in the alternative, ask this court to “harmonize” the different assessments of fault made by the jury and trial judge as to DOTD.

DISCUSSION AND ANALYSIS

Evidentiary Rulings and Negligence of DOTD

Appellant contends the trial court committed legal error when it allowed' plaintiffs to “mention, use, offer, file, introduce into evidence and [ ¡¡publish” to the jury a DOTD intraoffice memorandum appellant claims is shielded from discovery and evidence by 23 U.S.C. § 409. Appellant further contends the trial court erred in precluding DOTD from “mentioning, introducing or cross-examining” any witness with statements made in the petition for damages filed on behalf of Mrs. Hussey.

Appellant correctly states that certain data that has been gathered in connection with highway safety improvement projects utilizing federal funds is protected from discovery or evidentiary use, as provided more fully in 23 U.S.C. § 409, which states:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence pat a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

However, the legal error implicated by introduction of such evidence at trial in violation of this statute may be said to be harmless where there was sufficient other evidence introduced, excluding the inadmissible Section 409 evidence, to establish that the roadway at issue was unreasonably dangerous. See Badeaux v. State, Dept. of Transp. and Development, 96-853, p. 8 (La.App. 5 Cir. 2/25/97), 690 So.2d 203, 207, writ denied, 97-0779 (La.5/1/97), 693 So.2d 733.

We find in the instant case that the evidence presented, excluding the evidence objected to by DOTD, was more than sufficient to establish by a preponderance of the evidence that the portion of Hwy. 3034 at issue was unreasonably dangerous to motorists. We note also the evidence objected to did not address or mention a specific location.

Melanie Sinclair Williams testified that on the day of the accident she turned onto Wax Road, traveling behind a white Toyota Camry, which she later found was driven by Bryan Vidrine. Melanie testified that she did not know Bryan Vidrine, but that she took note of his vehicle because she had one just like it. Melanie further testified that at the time, a heavy rain had just passed through the area, but she considered that it was then safe to drive. Further, Melanie stated that she was traveling between forty-fíve and fifty m.p.h. when the posted speed limit was forty-five m.p.h., and that she was “gaining on him.” Melanie noticed that the Vidrine vehicle had its “running lights” on.

Melanie explained that she had grown up in the “Central” area and was familiar with the curve toward the right that the Vidrine vehicle was approaching. She described the curve as sloping to the right and indicated | ¡¡that because of the slope of the roadway, a motorist traveling there feels his vehicle being pulled to the right. Melanie testified that such a motorist has to steer to the left to compensate for this pull.

As the Vidrine vehicle entered the curve, Melanie saw the right tires of his car drop off the right side of the road “into a rut” and immediately afterwards she saw Vidrine lose control of his car. Melanie brought her vehicle to a stop “to see what was going to happen.” She then witnessed the Vidrine vehicle fishtail while “straddling the middle line” and move back toward the right lane, possibly leaving the roadway a second time, when it began to slide with the driver’s side of the car facing her. At this moment, Melanie testified that a blue truck impacted the Vidrine vehicle and “it was a big explosion.”

Melanie also testified that there was an incline in the roadway and “where the roadway came down” there was a puddle of water that “gives the illusion of a roadway.” When asked whether from her vantage point, it appeared that the Vidrine vehicle was “running off the road,” Melanie answered negatively and stated that it looked like he was driving “in a normal manner.” When the Vidrine vehicle encountered the area with standing water, Melanie testified that she saw a splash.

Melanie went on to say that she pulled her vehicle “somewhat on the side of the road” while witnessing the accident, at about the point where “he dropped off,” and that when she later moved her car she had to drive for “some time to get back up on to the roadway ... [b]ecause the tire [of her car] was stuck in the rut.” However, Melanie stated that immediately after the accident she did not move her car, but jumped out to assist the accident victims; she did not recall whether she stepped into a puddle on getting out of her car.

| fiMelanie testified at trial that the roadway had remained in the same condition as on the day of the accident. She further identified photographs introduced into evidence as Exhibits J-5A — G as accurately depicting the accident site. Melanie indicated that she went out to the scene at the time the photographs were taken and identified herself as appearing in Exhibit J-6A. She stated that on the day the photographs were taken, the condition of the roadway was the same as on the day of the accident.

Melanie further testified that following the accident the state trooper investigating the accident asked her to point out where the Vidrine vehicle left the road, which she did from a church parking lot, but she was not asked to walk back to that location and show it to him with specificity. She also testified that she gave the trooper a written statement, which was written out by her sister, though Melanie signed it herself. She further stated that she has since seen the accident report and indicated that her statement was not attached. Melanie stated that she did not see anything untoward in Bryan Vidrine’s driving until his tire when off the road.

On cross-examination, Melanie was asked to verify that the defense photographs, Exhibits DOTD-1 through 22, accurately reflected the accident site, which she did. She was then asked to look through the photographs and identify the one that depicted the area where the Vid-rine vehicle first left the road. Melanie testified that none of the defense photographs she was presented showed the site closely, but that DOTD-10 contained a view of the curve at issue “from a distance.” Melanie identified Exhibit J-6B as showing the point just before “Old Wax Road” where Bryan went off the road. Melanie admitted that the double yellow centerline was clearly | ./visible on the day of the accident, but stated that the white side stripe was visible only in some areas.

The testimony of the investigating officer for the accident, Ross Johnson, was presented via deposition. Mr. Johnson had been a Louisiana State Trooper for approximately thirteen months at the time of the 1996 accident, and worked as a trooper from 1995 through’1998. At the time his deposition was taken, Mr. Johnson resided in South Dakota. Mr. Johnson arrived on the scene of the accident approximately thirty minutes after its occurrence; fire rescue, ambulance, and sheriffs department personnel were already on the scene. Some time after his arrival, Mr. Johnson’s shift supervisor, Lieutenant Bill Cook, arrived and assisted in completing the accident report. Mr. Johnson did not have absolute recall of the facts surrounding his investigation, but indicated that he thought he had taken the photographs. Mr. Johnson could not recall whether he asked Melanie Sinclair Williams for a handwritten narrative of what she witnessed, but he indicated he did not have a copy of any such statement attached to the accident report. Mr. Johnson related that Melanie Sinclair Williams was the only witness to the accident and that she told him she saw the Vidrine lavehide “run off the road,” then fishtail through both lanes of travel, and collide with another vehicle. Mr. Johnson indicated Melanie pointed out the location where Bryan Vidrine’s car left the roadway; he does not recall her walking back to the location.with him. Mr. Johnson testified that he could locate physical evidence that the Vidrine vehicle left the roadway only once prior to the impact. No measurement of lane width, slope, or shoulder drop-off was made by Mr. Johnson.

John Rigol, Jr. was called to testify as an expert accident reconstructionist on behalf of the plaintiffs. Mr. Rigol testified that he previously worked as a Jefferson Parish Deputy Sheriff and with the Louisiana State Police. He retired from the state police as Commander of the first Accident Reconstruction Unit, having formed the unit from its inception. Mr. Rigol identified a diagram introduced into evidence as Joint Exhibit 10, which depicted the accident site; he stated that the Vidrine vehicle left the roadway between the points on the diagram marked “X” and “Y,” as related to him by Melanie. In Exhibit J-6A, Melanie is depicted as indicating the location where the Vidrine vehicle left the roadway. With reference to Exhibit J-6B, Mr. Rigol testified that the lady in the orange vest was standing at point “X” and the lady dressed in blue was standing at point “Y,” and it was between these two points that Vidrine left the roadway. He further stated that Exhibits J-6C and J-6D show a close-up of the ladies standing at points “X” and “Y,” and that Exhibits J-6E and J-6G are photographs of the area between those two points. Mr. Rigol stated that the distance between points “X” and “Y” measures 115 feet. He further testified that he placed the pink and yellow paint reflected in the photographs on the roadway to mark the points at issue. Mr. Rigol also testified that he measured depths between points “X” and “Y,” and that the measurement of |athe “drop-off’ in that location was between two and one-quarter inches and four and three-eights inches, with an average depth of three inches. Mr. Rigol further testified that in this area of the highway, there were areas in which the edge of the roadway was broken up, as depicted in Exhibit J-6E.

In the opinion of Mr. Rigol, the primary contributing factors to this accident were puddling of water in and off the roadway that filled in the sloping area of the roadway, the uneven edge of the roadway, the uneven surface of the shoulder, and the “drop-off.” Mr. Rigol further indicated that the curve has what is called an “irregular radii” or a non-uniform arc to the curve, which he explained causes a driver to change steering directions several times while negotiating the curve. In a uniform curve, Mr. Rigol explained that a driver can set his steering wheel going into the curve and coming out of the curve, and does not need to alter his steering throughout the curve. Mr. Rigol indicated that the Vidrine vehicle left the roadway near the mid-point of the curve.

On cross-examination, Mr. Rigol agreed that inattention or driver error on the part of Bryan Vidrine contributed to his leaving the roadway. Mr. Rigol further agreed that the double yellow line in the center of the road was clearly visible and could have served as a reference point for Bryan Vid-rine in positioning his vehicle on the roadway.

James R. Clary, Sr. testified as an expert in the field of Engineering and Highway Safety and Maintenance. Mr. Clary testified that he is a civil engineer and land surveyor, and that he worked in excess of twenty years in the design and construction of streets and highways, and he currently works as a consultant evaluating highway design, safety, signage, and maintenance, with reference to published industry standards.

1 inWith respect to this accident, Mr. Clary was provided with Mr. Rigol’s measurements and the police report data, and he also went out to the site and performed his own measurements. Mr. Clary correlated and compiled the data onto a map, which was introduced at trial.

Mr. Clary testified that the road in question was originally constructed in 1955, according to plans that called for two ten-foot wide lanes with two five-foot wide shoulders, for a total width of thirty feet. Mr. Clary further testified that in 1977 there was another construction project on this road that called for two twelve-foot lanes and two two-foot shoulders, for a total roadway width of twenty-eight feet. Mr. Clary explained that during the intervening time the failure to maintain the roadway resulted in the loss of width.

Mr. Clary further attributed the loss of width to a failure to stabilize the inside of the curve as required by the American Association of State Highway and Transportation Officials (“AASHTO”) guidelines. According to Mr. Clary, the AASHTO Maintenance Manual states that the inside of a curve should be stabilized where there is evidence of motorists “cutting the curve” and going off the pavement. Mr. Clary read from the manual the following: “ ‘[T]he area on the inside of curves for a width of several feet should be better stabilized than other shoulder areas because of vehicles cutting the curves. Earth, sod, and gravel shoulder areas are sometimes paved on the inside of curves to prevent a hazard condition. Shoulder areas that settle or sink should be inspected for drainage problems.’ ” Mr. Clary stated that the inside of the curve at issue in this case was not reinforced as recommended by AASH-TO.'

“Cutting the curve” was described by Mr. Clary as driving the right wheels of a vehicle off the pavement onto the shoulder, which he stated | nbeats down the shoulder and causes the shoulder material to be displaced laterally to form a rut and a dam. He further stated that a rut would let water run longitudinally along the highway to a low spot for drainage, but that the roadway should be built like a roof so that water drains off directly into the adjoining ditch. The improper drainage situation allowed water to pool onto the edge of the roadway, impacting motorists who encounter the water by imposing a right-sided drag on the vehicle.

Mr. Clary also measured the drop-off in the pertinent location as ranging from two and one-quarter inches to four and one-half inches. He stated that shoulder edge drop-off studies indicate that in order to safely reenter a roadway from this range of drop-off depths, a very low speed is required; i.e. between twenty and thirty m.p.h.

Mr! Clary also confirmed the testimony of Mr. Rigol that the curve in question has a changing radius. He also recognized that the undulating curve makes driving more difficult because a motorist expects a “normal” curve, so the changing curvature contributes to driving off onto the shoulder.

Mr. Clary further testified from his pri- or experience as a former employee of DOTD that the department employs road inspectors, whose job it is to inspect on a regular basis the roads in their districts. Mr. Clary stated that shoulder drop-offs in excess of three inches are normally scheduled for repair, while drop-offs approaching five inches are considered hazardous and should be repaired immediately.

Mr. Clary measured the actual width of the lane in which Bryan Vidrine was driving at the time of the accident to be ten feet, six inches between the double yellow centerline and the white fog line. On cross-examination, Mr. Clary was asked whether the five to six foot wide car Bryan Vidrine was driving on the day of the accident could have passed h ¿through the curve if he had maintained a reasonable distance from the yellow centerline, and he indicated that the lane width was sufficient to accommodate such a car. Mr. Clary was further asked as to the proper procedure a driver should take when the wheels of his vehicle drop off the edge of the road. He stated that such a driver should not attempt to “jerk” his car back onto the road but to continue riding down the road while losing speed and then attempt a reentry onto the roadway. He did not recommend slamming on the brakes.

Calvin Thornton, a DOTD employee in East Baton Rouge Parish, testified that there are approximately 360 miles of state highways in the parish. Mr. Thornton stated that he had over twenty years experience as an employee of DOTD and held the position of Parish Maintenance Superintendent; all maintenance crews in the parish reported to him. Mr. Thornton testified that it is part of his job to inspect the roads in the parish, looking for potholes, drop-offs, ruts, or anything that would endanger the motoring public, and to order necessary repairs. When presented with the photographs of the accident site and asked whether he could see anything that needed repair, he denied that any repairs were indicated. Mr. Thornton testified that according to his maintenance manual a three-inch rut would be “just minor” and “[f]ive inches is a priority.” Mr. Thornton also stated that if he saw a three-inch roadway drop-off, he would have it repaired, but indicated that Medric Stein was the maintenance superintendent at the time of the accident. Mr. Thornton also indicated that even though a rut is repaired, damage can occur quickly to reproduce a rut in as little as two to three days “[bjecause traffic steadily runs off the road.”

Richard Savoie was called to testify as an expert in Civil Engineering and Design. He stated that he works in the DOTD road design section as a 11?.Pro;ject Development Engineer supervising four design groups that do design work for the department; he supervises work all over the state. With respect to Wax Road, Mr. Savoie produced a document detailing the history of the road, which was introduced as Exhibit DOTD-24. Mr. Savoie described the curve following the 1977 widening project as “a 575 foot ... continuous curve with a radius of over fourteen hundred feet.” Mr. Savoie indicated that he has driven through the curve and examined the photographs offered into evidence by the plaintiffs and found no deviation from the curve depicted in the DOTD diagram offered into evidence as Exhibit DOTD-27. However, Mr. Savoie indicated he did not make any measurements of the curve himself.

Joseph D. Blaschke testified as an expert witness in Civil Engineering on behalf of DOTD. It was the opinion of Mr. Blaschke that the accident in question was primarily caused by the Vidrine vehicle losing control, which he attributed to “ov-ersteering” by Bryan Vidrine. Mr. Blaschke questioned the allegations that the Vidrine vehicle actually left the roadway, stating that a re-entry onto the roadway would have caused the ground to be pushed up and mud to splatter. He indicated there would have been “a lot more disturbance than what the police officer actually found.” Mr. Blaschke drove through the curve and described it as a “gentle curve,” though he could not contradict the testimony of Clary or Rigol that there were variations in the curvature. Blaschke stated only that if there were variations in the radius, it was “not a problem in this particular curve.”

Based on the testimony presented without reference to the evidence DOTD claims should have been excluded under 23 U.S.C. § 409, we find that there was a reasonable basis upon which the trial court could have found fault on the part of both DOTD and Bryan Vidrine in contributing to the luinstant accident. Therefore, we find any error in the admission of the evidence objected to by DOTD was harmless. Similarly, we find no reversible error in the trial court’s refusal to allow DOTD’s counsel to examine Mrs. Hussey concerning the allegations relative to fault made in her original, unverified petition. We further find no manifest error in the factual findings of the trial court.

Inconsistent Judge and Jury Allocations of Fault

Having found that the factual findings of the trial court on the issue of the degree of fault of the state were not manifestly erroneous, we must address appellees’ alternative assertions in their respective answers; i.e., that the differing judge and jury assessments of fault must be resolved. In support of this contention, appellees cite this court’s opinion in Cornish v. State, Dept. of Transp. and Development, 93-0194 (La.App. 1 Cir. 12/1/94), 647 So.2d 1170, writs denied, 95-0547, 95-0574 (La.5/5/95), 654 So.2d 324, wherein the following is stated:

[W]e must ... determine whether the findings of fault and apportionment of fault by the trial judge and the jury are reasonable and not manifestly erroneous. In the event that this court finds that the findings of both as to any particular determination are manifestly erroneous, this court is free to evaluate the facts de novo, and after a review of the complete record, make our own findings as to that particular determination. If in initially applying the manifest error test to the findings of the factfinders, this court concludes that a finding by one of the factfinders was manifestly erroneous, but the finding of the other is not, then we are free to disregard the finding of the factfinder that was manifestly erroneous. In other words, we would eliminate the clearly wrong finding and be left with only one reasonable finding. In the two previously mentioned scenarios, there would be no need for this court to apply the additional standard of review established in Thornton II [Thornton v. Moran, 348 So.2d 79, 81-82 (La.App. 1st Cir.), writs denied, 350 So.2d 897, 898, 900 (La.1977) ] because we would not have reasonable findings that are inconsistent.
The Thornton II standard should be applied only after an appellate court is satisfied that the record contains sufficient evidence to furnish a reasonable factual basis to support the | ^conclusions reached by each trier of fact and that these conclusions are inconsistent, thus requiring harmonization to arrive at a single decision.

Cornish v. State, Dept. of Transp. and Development, 647 So.2d at 1178-79 (citations omitted).

Because the judge and jury in this case assigned different percentages of fault to DOTD, the jurisprudence of this circuit requires that the inconsistency must be addressed.

After a thorough review of the evidence presented in this case, we believe the 35% fault assigned to DOTD by the trial judge was the more reasonable finding. We believe the trial judge made the “more reasonable measurement” of the evidence. Thornton v. Moran, 348 So.2d at 82. According to the eyewitness testimony, Bryan Vidrine was not speeding or driving in any questionable manner before he left the roadway and encountered the rutted roadway edge obscured by standing water. Therefore, we amend the judgment to allocate 35% of the fault in the instant accident to DOTD and 65% fault to Bryan Vidrine.

Accordingly, the judgment rendered against DOTD is hereby amended to award Mrs. Russell $178,850.00 (35% of $511,000.00), and to award Mrs. Hussey $252,398.65 (35% of $721,139.00).

hfiDOTD’s liability for the damages of Kellie and Kimberly Hussey was reduced to reflect the 35% fault of DOTD in the trial court judgment, and we find no error in that reduction. However, we correct the mathematical error in the judgment amount in accordance with our appellate power to render any judgment that is just, legal, and proper upon the record as provided in LSA-C.C.P. art. 2164. The judgment is hereby amended to award Kellie and Kimberly Hussey, each, the amount of $17,500.00 (35% of $50,000.00).

Costs

On appeal, the state contends that because it was found only partially at fault, it should not have been found by the trial court to be wholly responsible for the costs incurred by the plaintiffs, while plaintiffs/appellees assert that because DOTD was the only defendant against whom this matter had to be tried, it should be responsible for the costs assessed. DOTD cites in support of its position the case of Durant v. State, Dept. of Transp. and Development, 93-1028 (La.App. 1 Cir. 4/8/94), 636 So.2d 1022, writ denied, 94-1654 (La.10/7/94), 644 So.2d 637, wherein this court found no reasonable basis for casting DOTD for 100% of the costs where the plaintiff and DOTD were each cast with 50% of the fault in causing the accident.

The assessment of costs against the state is authorized by LSA-R.S. 13:5112(A), which provides:

In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party’s court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

11 ./Further, LSA-C.C.P. art. 1920 gives a trial court authority to render judgment for costs against any party “as it may consider equitable.” A trial court’s assessment of costs can be reversed only upon a showing of an abuse of discretion. State ex rel. Guste v. Nicholls College Foundation, 592 So.2d 419, 422 (La.App. 1 Cir. 1991), writ denied, 593 So.2d 651 (La.1992).

In the present case, the only costs taxed against the state were “special costs,” which included five expert witness fees and the cost of the deposition of Officer Ross Johnson. The state was not taxed with any other costs, such as clerk of court’s costs or costs associated with service of process, etc. Under the circumstances, we are unable to say the trial court abused its discretion in the award of costs.

CONCLUSION

For the reasons assigned herein, the judgment of the trial court is aflirmed in part and amended in part to assign 35% fault to DOTD as to the damages awarded to all plaintiffs. As amended, the judgment in favor of plaintiffs against the State, through the Department of Transportation and Development is affirmed. Each party is to bear its own costs of this appeal.

AFFIRMED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED.

McDONALD, J., dissents and assigns reasons.

McDONALD, J.,

dissenting.

|J agree with the majority except in regard to the finding that the differing assessments of fault found by the judge and jury must be resolved. In Thornton II this court enunciated the “more reasonable measurement” standard in reconciling and resolving differences in factual findings between a judge and jury in bifurcated trials where both findings are reasonable and neither is found to be manifestly erroneous. Thornton v. Moran (La.App. 1 Cir. 5/9/77), 348 So.2d 79, 81-82, writs denied 350 So.2d 897 (La.1977) and approved in Cornish v. State Department of Transportation and Development (La.App. 1 Cir. 12/1/94), 647 So.2d 1170, 1177-1178, writs denied (La.5/5/95), 654 So.2d 324. The majority now applies this standard to the present facts, finding that the judge’s assessment of fault is more reasonable than that of the jury. However, in both of these cases, as well as those cases cited in Cornish the parties were the same and it was impossible to draft a judgment with the inconsistent findings.

Thornton involved a two car vehicular accident between a car driven by Thornton and one by Moran. The jury found that Thornton had the last clear chance to avoid the accident and was, therefore, at fault in causing it. The trial judge found that Moran had the last clear chance. Because each verdict involved the identical parties they are totally irreconcilable and it would be virtually impossible to confect a judgment in the case.

Cornish involved a one-vehicle accident in which Cornish’s vehicle ran off the road and hit a cattle guard. Cornish sued DOTD and Ponchatoula Homestead & Savings Association. The trial judge decided the case against DOTD and a jury decided the case against Ponchatoula, the only defendants in the case. Each factfin-der’s allocation of fault and amount of damages differed from the other. Again, the verdicts were totally irreconcilable because they involved the same parties.

In the case before us, the parties are not the same. The jury decided the case in favor of Mrs. Russell and Mrs. Hussey and apportioned fault against Bryan Vidrine and DOTD. The trial judge found in favor of two different plaintiffs, but against these same two defendants and apportioned fault differently than the jury did. Thus, the jury and trial judge decided the case involving a different set of plaintiffs. Since the parties are not the same in each suit I find no compelling need to reconcile these verdicts. They are |3not irreconcilable and one judgment does not impact on nor influence the other. Just as the parties are distinct and separate, so are the verdicts.

For these reasons, I respectfully disagree with that portion of the majority opinion that reconciles the allocation of fault.

      . The trial court’s February 13, 2003 minute entry reflects that she originally found Kellie Hussey’s general damages to be $115,000.00 and Kimberly Hussey’s general damages to be $95,000.00, in addition to their special damages of $22,443.95 and $17,642.74, respectively. However, a subsequent minute entry reduced the total awards for each girl to $50,000.00 “recognizing the stipulation of counsel ... that the amount presently in controversy does not exceed $50,000.00.”

      . We note that 35% of $50,000.00 is actually $17,500.00.

      . The memorandum at issue, dated February 1, 1989, was issued by P.J. Frederick, DOTD Maintenance Engineer Administrator to “Each District Administrator,” and stated as follows:
      The Department is constantly the object of litigation because of low shoulders, edge rutting or drop-offs along the roadway surface.
      The Maintenance Standards Manual says that non-paved shoulders should be repaired when this condition exceeds three (3) inches and interrupting regularly scheduled work is justified when this condition exceeds five (5) inches.
      The courts have ruled against the Department when this condition was only one and a half inches and apparently the Parish Maintenance Superintendents do not schedule any work on a shoulder unless the conditions in the Maintenance Standards Manual are met.
      It is not our intent that a one (1) or two (2) inch drop-off or edge rut remain indefinitely simply because it has not reached the magical depth of three (3) inches. Any low shoulder, drop-off, or edge rut should be repaired in the course of routine maintenance and should this condition even approach the three (3) inch depth, it should be repaired on a priority basis. When this condition approaches the five (5) inch depth, it should be repaired immediately, not wait until the next day but work people on overtime if necessary.
      We realize you are short[-]handed, but these shoulder conditions must receive attention in order to reduce the state's liability and your maintenance personnel should be advised of the above guidelines.
      Mr. Dempsey D. White, Chief Engineer, has expressed an interest in experimenting in locations with a recurring low shoulder problem. Similar to the widening on the inside of curves, the idea is to use asphalt to widen 18 inches to 2 feet- and about 6 inches deep on a fairly steep slope then pull shoulder material back over this. Anyone having a location they want to try this in should advise this office.

      . When testifying with reference to Exhibit J~ 6B, Melanie Williams stated that the lady appearing in the orange vest was positioned at the point where Bryan’s car first left the road, and that the second lady was positioned at the second point it dropped off. Melanie stated that the accident reconstructionist marked with paint on the road an "X” and an arrow at the point the vehicle first left the road; the second point was marked with ei-thér a “Y” or a "T" and an arrow; both as depicted in Exhibit J-6B. She further described the shoulder in that area as choppy, crumbled, and very rough.

      . We must note that Cornish has been abrogated in part by the supreme court, though not as to its succinct interpretation of Thornton II, as it applies to the instant case. In Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, the supreme court found the Cornish panel had erred when, after finding the trial court had committed manifest error in the apportionment of fault, it conducted a de novo review on the issue. Rather, the supreme court in Clement instructed appellate courts that the appropriate approach, after finding manifest error in apportionment of fault, is to apply the Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) approach used with respect to an erroneous damages award; i.e., "it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion.” Clement v. Frey, 666 So.2d at 610-11. Clement did not speak to the Thornton II scenario: an appellate court finds differing assessments of fault by a judge and jury following a bifurcated trial; both have a reasonable basis in the record and therefore neither is manifestly erroneous. In Clement the manifestly erroneous apportionment of fault occurred in a bench trial. And while Cornish dealt with a bifurcated trial resulting in differing assessments of fault by the judge and jury, the appellate court determined that both the trial judge and the jury manifestly erred in assessing a low percentage of fault to the plaintiff. In contrast, in both Thornton II and the instant case, the differing assessments of fault by the judge and jury were found to have a reasonable basis in the record and therefore were not manifestly erroneous; however because such findings are inconsistent, we are directed by the jurisprudence to modify the allocations of fault to the more reasonable of the two findings.

      . See: Richard v. Teague, 92-17 (La.App. 3rd Cir.5/4/94), 636 So.2d 1160, 1168; Carr v. City of New Orleans, 626 So.2d 374, 376 (La. App. 4th Cir. 1993), writ denied, 634 So.2d 398 (La. 1994); Haydel v. Commercial Union Insurance Company, 617 So.2d 137, 139 (La.App. 5th Cir.), writ denied, 619 So.2d 551 (La.1993); McCullough v. Regional Transit Authority, 593 So.2d 731, 734 (La.App. 4th Cir.), writ denied, 595 So.2d 655 (La.1992); Felice v. Valleylab, Inc., 520 So.2d 920, 924 (La.App. 3rd Cir.1987), writs denied, 522 So.2d 562, 563 (La.1988); Thornton v. Moran, 348 So.2d 79, 81-82 (La.App. 1st Cir.), writs denied, 350 So.2d 897, 898, 900 (La.1977).


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Howard P. ELLIOTT, Jr. v. AMATO AND CREELY, a Professional Law Corporation, and Madro Bandaries.
    No. 2005 CA 0376.
    Court of Appeal of Louisiana, First Circuit.
    March 29, 2006.

      Paul H. Spaht, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, for Plaintiff-Ap-pellee Howard P. Elliott, Jr.
    Anna E. Dow, Baton Rouge, Madro Bandaries, Gretna, for Defendants-Appellants Amato & Creely, APLC, and Madro Bandaries.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

[?In this declaratory judgment action regarding disputed attorney fees, the defendants, Amato and Creely, A Professional Law Corporation (Amato), and Madro Bandaries (Bandaries), appeal a judgment overruling their declinatory exception raising the objection of improper venue. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Howard P. Elliott, Jr., a Baton Rouge attorney, filed suit in the Nineteenth Judicial District Court in East Baton Rouge Parish, seeking a declaratory judgment that in the event there is any recovery by the plaintiffs in certain pending lawsuits, then he is entitled to his agreed-upon share of the attorney fees from Amato and Bandaries. The petition alleges that the Amato firm is a professional law corporation with its registered office and law office in Jefferson Parish, and that Bandar-ies is a resident of Orleans Parish whose law office was formerly located in Baton Rouge, Louisiana (East Baton Rouge Parish), and is now located in Gretna, Louisiana (Jefferson Parish). Elliott claims that in two class action cases, the Ring case and the Saliah case, he served as co-counsel with Amato and Bandaries, representing the plaintiffs pursuant to contingency fee contracts. Elliott further claims that although he is willing to continue assisting in both cases, Amato and Bandaries have refused to permit him to participate further and have refused to acknowledge or confirm his attorney fee interest in the cases. Elliott also states in his petition that most of the legal services provided by him in connection with these cases were performed in East Baton Rouge Parish.

Amato and Bandaries filed an exception raising the objection of improper venue. |aAmato stated that its registered office is in Jefferson Parish. Bandaries stated that he does not practice law as an individual, but practices as Madro Bandaries, A Professional Law Corporation, which corporation is registered in Orleans Parish. Therefore, they contended venue was improper in East Baton Rouge Parish, as the only proper venues for this proceeding would be in Jefferson Parish and/or Orleans Parish. Elliott argued that two special venue provisions applied, because he had executed agreements among the attorneys and performed work in East Baton Rouge Parish pursuant to those agreements, and/or because the wrongful conduct had occurred and he had sustained and would sustain damages in East Baton Rouge Parish. After two hearings at which evidence was submitted, the court overruled the exception. This appeal followed.

APPLICABLE LAW

Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. LSA-C.C.P. art. 41; Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479 (La.6/30/00), 764 So.2d 41, 44. The objection to improper venue is raised by a declinatory exception. LSA-C.C.P. art. 925. A judgment overruling a declinatory exception raising the objection of improper venue is an appealable judgment, because it is an interlocutory judgment that may cause irreparable injury. Frederic v. Zo diac Dev., 02-1178 (La.App. 1st Cir.2/14/03), 839 So.2d 448, 451 n. 3; A & P Boat Rentals, Inc. v. American Lloyd’s, 592 So.2d 1361, 1362 (La.App. 1st Cir.1991). Venue is a question of law, which is reviewed de novo by the appellate court. Price v. Roy O. Martin Lumber Co., 04-0227 (La.App. 1st Cir.4/27/05), 915 So.2d 816, 824. However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review. See Peters v. Alpharetta Spa, L.L.C., 04-0979 (La.App. 1st Cir.5/6/05), 915 So.2d 908, 910.

^Plaintiffs may choose any venue available under the Code of Civil Procedure or any other supplementary venue provided by law that fits the particular circumstances of their claims. Cacamo, 764 So.2d at 44; Price, 915 So.2d at 824. Generally, an action against an individual who is domiciled in the state should be brought in the parish of his domicile or residence, and an action against a domestic corporation should be brought in the parish where its registered office is located. See LSA-C.C.P. art. 42(1) and (2). The general rules of venue set out in Article 42 are subject to certain exceptions. LSA-C.C.P. art. 43. These alternative statutory venue provisions are an extension, supplement, and legal part of the general venue provisions, rather than exceptions requiring strict construction. Jordan v. Central Louisiana Elec. Co., Inc., 95-1270 (La.6/23/95), 656 So.2d 988, 989; Operational Technologies Corp. v. Environmen tal Contractors, Inc., 95-0413 (La.App. 1st Cir.11/9/95), 665 So.2d 14, 15.

One of these additional venue provisions is'stated in Article 76.1, which allows an action on a contract to be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract. This supplementary venue provision reflects the policy decision of the legislature that it is fair to sue a corporate defendant who enters into contracts with an aggrieved plaintiff in a venue other than the defendant’s home base. Cacamo, 764 So.2d at 44. Such a contract may be verbal or written, State ex rel. Ieyoub v. Justiss Oil Co., Inc., 95-0345 (La.App. 1st Cir.11/9/95), 665 So.2d 68, 70, and may be executed in more than one parish. Michael F. Smith, CPA v. Alford, 04-0586 (La.App. 1st Cir.3/24/05), 906 So.2d 674, 675. For example, if one party signs a contract in one parish and the other party signs it in another parish, venue is proper in either parish where the document was executed. See Jordan, 656 So.2d at 989. For a verbal agreement, venue is proper where either party was located at the point in time at which a valid contract was created between the parties. See Ieyoub, 665 So.2d at 70. Another supplemental venue provision allows an action for the recovery of damages for an offense or quasi offense to be brought in the parish where the wrongful conduct occurred or in the parish where the damages were sustained.. LSA-C.C.P. art. 74.

| SA plaintiff invoking the provisions of Articles 74 and 76.1 must allege sufficient facts to prove that the chosen venue is proper. Sorrento Companies, Inc. v. Honeywell Intern., Inc., 04-1884 (La.App. 1st Cir.9/23/05), 916 So.2d 1156, 1162. For the purposes of determining a proper venue, the plaintiffs allegations are taken as true. See Cacamo, 764 So.2d at 45. If the grounds for an objection of improper venue do not appear on the face of the plaintiffs petition, the burden is on the defendant to offer evidence in support of his position. Jewell v. Dudley L. Moore Ins. Co., 95-2453 (La.App. 1st Cir.6/28/96), 676 So.2d 223, 225, writ denied, 96-2015 (La.11/8/96), 683 So.2d 273.

ANALYSIS

The petition in this case alleges the existence of a contractual arrangement among Elliott, Amato, and Bandaries to serve as co-counsel and share any attorney fees that might be generated in two lawsuits. It also sets out the terms of those agreements, and states that Elliott provided significant legal services to the plaintiffs and assisted in the prosecution of both cases. The petition also claims that Elliott performed most of those legal services in East Baton Rouge Parish, where his office is located and where one of the suits is filed. With these allegations, Elliott has stated facts that, if proven, would bring his claim within the provisions of Louisiana Code of Civil Procedure article 76.1 and allow the matter to proceed in East Baton Rouge Parish, his chosen venue. Therefore, the grounds for an objection of improper venue do not appear on the face of the petition, and the defendants had the burden of offering evidence in support of their position.

The defendants argue, howevér, that the grounds for the objection do appear on the face of the petition, because Elliott has correctly alleged that Amato is a domestic corporation registered in Jefferson Parish and Bandaries is domiciled in Orleans Parish and practices law out of an office in Jefferson Parish. Therefore, East Baton Rouge Parish is not a proper venue under the provisions of Article 42, and the grounds of the objection are stated. This argument ignores the fact that there are many other venue provisions authorizing specific types of claims to be brought in other venues. If the | fiallegations of the petition bring the claim within one of those alternative venue provisions, the grounds of the objection no longer appear on the face of the petition, and the defendant is required to offer evidence in support of its position.

The defendants in this case have simply failed to do so, while, in contrast, Elliott has provided voluminous evidence to support his contention that venue is proper in East Baton Rouge Parish under Article 76.1. Elliott testified that another Baton Rouge attorney referred the Ring case to him. After investigating the factual and legal issues involved in the case, which he did from his office in Baton Rouge, Elliott obtained Ring’s permission to associate other attorneys and to use him as the named plaintiff in a class action suit. A letter confirming this was signed by Ring on May 29, 2000, and sent to Elliott at his Baton Rouge address. Other correspondence among the attorneys and to the Louisiana agency involved in the lawsuit confirmed Elliott’s testimony that much of his work on the case was done from his office in Baton Rouge. Letters and memo-randa from Amato and Bandaries concerning the case were sent to Elliott at his Baton Rouge office address. Elliott testified that he attended status conferences and two hearings on motions for summary judgment, all of which occurred at the court in East Baton Rouge Parish. A letter from Bandaries on Amato’s letterhead was sent to the court on December 5, 2001, referring to Elliott as “our associate,” and indicating Elliott would present a judgment to the court for signature in the Ring case.

With reference to the Saliah case, Elliott testified that it was a “continuation of the Norris case.” His only direct role in Sali-ah was as a “consultant” before the suit was filed in Orleans Parish. That participation was mostly by telephone from his Baton Rouge office. However, Amato told Elliott that his continued assistance was unnecessary, and consequently, he did not perform much legal work on the case after it was filed. Robert G. Creely, a member of the Amato firm, testified that on the Norris case, there was an agreement to share fees among several attorneys, including Elliott. In connection with Creely’s testimony, the document evidencing that agreement (the Norris fee agreement) was introduced. The Norris fee agreement was dated March 28, 2000, and was signed by all the attorneys involved. Creely said he signed it at his |7office in Jefferson Parish. However, Elliott testified that he signed the Norris fee agreement in Baton Rouge. That document specifically listed two lawsuits in which Norris was a plaintiff, and stated further:

These 2 lawsuits (or at least one of them) shall be converted into a class action and Kenneth A. Goodwin and Amato & Creely shall be added as counsel of record.
B. There are potentially other financial institutions and third parties who may be joined as defendants for other class action lawsuits yet to be filed by the above-listed attorneys.

The exact percentages to be allocated to each of the attorneys, including Elliott, were detailed in the Norris fee agreement. In connection with Elliott’s testimony, the petition for the Norris suit in the Nineteenth Judicial District Court was submitted into evidence. Elliott was attorney of record on that lawsuit; he said Bandaries worked extensively on this case with him. Eventually this court provided a favorable judgment on appeal, and it was then that Elliott and Bandaries enlisted the assistance of the Amato firm to handle the Norris case and similar cases as class actions against Union Planters Bank. Elliott stated it was clearly understood that the team of attorneys who signed the Norris fee agreement would proceed with a different named plaintiff in the future and that there would be additional lawsuits covered by the fee agreement. He said Saliah was the first of those subsequent lawsuits, as evidenced by a later proposed fee agreement for the case that was circulated to all the involved attorneys, including Elliott, in a letter from Kenneth A. Goodwin on October 5, 2000. Elliott said Bandaries brought him the original of that document and he signed it at his office in Baton Rouge, but did not see the document after the other attorneys had executed it. The allegations of the Saliah petition tracked the allegations previously made in the Norris case. Later, Amato and Bandaries told him his services were not needed, and that he would have no involvement in the Saliah litigation.

The preceding is merely a representative sampling of the evidence submitted in this case. The only document submitted by Amato and Bandaries was the Norris fee ^agreement. They may be correct in asserting that this document does not prove the existence of a contract on the Saliah case; they argue that until and unless Elliott proves he had an enforceable contract with Amato and Bandaries, he has failed to satisfy the requirements of Article 76.1. But this argument reverses the burden of proof, and puts the cart before the horse. At this stage of the proceeding, Elliott does not have to definitively prove the existence or enforceability of a contract or contracts. Those are the substantive issues for trial on the merits. For purposes of a choice of venue, the plaintiffs allegations in the petition are taken as true, and unless the face of the petition reveals the grounds for the objection as to venue, the defendant must establish that the plaintiffs chosen venue is not proper. The evidence submitted here demonstrates the factual underpinnings for Elliott’s choice of East Baton Rouge Parish as the venue for his claims that he is entitled to share in the attorney fees that might be generated from the Ring and/or Saliah cases. We find no error in the judgment overruling the venue exception.

CONCLUSION

The judgment overruling the exception raising the objection of improper venue is affirmed. All costs of this appeal are assessed to Amato and Bandaries.

AFFIRMED.

      .This lawsuit is one of three filed in the Nineteenth Judicial District Court involving similar disputes among these parties concerning attorney fees. The other two suits are Howard P. Elliott, Jr. v. Madro Bandaries, Docket No. 514,190, and Carl Walther v. Department of Labor and Department of Civil Service, Docket No. 468,223. The three lawsuits were consolidated for handling in Division J. However, the venue exception involved in this appeal concerns only one of the lawsuits. A similar exception was filed by the defendant in Docket No. 514,190, and was overruled. A writ application to this court was denied. Elliott v. Bandaries, 04-0625 (La.App. 1st Cir.4/19/04) (unpublished writ action) ("On the showing made, we find no error.”) In the Walther case, a judgment was rendered in favor of Elliott and against Ban-daries on the attorney fee issue, and an appeal of that judgment is pending under this court's docket number 2005 CA 0739.

      . Gary L. Ring v. State of Louisiana, Department of Transportation and Development, No. 481,767, Division J, Nineteenth Judicial District Court, East Baton Rouge Parish, Louisiana.

      . Tang Maurice Saliah v. Union Planters Bank, No. 01-118, Division I, Civil District Court for the Parish of Orleans, Louisiana.

      . The petition alleged and evidence in the record confirms that Bandaries works as a “contract attorney” for the Amato firm at its offices.

      . An initial hearing on some discovery motions and the venue exception was held on March 15, 2004, with Elliott testifying briefly. The hearing on the exception was continued and eventually resumed on August 31, 2004.

      .Although the Peters case and the jurisprudence cited therein dealt with the declinatory exception raising the objection of lack of jurisdiction over the person, if a court makes factual findings in order to reach a conclusion concerning venue, those findings, like any other factual findings, should also be subject to the manifest error standard of review. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

      . By this time, other attorneys had also been enlisted to assist with the class action litigation against Union Planters Bank. Therefore, a new fee-sharing agreement was needed.

      . Because we find venue is proper under LSA-C.C.P. art. 76.1, we pretermit discussion of whether venue might also be proper under Article 74.


author: WELCH, J. WHIPPLE, J.,

text:
    STATE of Louisiana v. Maurice GUSTAVE.
    No. 2004 KA 2103.
    Court of Appeal of Louisiana, First Circuit.
    April 5, 2006.

      Anthony G. Falterman, District Attorney, Donald D. Candell, Asst. District Attorney, Gonzales, for State — Appellee.
    Frank Sloan, Mandeville, for Defendant — Appellant Maurice Gustave.

      Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

|2The defendant, Maurice Gustave, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. Following a jury trial, he was found guilty of the responsive offense of manslaughter, a violation of La. R.S. 14:31. He was sentenced to forty years at hard labor. He moved for reconsideration of sentence, but the motion was denied. He now appeals, designating one assignment of error. We reverse the conviction, vacate the sentence, and remand for a new trial.

FACTS

Because the sole assignment of error pertains to challenges for cause denied as to two jurors, the facts pertaining to the underlying crime are not relevant to the issues to this appeal. Briefly summarized, on August 5, 2000, a fatal shooting occurred at the Geismar Volunteer Fire Department. The defendant fled the scene of the shootings, but surrendered to the police the next day and admitted that he shot at the victim and several other unarmed people “coming towards him,” with whom he claimed to have altercations in the past.

CHALLENGES FOR CAUSE

In his sole assignment of error, the defendant contends the trial court erred in overruling defense challenges for cause against prospective jurors, Adrienne Lee and Berton E. Rusk, Sr. The defendant argues that Lee presumed he was guilty and was prepared to convict him before the trial had even begun, and that Rusk had a problem with the possibility that the defendant would exercise his Fifth Amendment right not to testify.

Louisiana Code of Criminal Procedure article 797, in pertinent part, provides:

The state or the defendant may challenge a juror for cause on 13the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(4) The juror will not accept the law as given to him by the court.

In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. Prejudice is presumed when a defendant’s challenge for cause is erroneously denied and the defendant exhausts all his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Taylor, 2003-1834 (La.5/25/04), 875 So.2d 58, 62.

A trial court is vested with broad discretion in ruling on challenges for cause and these rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Taylor, 875 So.2d at 62-63.

PROSPECTIVE JUROR LEE

Adrienne Lee was a member of the first panel of prospective jurors. She worked part-time for Emergency Medical Services as a paramedic.

The trial court instructed the first panel that the defendant was presumed innocent, and the State was obligated under the law to prove each and every element of the offense against the defendant beyond a reasonable doubt. The court asked the panel if there were five elements to prove, and the State only proved four, how many of the panel members would find the defendant guilty. The voir-dire transcript reflects the response of the panel as “(Jurors comply.).”

The court asked the panel if any of them felt that they could not be fair and impartial jurors in the case. The voir-dire transcript reflects there was “no response” from the panel. When the State asked the panel if they had any questions, Lee stated:

I don’t know if working in East -Baton Rouge Parish, because I don’t know all the history, but working as a paramedic, [the defendant] looks familiar to me and I don’t know from where. It could be in the emergency. It could be from EMS. I don’t know, but I’m sitting here racking my brain trying to see where I’ve seen his face and I can’t place it. But it’s just bothering me and I don’t know if it’s because of what I do.

The State asked Lee if she thought it would cause her any problem “worrying about that [Lee] might know [the defendant].” Lee responded:

I just can’t get it out of my mind as to where I saw — I don’t know. I’m just racking my brain trying to. think of where I know [the defendant] from but I don’t know.,

The defense counsel challenged Lee for cause. She argued that Lee had stated she would be tempted to find the defendant guilty if only four of five elements were proven; thus,-she could not be a fair juror. The defense counsel also argued that Lee had indicated she thought she knew the defendant because he probably did community service, and when the defense counsel saw someone [,.¡doing community service, it indicated to her that they had been convicted of something.

The State responded that Lee had never said she could not and would not follow the law. The State also argued that Lee had expressed her ability to follow the law as given to her, notwithstanding her past experience.

The trial court denied the challenge for cause against Lee, the defense objected to the ruling, exercised a peremptory challenge against Lee, and subsequently exhausted all of its peremptory challenges.

In the instant case, considering Lee’s responses to the voir diré examination as a whole, there was no abuse of the great discretion of the trial court in denying the challenge for cause against Lee.

PROSPECTIVE JUROR RUSK

Berton E. Rusk, Sr. wás a member of the second panel of prospective jurors. He worked for Specialty Coatings, but had worked at the State Penitentiary for ten years and had witnessed a guard and two inmates being killed. He conceded he had a high opinion of police officers, but denied he would favor their testimony over other witnesses. He indicated there were good and bad police officers. He denied any bias in favor of the State.

However, when questioned about his understanding of a defendant’s right to not testify, Rusk expressed serious reservations. The following colloquy took place between the court, the defense counsel, and Rusk:

[DEFENSE COUNSEL]:
You understand that if I decide for Maurice not to testify, if I said, okay, he’s not going to testify, that you won’t hear his side, would you have a problem with that?
MR. RUSK:
Yes.
[DEFENSE COUNSEL]:
| fiWould that tend for you to think that he’s hiding something?
MR. RUSK:
In a way, yes.
[DEFENSE COUNSEL]:
So that would create a little problem for you?
MR. RUSK:
Yes.

The trial court then attempted to rehabilitate Rush:

THE COURT:
Would you hold it against the defendant if he decides not to testify?
MR. RUSK:
No.
THE COURT:
You understand that he has the Constitution[al] Right of our United States Constitution not to testify?
MR. RUSK:
Right.
THE COURT:
So in this particular case the question is: If you were selected as a juror, if [defense counsel] decides that her client should not testify, would you hold that against her client?
MR. RUSK:
No.
THE COURT:
Would you go into that jury deliberation room—
MR. RUSK:
I’d always have it in my mind but if that would be me going for life in prison, I would want to say something to help myself.
THE COURT:
Did you hear the example I gave before about [defense counsel] may say that the [S]tate has four things to prove or five things to prove and they didn’t do it and she says, well, I understand Mr. Rusk is a smart man. He realizes that the [S]tate had five things to prove. They only proved three. Mr. Rusk realizes that my client doesn’t have to say anything. Do you understand that?
That may be the reason he may not testify because the [S]tate didn’t do what they were supposed to do. Would that have anything to 17do with him as— why would he have to say anything; are you saying you would want him to say something?
MR. Rusk:
Well—
THE COURT:
I’ll give you another example. Let’s say—
MR. RUSK:
Well, if the [S]tate does something else and he knew it was wrong and if he is not going to testify, he’d have said something that they would have caught and then got him. He would have went free.
THE COURT:
I don’t really follow that logic. Explain yourself again. Maybe I didn’t understand.
MR. RUSK:
If he doesn’t want to go up and testify, okay. Let’s say, I’m not going to say anything. I’ve got it wrapped up. He don’t have to say no and if he did do what they said, that they call and go back and say, okay, we called this, we can use this now, that would hurt him. THE COURT:
And that goes to the point of someone may just not be able to articulate themselves like you can if they get on there. They might say something that’s out of the way because they can’t speak very well. That may be the reason why she might decide to tell her client not to take the stand because he can’t speak well. I’m not saying that that’s the case, but that might be a reason. There’s a number of reasons other than someone trying to hide something. Do you understand that?
MR. RUSK:
Yes.
THE COURT:
So the question is: If you were selected as a juror and [defense counsel] decided not to call her client to the witness stand to testify, would you go into that jury deliberation room and say, well, you know he should have said something, he’s hiding something, or he should have said something to help himself?
MR. RUSK:
Like you said, if all three things was covered and not be necessary, I wouldn’t hold that against him.
[DEFENSE COUNSEL]:
But if all three things weren’t covered, you would hold it against \Khim?
MR. RUSK:
Well, if it wouldn’t be covered, then he’d have to get up there.
[DEFENSE COUNSEL]:
To explain, you feel you want to hear from him?
MR. RUSK:
No.
[DEFENSE COUNSEL]:
And I guess I’m going back to this. It sounds to me when you said, well, if he got up, if they missed something and he got up and he told on him, he would have got free if he hadn’t testified. So, in essence, he was hiding something so that he wouldn’t get convicted; is that correct? So that he’s not testifying because it might convict him; right? That’s how you feel; right?
MR. RUSK:
Yes.

(Emphasis added).

In challenging Rusk for cause, the defense counsel argued Rusk had indicated: that the defendant was hiding something; and that if the defendant did not take the stand, it was because he did it, he wanted to go free, and he did not want the district attorney to catch him.

The trial court denied the challenge against Rusk, and the defense objected to the ruling and exercised a peremptory challenge against Rusk. The challenge for cause against Rusk should have been granted. Rusk’s responses to the voir dire examination as a whole, indicated he could not accept the law, specifically the defendant’s privilege against self-incrimination. Despite the court’s direct attempts to rehabilitate Rusk, Rusk continued to maintain his belief that if the State proved all the elements of the offense, an innocent defendant would have to take the stand, a direct implication that he would deem a defendant’s choice not to testify as evidence of guilt. Further, the defense exhausted all of its peremptory challenges. Accordingly, prejudice is presumed from the erroneous denial of this | gchallenge for cause, and the defendant’s conviction must be reversed, sentence must be vacated, and this matter must be remanded for a new trial. See State v. Lindsey, 2005-0465 (La.App. 1st Cir.12/29/05), 928 So.2d 541, writ application pending.

For the foregoing reasons, the defendant’s conviction is reversed, sentence vacated, and the matter is remanded for a new trial.

CONVICTION REVERSED; SENTENCE VACATED; REMANDED FOR NEW TRIAL.

WHIPPLE, J., dissents and assigns reasons.

McCLENDON, J., concurs without reasons.

WHIPPLE, J.,

dissenting.

LAs the majority correctly notes, a trial court’s erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant’s rights. See State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280-1281. However, a trial judge has broad discretion in ruling on challenges for cause. Moreover, a refusal by a trial judge to excuse a prospective juror on the ground that he is not impartial is not an abuse of discretion where, as here, after further inquiry and instruction, he had demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. See Copeland v. Louisiana, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989).

In response to defense counsel’s challenge for cause of prospective juror Rusk, the State disagreed with defense counsel’s characterization of Rusk’s responses and asserted that Rusk was merely not as articulate as some of the other prospective jurors. The State further noted that Rusk had indicated that he understood that no one should take the stand if the State had not met its burden.

In my view, the juror’s responses, considered in their entirety, demonstrated the juror’s willingness to follow the law and to be fair and impartial. Accordingly, I respectfully dissent from the majority’s decision to reverse the conviction and remand for a new trial.

      . The rule is now different at the federal level. See U.S. v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).