author: DREW, J.

text:
    Stacy Michelle HEFLIN, Plaintiff-Appellant, v. AMERICAN HOME WILDWOOD ESTATES, L.P., and Republic Vanguard Insurance Company, Defendant-Appellee.
    No. 41,073-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 12, 2006.

      Kitchens, Benton, Kitchens & Black by Clinton C. Black, Minden, for Appellant, Stacy Michelle Heflin.
    Robert Ashley Jahnke, Shreveport, for Appellees, Republic Vanguard Insurance Company, Percy Lee Melton, and Martha Wilma Riggs Melton.
    Before BROWN, CARAWAY and DREW, JJ.
   DREW, J.

11 Stacy Heflin appealed a judgment rejecting her claim for the damages incurred when she tripped and fell over a speed bump at the mobile home park where she resided. For the following reasons, we affirm the trial court’s judgment.

FACTS

Heflin and her family were tenants of the Wildwood Estates Mobile Home Park in Caddo Parish, Louisiana. On December 8, 1999, Heflin escorted her son to his school bus that stopped inside the mobile home park. As she returned from the school bus stop to her home, while carrying her three-year-old daughter, she tripped and fell over a speed bump in the street. She subsequently filed suit against Percy Lee Melton and Martha Wilma Riggs Melton, the owners of the mobile home park, and against Republic Vanguard Insurance Company, the Meltons’ insurer.

Heflin based her claims on both negligence and strict liability, asserting that the defendants knew or should have known that the speed bump was a hazard to pedestrians; that the defendants had ample time and opportunity to paint, mark, or fix the speed bump; and that the defendants failed to provide adequate street lighting.

The parties agreed to bifurcate the case so that the liability issue would be tried first. Heflin testified that:

• The speed bump at issue was located between her trailer and the trailer next door, and that the school bus regularly stopped in front of the trailer next door.
• On the morning of the accident, the school bus came to a stop after all of its tires had passed over the speed bump, although the rear portion of the bus beyond the back wheels was still over the speed bump.
Is*She had accompanied her son to the ■ school bus in order to talk to the bus driver about an altercation between her son and another student the previous afternoon.
• After speaking with the driver, she walked along the side of the bus toward the rear on her way back to her trailer and tripped over the speed bump and fell. She was carrying her three-year-old daughter when she fell.
• Her family had been living in the mobile home park for a couple of months before the accident, and that she was aware of the speed bumps.
• The speed bump had been there ever since she had lived in the mobile home park. The speed bumps in the mobile home park were there to slow cars down. She approved of the presence of the speed bumps.
• The speed bump was darker in color than the roadway itself but was not level or regular in its shape.

Although Heflin initially testified that she did not cross the speed bump on her way to speak to the bus driver, her testimony was contradicted by her prior deposition testimony. She then admitted that she probably crossed over the speed bump on her way to the school bus, a walk of approximately 25 or 30 steps. When asked on redirect examination why she fell on the speed bump even though she knew it was there, she stated:

Like I said when I walked back going back to the house I just tripped over that speed bump. I didn’t see it even though I knew it was there. I could not see it because there was no lighting. The back of the bus, you know you’ve got the tires in the back end of the bus was over the speed bump and I did not see it. That’s just the truth. It was darker than the road and it was dark and I couldn’t see it.

Earlier in her testimony, Heflin had indicated that it was still dark outside at the time of the incident, that the street light adjacent to the speed bump was not working that morning, and that when the light was not working, one could not see the speed bump. According to Heflin, there was no paint of | sany kind applied to the speed bump, nor were there any reflectors of any kind on the speed bump to make it more visible.

Photographs of the speed bump were introduced into evidence through Heflin’s testimony. The photographs showed that the speed bump was not pre-formed, but appeared to be made of asphalt that had been placed upon the roadway and formed into a rounded shape extending across the roadway. Logs were present on the sides of the road, just off the roadway near each speed bump. The logs apparently were to prevent drivers from avoiding the speed bumps by going around the edge onto the grassy areas adjacent to the roadway. On one side of the roadway, near the ends of the logs farthest from the roadway, there were street lights. The photographs showed that during daylight hours, the speed bumps were clearly visible.

The two early-morning photos showing the school bus stopped in the dark at the bus stop were taken from a distance and very dark. Those photos were of no value in determining how the speed bump at issue would appear to a person walking alongside the bus if the adjacent street light was not working. Nevertheless, Hef-lin did indicate that she was aware of the logs in the grass next to the speed bump. In addition, she knew that she would have to walk across the logs if she walked in the yard next to the street and that she would have to step across the speed bump if she walked in the street.

Heflin’s husband, Ommie Heflin, testified:

• The speed bump was wider and taller on one side and had “jagged edges on the round parts.”
14* The speed bump was asphalt in nature and looked like “it was handmade instead of having a professional do it. There was a lot of unevenness to it.”
• There was neither paint nor reflectors on the speed bump. When it was dark outside, one could not really see it unless there were headlights shining on it.
• A couple of days before the accident, “a little kid down the street shot the light out” and he had told the Meltons that the light needed to be replaced.
• The speed bumps were good for the people living in the mobile home park, and he did not want to see any children get run over by a speeding vehicle.

Percy Melton estimated that the speed bumps had probably been in place seven months prior to the incident, and he admitted that the Heflins were not allowed to fix either the road or the street light. However, he disputed that he was notified prior to the accident that the street light in question was not working, and he denied any familiarity with the speed bump being uneven in height across its top. When asked why he did not paint the speed bump with some type of warning color, he responded, “No reason.” He also stated that based upon his observations of the speed bump at night, the speed bump did not blend in with the road. He stated that the bump was “blacker” than the roadway and could be seen, thus alerting tenants of the bump’s presence. Nevertheless, he agreed that if the speed bump had been painted or striped, or had a reflector, it would have been easier to see. The parties stipulated that Martha Melton’s testimony would be substantially the same as her husband’s. The court then took the ease under advisement.

|fiThe trial court issued a written opinion finding that the speed bumps were not defective, did not constitute an unreasonably dangerous condition or obstacle, and were “obvious to and known by plaintiff.” Accordingly, the court rejected Heflin’s demands and signed a written judgment in favor of the defendants.

DISCUSSION

The issues herein are governed primarily by the provisions of former Article 2695 of the Louisiana Civil Code, which provided at the time of this accident:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

Under these provisions, a lessor guaranteed his lessee against all vices and defects of the thing leased; this strict liability was not repealed by implication through tort reform legislation that enacted Civil Code Article 2317.1 concerning an owner or custodian’s liability for damages occasioned by the ruin, vice, or defect in things. Barnes v. Riverwood Apartments Partnership, 38,331 (La. App.2d Cir.4/7/04), 870 So.2d 490, writ denied, 2004-1145 (La.6/25/04), 876 So.2d 845.

In order for Heflin to recover, she had to prove by a preponderance of the evidence that the defect existed in the premises and that the defect caused her damages. Under former Article 2695, Heflin had to prove that a defect under defendant’s control posed an unreasonable risk of harm. However, she did not need to prove that the owner knew or should have known of the defect which caused the damage. If the case were governed solely by provisions of Article 2317.1, then Heflin would have been required to prove that the owner knew or should have known of the defect which caused her damages, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care.

The applicability of former Article 2695 did not prevent Heflin from also attempting to recover via negligence under Article 2317.1, which effectively turns strict liability claims into negligence claims. See Johnson v. City of Monroe, 38,388 (La. App.2d Cir.4/7/04), 870 So.2d 1105, writ denied, 2004-1130 (La.6/25/04), 876 So.2d 843.

However, under either burden of proof, a defect is defined essentially the same way. For purposes of former Article 2695, a defect has been defined as “a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances.” Barnes, supra. Under Article 2317.1, a defect is a condition creating an “unreasonable risk of harm,” which requires the trier of fact to decide 17whether the social value and utility of a hazard outweighs, and thus justifies, its potential harm to others. Johnson, supra.

Because it is difficult to imagine situations in which the social value and utility of a hazard on leased premises would justify the existence of a hazard that reasonably would be expected to injure a prudent person using ordinary care, most, if not all defects under former Article 2695 also would be defects under Article 2317.1. Furthermore, under either analysis, the trial court’s factual findings concerning the presence of a defect should be afforded deference, and such factual findings should only be disturbed if clearly wrong or manifestly erroneous. See Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880.

In Reed v. Wal-Mart Stores, Inc., 1997-1174 (La.3/4/98), 708 So.2d 362, the supreme court noted that the surfaces of streets, sidewalks, and parking lots are commonly irregular. Moreover, it is not the duty of the party having garde to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curbs.

In the instant case, we detect no manifest error in the trial court’s decision that the speed bumps at the mobile home park did not constitute an unreasonably dangerous condition. The jurisprudence contains cases finding speed bumps were not unreasonably dangerous. In Moncla v. Albertson’s, Inc., 95-1139 (La.App. 3d Cir.1/31/96), 670 So.2d 316, writ denied, 96-0555 (La.4/19/96), 671 So.2d 921, the plaintiff tripped over a speed bump in front of a grocery store despite the fact that she had been to the store on many prior occasions and knew the speed bumps were present. |RThere was no indication of any prior accidents involving the speed bumps, and there was no expert testimony presented by either side. When asked what might have been done to prevent her accident, the plaintiff stated that the speed bump in question “could have been a little lower or more brightly marked.” The appellate court found that the speed bumps served a useful purpose and that the plaintiff produced insufficient evidence to show that the speed bump was unreasonably dangerous; she simply proved that “it was there and she fell.”

Likewise, in Doane v. Wal-Mart Discount Stores, Inc., 96-2716 (La.App. 4th Cir.6/25/97), 697 So.2d 309, writ denied, 97-1852 (La.10/17/97), 701 So.2d 1328, the appellate court concluded that a speed bump did not present an unreasonable risk of harm to a customer who tripped over it while walking in the store’s parking lot. The plaintiff admitted she was not looking where she was going, and the trial court had found that although the paint on the speed bumps was fading, they were obvious to a reasonable person. The trial court found that the speed bumps were necessary, despite presenting a hazard to pedestrians. However, the trial court found the defendant was at fault for painting the speed bumps the same color as the stripes in the crosswalk, thus causing the paint on the speed bumps to lose its effectiveness as a warning device. The appellate court reversed, finding that no matter what color the speed bump was painted, the plaintiff would not have seen it; thus, its color could not constitute an unreasonable risk of harm. Furthermore, there was neither expert testimony nor lay testimony for that matter, that painting the speed bumps the same color as the stripe |flcreated an unreasonable risk of harm, and the plaintiff offered no design standards or studies to prove her theory that use of the same color was unreasonably dangerous. All she proved was that the speed bump was there and that she tripped on it because she was not looking where she was going.

Because speed bumps have social utility, even though they create a hazard to inattentive pedestrians, Heflin had to show more than mere hazard in order to establish that the speed bump was defective. She had to show either that the speed bump could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances, or that it was unreasonably dangerous. Hef-lin introduced no expert testimony. The photographs indicated there was nothing unusual about these speed bumps, even if they were not perfectly uniform in height and width. The speed bumps were a darker color than the pavement and contrasted sufficiently in daylight hours to be quite obvious. Additionally, we note that Heflin admitted that she was aware of the presence of the speed bumps, and she recognized their social utility.

For the foregoing reasons, the trial court was correct in concluding that the plaintiff failed to carry her burden of proof of showing any defect in the design, construction, or maintenance of the speed bump. Mere irregularity in height or thickness does not constitute a defect where the plaintiff fails to show that any such irregularity caused or increased the risk of an accident.

Both Heflin and her husband indicated that the street light near the speed bump was not working at the time of the incident; Heflin further |10testified that one could not see the speed bump when the light was not working. Similarly, Mr. Heflin testified that when it was dark outside, one could not really see the speed bump unless there were headlights shining on it. On the other hand, Mr. Melton testified that one could see the speed bumps at night. His testimony was that he inspected the property daily and had looked at the speed bumps when it was dark. He denied the speed bump blending in with the roadway because of its color, and noted that the speed bump was “blacker than the roadway was.” He felt that the darker color would have alerted tenants to the speed bump’s presence. His testimony also directly contradicted that of Mr. Heflin concerning his knowledge of the street light being out at the time of the incident. Although knowledge of the light not working would not be a defense to strict liability under former Article 2695, the contradiction in testimony could form the basis for a credibility determination by the trial court that would bear on the general credibility of the witnesses involved.

The trial court’s factual determinations in this case are governed by a manifest error standard, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of facts should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings. Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s ^understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989).

There can be little doubt that the presence of more light, the painting of the speed bumps with brightly colored paint, and the addition of reflectors to the speed bumps would have made them easier to see. However, it is not the presence of the hazard, per se, that gives rise to liability, but the presence of either an unreasonably dangerous condition, or a dangerous condition reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. In light of the conflicting testimony of the witnesses concerning the visibility of the speed bump in darkness, we cannot say that the trial court was manifestly erroneous in ruling against Heflin. Nor do we conclude that because the trial court did not specifically mention the lighting in its opinion that the trial court failed to consider evidence concerning the lighting in reaching its ruling.

DECREE

For the reasons set forth above, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . La. C.C. art. 2317.1, effective April 16, 1996, states: "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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.”

      . Cf. Ashworth v. Wal-Mart Stores, Inc., 2003-802 (La.App. 3d Cir. 12/10/03), 861 So.2d 753.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Brett EDWARDS and Candy Edwards, Plaintiffs-Appellees, v. LCR-M CORPORATION, INC.; Lee Carr; and Travelers Indemnity Company of Illinois, Defendants-Appellants.
    No. 41,125-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 12, 2006.

      Nelson, Zentner, Sartor & Snellings, L.L.C., by Thomas G. Zentner, Jr., Monroe, for Appellants.
    Pendley Law Firm, by Patrick W. Pend-ley, Stan P. Baudin, Plaquemine, Benjamin F. Marshall, Monroe, for Appellees.
    Before GASKINS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|-i The plaintiff was hit in the head with a PVC pipe being loaded onto a truck by a temporary employee of a plumbing wholesaler. Claiming that he experienced pain, headaches, dizziness, insomnia and equilibrium imbalance from a concussion, as well as long-term low back and neck pain from this blow, plaintiff and his wife, individually, and on behalf of their minor son, instituted suit against the employee, his employers and their liability insurers, seeking damages for bodily injury, pain and suffering, past and future medical bills, lost wages, emotional distress, permanent disability and loss of consortium. The court determined that plaintiff failed to prove that his complaints of chronic back and neck pain were caused by the accident. The judge awarded damages to plaintiff for the concussion injury for a term following the accident and reduced the award by plaintiffs 40% comparative fault. The defendants appeal the judgment, seeking reversal of the damage award. The plaintiff also appeals, seeking an increase in the damage award. For the reasons that follow, we affirm the judgment.

Facts

The plaintiff, Brett Edwards, was a subcontractor for his brother Mark’s plumbing business, Edwards’ Heating, Plumbing & Air in West Monroe, Louisiana. On September 30, 1998, the brothers traveled in Mark’s business truck to LCR-M, Corporation, Inc. (“LCR-M”), a plumbing wholesaler, to pick up an order of PVC pipe for a job. The truck was equipped with a rack for carrying pipe. The rack extended around the bedRof the truck to a height slightly above the top of the cab. Pipe loaded on the rack could therefore extend over the truck’s cab.

At LCR-M, Mark entered the warehouse and waited at the counter as Brett drove the truck into the pipe yard to have the 500 feet (25 pieces) of twenty-foot, schedule 40 PVC pipe loaded onto the truck. Each pipe was 1-1/2 inches in diameter and weighed approximately ten pounds. Brett parked the truck approximately eight feet away from the pipe storage racks and four feet past the particular pipe rack on which the 1-1/2-inch pipe was loaded. The pipe was stacked perpendicular to the truck and had to be pulled out from the rack and turned and placed on the truck. The pipe was located on the driver’s side of the truck. Loading the truck was a temporary employee of LCR-M, Lee Carr, who was provided to LCR-M by Willstaff, Inc. (“Willstaff’), a temporary staffing company. Carr, Brett and Mark testified at trial regarding the events leading up to and following the accident.

Carr began working for LCR-M in the last half of August 1998, while waiting to transfer to a new college. Because of Carr’s temporary status, he was assigned pipe yard work loading and unloading trucks. Carr was not trained on loading and unloading pipe but was instructed on tying pipe to truck racks to prevent sliding. Customers commonly brought their trucks into the pipe yard for loading. Carr was not prohibited from loading pipe on a truck while a customer either remained in or stood near the vehicle that |swas to be loaded. No one was required to wear a hard hat during the loading process.

Carr’s method and sequence of loading the pipe was disputed. Carr testified that he had loaded eight to ten pieces of pipe when Brett suddenly exited the truck. At that moment, Carr stated that he “was probably picking a piece [of pipe] up” and moving it toward the truck’s rack when the accident occurred. Carr claimed that the end of the pipe which hit Brett had first swung onto the rack and bounced or flexed back to hit Brett on the top of the head. Carr testified that Brett flinched, but did not fall to the ground. Brett contends that the first piece of pipe loaded by Carr onto the truck struck him in the head with full force and caused him to fall face down on the ground. He testified that after he exited the truck, he saw Carr “holding ... up” a piece of pipe. The next thing he knew, the pipe “[was] coming right at me.”

After the incident, Brett went to Mark’s location inside the warehouse to tell him what had happened. Mark left the office and approached Carr just about the time he finished loading the 25 pieces of pipe onto the truck. Mark claimed he saw Carr hoisting a pipe up on its end, twenty feet high, and let it fall into the truck rack. The brothers surmised that Carr loaded the pipe that way the whole time and that the pipe that hit Brett missed the truck entirely. This allowed the full force of the pipe to cause the injury. As Mark confronted Carr about his loading technique, he said his head was grazed by a piece of pipe bouncing from the top of the truck. Carr did not contest this and recalled Mark cautioning him.

|4Carr’s loading technique also allegedly dented the top of Mark’s truck cab. Primarily because of this property damage claim, Carr reported the accident to Edward Lepp, the general manager of LCR-M, on the same evening. The next day, Mark returned to LCR-M in his truck and Lepp photographed the vehicle. Mark and Carr both said Lepp showed Carr the proper loading technique.

After the accident, Mark took Brett to Glenwood Regional Medical Center emergency room where he was diagnosed with a concussion and scalp contusion. Brett complained of feeling dazed and having a headache and pain to the top of his head. The emergency room record also noted tenderness at the scalp and cervical spine. Brett was diagnosed with post-concussion syndrome (PCS) in November of 1998. The headaches and dizziness associated with PCS improved by 60% by March of 1999 and were almost completely subsided in July of 1999. After the accident, Brett also complained of neck and shoulder pain which persisted up until the time of trial. Fifteen months after the accident, Brett began to experience lower back pain, which was also unresolved at trial. Brett returned home to Baton Rouge shortly after the accident. Thereafter, he tried to go back to work with his brother twice but failed. He eventually returned to self-employment as a cement finisher in September of 1999. He professes the ability to work, but only while in pain.

On March 1, 1999, Brett and his wife, Candy, individually and on behalf of their minor son, Andrew, sued Carr, LCR-M and its general Lability insurer, Travelers Indemnity Company of Illinois, and Wills-taff and | ¡Jts general liability insurer, Frontier Insurance Company, seeking damages for the injuries Brett received as the result of the blow to his head including long-term neck and lower back pain. The matter proceeded to bench trial in 2005.

Upon a recess by the court at the trial, the parties demonstrated the conflicting loading methods for the trial court in the court parking lot. The record reflects that an identical piece of 20-foot pipe and Mark’s truck were used in the demonstrations. In the trial court’s written reasons for judgment, it noted that “significantly different degrees of force and manner of loading comprised the two demonstrations.”

In rendering judgment in favor of plaintiffs, the court accepted Carr’s testimony about how the pipe struck Brett. The court determined that the injuries caused by the blow to his head were of a short duration and denied recovery for his long-term cervical and lumbar problems. The damage award of $61,804.52 was reduced by Brett’s 40% comparative fault for a sum of $37,082.72. Specifically, the court awarded Brett general damages of $22,500, loss of consortium damages to Candy in the amount of $6,750 and $4,500 to Andrew, lost wages from October 1998 through July 1999 of $16,996.24, and medical expenses of $11,088.28. These appeals by both parties ensued.

Discussion

I.

On appeal, both parties claim freedom from fault in the accident and thus allege error in the trial court’s liability and comparative fault | ^determinations. Additionally, Brett argues that the trial court erred in accepting the testimony of Carr as to the facts of the incident.

Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. It is a well-settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

The reviewing court must always keep in mind that, if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that, if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable. Stobart, supra; Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305.

The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under La. C.C. art. 2315. This approach provides an analytical framework for evaluation of liability. One analysis requires proof by the plaintiff of five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendants’ substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs’ injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id.

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Lemann, supra; Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Lemann, supra; Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609 (La.5/18/99), 733 So.2d 1198, 1204. In deciding whether to impose a duty | sin a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Lemann, supra; Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991), The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Lemann, supra.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757; Bradshaw v. Brookshire Grocery Co., 38,960 (La.App.2d Cir.10/27/04), 886 So.2d 623. Proof must be by a preponderance of the evidence. Maranto, supra. The test for determining the causal relationship is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id. Before recovery can be granted for aggravation of a preexisting condition, a causative link between the accident and the victim’s current status must also be established. Lamb v. Berry, 35,347 (La.App.2d Cir.12/28/01), 803 So.2d 1084.

Before considering the trial court’s assessment of the parties’ fault, we will review the trial court’s determination of the facts of the accident for manifest error. There were clearly two significantly opposing views of Carr’s conduct loading the truck and the extent of the blow to the top of Brett’s head. All issues raised in this appeal rest upon the trial court’s |9choice of Carr’s version of the event which Brett now claims to be unreasonable and contrary to the evidence.

First, however, in contrast to both opposing views, the plaintiffs evidence also presented a photograph (Ex. P-10) of what appears to be a safer and more appropriate manner for loading the pipe. The photo depicts a man holding a 20-foot length of FVC pipe in a balanced position near the middle of the pipe. The man is seen approaching the back of the truck while resting the front end of the pipe on the truck’s pipe rack above the tailgate. The man, as the testimony indicated, could then slide the pipe forward using the above described resting point to steady the pipe as it contacts the front portion of the rack near the cab. This method would apparently diminish or prevent the possibility of the pipe banging down on the top of the truck cab and bouncing or flexing out of control. All agree that this method of handling the pipe during the loading process was not utilized by Carr.

The trial court’s written ruling rejected the view that Carr was raising each pipe vertically as he withdrew the pipe from the storage rack. This assertion was based upon Carr’s loading technique, which Mark claimed he witnessed after the accident. It was circumstantial and specifically denied by Carr. Elevating the pipe in this way, by holding it at one end, would have presented problems for controlling the motion of the other end of the flexible pipe. Obviously, it would have created greater force at the uncontrolled end as the pipe fell toward the rack on the truck or directly to the top of Brett’s head.

|inThe exact manner of loading asserted by Carr is not as clear from the record. However, the specific facts provided reveal the following:

(i) Carr held the pipe three to four feet from one end.
(ii) Carr did not pull the pipe from the storage rack and raise it vertically so that the end of the pipe which hit Brett did not fall 20 feet before impact with his head.
(iii) Carr did not move his hold on the pipe to its center to better control the pipe and load the pipe from the rear of the truck as shown by the example illustrated in the photo CP-10).
(iv) Carr was not standing behind the tailgate of the truck but was in a position on the driver’s side of the vehicle to see Brett in full view as the pipe struck him.
(v) From the motion Carr gave to the pipe, the end which hit Brett first landed on the front pipe rack near the cab and then bounced or flexed two to three feet high back toward Brett’s head which was approximately near the same height as the top of the cab.
(vi) Carr was immediately able to regain some control of the pipe after its contact with Brett’s head and move it directly back onto the truck.

From these facts and the facts pertaining to the location of the truck in relation to the pipe storage rack, Carr’s manner of loading must have involved his pulling of the pipe from the storage rack and swinging it toward the truck while holding it at a position close to one end. The necessary height of the end of the pipe would have only been enough to clear the top of the truck’s pipe rack before touching down and bouncing back to hit Brett. In any event, the critical fact from Carr’s description, as accepted by the trial court, is that the pipe first bounced on the pipe rack. This would have diminished the severity of the blow to Brett’s head. This fact is not contradicted or made improbable by the configuration of the truck l^and the pipe storage rack or the logistics of loading, so the trial court could accept Carr’s description of the event. Additionally, Carr was the only attentive eyewitness, as he actually directed the motion of the end of the pipe which hit Brett. Finally, the trial court witnessed a demonstration by Carr maneuvering the pipe, and while we cannot review that demonstrative evidence from the record, Brett made no objection to the manner in which Carr performed it.

The specific finding of fact, which we therefore accept as being free from manifest error, was stated in the trial court’s ruling as follows:

Concerning the force with which the length of PVC pipe made contact with Brett Edwards’ head, the preponderance of the evidence establishes that the force of the contact was more likely as described by Mr. Carr rather than as demonstrated by the plaintiffs brother, Mark Edwards, during the course of the trial. The preponderance of the evidence also establishes, however, that the contact between the PVC pipe and Brett Edwards’ head, however minimal, resulted in injuries.

As indicated above, the trial court’s acceptance of Carr’s account of the accident is crucial. First, the blow to Brett’s head was minimal, and the trial court continuously repeated that finding in dealing with the extent of Brett’s injuries. Perhaps even more significant is the trial court’s rejection of Brett’s claim that he was driven to the ground, which suggests a serious credibility problem for Brett’s further reporting of subjective back and neck pain.

Next, concerning LCR-M’s claim to be free from fault, the legal duty of LCR-M was to provide adequate and reasonable safety to its employees and customers in the loading of materials sold from its warehouse. Carr received no training in proper loading techniques as a temporary employee, ¡12and he was not cautioned about customer actions and the need for warning the customer about the loading process. Carr conceded that he did not load the truck in the safest manner and did not deny that after the first accident, he also hit Mark with a pipe. Under the circumstances, we find no error in the trial court’s holding that LCR-M, through its employee’s conduct, breached its duty of care owed to the customer which it allowed into the loading area of its warehouse.

Despite the fact that Brett was not directly warned by Carr or other LCR-M employees about the loading process or prevented from driving the truck into the loading area, the trial court determined that Brett received ample warning of Carr’s roughhouse manner of handling the pipes by the way he banged the other pipes upon the truck rack and cab. The trial court’s ruling clearly credited Carr’s account that many pieces of pipe had already been loaded. Therefore, whether Brett then suddenly emerged from the cab or had been standing beside the cab for a longer period of time before being struck, he had a duty to take notice of Carr’s mishandling of the pieces of pipe. His breach of that duty implicates our comparative fault principles.

Discussing our state’s leading case on comparative fault, the court in Gibson v. State, DOTD, 95-1418 (La.App. 1st Cir.4/4/96), 674 So.2d 996, 1004, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373,374 stated:

Prior to the adoption of comparative fault in Louisiana, the doctrine of last clear chance was created to escape the harsh effects of the contributory negligence defense which, in its strict application, operated as an absolute bar to a plaintiffs recovery. See Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400, 403 (La.1978). In a comparative fault analysis, h ¡¡whether the plaintiff had the last clear chance to avoid an accident is a determination for the trier of fact. In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La. 1985), the court explained the appropriate considerations for a comparative fault analysis, as follows:
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Watson, 469 So.2d at 974. Thus, the principles considered in the application of the last clear chance doctrine are subsumed by the comparative fault analysis. The application of the last clear chance doctrine is not, therefore, a separate consideration for the trier of fact.

From this understanding of the law and in particular, the last clear chance concept, we find the trial court’s assessment of fault for Brett’s actions supported by the facts. While the events occurring outside the truck cab before Brett’s exit involved movement of relatively light and flexible pipe, there was some danger present which Brett should have avoided. The finding that he was inattentive after hearing the noise from loading eight to ten pipes onto the truck means that Brett’s exercise of reasonable care could have prevented the accident. Conversely, his inattentive behavior contributed to causing this accident, and we will not reverse the trial court’s finding of fault.

The 40% allocation of fault to Brett, however, presents a closer question. Nevertheless, the “allocation of shares of negligence ... is not an |ueasy task for the factfinder.” Watson v. State Farm Fire and Cas. Ins. Co., supra at 971. As further reviewed by our supreme court in Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, while the manifest error rule applies to fault allocation, the factfinder has discretion for the setting of the percentage of fault, since that judgment is similar to the determination of the quantum for general damage awards. Once fault on the part of multiple parties is found, the percentage actually chosen by a factfinder to be assigned to each party at fault is insusceptible of precise measure. Thus, in keeping with the deference owed the factfinder for general damage awards, Clement held that “[a]fter the court of appeal finds a ‘clearly wrong’ apportionment of fault, 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.” Id. at 611.

For the standard of appellate review, this combination of the manifest error test with additional respect for the trial court’s discretion for the setting of the actual percentage of fault is now applicable. Also, under that standard, because of the factfinder’s considerations of witness credibility and inferences of fact, this court may not substitute its own evaluations and inferences when the factfinder’s choices are reasonable and permissible.

In this case, considering the nature of the conduct of the parties, the trial court could view Brett’s action in suddenly emerging from the truck as a key factor which amounted to a direct and significant cause of the accident. Nevertheless, the trial court correctly viewed Carr, who was clearly more observant of the loading process, to be the party responsible 11sfor the majority of the fault. A downward adjustment of Brett’s percentage of fault by this court is not clearly warranted and would invade the discretion of the factfinder in setting the percentages of fault. The trial court’s determination of fault for both parties and its allocation of the percentage of fault are affirmed.

II.

The trial court awarded $22,500 to Brett for his head injury which resulted in PCS. From its award of ten months of lost wages, the trial court’s judgment indicates that the symptoms of PCS were resolved approximately during that time period. The trial court’s written ruling, however, went to great lengths in its conclusion that Brett’s other claims for neck and back injuries were not caused by the relatively minor impact of the flexible PVC pipe but were instead congenital. Brett makes no argument that the general damage award for the concussion injury was in error, but does argue error in the trial court’s refusal to award damages for the back and neck injuries. Defendants also appeal the damage award.

A claimant’s disability is presumed to have resulted from an accident if, before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Housley v. Cerise, supra. To obtain the benefit of this presumption of causation, the plaintiff must show (1) that he was in good health prior to the accident at l1fi,issue, (2) that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward, and (3) through evidence, either medical, circumstantial, or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. Juneau v. Strawmyer, 94-0903 (La.App. 4th Cir.12/15/94), 647 So.2d 1294.

In addition, the assessment of damages, i.e., the finding of the appropriate amount of damages in a case, is also a factual determination entitled to great deference on review. The role of the appellate court in reviewing general damages is not to decide what it considers to be an appropriate award of damages, but, rather, to review the exercise of discretion by the lower court. Youn v. Maritime Overseas Corp., 623 So .2d 1257 (La.1993). Before an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Robinson v. Tolbert, 40,488 (La.App.2d Cir.1/20/06), 920 So.2d 346. The correct procedure for determining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact; likewise, to determine if an award is inadequate, the evidence must be viewed in the light most favorable to the defendant. In a personal injury case, the defendant takes her victim as she finds her and is responsible for all natural and probable consequences of her tortious |17conduct. When the defendant’s conduct aggravates a preexisting condition, she must compensate the victim for the full extent of the aggravation. Id.

We find no manifest error in the trial court’s award of damages to Brett relating to PCS. The undisputed medical records presented into evidence document that Brett was diagnosed with a concussion and scalp contusion after the accident. He complained of constant head, neck and shoulder pain through October of 1998. In November of 1998, Brett continued to complain of headaches and dizziness to his Baton Rouge physician, Dr. Kyle Dean. Dr. Dean referred Brett to a neurologist, Dr. Charles Kaufman, to evaluate the headaches and dizziness which Dr. Dean assumed were related to the accident.

Dr. Kaufman first saw Brett on November 17, 1998. Brett described the accident and said the force of the blow to his head caused by a PVC pipe drove him to the ground. Brett complained of headaches and stiffness in the back of his neck, dizziness, difficulty in following through with tasks and being bothered by loud noise and bright light. Dr. Kaufmann noted Brett’s complaint of pain radiating into his shoulders had improved since the accident. He confirmed that Brett had a closed head injury with concussion caused by the accident. Brett was diagnosed with PCS. His symptoms were expected to resolve in time. By March 1, 1999, Brett continued to complain of headaches and difficulty concentrating but considered himself 60% improved. Dr. Kaufman also noted signs of improvement and estimated Brett would fully recover. By July 1999, the headaches were better and l,RBrett told Dr. Kaufman he could return to work. Dr. Kaufman testified that by July of 2000, Brett’s headaches due to PCS had resolved.

The uncontradicted medical evidence presented at trial clearly indicates that Brett received a concussion as a result of the blow to his head. Immediately thereafter, Brett began experiencing headaches, dizziness and neck stiffness which Dr. Dean related to the accident. Brett reported no such pre-existing conditions to his physicians and likewise testified that he had not experienced the same problems before the accident. Additionally, Dr. Kaufman’s testimony establishes that the symptoms of Brett’s PCS were substantially resolved by July of 1999, some ten months after the accident. As for these concussion-related injuries, LCR-M presented no contrary medical evidence to suggest that Brett’s headaches, dizziness and neck stiffness which had resolved by July were not accident related. From this evidence, the trial court could have reasonably concluded that the duration of the concussion’s side effects, extending through July of 1999, were caused by the blow to Brett’s head. Thus, we find no error in this determination.

Brett’s claim for damages for his neck pain presents a more difficult issue. Dr. Kaufmann testified that because Brett continued to complain of cervical stiffness with pain radiating down his shoulder, he ordered an ENG or nerve conduction study in November of 1999. The test detected bilateral disc irritation of the C-7 nerve root consistent with bilateral C-7 radiculo-pathy. Radiculopathy is an abnormality of cervical nerve root. In his deposition, Dr. Kaufman testified that Brett’s neck pain is consistent |19with a blow to the head and that the incident “could very easily cause the problems.He also admitted, however, to many other causes for this type of disc bulge including everyday wear and tear, twisting, sneezing or simple maneuvers. He agreed that an individual involved in heavy labor puts more strain on the disc.

In August of 2003, Brett saw a neurosurgeon, Dr. John Clifford, for continued neck pain, headaches, low back and arm pain. At trial, Dr. Clifford’s deposition was admitted into evidence. Dr. Clifford testified that Brett’s neck pain was attributable to arthritis in Brett’s neck, asymptomatic degenerative changes that became symptomatic after the accident, and C-6 radiculopathy. Dr. Clifford also testified that if the pipe which struck Brett had completely missed the truck and hit him directly, the trauma to the head probably caused the cervical injuries. He conceded however that under the scenario of the pipe hitting the truck first and then hitting Brett’s head, “it [was] less likely” that the blow caused the neck problems. On cross-examination, Dr. Clifford testified that Brett’s arthritic neck was consistent with his age.

In rejecting Brett’s claim for damages for his neck pain, the trial court determined that the medical evidence viewed as a whole established that it “was equally likely that the plaintiffs complaints of ... neck injury” were the result of “pre-exist-ing conditions, apparently congenital in nature, and/or the product of his history of manual labor as a concrete finisher.” The trial judge ultimately determined that the opinions of Brett’s physicians boon the issue of causation remained “equivocal” and insufficient to prove Brett’s entitlement to damages for radiculopathy.

After closely reviewing the evidence before us, we can find no manifest error in this determination. Indeed, Brett complained of neck pain after the accident. Yet, Dr. Kaufman clearly testified that neck pain was another symptom of PCS which would also resolve with the other symptoms. The crucial inquiry then becomes whether Brett has demonstrated more probably than not that the pain relating to his radiculopathy was caused directly or aggravated by the accident. The trial court correctly observed that the only causation testimony from Dr. Kaufman relating to the neck injuries was that they were “consistent” with the accident and “could very easily” cause the neck problems. Likewise, Dr. Clifford based his opinion that more probably than not the radiculopathy was caused by the accident on a set of facts in which the pipe missed the truck and hit Brett with full force. He admitted that such causation was “less likely” if the pipe first hit the truck. Of course, both of the doctors’ opinions were based upon Brett’s history of the accident which the trial court clearly rejected, including his claim that the full force of the pipe hit him on the head. This fact became crucial to Dr. Clifford’s conclusions and arguably discredits his opinion on the issue of causation for the neck injuries. Likewise, Dr. Kaufman testified that he based his opinion on the history Brett gave him. In these circumstances, we find that the trial court could reasonably question the viability of the physicians’ ultimate conclusions regarding these issues. Without the existence of any other | unequivocal medical evidence causally relating Brett’s neck injuries to the accident, all that remained was ambiguous evidence merely raising a possibility that the accident caused the radiculopathy. The trial court could correctly conclude that such speculative evidence was insufficient to prove Brett’s entitlement to additional damages.

The evidence relating to Brett’s back injuries shows that it was not until January 3, 2000, that Brett first complained of low back pain to Dr. Kaufman. On that date, Dr. Kaufman testified that Brett “looked quite well and just didn’t have the look of somebody that was in a lot of severe pain.” Because of the low back pain complaints, however, he ordered an MRI which showed spondylolisthesis or a slippage of some vertebrae on top of the other. He indicated that this is usually congenital and not necessarily due to trauma. Brett saw Dr. Kaufman twice more and, during the last visit, said his back was better. Dr. Kaufman ultimately agreed it was unlikely the back condition was related to the accident.

Likewise, Dr. Clifford testified that Brett suffered from moderate spondylolis-thesis. He noted that the appearance of symptoms several months after the accident was unusual. It was difficult for him to say whether Brett’s pain was directly related to the accident or just part of the lumbar spondylolisthesis.

The trial judge rejected Brett’s claim for back injury damages after discrediting Dr. Clifford’s opinion which was based upon the facts it had rejected, namely that the force of the blow to Brett’s head caused him to fall. Based upon the medical testimony presented at trial, we can find no error in 122this determination. Clearly, Dr. Kaufman failed to ultimately conclude that the back injuries were more probably than not caused by the accident because of the length of time between the accident and the emergence of Brett’s back complaints in January of 2000. Dr. Clifford agreed with Dr. Kaufman’s conclusions about Brett’s back condition and added that the congenital back problems would only have become symptomatic if Brett fell as the result of the blow to the head, again a fact rejected by the trial court. Accordingly, we find the trial court’s conclusions relating to the back injuries to be reasonably supported by the record.

The final issue raised by Brett concerns the admissibility of an unedited surveillance tape into evidence. The video shows Brett working as a concrete finisher in 2003. While the trial court discussed the video in its written ruling, it indicated that its previous conclusion denying damages for Brett’s congenital neck and back injuries made Brett’s work activities in 2003, in pain or otherwise, of little relevance.

The admission of surveillance tapes into evidence is largely within the discretion of the trial court. Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347; Quinn v. Wal-Mart Stores, Inc., 34,-280 (La.App.2d Cir.12/6/00), 774 So.2d 1093, writ denied, 01-0026 (La.3/9/01), 786 So.2d 735. From our review, we can find no reversible error in the admissibility of the tape into evidence. It was within the broad discretion of the trial court to determine the appropriate weight to be given to all of the evidence. In these circumstances reversible prejudice has not been shown.

1 aaConclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally between the parties.

AFFIRMED.

      . Carr’s checks were issued by Willstaff.

      . Another employee of LCR-M who worked on the day of the accident, Donovan Browning, testified that he recalled Brett coming to the counter where he worked after the accident, rubbing the top of his head. He did not recall that Brett appeared to be in any distress.


author: GASKINS, J.

text:
    SCENICLAND CONSTRUCTION CO., LLC, Plaintiff-Appellee, v. ST. FRANCIS MEDICAL CENTER, INC., Defendant-Appellant.
    No. 41,147-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 26, 2006.

      William A. Jones, Jr., Michael S. Coyle, Ruston, for Appellant.
    James A. Rountree, Monroe, for Appel-lee.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

hSt. Francis Medical Center, Inc., the defendant in this breach of contract case, appeals from the portions of a trial court judgment favoring the plaintiff, Scenicland Construction Co., LLC. We amend the judgment and, as amended, affirm.

FACTS

In November 2001, Scenicland and St. Francis entered into a contract for the renovation of patient rooms. The contract was drafted by Fred Bayles, the managing member of Scenicland. In pertinent part, the contract provided:

1. Property to be renovated. Contractor agrees to renovate and Owner agrees to pay Contractor for renovation improvements to individual patient rooms in accordance with model renovations in patient room 5004 attached hereto as Exhibit “A” and made a part hereof by Contractor on rooms to be designated by Owner ...
2. Price. Owner agrees to pay Contractor the sum of Three Thousand and no/100 ($3,000.00) dollars per unit, based on renovating two hundred twenty-three (223) units as set forth in paragraph 4 herein....
4. Payment Date. Owner will pay contractor after the completion of each group of rooms completed and accepted within 48 hours of said acceptance. Each group of rooms to be renovated will consist of 10 to 17 rooms....

The price per unit was later raised to $3,500. Scenicland renovated 75 rooms at the $3,000 per unit rate, and 15 rooms at the $3,500 rate, for a total of 90 rooms. At this point, St. Francis required immediate work on its rehabilitation unit on the seventh floor. This project involved severe time restraints. Scenicland agreed to meet the timetable for the project; it was awarded the job without bidding. The rehabilitation unit project was completed in a timely fashion. St. Francis then asked Scenicland to look at | ¿its ICU facilities with an eye toward completely renovating them. However, the ICU project was ultimately awarded to another company. Contrary to Scenicland’s expectations, the original room renovation project was not resumed.

Scenicland filed suit against St. Francis on April 4, 2003. It asserted that, although it and St. Francis had a contract for Scenicland to renovate 223 hospital rooms, St. Francis defaulted after only 90 were completed. It also contended that St. Francis was liable to it in the amount of $68,391.67 for additional work it performed. This included $3,000 for the carpenter shop; $38,391.67 for the cost of materials purchased for the job and storage of material for the hospital; and $27,000 for the preliminary design of ICU units. Scenicland also alleged that St. Francis promised it the ICU renovation job as a reward for the “Herculean effort” necessary to complete a project on the rehabilitation facilities on the seventh floor by St. Francis’ deadline. It sought to recover lost profits for the remaining portion of the room renovation job and the ICU project.

On May 20, 2003, St. Francis filed its answer, generally denying the claims in the plaintiffs petition. It also pled the affirmative defenses of the plaintiffs failure to mitigate damages and the right of offset or extinguishment or partial extin-guishment of an obligation. The latter involved St. Francis’ claim that it had to replace substandard work performed by Scenicland.

On May 14, 2004, St. Francis filed an amended answer in which it stated that the contract did not provide for the plaintiff to renovate 223 |3rooms; instead it provided that it was to renovate the rooms designated by the defendant. It also reiterated the affirmative defense of offset or extinguishment or partial extinguishment of an obligation.

St. Francis filed a reconventional demand against Scenicland on June 29, 2004. It alleged that it had to secure the services of another contractor to correct Scenic-land’s substandard work. According to St. Francis, it had already paid in excess of $40,000 and anticipated additional costs. In its answer to the reconventional demand, Scenicland asserted that certain problems with its work were caused by St. Francis’ haste in flooding floors and making renovated rooms available to patients before floor glue had an opportunity to adhere.

Bench trial began on April 25, 2005, and concluded on April 29, 2005, at which time the judge took the matter under advisement. On July 18, 2005, the trial court gave written reasons for judgment. It found in favor of the plaintiff on breach of contract as to the 223 rooms and granted relief in the amount of $156,408. The court based its determination that the contract called for renovation of 223 rooms on the wording of the contract (which gave a price per unit based on renovating 223 units) and the deposition testimony of Jean-Paul Lejeune. As chief operating officer, Lejeune signed the contract on St. Francis’ behalf; he testified that the room renovation project was temporarily placed on hold in favor of the rehabilitation unit with the intention that the room renovations would resume after the completion of the seventh floor work. The court also found |4in the plaintiffs favor on the issues of “materials” and “storage” and awarded, respectively, $20,000 and $10,000.

The court ruled in favor of the defendant and against the plaintiff on the claim of detrimental reliance on the ICU project. It based this decision on Lejeune’s testimony that while St. Francis was interested in Scenicland doing the work, it wanted to go through the full bid process on that project. It also dismissed the defendant’s reconventional demand, noting that Le-jeune testified that he had no problem with Scenicland’s work and that the hospital’s housekeeping had twice flooded the area before the floors were cured. Judgment was signed on July 19, 2005, and an amended judgment on July 29, 2005.

St. Francis appeals the provisions of the trial court judgment provisions awarding recovery to Scenicland and denying its re-conventional demand as to the floors that had to be redone.

Scenicland answered the appeal, arguing that the judgment should be amended to include damages of $190,455 for its detrimental reliance on St. Francis’ promise of the ICU contract. However, Scenicland withdrew its claim at oral argument. Consequently, this matter is no longer before the court.

CONTRACT TERMS

St. Francis contends that the trial court erred in finding that its contract with Sce-nicland called for the renovation of 223 rooms. It points to a provision that calls for renovation of rooms “to be designated by Owner.” It argues that Scenicland wrote the contract and created ambiguity (the | ¡Jnclusion of a per unit price for 223 rooms instead of a lump sum) which should now be construed against it. St. Francis’ witnesses asserted that the remaining rooms were not renovated due to declining patient numbers and poor financial performance. However, St. Francis points out that while Scenicland did not get to renovate 133 other patient rooms for a price of $465,500, it was awarded the seventh floor rehabilitation unit job which amounted to $1,692,225.

When a contract is subject to interpretation from the four corners of the instrument, without the necessity of extrinsic evidence, that interpretation is a matter of law. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477. In the case of ambiguity in a contract, where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is instead based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Lawrence v. Terral Seed, Inc., 35,-019 (La.App.2d Cir.9/26/01), 796 So.2d 115, writ denied, 2001-3134 (La.2/1/02), 808 So.2d 341.

A contract is an agreement by two or more parties whereby obligations are created, modified or extinguished. La. C.C. art. 1906. Legal agreements have the effect of law upon the parties. La. C.C. art. 1983. A1 ficontract is the law between the parties and courts are bound to give legal effect to all such contracts according to the true intent of the parties. La. C.C. art. 2045. Newman Marchive Partnership, Inc. v. City of Shreveport, 40,512 (La. App.2d Cir.2/24/06), 923 So.2d 852.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La. C.C. art. 2056.

La. C.C. art. 2045 directs that the common intent of the parties is used to interpret a contract. Parol evidence is inadmissible to vary the terms of a written contract. However, if that contract could have more than one interpretation, there is ambiguity as to its provisions, or the intent of the parties cannot be ascertained by the language, then parol evidence is admissible to clarify the ambiguity and show intent of the parties. Fleet Fuel, Inc. v. Mynex, Inc., 40,683 (La.App.2d Cir. 3/8/06), 924 So.2d 480.

We find that the contractual language is unclear and therefore ambiguous. However, both persons signing the contract testified that the intent was that the contract covered all 223 rooms. Jean-Paul Lejeune, the executive vice president and chief operating officer of St. Francis who signed the contract on its behalf, testified in his deposition that the contract meant all of the 223 units were to be renovated. This being the common |7intent of the signers of the contract, the trial court was not in error in finding the contract provided for the renovation of 223 rooms.

LOST PROFITS

St. Francis complains that the trial court did not properly calculate damages for lost profits. It also contends that the award of $156,408 was excessively high, representing an unreasonable profit of 33.6 percent of the gross contract amount. The hospital further argues that Seenicland’s records are substandard and prohibit an accurate calculation of its lost profits.

Lost profits are recoverable in an action for breach of contract where the amount can be proved with reasonable certainty. Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir.1978). Loss of profit awards may not rest on speculation or conjecture unless direct evidence is not available to establish this element of damage. Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., supra. Customary or foreseeable profit may be resorted to as a measure of damage where there is no direct evidence of the exact extent of loss. Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., supra; Ellwest Stereo Theatres, Inc. v. Davilla, 436 So.2d 1285 (La.App. 4th Cir. 1983), writ not considered, 442 So.2d 454 (La.1983).

Broad latitude is given in proving lost profits because this element of damages is often difficult to prove and mathematical certainty or precision is not required. Cox Communications v. Tommy Bowman Roofing, LLC, 2004-1666 (La. App. 4th Cir.3/15/06), 929 So.2d 161.

| ¡¡David Lewis Johnston was Scenic-land’s expert witness who computed its damages for lost profits as a result of St. Francis’ termination of the room renovation contract. He testified that he examined and “tested” the accounting information supplied to him by Scenicland in order to reach his conclusions. According to his testimony, had Scenicland been allowed to finish the contract, it would have realized a total profit of 33.6 percent or $216,034 ($156,408 from the contract and $59,626 from “extras.”) However, Scenicland did not keep individual cost and profit records on the room renovation work. Although intensely cross-examined about the quality and substance of Scenicland’s records, which included some mistakes and omissions, Johnston maintained that he had adequate information to compute the lost profits and insisted that he could express an opinion with a reasonable degree of professional certainty.

St. Francis presented its own expert accounting witness, Robert Lewis Smith, Jr.; he was hired to review Johnston’s work in the instant case. He testified that he was unable to reconcile various financial statements to each other. While he could not argue with Johnston’s methodology, he did criticize the data Johnston applied which he characterized as inconsistent, inaccurate and untimely. Smith also testified that information he obtained from the Construction Financial Managers Association indicated that the average gross profit percentage in the construction industry is between 4.2 and 9.3 percent. He testified that the highest gross profit margin he had seen recently was 15 percent. For hospital work, it went from 8.2 percent to 14 percent.

|flThe effect and weight to be given to expert testimony rests within the broad discretion of the trier of fact. Williams v. State Farm Mutual Automobile Insuranee Co., 36,439 (La.App.2d Cir.10/23/02), 830 So.2d 379. It is well accepted that the trier of fact is charged with the determination of what credibility it assigns to expert witnesses and the decision about which expert among those testi fying is more credible. Hayes v. Entergy Corporation, 37,190 (La.App.2d Cir.6/25/03), 850 So.2d 916. Credibility determinations, including the evaluation and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact which should not be disturbed on appeal absent manifest error. James v. Robinson, 38,774 (La.App.2d Cir.8/18/04), 880 So.2d 975.

Where expert testimony differs, it is the trier of fact who must determine the more credible evidence, and factual findings based upon that determination may not be overturned unless manifest error appears in the record. The fact-trier is entitled to assess the credibility and accept the opinion of an expert just as with other witnesses, unless the stated reasons of the expert are patently unsound. Of course, the effect and weight to be given such expert testimony depends upon the underlying facts and rests within the broad discretion of the trial judge. Moreover, in deciding to accept the opinion of one expert and reject the opinion of another, a trial court can virtually never be manifestly erroneous. Fox v. Fox, 1997-1914 (La.App. 1st Cir.11/6/98), 727 So.2d 514, writ denied, 1999-0265 (La.3/19/99), 740 So.2d 119.

| inThe trial court awarded damages of $156,408, the amount suggested by Scenic-land’s expert as the amount that it would have earned had it been allowed to complete the room renovation contract. The court obviously accepted Johnston’s testimony while discounting Smith’s attacks upon the underlying bases used by Johnston in making his calculations.

Based upon our review of the record, we are unable to say that the trial court was manifestly erroneous in its decision to accept the testimony of Johnston, Scenic-land’s expert. The testimony of St. Francis’ expert, Smith, raised questions as to certain aspects of Johnston’s conclusions, but it did not establish that Johnston’s reasons were “patently unsound.”

EXCESS MATERIALS

St. Francis maintains that, according to a “joint inventory” conducted on May 20, 2004, there were only renovation materials totaling $2,142.09, not the $20,000 awarded by the trial court.

The plaintiff is required to prove special damages by a preponderance of the evidence, and the findings of the district court in this respect are subject to a manifest error standard. Johnson v. State through Dept. of Public Safety and Corrections, 95-0003 (La.App. 1st Cir.10/6/95), 671 So.2d 454, writ denied, 95-2666 (La.1/5/96), 667 So.2d 522.

According to the evidence presented through the testimony of Fred Bayles of Scenicland, the company had items totaling $30,891.67 for use on the room renovation project which were not used because of St. Francis’ failure to continue the project. However, Scenicland was able to mitigate its damages by using $10,054.57 worth of items on other projects. As a result, Inthe trial court awarded Scenicland $20,000 for its purchase of unused materials for the room renovation project. Although Donald Bryant Harold, St. Francis’ manager of plant operations and maintenance, visited the Scenicland warehouse and testified as to an inventory of the items there, the trial court chose to rely upon Bayles’ testimony on this issue. We find that the trial court was not clearly wrong to do so. The award of $20,000 was not an abuse of the trial court’s discretion and is affirmed.

STORAGE DAMAGES

As to the storage costs of $10,000 awarded by the trial court for Scenicland’s storage of St. Francis materials and equipment, St. Francis argues that no award should be made because Scenicland failed to prove any costs on this issue.

Harold, St. Francis’ manager of plant operations and maintenance who visited the Scenicland warehouse, testified that it would take between five and eight 12 x 10 mini-warehouses to house the St. Francis materials in Scenicland’s possession. Based on his personal experience, Harold testified that these mini-warehouses cost $30 per month. By our calculations, storage in eight such mini-warehouse from November 2002, when St. Francis announced its intention to not honor the rest of the room renovation contract, to the date of trial in April 2005, would cost $7,200. We find that the award of $10,000 was an abuse of the trial court’s discretion and amend the judgment to allow $7,200 in special damages for Scenicland’s storage of property belonging to St. Francis.

J^RECONVENTIONAL DEMAND

As to its reconventional demand, St. Francis argues that the evidence demonstrated faulty materials and workmanship in the renovation of the floors, including the use of an improper adhesive in an improper amount and the use of an improper trowel. As a result, St. Francis alleged that it was forced to repair the substandard work and have the floors redone by another contractor. It also contends that, contrary to Scenicland’s assertions, its “wet-cleaning” of the floors was proper and caused no damage.

A trial court’s factual findings are accorded. great weight and will not be disturbed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). It is the duty of the trier of fact to weigh credibility and to accept or reject all or part of a witness’s testimony. Marshall v. Caddo Parish School Board, 32,373 (La. App.2d Cir.10/29/99), 743 So.2d 943. Where there is a conflict in the testimony, reasonable evaluations of credibility should not be disturbed on appeal. Rosell, supra.

The trial court specifically accepted the testimony of Lejeune that there was a problem with the way hospital employees cleaned the floors around the time the project was turned over, flooding the floors before they were cured. George Stennett, St. Francis’ former director of facilities and a current employee of Bayles, also testified that tiles began to come up after St. Francis’ housekeeping failed to allow the floors to cure before pouring water and stripper on them. According to Stennett, Bayles was upset and offered 1iato hire someone to clean up the floors; however, Lejeune declined the offer and instead paid him to replace the tiles damaged due to the hospital’s actions. Bayles testified that the hospital’s actions in flooding the rooms to clean the floors damaged the glue because they did not wait five days, as recommended by the manufacturer, to allow the floors to cure. Lejeune declined to let him clean the floors.

St. Francis presented the testimony of its former president and chief executive officer, H. Gerald Smith, that the hospital experienced problems with glue seepage from the floors renovated by Scenicland. According to Ronald Ernest Hogan, St. Francis’ chief financial officer, the hospital paid Dupuy Flooring $55,195 to replace some of the flooring installed by Scenic-land. To his knowledge, Scenicland was not requested to remedy the floors.

Stanley Dupuy, who was one of the owners of J.E. Dupuy Flooring and Acoustical, testified that, in his opinion, Scenicland had applied too much of the wrong adhesive. However, he admitted that, while doubtful, mopping the floors prematurely could possibly cause glue seepage.

The trial court was presented with conflicting testimony and elected to accept that offered by Scenicland to the effect that the glue seepage problem was caused by the hospital’s actions in flooding the floors before they were allowed to properly cure. Our review of the record reveals that the trial court was not clearly wrong in making this determination.

luCONCLUSION

The judgment of the trial court is amended to reduce the damages for storage from $10,000 to $7,200. In all other respects, the judgment is affirmed.

AMENDED AND, AS AMENDED, AFFIRMED.