author:
DENNIS R. BAGNERIS, SR., Judge.
      CANNIZZARO, J.,

text:
    STATE of Louisiana v. James E. WATKINS.
    No. 2007-KA-0789.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, Brad Scott, Intern, Tulane Law School, New Orleans, LA, for Plaintiff/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   DENNIS R. BAGNERIS, SR., Judge.

| ¶Defendant James E. Watkins appeals his conviction and sentence for distribution of cocaine, a violation of La. R.S. 40:967(A)(1). Watkins pleaded not guilty and was found guilty as charged during a trial by a twelve-person jury. On that date the trial court set sentencing for August 1, 2005. On August 4, 2005, sentencing was reset for September 2, 2005. Hurricane Katrina struck the city of New Orleans on August 29, 2005.

The next minute entry, dated August 23, 2006, reflects that on that date a “pretrial” conference was set for August 30, 2006. On August 30, 2006, the trial court set sentencing for September 29, 2006. On September 29, 2006, the trial court set a pre-sentence investigation for December 8, 2006. On December 8, 2006, the court reset the pre-sentence investigation to January 25, 2007. On January 25, 2007, noting that the pre-sentence investigation was due on March 1, 2007, the trial court set sentencing for March 21, 2007. On March 21, 2007, the trial court reset sentencing for March 22, 2007. On March 22, 2007, the trial court sentencing for March 23, 2007.

li>On March 23, 2007, the trial court sentenced Watkins to five years at hard labor, with credit for time served, to run concurrently with any and all other counts. On that same date, Watkins filed oral motions to reconsider sentence and for appeal. On March 27, 2007, Watkins filed written motions for appeal and for reconsideration of sentence. Watkins’ motion for appeal was granted on May 4, 2007.

FACTS

We briefly reiterate the facts since they are not relevant to the issue presented by Watkins’ sole assignment of error. Watkins sold illegal narcotics to an undercover police officer. A five-dollar bill seized from Watkins was identified as the one previously “recorded” in the under cover operation. The transaction was videotaped. The New Orleans Police Department Crime Lab report indicated that the evidence received in the undercover operation tested positive for the presence of cocaine.

ERRORS PATENT

A review of the record reveals one error patent. Watkins was charged with and convicted of distribution of cocaine, a violation of La. R.S. 40:967(A)(1). Watkins was sentenced to five years at hard labor. La. R.S. 40:967(B)(4)(b) sets the penalty for distribution of cocaine, and provided, at the time of the defendant’s arrest, for imprisonment at hard labor for not less than two nor more than thirty years, with the first two years of the sentence being without the benefit of parole, probation or suspension of sentence. The statute also provided, in addition to the term of imprisonment, that the defendant could be fined not more than fifty thousand dollars.

| oThe trial court failed to stipulate that the first two years of Watkins’ sentence be without benefit of parole, probation or suspension of sentence. Thus, the sentence was illegally lenient.

However, La. R.S. 15:301.1(A) provides that the failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of parole, probation or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without the benefit of parole, probation or suspension of sentence. La. R.S. 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court, and this paragraph self-activates the correction, eliminating the need to remand for a ministerial correction of the illegally lenient sentence resulting from the failure of the sentencing court to impose the restrictions. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799; State v. Newman, 2003-1721, p. 10 (La.App. 4 Cir. 7/7/04), 879 So.2d 870, 876.

Accordingly, this error patent requires no action by this court.

ASSIGNMENT OF ERROR

By his sole assignment of error Watkins argues that the trial court violated his right to be sentenced within a reasonable time by the twenty-one (21) month delay in sentencing him after his June 14, 2005 conviction, and that he is therefore entitled to have his conviction and sentence reversed.

La.C.Cr.P. art. 874 states that “[s]en-tence shall be imposed without unreasonable delay.”

Watkins cites State v. McQueen, 308 So.2d 752 (La.1975), a case in which the court considered the time for filing a habitual offender bill of information. The ^defendant in McQueen was sentenced to nine years at hard labor on December 14, 1970, on a conviction for simple burglary. On July 30, 1974, the district attorney filed a habitual offender bill of information. The defendant filed a motion to quash on the ground that the bill of information had not been timely filed. The trial court denied the motion. The trial court subsequently adjudicated the defendant a third-felony habitual offender, vacated the original sentence, and resentenced the defendant to eighteen years at hard labor.

On appeal, the Louisiana Supreme Court in McQueen held that La.C.Cr.P. art. 874 controlled the situation. The court noted that the sanction for unreasonable delay, intimated in Official Comment “c” to the article, was to divest the trial court of jurisdiction to sentence the defendant. The court found that La. R.S. 15:529.1, the Habitual Offender Statute, required the habitual offender bill of information to be filed within a reasonable time after the necessary information is available to the district attorney. The court further found that the failure of the district attorney to file the habitual offender bill of information within a reasonable time after having the necessary information is not sanctioned by La. R.S. 15:529.1, but is prohibited by La.C.Cr.P. art. 874. The court further found that an unreasonable delay in filing the habitual offender bill of information divests the trial court of jurisdiction to sentence the defendant as a habitual offender. The court concluded that the “unexplained” forty-four month delay in the district attorney’s filing of the habitual offender bill of information in that case was unreasonable. The court reversed the trial court’s denial of the defendant’s motion to quash the habitual offender bill of information, vacated the habitual offender sentence, and reinstated the original sentence.

|,Jn State v. Johnson, 363 So.2d 458 (La.1978), the Louisiana Supreme Court held that the right to a speedy trial guaranteed by the Sixth Amendment to the U.S. Constitution and La. Const, art. 1, § 16 does not apply to sentencing delays. The defendant was convicted in Louisiana in January 1970 of armed robbery. The defendant escaped while awaiting sentence, but was located in Michigan, where he was subsequently convicted of two offenses and sentenced to ten to fifteen years imprisonment. Louisiana repeatedly issued detainers and requested the defendant for sentencing, but instituted no formal proceedings for his return. Michigan paroled the defendant in August 1977. He waived extradition and returned to Louisiana where, in December 1977, he was sentenced to thirty-five years at hard labor, with credit for time served in both Louisiana and Michigan. On appeal, the court held that the defendant was statutorily entitled to imposition of sentence without unreasonable delay. The court pretermit-ted determination as to the reasonableness of the delay in sentencing in the case. The court noted that the defendant received credit for all time served in Michigan and Louisiana between the trial and sentencing and, citing La.C.Cr.P. art. 921, it held that the defendant was not entitled to have his conviction and sentence set aside because he had sustained no prejudice by the delay in sentencing. Johnson, 363 So.2d at 461.

In State v. Stewart, 98-1215 (La.App. 4 Cir. 3/10/99), 732 So.2d 74, this court found that the defendant was not entitled to be discharged from custody because of an unreasonable delay in sentencing, forty months, because he had failed to show that the delay had prejudiced him. The defendant was convicted on |fiMarch 12, 1991 of two counts of distribution of heroin and one count of possession of heroin with intent to distribute, and sentenced on May 30, 1991 to life imprisonment. In a May 1993 unpublished decision, this court affirmed the defendant’s conviction but, because only one sentence had been imposed for the three convictions, vacated his sentence and remanded for resentencing. In September 1996, the defendant filed a supervisory writ in this court complaining that he had not been sentenced. This court granted the writ and ordered that the defendant be resentenced within thirty days. Following another writ by the defendant and another order by this court, the trial court resentenced the defendant in February 1997 to three terms of life imprisonment. In a subsequent appeal, the defendant argued that he was entitled to be released from custody because of the unreasonable delay in resentencing. This court found that although none of the delay could be attributed to the defendant, he had not been prejudiced, and thus was not entitled to be discharged.

In State v. Howard, 2000-2700 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247, the defendant was convicted on February 13, 1998. The State filed a habitual offender bill of information to which the defendant pleaded not guilty on March 20, 1998. The State amended the bill, to which the defendant pleaded not guilty on April 17, 1998. On October 6, 1999, the trial court, erroneously believing a habitual offender hearing had been held, sentenced the defendant as a habitual offender. On appeal, this court discovered that no habitual offender hearing had been held and remanded the case on January 13, 2001. On September 14, 2001, the trial court held a habitual offender hearing. The defendant was adjudicated a second-felony habitual offender and sentenced to seventeen years at hard labor. |7On appeal, the defendant argued that he was entitled to immediate release due the delay in sentencing. Although this court found that all the delays in sentencing occurred through the acts and omissions of the trial court, it found no evidence that the defendant had been prejudiced by the delay, and thus found no merit to the assignment of error.

In both Stewart, supra, and Howard, supra, this court noted that the sentences eventually imposed by the trial court were the mandatory (Stewart) or minimum (Howard) sentences. That notation obviously was made in Howard simply as an aside to Stewart, where this court stated that the fact that the sentences in that case were mandatory life sentences distinguished the case from two decisions cited by the defendant, City of Baton Rouge v. Bourgeois, 380 So.2d 63 (La.1980) and State v. Milson, 458 So.2d 1037 (La.App. 3 Cir.1984). Bourgeois and Milson were both decisions in which the courts essentially found that unreasonable and unjustified delays in sentencing warranted the discharge of the defendants.

In Bourgeois, the defendant pleaded guilty to a first offense DWI on December 12, 1974, and the trial court deferred sentencing until receipt of a pre-sentence investigation report. In the interim, the defendant was free, apparently on bond, and moved to another parish. No further action was taken until December 21, 1978, when a bench warrant was issued for the defendant’s arrest. The defendant filed a motion to quash on the grounds of an unreasonable delay in sentencing. The trial court denied the motion and sentenced the defendant to pay a fine of $200.00, serve thirty days in prison, suspended, with one year unsupervised probation. On appeal, the Louisiana Supreme Court found the delay to be “extreme and unjustifiable,” characterizing the offense as “relatively minor,” and | ¡(found that the trial court had erred in denying the motion to quash. Bourgeois, 380 So.2d at 64. The court remanded for further proceedings consistent with its decision.

In Milson, the defendant was indicted for first-degree murder, but pleaded guilty to manslaughter on August 13, 1979. The trial court deferred sentencing, ordered a presentence investigation report, and released the defendant on bond. No further action was taken until January 17, 1984, when the trial court sentenced the defendant to ten years at hard labor. The trial court denied the defendant’s motion to quash the sentence because of an unreasonable delay in sentencing, but granted his alternative request to reconsider the sentence in light of the delay. On resen-tencing, the trial court noted that it had not received the presentence investigation report until December 19, 1979, and that it could not have sentenced the defendant until January 1980. The court resen-tenced the defendant to six years at hard labor, reducing the original ten-year sentence by four years to compensate the defendant for the four-year delay in sentencing. On appeal, the Third Circuit found that the delay was unjustified and without good cause. The court held that the delay must be for good cause or necessitated because of special circumstances. While the court mentioned the State’s argument that the defendant had not been prejudiced, the court did not resolve that issue. The court found that the reduced sentence meted out to the defendant on his motion for reconsideration did not cure the unreasonable and unjustified delay. The court held the delay was unreasonable, and thus it vacated the sentence and ordered the defendant discharged.

In Stewart, supra, this court distinguished Bourgeois and Milson by noting that in those two cases “the trial courts had some discretion in determining the | plength of the sentence to be imposed .... ” Stewart, 98-1215, p. 4, 732 So.2d at 76. As noted, the sentences in Stewart were mandatory life sentences. However, this court’s decision in Stewart was based on the fact that the defendant suffered no prejudice during the forty-month delay in his sentencing. This court did not explain in Stewart or in Howard, supra, how the fact that a trial court has discretion as to the length of a defendant’s sentence would or could result in prejudice to a defendant insofar as a delay in sentencing.

The Louisiana Supreme Court said nothing in its 1978 decision in Johnson about a trial court’s discretion in imposing a sentence being a factor in determining whether a defendant is entitled to relief for a delay in the imposition of sentence — and in Johnson the trial court did have sentencing discretion, the defendant having been convicted of armed robbery. The Johnson court simply held that the defendant was not entitled to have his conviction and sentence set aside for the delay in the imposition of sentence for the sole reason that he suffered no prejudice as a result of such delay. Moreover, neither the Louisiana Supreme Court in Bourgeois, nor the Third Circuit in Milson, said anything about the trial court’s having discretion as to the respective sentences in those cases being a factor in the respective appellate courts’ decisions.

In the instant case, the damage visited upon the city’s criminal justice system by Hurricane Katrina was a special circumstance distinguishing the instant case from Bourgeois, supra and Milson, supra. Hurricane Katrina struck the city of New Orleans two and one-half months after Watkins was convicted. Unfortunately, no further action was taken in Watkins’ case after the hurricane struck until August 23, 2006, when a hearing mistakenly characterized as a pretrial conference was set for August 30, 2006. On that date a pre-sentence investigation hearing was set for September 29, 2006. The pre-sentence investigation report was subsequently noted to be due on March 1, 2007. Watkins was sentenced on March 23, 2007, twenty-one months after his conviction, nineteen months after Hurricane Katrina struck. Watkins apparently remained in custody from the time of his conviction until his sentencing. He received credit for that time served. Watkins does not point to any prejudice he suffered as a result of the delay in the imposition of his sentence. It can be noted that the twenty-one month sentencing delay in the instant case is less than one-half the delay in both Bourgeois, supra and Milson, supra, thus further distinguishing those cases from the instant case.

Considering these facts and circumstances, the delay in imposing sentence upon Watkins was not unreasonable. Even assuming the delay was unreasonable, it did not prejudice Watkins. Therefore, Watkins is not entitled to have his conviction and sentence vacated.

There is no merit to this assignment of error.

Decree

For the foregoing reasons, Watkins’ conviction and sentence are affirmed.

AFFIRMED.

CANNIZZARO, J., concurs with reasons.

CANNIZZARO, J.,

concurs with reasons.

1,1 concur in the majority opinion to affirm the defendant’s conviction and sentence. The defendant brings this issue for review as an appeal rather than a supervisory writ as set forth in La. C.Cr.P. art. 874. Additionally, the defendant failed to either object to the sentence or file a notice of his intention to seek supervisory writs. An irregularity or error in the sentencing cannot be availed of after the verdict (the sentencing in this case) unless it was objected to at the time of the occurrence. La.C.Cr.P. art. 841. The defendant raises the issue of the delays in his sentencing for the first time on appeal. Therefore, this court should not reach the merits of this assignment of error. Furthermore, throughout the entire course of the proceedings the defendant never complained about the delays in sentencing. He should be precluded from doing so now.

      . La.C.Cr.P. art. 921 states:
      A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    Leslie DUPLESSIS v. TULANE UNIVERSITY d/b/a Tulane University Hospital and Clinic d/b/a Tulane Institute of Sports Medicine.
    No. 2007-CA-0647.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.

      William E. Mura, Jr., Warren A. For-stall, Jr., New Orleans, LA, for Plain-tiffAppellant.
    Ambrose K. Ramsey, III, Curry & Friend, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   DENNIS R. BAGNERIS, SR., Judge.

11 Plaintiff, Leslie Duplessis, appeals a trial court judgment, which granted defendant’s, University Healthcare System, L.C., d/b/a Tulane University Hospital and Clinic, exception of prematurity. For the following reasons, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On June 8, 2006, plaintiff filed this suit in the First City Court for the City of New Orleans against Tulane University d/b/a/ Tulane University Hospital and Clinic d/b/a Tulane Institute of Sports Medicine. The petition alleges that plaintiff was injured on June 10, 2005, when an employee, who was performing an x-ray procedure, dropped the x-ray template onto her right foot and ankle.

On July 7, 2006, plaintiff filed a first supplemental and amending petition for damages and named as defendant the University Healthcare System, L.C. The first supplemental and amending petition alleged that University Healthcare System is the owner of Tulane University Hospital and Clinic and that the entity is jointly liable with Tulane University. University Healthcare System responded by | ¡¡filing a dilatory exception of prematurity to the plaintiffs petition on the basis that the plaintiffs claims sounded in medical malpractice, thus falling within the parameters of the Louisiana Medical Malpractice Act (LMMA) and, therefore, requiring review by a medical review panel before being brought to the First City Court.

Thereafter, plaintiff filed a second supplemental and amending petition for damages and removal asserting that the x-ray cassette fell onto her foot on its own due to a defect in the x-ray machine. Plaintiff alleges that the cause of this detachment was the failure of the University Healthcare System’s maintenance department personnel to correctly repair and/or maintain the device after having been forewarned that it required repair. Plaintiff amended her petition to assert that her damages exceeded the jurisdictional limits of the First City Court and requested that the matter be removed to Civil District Court for the Parish of Orleans.

After the case was removed to District Court, the trial court granted University Healthcare System’s dilatory exception of prematurity and dismissed all claims against it. Plaintiff now appeals this final judgment.

DISCUSSION

On appeal, plaintiff argues that this case should be governed by the principles of general tort law and not by the LMMA because (1) her injury was due to the failure of the University Healthcare System’s maintenance personnel to properly maintain, inspect, and/or repair the device that caused the injury despite having been forewarned of the dangerous/defective condition of the device, and (2) her injury was not caused by the negligence of a qualified health care provider | awhile performing an action arising from medical care or treatment; rather, her injury resulted from an improperly maintained x-ray template holding device.

We must determine whether the plaintiff was required to convene a medical review panel to review her claim against the University Healthcare System prior to filing her suit against it. This is a question of law as well as of fact. Therefore, we must conduct a de novo review of this ease to determine whether the trial court’s ruling on the dilatory exception of prematurity was legally correct. See, e.g., Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353, where the Louisiana Supreme Court stated with respect to an issue of law being reviewed on appeal that “[w]e review the matter de novo, and render judgment on the record, without deference to the legal conclusions of the tribunals below.”

The LMMA was established by the Louisiana Legislature to govern all claims of medical malpractice asserted against healthcare providers who are qualified en-rollees with the Louisiana Patient’s Compensation Fund. The LMMA, under La. R.S. 40:1299.41(A)(8), defines “malpractice” in pertinent part, as:

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

The LMMA, under La. R.S. 40:1299.41(A)(7), defines “tort” as:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a [¿hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

The LMMA, under La. R.S. 40:1299.41(A)(9), defines “health care” as:

“Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf or a patient during the patients medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

The Louisiana Supreme Court, in Lacoste v. Pendleton Methodist Hospital, L.L.C. has recently addressed this issue and it “emphasized that the LMMA and its limitations on tort liability for a qualified health care provider apply only to claims ‘arising from medical malpractice,’ and that all other tort liability on the part of the qualified health care provider is governed by general tort law.” (emphasis in original). Lacoste, 07-0008, p. 2 (La.9/5/07), 966 So.2d 519. Further, the Louisiana Supreme Court stated that because the LMMA’s limitations on the liability of health care providers were created by special legislation in derogation of the rights of tort victims, then any ambiguity should be resolved in favor of the plaintiff and against finding that the tort alleged sounds in medical malpractice. Id. at 521.

In Coleman v. Deno, 01-1517, pp. 17-18, (La.1/25/02), 813 So.2d 303, 315-16, the Louisiana Supreme Court set forth a six-part test to determine whether a claim sounds in medical malpractice and must proceed in accordance with the LMMA or whether the claim sounds in general negligence and should proceed under general tort law.

|B(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
(3) whether the pertinent act or omission involved assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

Accordingly, we now apply the Coleman factors to the allegations asserted in the plaintiffs petition, as amended, which we accept as true for the purpose of resolving this issue.

(1) Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill?

The University Healthcare System asserts that the falling of an x-ray cassette positioned there by the x-ray technician during the course of an x-ray is definitely “treatment related” because x-ray exams and the placement of an x-ray cassette in an x-ray machine during an x-ray exam are conducted only by licensed x-ray technicians, and not by unskilled employees. The plaintiff contends that the cassette was not dropped by the technician but fell from the holder device and that the maintenance department was negligent when it failed to repair the device after being warned of its defective condition. Thus, plaintiff argues that no professional skill or licensing is required of a hospital to maintain or repair the x-ray cassette holding device. We agree with plaintiff that the particular wrong alleged in her amended petition, i.e. that her injury “was due to the failure of Defendants | (¡maintenance personnel to properly maintain, inspect, and/or repair the device having been forewarned of the dangerous/defective condition of the device,” does not result from any dereliction of professional skill that is treatment-related. Accordingly, we find this factor weighs in favor of plaintiffs position that the allegations sound in general negligence.

(2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached?

The University Healthcare System asserts that the placement of an x-ray cassette in the x-ray machine is part of the entire process of x-raying a patient which is within the realm of professional knowledge of a licensed x-ray technician, and therefore, expert testimony is required to prove wrongdoing. The plaintiff contends that expert medical evidence will not be required to determine whether the standard of care to be taken in the repair and maintenance of the x-ray cassette holding device was breached. We, too, find no medical expert will be needed to determine whether the maintenance personnel was negligent when it failed to repair the x-ray device after having been forewarned of its dangerous condition. We find this factor as well weighs in favor of finding the allegations sound in general negligence.

(3) Whether the pertinent act or omission involved assessment of the patient’s condition?

Although the University Healthcare System asserts that the diagnostic procedure of x-raying a patient involves an examination of the assessment of plaintiffs condition, we find the pertinent acts or omissions in this case do not implicate or require an assessment of plaintiffs medical condition. Therefore, we find this factor weighs in favor of finding the allegations sound in general negligence.

| n(4) Whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform?

The University Healthcare System argues that the rendition of x-ray services is definitely within the scope of activities which a hospital is licensed to perform. Plaintiff contends that the repair/maintenance of the x-ray cassette device is not an activity which requires licensing from the state. The amended petition alleges that plaintiffs injury was due to the failure of University Healthcare System’s maintenance personnel to properly maintain, inspect and/or repair the x-ray device that was used to hold the x-ray film cassettes rather than in the context of a physician-patient relationship. Therefore, we find this factor weighs in favor of finding the allegations sound in general negligence.

(5) Whether the injury would have occurred if the patient had not sought treatment?

The University Healthcare System alleges that the falling of the x-ray cassette positioned by the x-ray technician onto plaintiffs leg would not have occurred had she not been undergoing x-rays. Thus, the University Healthcare System argues that the patient’s injury was directly related to her medical treatment. However, plaintiff argues that a visitor to a hospital, who was near the faulty equipment, could have suffered the same injury. We agree. We find this factor, too, weighs in favor of finding the allegations sound in general negligence.

(6) Whether the tort alleged was intentional?

This factor is not an issue in this case as there are no allegations that the actions or inactions of the University Healthcare System or its staff were intentional.

[sWe have applied the Coleman factors to the facts alleged in the plaintiffs petition as amended (i.e. allegations regarding the defective nature of the x-ray holder device due to lack of inspection, repair, and/or maintenance of the device) and we conclude that the claims as alleged do not fall within the provisions of the LMMA. Accordingly, because the claims do not need to be submitted to a medical review panel, we find the trial court erred when it granted the exception of prematurity filed by the University Healthcare System. For these reasons, we reverse the judgment of the trial court.

REVERSED.

      . Defendant’s proper name is University Healthcare System, L.C. d/b/a/ Tulane University Hospital & Clinic.


author: ROLAND L. BELSOME, Judge. MURRAY, J., TOBIAS, J.,

text:
    NEW INVESTMENT PROPERTIES, LLC v. ABC INSURANCE COMPANY, Orleans LeVee District and R P Beckendorf & Associates d/b/a ISU Coast Insurance Agency.
    No. 2007-CA-0943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.

      Robert L. Manard III, Paul E. May-eaux, Robert L. Manard, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Gustave A. Fritchie III, Kelly G. Juneau, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Ap-pellee.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, and Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hNew Investment Properties, L.L.C. and Creek Apartments Team, L.L.C., appeal the trial court’s grant of R.P. Becken-dorf & Associates’ exception of lack of personal jurisdiction. For the reasons that follow, we reverse and remand.

FACTS

Plaintiffs-Appellants New Investment Properties, L.L.C. (“New Investment”) and Creek Apartments Team, L.L.C. (“Creek Apartments”) are both Louisiana corporations and owners of Chenault Creek Apartments Phase I and II, located in New Orleans, Louisiana. Appellee R.P. Beckendorf & Associates, d/b/a ISU Coast Insurance Agency (“R.P. Beckendorf’), is a California corporation with its principal place of business in Los Angeles, California. R.P. Beckendorf, an independent insurance agency, obtained flood and wind policies for the apartment complex, which were delivered to Champion Group, Inc. (“Champion Group”) also a California corporation with its principal place of business in Los Angeles, | ¡.California. Stewart Jaffe and Michael Levitt, both residents of California, are managers of the New Investment and Creek Apartments L.L.C.s, and are also managers of Champion Group.

During Hurricane Katrina, the apartment complex incurred damages from the floodwaters. Appellants filed suit on August 24, 2006 against R.P. Beckendorf, ABC Insurance Company, and the Orleans Levee District in Civil District Court in Orleans Parish. With respect to R.P. Beckendorf, Appellants alleged in their petition for damages that R.P. Beckendorf negligently advised them by improperly evaluating Appellants’ property and not following federal flood insurance guidelines, which resulted in Appellants’, property being significantly underinsured for the flood damages sustained as a result of Hurricane Katrina. R.P. Beckendorf filed an exception for lack of personal jurisdiction, which was granted by the trial court on May 7, 2007. This appeal followed.

|,STAND ARP OF REVIEW

Appellate courts reviewing an exception for lack of personal jurisdiction apply a de novo standard. Anderson v. Interamerican Mfg., Inc., 96-1639 (La.App. 4 Cir. 4/9/97), 693 So.2d 210, 212.

DISCUSSION

In their sole assignment of error, Appellants submit that the trial court erred as a matter of law in granting R.P. Beckendorf s exception for lack of personal jurisdiction. We agree.

Although R.P. Beckendorf is not licensed to do business in Louisiana, has no agent for service of process in Louisiana, has no offices or employees in Louisiana, and has not solicited or advertised for business in Louisiana, we find that R.P. Beckendorf nonetheless could have reasonably anticipated being brought into court in Louisiana as a result of the insurance policy it secured for Appellants’ property in Louisiana.

|4La. R.S. 13:3201 permits the State of Louisiana to exercise personal jurisdiction over a nonresident, provided that the exercise of jurisdiction comports with due process. Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790, 792 (La.1987). Due process requirements are satisfied when the nonresident has “certain minimum contacts [with the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The minimum contacts test involves an inquiry into whether a nonresident defendant has “purposefully availed” himself of the privilege of conducting activities in the forum state, “thus invoking the benefits Land protections of its laws.” /. Wilton Jones v. Touche Ross & Co., 556 So.2d 67 (La.App. 4 Cir.l989)(quoting Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)). A nonresident defendant’s contacts with the fornm state “must be such that the defendant should have reasonably anticipated being haled into court there.” Sparks v. United States Fidelity and Guaranty Co., 93-2498 (La.App. 4 Cir. 2/11/93), 614 So.2d 290, 293, Ford v. Calo, 602 So.2d 787, 789 (La.App. 4 Cir.1992).

R.P. Beckendorf relies heavily on Sparks, supra, in support of its position that the company’s connection with the Louisiana property was insufficient to establish minimum contacts. We find R.P. Beckendorfs reliance on Sparks is misplaced in this instance.

Sparks involved a Connecticut corporation, Connecticut Insurance Exchange (“CIE”), whose only contact with Louisiana was to mail a certificate of insurance to Louisiana. CIE was brought in as a third party by United States Fidelity & Guaranty Co. (“USF & G”), the insurer of the New Orleans Convention Center. USF & G alleged that CIE was contractually bound to indemnify them for all amounts that it might be required to pay in connection with a lawsuit filed by a plaintiff who was injured at the Convention Center during a food festival. The plaintiff named as defendants the City of New Orleans (the owner of the Convention Center) and its insurer, USF & G. The plaintiff also named Schwegmann Giant Super Markets, Inc., Robert Donnell Productions, Inc. | f;(“Donnell”) and Donnell’s insurer, Western World Insurance Company (“Western World”).

Donnell, a participant in the food festival, was required to provide a certificate of insurance stating that New Orleans Public Facility Management would be indemnified against claims for injury or loss arising out of acts conducted by Donnell during the festival and naming New Orleans Public Facility Management as an additional insured on Donnell’s Western World policy. The certificate was created and then mailed from CIE (in Connecticut) to the Convention Center in Louisiana. This Court reversed the trial court’s denial of CIE’s exception for lack of personal jurisdiction, noting that CIE was a Connecticut corporation not licensed to do business in Louisiana; that CIE was the producer but not the insurer itself; that CIE did not have offices, employees, or agents in Louisiana; that CIE did not own property or have assets in Louisiana; and that CIE did not send representatives to or advertise or solicit business in Louisiana. This Court found that this single contact with Louisiana did not constitute “minimum contacts” sufficient to exercise personal jurisdiction and that “it would be unreasonable to assume that CIE should have anticipated being haled into court in Louisiana as a result of this act” because “[t]he act of mailing the certificate of insurance to Louisiana does not constitute a purposeful availment of the privileges of conducting business within Louisiana such as to invoke the benefits and protection of Louisiana law.” Sparks, 614 So.2d at 294.

|7As this Court noted in Sparks, Louisiana courts have recognized that a nonresident defendant’s single act can suffice to subject a defendant to personal jurisdiction. Id. at 293 (citing Babcock and Wilcox v. Babcock Mexico, 597 So.2d 110 (La.App. 4 Cir.1992), Security Homestead Association v. International Insurance Co. Inc., 546 So.2d 1384 (La.App. 4 Cir.1989)). Likewise, while physical entry into the forum state in not necessary to establish minimum contacts, “[t]here must be a substantial connection between the defendant’s activities and the forum state” and the nature of the contacts with the forum state may not be “isolated, fortuitous, or attenuated.” Sparks, 614 So.2d at 293 (quoting Fryar v. Westside Habilitation Center, 479 So.2d 883, 888 (La.1985)). Jurisdiction is proper “where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum state.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985)(citing McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)(emphasis in original)). “Thus where the defendant ‘deliberately’ has engaged in significant activities within a State, or has created ‘continuing obligations’ between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by “the benefits and protections” of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (internal citations omitted).

IsFirst, we find that the facts of the instant case are entirely distinguishable from Sparks. The insurance certificate in Sparks was procured for a nonresident business, not real property, and for only a brief and temporary period of time. Conversely, R.P. Beckendorf dispensed advice with regard to types of policies and levels of insurance coverage and ultimately secured various insurance policies for Appellants’ real property in Louisiana.

Next, we find that it would be unreasonable to hold that minimum contacts were lacking simply because it was not essential for R.P. Beckendorf to solicit business, place telephone calls or mail documents to Louisiana in connection with the insurance policies for the Louisiana property. As the United States Supreme Court observed twenty-two years ago in Burger King, supra:

Although territorial presence frequently will enhance a potential defendant’s affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor’s efforts are purposefully directed toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.

Burger King, 471 U.S. at 476, 105 S.Ct. 2174 (citations omitted). In the past twenty-two years, “modern commercial life” has changed significantly, and the need for physical presence in a state is presumably much less necessary today than at the time of the Burger King decision. Moreover, there is no dispute that R.P. Beckendorf was cognizant that the policies it procured were for property in Louisiana. An agent or broker who fails to procure the appropriate insurance policies or coverage for his Ifldients can reasonably anticipate being haled into court; thus, we find that R.P. Beckendorf knew or should have known that by obtaining insurance policies for property in Louisiana, it could be haled into court in Louisiana as a result of any alleged acts or omissions in procuring such coverage.

Having established that minimum contacts are present in this case, we must next balance the contacts with other factors to determine whether the exercise of personal jurisdiction “affords substantial justice, is reasonable and compatible with fair play.” Fryar, supra (citing International Shoe, supra; Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Burger King, supra; and Restatement (2d) of Conflict of Laws, §§ 36, 37 (1971)). “Factors to be evaluated include the burden on the defendant, the forum state’s interest, the plaintiffs interest, the system’s interest in obtaining the most efficient resolution of controversies, and the furtherance of fundamental substantive social policies.” Fryar, supra.

It would clearly be a burden for R.P. Beckendorf, a California corporation, to defend a lawsuit to Louisiana. Appellants and the State of Louisiana, however, have a strong interest in seeing that Louisiana property owners who demonstrate that they were negligently advised when obtaining insurance coverage for property that was damaged by Hurricane Katrina be fairly compensated. See Fryar, supra. | mSimilarly, there is a strong social policy against insurance brokers or agents negligently under-insuring their clients.

Therefore, we find that on the facts of this case, the exercise of personal jurisdiction over R.P. Beckendorf is reasonable and does not offend notions of fair play, and further, that it affords substantial justice. The trial court’s grant of R.P. Beckendorfs exception for lack of personal jurisdiction is hereby reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MURRAY, J., concurs with reasons.

TOBIAS, J., concurs in the result.

GORBATY, J., concurs for the reasons assigned by J. TOBIAS.

MURRAY, J.,

concurs with reasons.

hi respectfully concur for the reasons assigned by Judge TOBIAS.

TOBIAS, J.,

concurs in the result.

hi respectfully concur in the result on the basis of La. R.S. 13:3201. I have reservations in that result, however, because in my view the actual connexity to Louisiana is only that immovable property in Louisiana was owned by two Louisiana limited liability companies. Everything else occurred in California. But I also think that the insurance agent could reasonably anticipate that he might be brought into a Louisiana court if he acted negligently in connection with the procurement of insurance policies affecting Louisiana property albeit his actions and acts occurred elsewhere.

      . New Investment and Creek Apartments became Village Creek Apartments, L.L.C. in January 2007, with its domicile in Baton Rouge, Louisiana.

      . The record contains conflicting affidavits with regard to whether R.P. Beckendorf ever communicated with Stuart Jaffe or Michael Levitt as representatives of New Investment and/or Creek Apartments (as opposed to communicating with Jaffe and Levitt in their capacity as managers of Champion Group). Appellants attached an affidavit from Philip Ogolsky, who affirmed that he was a duly authorized representative of New Investment and Creek Apartments, to their opposition to R.P. Beckendorf's declinatory exception of lack of personal jurisdiction. Mr. Ogolsky’s sworn statements indicated that he, as a representative of New Investment and Creek Apartments, spoke with Dick Beckendorf personally regarding the flood insurance coverage for the Chenault Creek Apartments, and that New Investment and Creek Apartments retained R.P. Beckendorf to provide advice with regard to the type and amount of insurance to purchase for the Chenault Creek Apartments.
      Conversely, R.P. Beckendorf attached to its exception of lack of personal jurisdiction an affidavit from John P. Beckendorf, whose sworn statement indicates it was Champion Group that requested R.P. Beckendorf to serve as their broker with regard to the flood insurance policies; that R.P. Beckendorf did not have any contact with any person from Louisiana with regard to the policies; and that all communications regarding the policies took place within California.
      We note that the only correspondence in the record in connection with the insurance policies is a letter from R.P. Beckendorf to Stuart Jaffe as a representative of Champion Group, Inc. Further, we note that the record demonstrates that all communication regarding the Louisiana policies occurred within California. Because we do not make our findings based upon whether R.P. Beckendorf communicated with either or both of the Louisiana L.L.C.s, we pretermit discussion of whether R.P. Beckendorf actually communicated with New Investment and/or Creek Apartments as well as Champion Group.

      . La. R.S. 13:3201 provides:
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state.
      (2) Contracting to supply services or things in this state.
      (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
      (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
      (5) Having an interest in, using or possessing a real right on immovable property in this state.
      (6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
      (7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
      (8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
      B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

      . See, e.g., Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728 (La.1973); Taylor v. Sider, 99-2521 (La.App. 4 Cir. 5/31/00), 765 So.2d 416.


author: EDWIN A. LOMBARD, Judge. CANNIZZARO, J.,

text:
    JOSEPH LeBLANC v. DEPARTMENT OF POLICE.
    No. 2007-CA-1168.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    James B. Mullaly, Assistant City Attorney, Penya Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.)
   EDWIN A. LOMBARD, Judge.

_JjThis appeal is from a decision of the Civil Service Commission of the City of New Orleans upholding the termination of the plaintiff/appellant, Joseph LeBlane, by the New Orleans Police Department. After review of the record in light of the applicable law and arguments of the parties, the decision of the Civil Service Commission is affirmed.

Relevant Facts and Procedural History

The plaintiff, an 11 year veteran of the New Orleans Police Department failed to report to duty on August 28, 2005, and did not return to New Orleans. On September 19, 2005, when he attempted to return to duty, he was placed on a thirty-day suspension. He returned to work on October 20, 2005, and was terminated after a disciplinary hearing on November 22, 2005. He filed a timely appeal with the Civil Service Commission. A hearing was conducted on April 4, 2006, and more than a year later, on July 17, 2007 the Civil Service Commission rendered its decision dismissing the plaintiffs appeal. The plaintiff filed this timely appeal.

liApplicable Law

Review of the Commission’s decision extends to both the law and facts. La. Const.1974, Art. X, § 12. The Commission’s findings of fact should be given the same deference as those made by a judge or jury and, accordingly, the standard of review does not differ from that in other civil cases and the Commission’s determination should be affirmed unless it is manifestly erroneous or clearly wrong. Bruno v. Department of Police, 462 So.2d 139,141 (La.1985) (citations omitted).

Based on the facts presented, the Civil Service Commission determines whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. The Civil Service Commission defines cause for termination as “conduct which impairs the efficient or orderly operation of the public service.” Civil Service Rule 1.5.2.01. “Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service ... [Tjhere must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service.... ” Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962).

Discussion

On appeal, the plaintiff argues that the decision of the Civil Service Commission is arbitrary and capricious because the appointing authority introduced no evidence that his failure to report to duty between August 28, 2005, and September 19, 2005, “in any way impaired the efficiency of the public service” |3or that the responsibility of a police officer is greater to the Police Department than to his family. The plaintiff contends that his absence was due to liver disease and because he evacuated his family to north Alabama on August 28, 2005, because his father-in-law— the only other licensed driver in his family — was not feeling well. According to the plaintiff he did not return to New Orleans until after September 17, 2005, because he did not want to leave his family without a car.

The plaintiffs arguments are without merit. At the hearing before the Civil Service Commission, the plaintiff conceded he was aware that as a result of the approaching hurricane the New Orleans Police Department was on emergency activation status, that police officers were essential personnel and thereby required to report to duty, that he received the notification to report to duty on August 28, 2005, and that he left the city without authorization from the Superintendent of Police and did not return until September 17, 2005. Based upon this evidence, we do not find that the Civil Service Commission was manifestly erroneous in finding that the appointing authority’s action was based on lawful cause and commensurate with the plaintiffs dereliction of duty.

Conclusion

For the foregoing reasons, the decision of the Civil Service Commission is affirmed.

AFFIRMED.

CANNIZZARO, J., concurs with reasons.

CANNIZZARO, J.,

concurring.

It The appellant, Joseph LeBlanc, sets forth two (2) assignments of error. First, he urges that the Civil Service Commission (“CSC”) committed manifest error in dismissing his appeal since, under the conditions created by Hurricane Katrina, no discipline was warranted in this case. In the second assignment of error, he argues that the CSC committed manifest error in denying his appeal because the discipline imposed by the Appointing Authority was excessive.

Since Mr. LeBlanc stipulated to the fact that he had not reported to work for his assigned shift on August 28, 2005, and had abandoned his position after Hurricane Katrina in order to attend to family and personal matters, the CSC was not manifestly erroneous in upholding the disciplinary action taken by the Appointing Authority. See Walters v. Department of Police of New Orleans, 454 So.2d 106, 112-113 (La.1984); Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir. 1990). Furthermore, discipline was authorized as a result of Mr. LeBlane’s actions. See Walters, 454 So.2d at 114.

Finally, the discipline imposed was not excessive in that it was consistent with the uniform amount of discipline set forth by the Superintendent for those officers who were missing for the same amount of time as was Mr. LeBlane and the punishment was commensurate with the infraction committed by Mr. LeBlane given that his conduct clearly exacerbated an already critical situation.

Thus, I find the appellant’s assignments of error are without merit.


author:
PETERS, J.
      PICKETT, J.,

text:
    Randy FONTENOT, et al. v. PATTERSON INSURANCE, et al. Germaine Brooks, et al. v. City of Lafayette, et al.
    No. 06-1624.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Rehearing Denied Jan. 23, 2008.

      Lawrence N. Curtis, Lawrence N. Curtis, Ltd., Lafayette, LA, for Plaintiffs/Appellants/Appellees, Randy Fontenot and Susanne Fontenot.
    Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Holli K. Yandle, Simien & Miniex, Lafayette, LA, for Defendant/Appellee/Appellant, Lafayette City-Parish Consolidated Government.
    Colleen McDaniel, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Lafayette, LA, for Defendant/Appellee/Appellant, The State of Louisiana Through The Department of Transportation and Development.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

liThese consolidated personal injury, wrongful death, and property damage actions arise from an automobile accident which occurred in Broussard, Louisiana, on March 23, 2001. The trial court judgments rendered therein have resulted in three appeals which are now before us. The first appeal is by the personal injury plaintiffs, Randy and Susanne Fontenot and their minor child. The merits issues in the Fontenot appeal are the respective fault and degrees of fault of the drivers of the two vehicles involved in the collision and the State of Louisiana, Department of Transportation and Development (DOTD). In the second appeal, DOTD appeals the issues of fault and degrees of fault, as well as the amount of the trial court’s general damage award to Randy Fontenot rendered through a judgment notwithstanding the verdict (JNOV) of the jury. The third appeal arises from the efforts of the third-party plaintiff, Lafayette City-Parish Consolidated Government (City-Parish), to recover its claim for the property damage to the police car being driven by Mr. Fonte-not at the time of the accident. In its appeal, the City-Parish also argues DOTD’s degree of fault in causing the accident.

DISCUSSION OF THE RECORD

The accident giving rise to this litigation occurred a few minutes after 11:00 p.m. on March 23, 2001, at the intersection of Morgan Street and Main Street in Broussard, Louisiana. At the time of the accident, Randy Fontenot was employed by the City-Parish as a policeman, had just responded to a domestic disturbance call, was driving a police vehicle owned by the City-Parish, and was attempting to locate the vehicle of an individual involved in the domestic disturbance. In searching for the vehicle, he proceeded east on Main Street in the direction of the Morgan Street intersection. At the same time, Germaine Brooks was driving his vehicle south on Morgan Street and |¡>was also approaching the same intersection. Charlotte Phillips was a guest passenger in the Brooks vehicle. The collision between the two vehicles resulted in Ms. Phillips’s death, in personal injuries to both Mr. Fontenot and Mr. Brooks, and in substantial damage to both vehicles.

Mr. and Mrs. Fontenot filed the first of the two consolidated suits involved in this appeal. During the course of the litigation, they named Mr. Brooks; his liability insurer, Patterson Insurance Company; and DOTD as defendants and sought recovery for the damages they sustained as a result of the accident. The City-Parish intervened against the same defendants seeking, among other relief, recovery of the property damages associated with loss of its patrol car. After Patterson Insurance Company became insolvent, the Fon-tenots and the City-Parish added the Louisiana Insurance Guaranty Association (LIGA) as a defendant.

Mr. Brooks and Leona Phillips, the mother of Charlotte Phillips, filed the second action, naming Mr. Fontenot and the City-Parish as defendants. In this action, Mr. Brooks sought to recover the damages he sustained, and Ms. Phillips pursued a wrongful death action for the loss of her daughter. The Fontenots reconvened against Mr. Brooks, and the City-Parish filed a third-party demand against DOTD. The two plaintiffs in this second suit settled the principal demands before trial. Thus, when the two consolidated suits came to trial, the only remaining party plaintiffs (both principal and third-party) were the Fontenots and the City-Parish. The remaining defendants | ¡¡were Mr. Brooks, LIGA, and DOTD. At trial, the claims of the Fontenots were decided by a jury and the claims of the City-Parish were decided by the trial court.

After a four-day trial in which liability was the main factual dispute, the jury answered the propounded interrogatories, assessing Mr. Brooks with ninety percent of the fault causing the accident and assessing Mr. Fontenot with the remaining ten percent. The jury concluded that Mr. Fontenot sustained $255,000.00 in past medical expenses and $176,512.00 in loss of past wages, and would sustain $250,000.00 in lost future wages and earning capacity. However, it awarded Mr. Fontenot no general damages. The jury also concluded that Susanne Fontenot sustained $10,000.00 for loss of consortium and that their minor daughter sustained $5,000.00 in damages. The trial court, on the other hand, concluded that the City-Parish was entitled to recover $19,994.87 for the property damage to its patrol car, but apportioned fault for that damage equally between Mr. Brooks and DOTD. Thus, the jury found no fault on the part of DOTD and the trial court found no fault on the part of Mr. Fontenot.

Mr. Fontenot responded to the jury verdict by filing a motion for a JNOV, or in the alternative a motion for a new trial. In doing so, he challenged the jury’s allocation | ¿of fault and its failure to award him any general damages. The trial court granted the motion for a JNOV as to the general damages complaint, awarding Mr. Fontenot $500,000.00 in general damages. However, the trial court denied the motions in all other respects. Thereafter, the trial court executed three separate judgments — one with regard to its judgment on the City-Parish’s claim, and two with regard to the jury verdict and its subsequent grant of the JNOV. The three appeals now before us were then timely filed.

OPINION

Standard of Review

Our initial inquiry on appeal is the appropriate standard of review for conflicting verdicts arising from a bifurcated trial. In addressing this inquiry, we must first acknowledge that the methodology for resolving such conflicts is disputed among the state’s courts of appeal and indeed within this circuit.

The Louisiana Supreme Court, in several of its opinions, has indicated its awareness that the procedures for reconciling conflicting decisions by the jury and the judge in bifurcated trials vary in the courts of appeal. See Powell v. Reg’l Transit Auth., 96-0715 (La.6/18/97), 695 So.2d 1826; Davis v. Witt, 02-3102, 02-3110 (La.7/2/03), 851 So.2d 1119; and Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.4/11/07), 974 So.2d 635, 2007 WL 1108851. However, it has chosen not to provide any instruction in this unsettled area save its original statements in Thornton v. Moran, 343 So.2d 1065 (La.1977).

Left to their own devices, the circuits have tried different approaches since the Thornton decision. In this circuit, our latest effort resulted in two panels rendering opinions on the same day in July of 2006, with each suggesting a different review | ^methodology. These opinions were in Hebert v. Rapides Parish Police Jury, 05^471 (La.App. 3 Cir. 7/12/06), 934 So.2d 912, rew’d on other grounds, 06-2001, 06-2164 (La.4/11/07), 974 So.2d 635, and McDaniel v. Carenero Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671.

In Hebert, the opinion’s author suggested that a de novo review was the appropriate approach in part because the other procedures employed by the various circuits in the past were too cumbersome and unwieldy to survive objective application. A majority of the panel in McDaniel proposed a more complicated review process of fault findings which would: (1) ignore the jury’s finding regarding the public defendant; (2) with regard to “the other defendants” choose the “more reasonable” finding of fact if neither of the conflicting findings was manifestly erroneous; (3) adopt the finding that was not manifestly erroneous if the other was; and (4) go to a de novo review if the judge and jury findings were both manifestly erroneous. Id. The opinions in Hebert and McDaniel both began the standard of review analysis with reference to the supreme court decision in Thornton, 343 So.2d 1065, and documented their reasoning by review of the jurisprudence from this and other circuits which arose after that decision.

The decision in Thornton remains the supreme court’s only direct instruction to the courts of appeal concerning the handling of conflicting judgments in bifurcated | (¡trials. In Thornton, the jury and the trial court had reached contradictory results and rendered conflicting judgments. The first circuit reviewed the judgments separately, found no manifest error in either decision, and essentially affirmed each judgment. Thornton v. Moran, 341 So.2d 1136 (La.App. 1 Cir.1976). The supreme court remanded the matter to the first circuit with instructions “to resolve the differences in the factual findings between the jury and the judge ... and to render a single opinion based upon the record.” Thornton, 343 So.2d at 1065. In so instructing the first circuit, the supreme court cited La. Const. Art. 5, § 10(B), which expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law.

Thus, while the supreme court has shown a present-day unwillingness to specifically instruct the courts of appeal with regard to the appropriate standard of review, it has not been entirely silent on the subject. Because Thornton remains the only direct instruction by the supreme court on this issue, we must look to it for guidance. In doing so, we choose not to read an ambiguity into the two infinitive phrases, “to resolve the difference in the factual findings between the jury and the judge ... and to render a single opinion based upon the record.” Instead, we find it reasonable to conclude that the supreme court gave its blessing to an independent de novo review by the use of this language.

We reach this conclusion in part because, two years before its decision in Thornton, the supreme court had used the same constitutional extension of appellate jurisdiction to law and facts, La. Const. Art. 5, § 10(B), to hold that where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. | ^Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975). See also Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. We believe that a fair reading of Thornton supports a de novo methodology at least as logically as it supports any other standard of review heretofore advanced by any of the courts of appeal.

Our interpretation of the remand instructions found in Thornton is also supported by the supreme court’s approach to its review of this circuit’s decision in Hebert, 934 So.2d 912. While declining to comment on the approach of this court in harmonizing the conflicting verdicts, and without stating its own approach, the supreme court addressed the liability issue by performing what amounted to a de novo review of the record before it. Hebert, 974 So.2d 635.

Based on the above rationale, we adopt, and will utilize in our review of this matter, the de novo procedure used by this court in Hebert, 934 So.2d 912. We find it to be the most practical and legally sound procedure susceptible of uniform application, and conclude that it complies with the supreme court instruction in Thornton, 343 So.2d 1065.

Liability Issues

It is undisputed that Main Street is the favored street at the intersection where the accident occurred, and that both Main and Morgan Streets are part of the Louisiana State Highway System. The intersecting streets are controlled by a sequencing traffic light designed, constructed, and maintained by DOTD. The standard red-yellow-green sequenced traffic signals control the flow of traffic through the intersection from 5:00 a.m. until 11:00 p.m. each day. However, at eleven o’clock each night the light | ^automatically switches to a flashing mode, with the yellow flashing for the favored traffic on Main Street and the red flashing for Morgan Street. At the time of the accident, the traffic light had just switched to flashing mode.

Approximately one year before the accident, DOTD had widened and overlaid the intersection. In doing so, DOTD had added a third lane for left-turning vehicles in all four approaches. Additionally, DOTD had added a stop bar in the turning lanes, but not in the through lanes. Vision to the west for traffic traveling south on Morgan Street and to the north for traffic traveling east on Main Street is impaired by a four-story brick building situated on the northwest corner of the intersection. This building had been constructed on that location in 1917, and served as a library.

While the physical surroundings at the intersection are not in dispute, the determination of liability for the accident suffers from the paucity of eyewitness testimony. Of the three persons involved in the accident, Ms. Phillips died of her injuries at the scene, Mr. Brooks did not testify, and Mr. Fontenot could not recall the accident because of an amnesic disorder arising from the injuries he sustained in the accident. The only information provided the triers of fact by those involved in the accident was presented second-hand, through the testimony of the officer who questioned Mr. Brooks at the scene on the night of the accident. Mr. Brooks told the officer that he stopped at the red flashing light on Morgan Street, saw no vehicles approaching on Main Street, and was driving across the intersection when Mr. Fon-tenot’s patrol car struck his vehicle.

“In evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, where the record indicates no sound reason for its rejection.” Robertson v. Scanio Produce & |constitutional Foods, Inc., 449 So.2d 459, 462 (La.1984). There are no circumstances in this record casting suspicion on the reliability of Mr. Brooks’s statement, and no reason for us not to accept the explanation of his actions as true. Thus, we accept his statement as true.

In performing a de novo examination of the evidence pertaining to the fault of Mr. Fontenot, Mr. Brooks, and DOTD, we must perform a duty-risk analysis. This is a five-step process which requires that a party asserting fault on another establish (1) that the party whose fault is at issue had a duty to conform his conduct to a specific standard, (2) that the party’s conduct failed to conform to the appropriate standard, (3) that the party’s conduct was a cause-in-fact of the injuries at issue, (4) that the party’s substandard conduct was a legal cause of the injuries at issue, and (5) that there were actual damages. Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791. A party asserting comparative fault bears the burden of proof by a preponderance of the evidence that the other party’s fault was a cause-in-fact of the damage complained of. Watson v. Brazeel, 36,499 (La.App. 2 Cir. 12/18/02), 833 So.2d 1276, writ denied, _[^03-217 (La.04/04/03), 840 So.2d 1215. The cause-in-fact element generally involves a “but for” inquiry which questions whether or not the injury would have occurred “but for” the defendant’s substandard conduct. Petre v. State ex rel. Dept, of Transp. & Dev., 00-545 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, affd 01-876 (La.4/3/02), 817 So.2d 1107. Additionally, fault in a vehicular collision case is determined by judging the conduct of each motorist under the facts and circumstances of each particular case. Matthews v. Arkla Lubricants Inc., 32,121 (La.App. 2 Cir. 8/18/99), 740 So.2d 787.

Mr. Fontenot’s Fault

Because Mr. Fontenot was facing the flashing yellow light, he was authorized to proceed through the intersection, but he had a duty to do so “with caution.” La. R.S. S2:234(A)(2). DOTD and Mr. Brooks assert that Mr. Fontenot violated this duty in that he proceeded through the intersection at a speed in excess of the posted speed limit, and that this excessive speed constituted fault which was a cause-in-fact of the accident. But the fact that a motorist involved in an accident was speeding does not in and of itself require a finding of liability. Loveday v. Travelers Ins. Co., 585 So.2d 597 (La.App. 3 Cir.), writ denied 590 So.2d 65 (La.1991).

In support of their position on this issue, they rely solely on the testimony of Dr. Andrew McPhate, a former professor of mechanical engineering who was recognized by the trial court as an expert in mechanical engineering and vehicle dynamics. Dr. McPhate investigated the accident on behalf of DOTD but did not attempt to fully reconstruct the accident. Instead, with the information he gathered in his investigation, he concluded that Mr. Fontenot applied his brakes before impact, and was traveling | ^fifty-six miles per hour at the time of impact. The speed limit for traffic on both streets at the intersection was thirty-five miles per hour.

While Dr. McPhate testified to speed at impact, he offered no opinion that would connect the vehicle’s speed to the cause of the accident. Thus, DOTD failed to establish the “but for” portion of the cause-in-fact test. That is to say, DOTD offered no evidence to establish that, but for the Mr. Fontenot’s excess speed the accident would not have happened. While such a scenario is possible, there was no evidence presented to establish that possibility as a fact, or even a probability. To reach that conclusion based solely on the speed of the vehicles would be mere speculation on our part. Thus, we find that DOTD failed to meet its initial burden of proof to show that Mr. Fontenot’s actions contributed to the collision. Accordingly, we find Mr. Fontenot free from fault.

Mr. Brooks’s Fault

Faced with a flashing red light, Mr. Brooks’ had a duty to stop before entering the intersection and yield the right of way to traffic on Main Street. La.R.S. 32:234(A)(1). Because the intersection did not contain a cross-walk or a stop bar, Mr. Brooks had a duty to stop at a point where he had a view of approaching traffic on Main Street, and to not proceed if he observed any traffic approaching on Main Street that would constitute an immediate hazard if he attempted to enter the intersection. Id.; La.R.S. 32:123(B). As stated in Toston v. Pardon, 874 So.2d 791, 802,

[Shopping is only half the duty, the other half is not to proceed until the determining that the way is clear. Guil-lot v. Valley Forge Ins. Co., 99-1044, p. 4 (La.App. 3 Cir. 12/8/99), 753 So.2d 891, 894. The second duty is heavier and requires an even greater degree of care when the intersection is blind, or partially obstructed. Continental Ins. Co. v. Duthu, 235 So.2d 182, 186 (La.App. 4 Cir.1970). A driver entering a | ^superior highway where his view is obstructed is under a duty to proceed with extraordinary caution. Taylor v. State, 431 So.2d 876, 879 (La.App. 2 Cir.1983).

As this court recognized in McCauley v. LaFleur, 213 So.2d 176, 179 (La.App. 3 Cir.1968), “[t]o stop and then proceed in the immediate path of oncoming vehicles constitutes negligence.”

Dr. McPhate described the library’s location as creating a “blind intersection,” and Archie Burnham, an expert in traffic design and traffic safety, was of the opinion that Mr. Brooks stopped at a point where the intersection view was obstructed by the library building. Accepting his statement to the investigating officer as true, it is obvious that Mr. Brooks stopped at a point where the library building prevented him from observing the oncoming traffic because, had he stopped at a point where he could have seen down Main Street, nothing prevented him from observing the approaching police car. In fact, had Mr. Brooks looked continuously to make sure he could proceed across the intersection with safety, the accident would not have occurred. We find that his negligence was a cause-in-fact of the collision.

DOTD’s Fault

Two DOTD employees working in the district where the intersection is located, Michael Moss, the district maintenance engineer, and Charles Moran, the district maintenance superintendent, testified concerning the intersection inspection procedure. Their testimony established that DOTD inspected the intersection once every two weeks. But for the limited purpose of determining what, if anything, needed to be repaired. Mr. Moran, as maintenance superintendent, was responsible for having the inspection performed.

11sRichard Savoie, a project development engineer in DOTD’s road design section, testified that when the widening and overlay project was completed in 2000, stop bars were placed only in the turning lanes of the four approaches, and at a distance away from the intersection itself. He explained that the purpose of a stop bar in the turning lane is to establish the point at which a vehicle should stop in order to avoid being “clipped” by a vehicle coming from another direction and turning left onto the street. It is not to be used as a stopping guide for through traffic.

The record reflects that with regard to the design and construction of intersections, DOTD maintains a set of standard plans referred to as the PM-01 plan. This standard plan is used by the contractor and project engineer during the construction of a given project and calls for a stop bar in the through lanes as well as the turning lanes. However, the design engineer for a particular intersection can choose to deviate from this standard plan, and his or her decision is controlling. In the case of the Main Street/Morgan Street intersection, the design engineer chose not to require stop bars in the through lanes. The record is silent concerning the reason for this decision.

Mr. Burnham evaluated the intersection on behalf of the plaintiffs, and it is his professional opinion that, while Mr. Brooks’s fault was a cause-in-fact of the accident, the design of the intersection contributed as well. In expressing this opinion, Mr. Burnham pointed to at least four deficiencies in the highway environment which contributed to the accident:

1. An appropriate design of the intersection would require a 250 foot sight distance and, because there was no guide or stop line in the through traffic lane, Mr. Brooks was left to his own judgment in where stop. Mr. Burnham pointed out that, if Mr. Brooks picked the wrong stopping point (which he apparently did in this case), he would be left with less than one | Uhundred feet of sight distance in which to make an adequate decision on how to proceed.
2. Mr. Burnham considered the absence of the stop bar, particularly at night, to be a defect. According to Mr. Burnham, not only is the stop bar generally required by DOTD’s own PM-01 standard plan, but it is also called for in the Manual on Uniform Traffic Control Devices (MUTCD) promulgated by the National Committee for Uniform Traffic Control Devices (NCUTCD). The stop bar’s purpose is to give the approaching motorist assistance in locating the optimum point for making the decision to safely traverse the favored roadway. Although variances are permitted, Mr. Burnham could find no justification for not providing the stop bars in the approaching lanes of this intersection. In his opinion, the failure to follow the requirements of the PM-01 standard created a hazardous condition at this intersection.
3. Mr. Burnham found no record of a traffic engineering update by DOTD since the traffic signal had been installed over twenty years before the accident. According to Mr. Burnham, such a study would have included a review of the accident patterns, the type of traffic at the intersection, and the nature of the traffic both day and night. Had such a study been conducted, he opined, it would have disclosed the deficiencies present, including particularly the absence of stop bars in the through lanes. The study would have also revealed the eighteen collision-type accidents that had occurred at the intersection pri- or to the accident at issue, as well as the fact that eleven of those-accidents involved traffic approaching from the eastbound lane.
4. According to Mr. Burnham, his experience and review of the literature on the subject caused him to be of the opinion that the intersection would have been made safer if DOTD had not programed the traffic signal to switch to flashing signals at 11:00 p.m. each night. He testified that a safer method is to have the light remain on a red-yellow-red sequence twenty-four hours per day, but on an actuated basis. By an actuated basis, he meant that the light would remain green for Main Street, the favored street, unless and until a vehicle approached from either direction on Morgan Street. At that point, the signal would cycle to green on Morgan Street to allow the traffic to safely pass. As an alternative, he suggested that had the traffic signal cycled to a red/red flashing condition, both drivers would have to stop, thereby decreasing the likelihood of an accident. Such an adjustment, according to Mr. Burnham would require a minimum of expense and trouble in re-programing the circuitry.

hfiMr. Burnham concluded, based on the combination of deficiencies he discovered in his investigation, that this was a dangerous intersection. The import of his testimony was that its deficiencies, in combination with the negligence of Mr. Brooks, caused the accident.

Dr. Jack Humphries, an expert in traffic engineering and highway design, testified as an expert for DOTD. He disagreed with Mr. Burnham’s opinion concerning the importance of the stop bar on the through street although he admitted that if Mr. Brooks had stopped at a point even with the stop bar in the turning lane, he would not have been able to see eastbound approaching traffic on Main Street. Dr. Humphries’s solution was for the driver to pull up farther and stop at a point which did not encroach on Main Street and which would allow him unrestricted vision. Concerning the effect of the flashing light, he testified that his research revealed that problems as described by Mr. Burnham have not been prevalent at intersections involving streets of lesser classifications than arterial, and in this case only one, Main Street, was an arterial. Also, he observed that the MUTCD does not prohibit flashing lights, especially for late-night, low-volume traffic, and that the use of such signals is a matter of engineering judgment. However, he acknowledged that his one visit to the intersection occurred in the daylight hours, that the pictures he relied upon in his study were also taken in the daytime, and that they were taken on the opposite side of the intersection from the direction of travel of the Brooks car. His ultimate opinion was that Mr. Brooks’s failure to comply with his duty to stop at a point where he could see approaching traffic was the sole cause of the accident.

In a tort action against DOTD, whether based on strict liability or negligence, the plaintiff must show: (1) the property which caused the damage was in the custody of|1fithe DOTD, (2) the property was defective because it had a condition that created an unreasonable risk of harm, (3) DOTD had actual or constructive notice of the risk, and (4) the defect in the property was a cause-in-fact of the plaintiffs injuries. Toston, 874 So.2d 791. The analysis under either theory, strict liability or negligence, is the same. Id. DOTD’s duty is to “maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence.” Id. at 799. To that end, the design of a controlled intersection must “not present an unreasonable risk of harm to motorists.” Id.

Based on the facts regarding this intersection and Mr. Burnham’s reasoning, which we accept in preference to that of any other expert testifying, we find that the defective condition of the intersection and its signing created an unreasonably dangerous condition and was a cause-in-fact of the accident. Dr. McPhate and Mr. Burnham both testified that at night the library building in the northwest corner of the intersection presented an obstruction to view to traffic entering the intersection on Morgan Street; Mr. Burnham opined that the sight obstruction of the library building at night, together with the absence of a stop bar on the Morgan Street through lane, presented a motorist proceeding south on Morgan street with no guidance on the optimal stopping location. Furthermore, the presence of the stop bar in the turning lane was deceptive because it could mislead a driver into thinking that was a safe stopping location, whereas it was not. Mr. Burnham made a connection between the number of accidents at the intersection and the unexplained disregard of DOTD’s own standard requiring stop bars in all approaches. Dr. Humphries’s testimony did not detract from Mr. Burn-man’s well reasoned opinion, as Dr. Hum-phries’s opinion was conclusory and without reasoned foundation.

|17We also find more convincing Mr. Burnham’s testimony regarding the deficiency in the traffic signal. His documented explanation of the risk in converting to a flashing mode at 11:00 p.m. is reasonable, as were his alternatives to this action. On the other hand, DOTD’s evidence focused primarily on its attention to proper maintenance of the signals—a nonissue in this litigation. At best, Dr. Humphries established that the installation of a flashing light was not itself a violation of AASHTO or MUTCD minimum standards. He did not address the effect of the flashing system at this particular intersection.

DOTD also argues that it proved it had discharged its duty of care to the motoring public because the evidence at trial established that the intersection at issue met the AASHTO and MUTCD standards or requirements. DOTD argues that because the intersection met these standards or requirements, it is entitled to the presumption of La.R.S. 32:235(E) that it is without fault in causing the accident. We disagree that DOTD is entitled to the presumption provided in that statute. Louisiana Revised Statutes 32:235(E) provides that if there exists proof that, at the time of the accident, DOTD was “in compliance with the provisions of the department’s traffic control devices manual shall be prima facie evidence of discharge by [DOTD] of its obligations to the motoring public.” Simply stated, the evidence establishes that DOTD was not in compliance with its own traffic control devices manual in that it failed to install stop bars for the through lands.

We also find that DOTD had knowledge of the possible defects in the intersection. In Hammons v. City of Tallulah, 30,091 (La.App. 2 Cir. 12/10/97), 705 So.2d 276, unit denied, 98-407 (La.3/27/98), 716 So.2d 892 and 98-440 (La.3/27/98), 716 So.2d 894, constructive knowledge of a hazardous condition sufficient to allow 11srecovery against a public body was based on facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public body had exercised reasonable care. In the present case the blind intersection was as old as the library building and the traffic light had been present for more than twenty years. Additionally, the accident records of the Town of Broussard demonstrated that of the eighteen accidents occurring at that intersection, more than half involved traffic traveling east on Main. The long-term existence of the hazardous conditions and the accident history at this intersection was sufficient to establish that the DOTD had actual or constructive notice that it was not in compliance with its own standards. See Cole v. State ex rel. Dept, of Transp. & Dev., 99-912 (La.App. 3 Cir. 12/22/99), 755 So.2d 315, writ denied, 00-199 (La.4/7/00) 759 So.2d 766. We have no hesitancy finding that DOTD knew or should have known that the intersection posed an unreasonable risk.

Apportionment of Fault

The ruling case law on the apportionment of fault between parties is Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1986). In Watson, the supreme court identified various factors that 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 actors, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought.

Watson, 469 So.2d at 974.

In the present case, we have already concluded that the parties at fault in causing the accident were Germaine Brooks and DOTD. In evaluating their conduct pursuant |iato the Watson factors, and without restating the factual and legal conclusions reached in this de novo review, we find that their fault was in equal proportions.

Damages

On appeal DOTD questions only the amount of general damages awarded to Mr. Fontenot. Specifically, DOTD asserts that the trial court “committed manifest error by amending the jury verdict by JNOV to add $500,000 in general damages.” This assertion is premised on the argument that the trial court award was an additur and not a JNOV.

An additur may be entered “only if the issue of quantum is clearly and fairly separable from other issues in the case.” La. Code. Civ.P. art 1814. In its brief, DOTD declares that “the parties agreed for the judge to grant an additur in lieu of a new trial and to reform the jury verdict accordingly, since the damage issue was separable from liability issues.” Then, observing that “additur only allows reformation of the award to the lowest reasonable amount,” DOTD sums up its briefed argument in support of this assignment with the contention that the $500,000.00 JNOV was excessive.

We have carefully examined the proceedings in relation to the motion for a JNOV, or in the alternative a motion for a new trial, and we find nothing in the record to suggest either an agreement between the parties or DOTD’s consent to convert the motions to an additur. Mr. Fontenot’s motion was for a JNOV, and the judgment rendered by the court was plainly and simply a JNOV. Inasmuch as DOTD has made no factual argument and no valid legal argument that the JNOV was improperly granted or that it was excessive, there is nothing further for us to review concerning this assignment of error. The assignment has no merit.

INDISPOSITION

For the foregoing reasons, we affirm the judgment on the verdict of the jury as amended by the trial court’s judgment notwithstanding the verdict and affirm the remaining awards of damages in the judgment on the jury verdict. We reverse the jury’s failure to assign fault to the State of Louisiana, Department of Transportation and Development, and reverse its assignment of fault to Randy Fontenot. We reallocate fault, finding that the State of Louisiana, Department of Transportation and Development, and Germaine Brooks were equally at fault in causing the accident at issue in this litigation, and assess each with fifty percent of the fault. Accordingly, we render judgment in favor of Randy and Susanne Fontenot, individually and on behalf of their minor daughter, against the State of Louisiana, Department of Transportation and Development, for fifty percent of all damages awarded, and in favor of Randy and Susanne Fonte-not, individually and on behalf of their minor daughter, against Germaine Brooks and Louisiana Insurance Guaranty Association for fifty percent of all damages awarded. We affirm the judgment awarding legal interest according to law but providing that Louisiana Insurance Guaranty Association is responsible for legal interest on its obligation only from March 17, 2008. We recast the judgment for costs, ordering that the State of Louisiana, Department of Transportation; Germaine Brooks; and Louisiana Insurance Guaranty Association shall be responsible for court costs, including cost of this appeal, in proportion to their fault. Pursuant to the requirement of La.R.S. 18:5112(A), we set the fifty percent share of costs assessed to the State of Louisiana, Department of Transportation and Development in a monetary amount, $21,882.31 in lower court costs and $4,193.34 in appellate costs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PICKETT, J., dissents and assigns written reasons.

PICKETT, J.,

dissenting.

hi maintain that the appropriate method of review in a case involving conflicting verdicts is the process set out in McDaniel v. Carenero Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671. Thus, I dissent from the de novo review employed by the majority.

Further, I disagree with the majority’s finding of no liability on the part of the plaintiff, Randy Fontenot. I agree with the jury’s assessment of 10% fault to Mr. Fontenot. Although I agree with Judge Peters’ statement of the standard of care and the duty imposed in a motorist approaching a flashing yellow light, I believe that the plaintiff violated that duty by traveling 21 miles per hour over the posted speed limit, thereby contributing to the cause of the accident.

For these reasons, I respectfully dissent.

      . The Fontenots and the City-Parish added other defendants during the course of the litigation, but they were all dismissed prior to trial.

      . Under La.R.S. 22:1375-1394, the Louisiana Insurance Guaranty Association Law, a mechanism is provided "for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer ...” La.R.S. 22:1376.

      . We are rendering our decision and judgment in Fontenot v. Patterson Insurance Company, 06-1624 (La.App. 3 Cir. 12/5/2007), 972 So.2d 401, in which the jury verdict was rendered. A separate judgment is being handed down today in the consolidated case of Brooks v. City of Lafayette, 06-1625 (La. App. 3 Cir. 12/5/2007), 972 So.2d 416, 2007 WL 4247601, wherein the judge decision was rendered.

      . The extent of Randy Fontenot's personal injuries was not seriously disputed. In reasons for judgment dated July 13, 2005 the trial judge described Mr. Fontenot’s injuries as "multiple injuries, including a right ankle fracture with tendon avulsion, right heel fracture, right patella fracture, fractures of the right hand, compression fractures of the thoracic spinal vertebrae, right lower leg fracture, three fractured ribs, lung contusion, cardiac contusion, facial lacerations and laceration of the spleen.” The trial court further found that "Mr. Fontenot was in coma for several weeks. He had a number of surgeries to repair his injuries and was treated for post traumatic stress disorder, anxiety, neurosis and depression.”

      . The City-Parish had sought recovery for medical expenses and workers’ compensation weekly benefits paid to Mr. Fontenot. However, that part of the judgment is not before us on appeal.

      . The five-judge panel hearing Hebert was not unanimous. The author was joined by one member of the panel while two others (one being the author of the opinion in McDaniel) concurred in the result but suggested the approach in McDaniel was the appropriate method of review. The fifth judge disagreed with the decision's result.

      . While the result was unanimous in McDaniel, the panel split two to one concerning the appropriate method of review. The judge disagreeing with the method was the author of the opinion in Hebert.

      . In the present case DOTD urges us to fully implement both judgments even though they are based on conflicting findings of fact by reviewing each under the manifest error standard. We reject this approach. DOTD's solution is precisely what the court of appeal did in Thornton, a procedure which the supreme court rejected.

      . According to the record, DOTD subpoenaed Mr. Brooks to testify. He was served but did not appear. His deposition was taken but not introduced. Instead, DOTD proffered a time-lapse video showing the accident, and a CD made from it, that had supposedly been recorded on surveillance tapes from a nearby gas station. By a motion in limine filed before trial the plaintiffs, citing La.Code Evid. arts. 402 and 403, sought a ruling that the time lapse video was unreliable and inadmissible, arguing that even if it were relevant and admissible it should be excluded because its probative value was substantially outweighed by the danger of unfair prejudice and confusion of the issues, and because it would mislead the jury. The trail court, after viewing the video, agreed and excluded the offering, noting in oral reasons that it was time lapse photography and showed the Brooks car "stopped a couple of times.” The court thought this would be very confusing to the jury and too misleading to overcome its highly questionable probative value. Also, the trial court noted that the video, having little or no probative value in and of itself, would have to be explained to the trier of fact, which could result in the trial taking a disproportionate time over the issues of when, if, and how many times Mr. Brooks's car stopped before entering the intersection.
      Although DOTD did not assign error to the exclusion of these offerings, it argues in its appellate brief that the trial court erred in excluding them. We have viewed the video and the CD and are totally in accord with the trial court’s assessment of their lack of evi-dentiary significance and the likelihood they would have caused confusion and resulted in an inordinate waste of time.

      . Louisiana Revised Statutes 32:42 does allow a police officer to violate the speed limit under certain limited circumstances. However, the facts before us does not grant that privilege to Mr. Fontenot in this case.

      . The stop bar is referred to as a "limit line” in La.R.S. 32:234(A)(1).

      . Burnham served on the NCUTCD and was one of the contributors to the development of the MUTCD. He also served on committees of the American Association of State Highway and Transportation Officials (AASHTO) which addressed traffic control and safety standards.