author:
GUIDRY, J.
      PARRO, J.,

text:
    Harold CORKERN, II v. Susan CORKERN.
    No. 2005 CA 2297.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Lila Tritico Hogan, Hammond, Counsel for DefendanVAppellant Susan Corkern.
    Dennis John Hauge, Prairieville, Peter Dudley, Baton Rouge, Counsel for Plaintiff/Appellee Harold Corkern, II.
    Before: PARRO, GUIDRY, and MCCLENDON, JJ.
   GUIDRY, J.

12This appeal is taken from a judgment partitioning the community of acquets and gains formerly existing between appellant, Susan Corkern (now Wilhite), and appel-lee, Harold Corkern, II.

FACTS AND PROCEDURAL HISTORY

The parties were married on October 6, 1990, and divorced on April 4, 2003. The community regime between them was terminated retroactively to July 19, 2002, the date the petition for divorce and partition of community property was filed.

During proceedings to partition the community property, the trial court ruled that a crew boat, the Missie C, which was acquired during the marriage was appellee’s separate property, because it was donated to him by his father and was registered with the United States Coast Guard in his name only. However, at a hearing held on newly discovered evidence, appellant attempted to prove the act of donation was a fraud because, although it was dated April 10, 1997, it actually was not executed until after the divorce proceedings began. The trial court concluded the evidence presented was insufficient to overcome the presumption of genuineness of an authentic act. Following an additional hearing, the trial court rendered judgment partitioning the community property. This appeal followed.

ASSIGNMENTS OF ERROR

1. The trial court erred in classifying the crew boat as appellee’s separate property.

|s2. In the alternative, if the crew boat was appellee’s separate property, the trial court erred in not allowing appellant’s reimbursement claim for note payments and repairs on the boat.

3. The method of allocation of the community assets and liabilities was improper.

4. The trial court erred in (a) not finding the act of donation to be fraudulent, and (b) in ruling it was irrelevant whether it was fraudulent, because there was other sufficient evidence that the crew boat was separate property.

5. The trial court erred in denying all but one of appellant’s reimbursement claims, while recognizing all of her former husband’s claims.

METHOD OF ALLOCATION

Appellant argues the methodology used by the trial court in partitioning the community constituted an error of law because the court failed to value the assets as required by La. R.S. 9:2801 A(4)(a). The record reveals that, over the objection of both parties, the trial court required each of them to “equitably” divide the community assets into a set of two lists, with each list to be of equal value. The minute clerk then selected one set of lists by random lot. After appellant’s lists were selected, the court allowed appellee to choose which of the appellant’s two lists of assets he wished to be allocated. Appellant contends the trial court abdicated its adjudicatory function in ordering the parties to determine the values of the assets and to divide them. Additionally, she asserts this method failed to take into account the unique circumstances involved when one of the community assets is a wholly-owned family business managed entirely by one spouse. In the instant case, appellant was allocated Corkern Crew Boat Rentals, L.L.C. (CCBR), a business previously operated by appellee, which she claimed was of little value to her because she was incapable of running it.

At the pertinent time, La. R.S. 9:2801 A(4) sets forth the procedure to be followed in partitioning community property as follows:

The court shall then partition the community in accordance with the following rules:
|4(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the communi- . ty assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
(e) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.
(f) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation. The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale. In the event of a partition by licitation, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

It is mandatory that trial courts follow the rules and procedures outlined in La. R.S. 9:2801 A(4) in partitioning community property. McElwee v. McElwee 93-1010, p. 4 (La.App. 1st Cir.8/17/94), 649 So.2d 975, 977; Thomas v. Thomas, 552 So.2d 793, 795 (La.App. 1st Cir.1989). The trial court herein did not follow these procedures because it failed to value the assets, failed to properly divide the community assets between the parties, and failed to determine if an equalizing payment was required due to an unequal distribution. See McElwee, 93-1010 at p. |B4, 649 So.2d at 977. Moreover, because the evidence in the record is insufficient to ascertain a value for CCBR, it is impossible for this court to determine on review if each spouse received property of equal value, or whether one of the parties was entitled to an equalizing sum. Therefore, in view of the trial court’s failure to comply with the requirements of La. R.S. 9:2801 A(4), this matter must be remanded to the trial court for the partition of the community property to be properly made in accordance with that provision. See McElwee, 93-1010 at p. 4, 649 So.2d at 977-78.

In making its allocation of assets, the trial court should be mindful of the nature of the assets, the economic condition of each spouse, and any other relevant circumstances. See La. R.S. 9:2801 A(4)(c). For instance, in situations where one of the spouses has controlled and managed a family business, which the evidence indicates the other spouse is incapable of operating, it may be both more practical and equitable to allocate the business to the spouse more capable of operating it. See Ellington v. Ellington, 36,943, pp. 9-11 (La.App. 2d Cir.3/18/03), 842 So.2d 1160, 1167-69, writ denied, 2003-1092 (La.6/27/03),. 847 So.2d 1269; Mexic v. Mexic, 577 So.2d 1046, 1049 (La.App. 4th Cir.1991). In some eases, the value of the business may even vary depending on which spouse the business is allocated to. Ellington, 36,943 at p. 11, 842 So.2d at 1169. Finally, if the trial court finds it necessary in placing a value on any community asset, including CCBR, the court may appoint an expert for the purpose of appraisal. See La. R.S. 9:2801 A(3).

CLASSIFICATION OF CREW BOAT

Appellant contends the trial court erred in classifying the crew boat, which was valued at $135,000 at the time of trial, as appellee’s separate property. Specifically, she argues the court erred in finding appellee’s father donated the crew boat to him because: (1) the crew boat was acquired during the marriage with the proceeds of a loan the parties took out together; and (2) the purported act of | (¡donation was fraudulently executed and backdated. She further maintains the trial court erred in concluding the crew boat was appellee’s separate property on the additional basis that it was registered with the Coast Guard in his name only.

Under Louisiana law, property of married persons is generally characterized as either community or separate. La. C.C. art. 2335. Property in the possession of a spouse during the existence of the community property regime is presumed to be community, but either spouse may rebut the presumption. See La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving the property is separate in nature. Ross v. Ross, 2002-2984, p. 9 (La.10/21/03), 857 So.2d 384, 390. The classification of property as separate or community is fixed at the time of its acquisition. A trial court’s finding regarding the nature of property as being either community or separate is a factual determination subject to the manifest error-clearly wrong standard of review. Lytal v. Lytal, 2000-1934, p. 3 (La.App. 1st Cir.11/14/01), 818 So.2d 111, 113, writ denied, 2001-3272 (La.3/8/02), 810 So.2d 1164.

Initially, we agree with appellant’s contention that the trial court erred in concluding the crew boat should be classified as appellee’s separate property because it was registered in his name only. The presumption of community is applicable to property acquired during the marriage, regardless of the registration. See La. C.C. art. 2340; Katherine S. Spaht & W. Lee Hargrave, Matrimonial Regimes, 16 Civil Law Treatise, § 4.6 at 204-05 (2nd ed.1997). Cf. Smith v. Smith, 230 La. 509, 519, 89 So.2d 55, 58 (1956). Thus, the classification of property as separate or community is not determined by the name listed on the title, but rather by the time of acquisition, the nature of the transaction, and the source of funds used to acquire it. See La. C.C. arts. 2338 & 2341; Biondo v. Biondo, 99-0890, pp. 21-22 (La.App. 1st Cir.7/31/00), 769 So.2d 94, 108-09; Johno v. Johno, 93-905 (La.App. 5th Cir.3/16/94), 633 So.2d 966, 969; Spaht & |7Hargrave, Matrimonial Regimes, 16 Civil Law Treatise, § 3.50 at 189. Thus, the trial court erred in concluding the crew boat was separate on the basis that appellee was the registered title owner.

Since the crew boat clearly was acquired during the marriage, appellee bore the burden of proving its separate nature in order to rebut the presumption of community. See La. C.C. art. 2340; Ross, 2002-2984 at p. 9, 857 So.2d at 390. For this purpose, appellee introduced an act of donation of a movable, in authentic form, dated April 10, 1997, in which his father donated the boat to him. Both appellee and his father testified the donation of the crew boat was intended to be part of ap-pellee’s inheritance and his separate property. However, his father also testified it was part of their agreement that appellee would pay off his father’s loan with Central Progressive Bank (CPB). Appellee likewise acknowledged that part of the agreement was that he would pay the mortgage on the crew boat.

Under La. C.C. art. 2341, property “acquired by a spouse by inheritance or donation to him individually” is considered the separate property of that spouse. See Robinson v. Robinson, 99-8097, pp. 6-7 (La.1/17/01), 778 So.2d 1105, 1113-14. Article 2341 does not define the term “donation”. However, La. C.C. art. 1523 provides that there are three kinds of donations inter vivos: gratuitous, onerous, and remunerative. Only the first two types are pertinent to our discussion. A purely gratuitous donation is one “made without condition and merely from liberality,” while an onerous donation is one “burdened with charges imposed on the donee.” La. C.C. art. 1523. Louisiana Civil Code article 1524 further provides that an “onerous donation is not a real donation, if the value of the object given does not manifestly exceed that of the charges imposed on the donee.” Moreover, the rules peculiar to donations inter vivos are not applicable to onerous | ^donations, “except when the value of the object given exceeds by one-half that of the charges or of the services.” La. C.C. art. 1526.

In a recent case, the Louisiana Supreme Court construed a constitutional provision prohibiting the “donation” of public property. In doing so, the Supreme Court explained that “[t]he generally understood meaning of a donation is an act whereby one gratuitously gives something to another. The term donation contemplates giving something away. It is a gift, a gratuity or a liberality.” Board of Directors of the Industrial Development Board of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Property Owners, Citizens of Gonzales, 2005-2298 (La.9/6/06), 938 So.2d 11. On that basis, the Supreme Court concluded the purpose of the constitutional provision prohibiting the “donation” of public property was to prohibit the gratuitous alienation of public property. Board of Directors, 2005-2298 at p. 16, 938 So.2d at 20.

As noted, it was the testimony of appel-lee and his father that the donation was intended to be part of appellee’s inheritance, as well as his separate property. However, their testimony was equally clear that the donation was burdened with charges imposed on appellee, i.e., the crew boat was encumbered with a mortgage of approximately $113,000 that appellee was expected to pay off as part of the deal. Moreover, appellee and appellant obtained a loan at CPB and used the proceeds to pay off his father’s loan. Counsel for appellee admitted in brief that 19appellee’s father “received value for the donation,” although he erroneously considered that fact to be irrelevant. Further, the trial court, observing that “the mortgage on the donation was somewhere close to whatever the value of the boat was,” indicated it might be able to find the transaction was a simulation. Nevertheless, in finding that appellee had rebutted the community presumption with respect to the crew boat, the trial court relied on the fact that there was a donation, without considering whether it was a real donation.

Given the circumstances, we find the trial court committed manifest error and was clearly wrong in finding appellee met the burden of rebutting the community presumption applicable to the crew boat. Appellee failed to prove he acquired the boat by a real donation. Although appel-lee proved the existence of an onerous donation, he failed to establish the value of the crew boat manifestly exceeded the approximately $113,000 charge imposed on him. See La. C.C. art. 1524. Under La. C.C. arts. 1524 and 1526, an onerous donation is not considered to be a real donation unless the value of the donated object exceeds by one-half the value of the charges imposed. Appellee failed to present evidence to establish the donation of the crew boat was a real donation under these codal provisions. Therefore, since the presumption of community was not rebutted, the crew boat must be classified as community property.

REIMBURSEMENT CLAIMS

Appellant contends the trial court erred in awarding all of appellee’s reimbursement claims, while denying all but one of hers. When a spouse uses separate funds to pay a community obligation, that spouse is entitled upon termination of the community to reimbursement for one-half of the amount paid. ]10See La. C.C. art. 2365. The burden of proof is on the party claiming reimbursement. Charles v. Charles, 2005-0129, p. 7 (La. App. 1st Cir.2/10/06), 923 So.2d 786, 789. A trial court’s findings as to whether reimbursement claims have been sufficiently established are reviewable under the manifest error standard. See Kline v. Kline, 98-1206, p. 4 (La.App. 3rd Cir.2/10/99), 741 So.2d 670, 672.

In this case, appellant contends the trial court should have awarded her the following reimbursement claims: (1) $758 attributable to a tax refund; (2) $818.19 for health insurance premiums paid by CCBR on behalf of appellee; (3) $3,225 as her share of a check drawn on CCBR’s account by appellee several days before the community terminated; (4) $1,442 for personal telephone bills of ap-pellee paid by CCBR; and (5) $292 for personal utility bills of appellee paid by CCBR. Based on our review, we find no error in the trial court’s rejection of these claims.

The only evidence appellant offered in support of the first claim was her testimony that appellee admitted taking the tax refund and a letter from their accountant stating a refund was due. Since this was a factual determination, we cannot say the court committed manifest error in rejecting the claim, particularly since the refund was received prior to the termination of the community and could have been used to benefit the community. Appellant’s remaining reimbursement claims all relate to payments made by CCBR. Thus, appellant’s proper remedy, if any, lies in her mismanagement claim relative to CCBR. In any event, the evidence was insufficient to establish what portion of the total utility and telephone bills paid by CCBR may have been attributable to appellee personally. We also note the payment of appel-lee’s health insurance premiums could be considered a valid business expense since he was working for CCBR at the time.

Appellant also complains the trial court erred with respect to several of the reimbursement claims awarded to ap-pellee, either because the full amount of the award was not proven or because there was no evidence the debt was a community Inobligation. Our examination of the record reveals the trial court did commit manifest error as to the following reimbursement claims. First, the trial court erred in awarding appellee reimbursement in the amounts of $10,009 for community tax payments, $445 for boat slip rentals, and $3,768 for loan payments to Gulf States Bank (GSB), since the checks appellee introduced into evidence supported awards of only $8,250, $90, and $638.28, respectively, for these claims. As to the $1,093 award for truck insurance payments, appellant asserts appellee proved payments of only $113. We agree the award must be reduced, because the record does not support any award beyond that amount. Further, the trial court manifestly erred in ordering reimbursement to appellee in the amounts of $417 for loan payments to CPB and $2,649 for payments on a VISA account with First National Bank of Omaha (FNB). Although appellee presented records showing payments were made on the loan and the FNB account, he failed to document that the payments were made with his separate funds. Thus, these claims should have been denied in their entirety.

Accordingly, the reimbursement awards to appellee must be amended as follows: the award for tax payments must be reduced to $8,250; the award for boat slip rentals must be reduced to $90; the award for truck insurance payments must be reduced to $113; and, the award for GSB loan payments must be reduced to $638.28. The reimbursement awards made with respect to the CPB loan and the FNB account are reversed.

CONCLUSION

For the above reasons, the ruling of the trial court that the crew boat, the Missie C, should be classified as Harold Corkern’s separate property, rather than as community property, is reversed. That portion of the trial court judgment awarding reimbursement to Harold Corkern in the amount of $27,421 is hereby amended to reduce that award to the amount of $18,131.28. . Further, the partition | ^judgment is vacated, and this matter is remanded to the trial court for further proceedings consistent with this opinion. The judgment of the trial court is affirmed in all other respects. The costs of this appeal are assessed to Harold Corkern, II.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED.

PARRO, J., concurs and assigns reasons.

PARRO, J.,

concurring.

hi agree with the majority’s resolution of the issue pertaining to the classification of the crew boat; however, I believe that the trial court’s erroneous classification of this property was the result of legal error as opposed to manifest error. For this reason, I respectfully concur.

      . In brief, appellee contends this appeal is improper, because the partition judgment is not final since there are rules still pending, including appellant’s corporate mismanagement claim, a motion to compel discovery, and various other issues involving contempt. However, the partition judgment specifically noted that those matters were not part of the partition of community property. Under La. C.C.P. art. 1915 A(4), a judgment signed on a principal demand that has been tried separately may be a final judgment, even if the judgment does not grant the successful party all the relief prayed for, or does not adjudicate all of the issues in the case. A final judgment that falls under La. C.C.P. art. 1915 A is appealable without the necessity of being so designated. See La. C.C.P. art. 1911.

      . A remunerative donation is one made in recompense for services rendered. See La. C.C. art. 1523. No evidence was presented herein to suggest the crew boat was donated to appellee to recompense him for services rendered.

      . While the Supreme Court indicated the donor's intent was determinative, it did not rely merely upon the parties' statements of their intent, but also examined the respective obligations undertaken by them in determining whether the arrangement between them was gratuitous. Based on the real and substantial obligations undertaken by the alleged "do-nee,” the Supreme Court concluded it was not a gratuitous arrangement. Board of Directors, 2005-2298 at p. 16, 938 So.2d at 20.

      .While appellee admitted in brief that the loan on the crew boat was paid off by a loan "executed by Hal and Susan Wilhite [Cor-kern],” he also claims that loan was "in the name of the corporation, Corkern Crew Boat Rentals, L.L.C.” The record does not support this claim. Bank documents show the loan was taken out in the name of Harold and Susan Corkern, d/b/a Corkern Crew Boat. Further, Harold and Susan Corkern signed the promissory note evidencing the loan individually, rather than in a representative capacity on behalf of CCBR, which bound them individually for the debt. Moreover, after $113,092.41 of the loan proceeds was applied directly to pay off the loan of appellee’s father, a check for the residual proceeds of $2,907.50 was issued in the name of "Harold and Susan Corkern.”

      . In view of this conclusion, we pretermit the following issues raised by appellant in brief: (1) the alternate claim for reimbursement for the alleged use of community funds to acquire and repair the boat; (2) the claim that appel-lee judicially confessed the crew boat was community property; and (3) the claim that the act of donation was fraudulent.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Shavon NICHOLS v. SANDERSON FARMS.
    No. 2005 CA 2356.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Thomas J. Hogan, Jr., Hammond, Counsel for Claimant/Appellant Shavon Nichols.
    John T. Roethele, Denham Springs, Counsel for Defendant/Appellee Sanderson Farms.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

LThis is an appeal from an action seeking workers’ compensation benefits, which were denied. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 14, 2003, claimant, Shavon Nichols, filed a “Disputed Claim for Compensation” with the Office of Workers’ Compensation (OWC). On that form, Ms. Nichols stated that her “Date of Hire” was “7-29-02,” and that her “Date of Injury/Illness” was “10-14-02.” Ms. Nichols asserted that while working as a “wing cutter” for the defendant, Sanderson Farms, at the end of September 2002, she began to notice numbness in the fingers of her right hand, as well as sharp pain in her wrist. Ms. Nichols further asserted that she also had sharp pain in the palm and wrist of her left hand.

Defendant asserts that Ms. Nichols first complained of her symptoms to the company nurse on October 14, 2002, and was immediately placed on light duty, though she continued to collect her regular wages. The defendant employer continued to employ the claimant through February 2003, at full salary, and paid medical benefits until a determination was made that the claimant’s condition was unrelated to her work.

Following a hearing on August 13, 2003, the OWC judge ruled in favor of defendant and dismissed Ms. Nichols’ claim. Ms. Nichols has appealed the ruling to this court, asserting that the OWC was manifestly erroneous in its ruling.

JjLAW AND ANALYSIS

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature, and must establish that the accident was employment-related, the accident caused the injury, and that the injury caused the disability. Clausen v. D.AG.G. Construction, 2001-0077, p. 2 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851. A claimant has the burden of proving disability by clear and convincing evidence. See Walker v. High Tech Refractory Services, Inc., 2003-1621, p. 3 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185,1188.

■ As in other cases, in reviewing the OWC judge’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Lafleur v. Alec Electric, 2004-0003, p. 4 (La.App. 1 Cir. 12/30/04), 898 So.2d 474, 478, writs denied, 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003-2447, p. 4 (La.App. 1 Cir.10/29/04), 897 So.2d 75, 79, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, an appellate court may only reverse an OWC judge’s factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., 617 So.2d at 883. Even though an | ¿appellate court may feel its own evaluations and inferences are more reasonable than those of the factfin-der, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Lafleur v. Alec Electric, 2004-0003 at p. 4, 898 So.2d at 478.

Prior to the legislative extension of workers’ compensation coverage to include occupational diseases, a worker’s entitlement to compensation hinged on the occurrence of an “accident,” which can only be established by the claimant’s proof of an “identifiable precipitous event” that caused injury. While enlarging workers’ compensation coverage to cases of occupational disease, LSA-R.S. 23:1031.1 retains the requirement that an employee establish the disease arises from his work, i.e., from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. The causal link between a claimant’s illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of only a possibility that the employment caused the disease or that other causes not related to the employment are just as likely to have caused the disease. Dunaway v. Lakeview Regional Medical Center, 2002-2313, p. 5 (La.App. 1 Cir. 8/6/03), 859 So.2d 131,134-35 (citations omitted).

In the case sub judice, the OWC judge found that Ms. Nichols had failed to establish her right to workers’ compensation benefits because she failed to rebut the statutory presumption applicable to her claim as contained in LSA-R.S. 23:1031.1(D), which provides, in pertinent part:

|s§ 1031.1. Occupational disease
A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
* * *
D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence. [Emphasis added.]

Carpal tunnel syndrome is considered an occupational disease; however, where the claimant has been employed for less than a year, there is a rebuttable statutory presumption under LSA-R.S. 23:1031.1(D) that the employment did not cause the carpal tunnel syndrome. This presumption can be overcome and the claimant receive compensation, if the claimant proves by preponderance of evidence that the disease was contracted during her employment. See Killett v. Sanderson Farms, 2001-0277, p. 6 (La.App. 1 Cir. 5/10/02), 818 So.2d 853, 859, citing Thornell v. Payne and 6Keller, Inc., 442 So.2d 536, 541 (La.App. 1 Cir.1983), writ denied, 445 So.2d 1231 (La.1984).

In ruling against the claimant in this case, the OWC judge gave the following reasons for judgment:

Shavon Nichols worked at Sanderson Farms (“Sanderson”) as a wing cutter from 1996 to 2000. Ms. Nichols returned to work at Sanderson as a wing cutter in July 2002. In October 2002, Ms. Nichols began experiencing problems with both wrists and hands. She was taken off wing cutting and placed on light duty. She continued working at Sanderson until February 2003.
Ms. Nichols initially saw Dr. Mark Daunis for her complaints. Dr. Daunis diagnosed her with [tendonitis] and prescribed physical therapy and EMG/ nerve conduction studies. Dr. Pervez Mussarat performed a nerve conduction study, which showed bilateral carpal tunnel syndrome.
Ms. Nichols saw Dr. Paul Vandeven-ter on October 30, 2002 at Sanderson’s request. He diagnosed her with [tendonitis] and mild carpal tunnel syndrome, but recommended against surgery.
Ms. Nichols then saw Dr. Eric George, her choice of orthopedist/hand specialist, on November 7, 2002. Dr. George diagnosed her with moderate carpal tunnel syndrome and recommended modified duty. On December 2, 2002, Dr. George noted symptom overlay[] in Ms. Nichols’ complaints, but nonetheless recommended surgical intervention in the form of nerve decompression in both wrists.
Liberty Mutual, third party administrator of Sanderson, denied Ms. Nichols’ claim, relying on the statutory presumption contained in [LSA-R.S.] 23:1031.1(D), since Ms. Nichols had been employed at Sanderson for less than twelve months prior to her first complaints of hand and writs problems. Thus, the only issue for the court to decide is whether Ms. Nichols has rebutted the statutory presumption by a preponderance of the evidence.
Ms. Nichols testified at trial that after her hand and wrist problems began in October 2002, she never went back to wing cutting. She testified that she was put on light duty at various positions including bone-checking, working in the laundry room, and cleaning restrooms and windows. She testified that she currently works at Options, where she takes care of mentally disabled patients. Her duties include taking patients to the store and reminding patients to take their medications.
Ms. Nichols testified in deposition that at Options, she does not perform any physical tasks for the patients and mostly 17observes the patients. She also testified in deposition that since leaving Sanderson, her condition has not improved and she still has pain. She testified in deposition that since her last visit to Dr. George in December 2002, she had to go to North Oaks [E]mergency Room because of sharp pains and tingling in both hands.
Dr. George testified in deposition that he could not relate Ms. Nichols’ carpal tunnel syndrome to her employment at Sanderson because Ms. Nichols continued to complain of pain even after being taken off the wing cutter job.
The facts of this case are distinguishable from Killett v. Sanderson Farms, 2001-0277 (La.App. 1 Cir. 5/10/02), 818 So.2d 853. In Killett, the claimant’s condition improved after being taken off work on the assembly line. Additionally, the physician in Killett stated that the claimant’s work activity at Sander-son “probably did contribute to her onset of symptoms.”
In the instant case, Ms. Nichols testified that her problems persist even after leaving Sanderson’s employ and finding a job that does not require repetitive use of the hands. It is for this reason that Dr. George could not relate Ms. Nichols’ condition to her employment at Sander-son.[]
Looking at the evidence as a whole, the court finds that Ms. Nichols has failed to rebut the statutory presumption contained in [LSA-R.S.] 23:1031.1(D), and therefore her claim is dismissed with prejudice.

Ms. Nichols asserts in brief to this court that several circumstances established that her condition was work-related: (1) Sand-erson Farms treated her as if her condition were work-related for the first ninety days after she reported symptoms; and (2) the doctors indicated her carpal tunnel syndrome was brought on by repetitive activities or use of her hands. Further, Ms. Nichols contends that the presumption imposed under LSA-R.S. 23:1031.1(D) should not apply to her case because she worked for Sanderson Farms a total of more than one year, considering her four years of employment before the 2000 involuntary termination. We find these arguments unconvincing.

| sFirstly, an employer has an obligation to investigate claims for workers’ compensation rather than denying them offhand, and payment of medical benefits during an investigatory period, out of caution, does not constitute an admission of liability. Secondly, while doctors who examined the claimant related her carpal tunnel syndrome to repetitive activities, none stated that the claimant’s duties at Sanderson Farms were the repetitive activities causing injury. In fact, Ms. Ni-chol’s treating physician, Dr. George, clearly stated that he did not think Ms. Nichol’s job at Sanderson Farms caused her condition.

Finally, although we are unconvinced by claimant/appellant’s assertion that the presumption created by LSA-R.S. 23:1031.1(D) should not be applied against her, particularly when the claimant was employed elsewhere during the nearly two-year time interval between her first and second periods of employment, we find it unnecessary to resolve the issue. After a thorough review of the record and jurisprudence, we are unable to say that Ms. Nichols met her burden of proving a causal link between her carpal tunnel syndrome and her work-related duties at Sanderson Farms.

Therefore, we must affirm the judgment of the OWC, albeit for other reasons, which found that Ms. Nichol’s carpal tunnel syndrome did not arise from her employment.

CONCLUSION

For the reasons assigned, we affirm the judgment of the OWC, and assess all costs to appellant, Shavon Nichols.

AFFIRMED.

      . The claimant had previously worked for the defendant from September 25, 1996 through October 9, 2000, when her employment was terminated. Thereafter, Ms. Nichols successfully obtained redress for wrongful termination of employment under the Family Medical Leave Act, and was rehired by Sanderson Farms. Ms. Nichols was reinstated as an employee of the defendant in July 2002.

      . In his deposition, which was introduced into evidence in this case, Dr. George stated, "I felt that there was some symptom overlay in her complaints, which means I felt that she was overexaggerating [sic] her symptoms.”

      . Dr. George stated, "I do not believe that her carpal tunnel condition is related to her employment as a wing cutter.” Dr. George explained that there is generally a decrease in symptomatology when a patient is taken off the job if the carpal tunnel syndrome was causally-related to that job. Since Ms. Nichols was immediately removed from her job when she first complained of wrist and hand symptoms, but continued to complain of symptoms months later, Dr. George did not think those symptoms were caused by the job. No other medical testimony was presented to the OWC.

      . An employer has a duty to investigate an injured employee's condition. Roussell v. St. Tammany Parish School Board, 2004-2622 (La.App. 1 Cir. 8/23/06), 943 So.2d 449.


text:
    Eva HARRIS v. STATE of Louisiana through DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS and its Employee A. Starwood and Tran Thinh.
    No. 2005 CA 2647.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Arthur R. Thomas, Baton Rouge, Counsel for Plaintiff/Appellant Eva Harris.
    Sallie J. Sanders, Baton Rouge, Counsel for Defendants/Appellees State of LA through Department of Public Safety & Corrections and its Employee A. Star-wood.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| ¡¡Plaintiff, Eva Harris, appeals from the trial court’s granting of a motion for summary judgment in favor of defendant, the State of Louisiana Department of Public Safety and Corrections. The trial court found that as to the State of Louisiana, Ms. Harris’s exclusive remedy for her injuries from an incident that occurred on May 18, 2003 was through workers’ compensation. It dismissed her tort action with prejudice. For the reasons that follow, we reverse.

I. FACTS AND PROCEDURAL HISTORY

On or shortly before the evening of May 18, 2003, Tran Thinh, an inmate serving a life sentence for aggravated rape, was transported from the maximum-security Louisiana State Penitentiary at Angola (Angola) to Earl K. Long Medical Center (Earl K. Long) for medical treatment. From the facts in the record, it appears that from the time Mr. Thinh left Angola until he reached and was admitted to Earl K. Long, he was restrained with metal restraints according to policies of the Department of Public Safety and Corrections (DPSC). DPSC’s policy at that time dictated that once an inmate was admitted to Earl K. Long as a patient, security measures and control shifted almost entirely to the aegis of the hospital, which had its own policies for securing inmates. Upon his admittance, Mr. Thinh was assigned to the ICU unit and placed in leather leg restraints; hospital staff maintained the keys to these less restrictive restraints, which were used in the hospital setting because they did not interfere with medical care to the same extent as metal restraints. Correctional officer Sgt. Aaron Stanwood followed Mr. Thinh’s ambulance from Angola to Earl K. Long and was | .¡assigned to handle security detail pursuant to Mr. Thinh’s arrival and stay at Earl K. Long.

Once Mr. Thinh had been settled in the ICU, Sgt. Stanwood was posted outside that area. It was hospital policy at that time that the security officer on duty could not be in the same room as the patient and medical personnel; in the event of a medical emergency, the security guard might be in the way. Around this time, either Mr. Thinh asked to use the restroom or a nurse instructed Mr. Thinh to provide a stool sample. The nurse removed Mr. Thinh’s restraints, “put a monitor on his finger,” closed the curtain, and returned to his or her desk. Thus released and left alone, Mr. Thinh escaped out of a window.

At about the same time, Eva Harris arrived in her car and apparently parked in one of the hospital’s general or public parking lot areas. She had been employed at Earl K. Long for over twenty years as a respiratory therapist and was on her way to work a shift that evening. As she was getting out of her car, Mr. Thinh attacked her, pushed her back into her car, and beat her with “a bottle and fist.”. Mr. Thinh continued his escape effort after the incident but within fifteen to twenty minutes, Sgt. Stanwood found Mr. Thinh hiding behind some bushes and returned the inmate to custody.

Ms. Harris filed suit on May 14, 2005 alleging intentional torts by Mr. Thinh and negligence on the part of Sgt. Stanwood, Angola, and DPSC. Her allegations focus on DPSC’s failure to ensure that Mr. Thinh was properly restrained, failure to properly train and instruct correctional officers in dealing with violent prisoners on transport assignments, and failure to establish reasonable procedures for such assignments. Ms. Harris claims | ¿physical pain and suffering, mental anguish and emotional distress, loss of enjoyment of life, lost wages, and medical expenses.

All defendants, including Mr. Thinh, answered during August 2004; DPSC filed a motion for summary judgment in September 2004, alleging that Ms. Harris’s exclusive mode of recovery was through workers’ compensation, not tort litigation. According to DPSC, both Ms. Harris and Sgt. Stanwood were state employees “in the course and scope of employment” at the time of the incident (as was the nurse who unfastened Mr. Thinh’s restraints); thus, the negligence at issue amounts to an accident caused by a co-worker and is limited as a matter of law to the sphere of workers’ compensation. Ms. Harris argued in opposition that genuine issues of material fact existed as to whether her injuries “arose out of’ her employment or occurred “in the course of’ her employment, as required by Louisiana Revised Statutes 23:1031.

The trial court heard the motion in May 2005. In November 2005, the trial court issued its signed judgment granting defendants’ motion pursuant to oral reasons: “The court has carefully reviewed this matter and is of the opinion that petitioner’s exclusive remedy is under workers’ compensation.” Ms. Harris has appealed to this court. She alleges the trial court erred in (1) granting defendants’ motion for summary judgment when genuine issues of material fact remained and (2) deciding substantively that her exclusive remedy was through workers’ compensation and not tort litigation.

II. LAW AND DISCUSSION

A. Summary Judgment

[¡A- motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. BellSouth Telecomm., Inc. v. Indus. Enter., Inc., 96-0682/p. 3 (La.App. 1 Cir. 2/14/97), 690 So.2d 145, 147. According to Louisiana Code of Civil Procedure article 966(A)(2), “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.”

Functionally, a motion for summary judgment is appropriate if the mover can demonstrate that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). A fact is material “if its existence is essential to the plaintiffs cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute.” BellSouth, 96-0682 at p. 3, 690 So.2d at 148 (citing Penalber v. Blount, 550 So.2d 577, 583 (La.1989)).

The mover bears the burden of proof. LSA-C.C.P. art. 966(C)(2). To satisfy this burden, the mover must “meet a strict standard by showing that it is quite clear what the truth is and excludes any real doubt as to the existence of material fact.” BellSouth, 96-0682 at pp. 3-4, 690 So.2d at 148. Finally, it is well settled that “[ajppellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342, 345 (La.1991). | ^Finally, “[bjecause it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.” BellSouth, 96-0682 at 4, 690 So .2d at 148. In the case at bar, workers’ compensation is the appropriate substantive legal regime.

Louisiana Revised Statutes 23:1031 and 1032 set out the basic tenets of contemporary workers’ compensation law in Louisiana. Generally speaking, the workers’ compensation regime represents a quid pro quo compromise of interests: “the employee receive[s] an absolute right to recover limited benefits in exchange for the employer’s tort immunity.” Frank L. Maraist & Thomas C. Galligan, The Employer’s Tort Immunity: A Case Study in Post-Modern Immunity, 57 La. L.Rev. 467, 473 (1997). A plaintiff may recover greater amounts through tort litigation but it is a riskier strategy than accepting workers’ compensation. The employer is likely to defend itself vigorously and a loss for the plaintiff will likely foreclose attempts to pursue workers’ compensation after the fact. Id. at 476.

The crucial question in the distinction between injuries actionable in tort and injuries confined to workers’ compensation is whether the accident that caused the injury occurs during the course of the plaintiffs employment or arises out of the circumstances of plaintiffs employment. LSA-R.S. 23:1031(A). In essence, if the accident cannot be linked to the plaintiffs employment, then recovery in tort may be available.

The leading case in Louisiana on this issue is Mundy v. Department of Health & Human Resources, 593 So.2d 346 (La. 1992), which demonstrates the advantages and risks to a plaintiff who must decide between workers’ compensation and tort litigation. A nurse on her way to work at Charity Hospital in New Orleans was stabbed while she rode the |7building elevator up to her floor. She sued in tort, alleging employer negligence in failing to provide adequate safety and security for the hospital’s patients, visitors, and employees. Id. at 348. The trial court found that Ms. Mundy was not in the course of her employment at the time of the attack and rendered judgment in the amount of $125,000.00. Id. The court of appeal reversed, finding that Ms. Mundy was indeed in the course of her employment and that the attack arose out of the circumstances of her employment; the Louisiana Supreme Court granted writs. Id. at 348-49.

The supreme court noted that an employer seeking to redirect a plaintiffs claim from tort into workers’ compensation has the burden of proving entitlement to immunity from suit in tort; thus, the employer must demonstrate that the plaintiffs injuries either occurred “in the course of’ employment or “arose out of’ employment. Id. at 349. The two concepts are characterized by a “mutual interdependence” in which a strong showing of “in the course of employment” can overcome a weak showing of “arising out of employment” and vice-versa. Id. at 349-50.

The “in the course of employment” element asks whether the injury occurred while the plaintiff was “actively engaged in the performance of his duties during working hours.... [T]he principal criteria... are time, place and employment activity.” Id. at 349. The “arising out of employment” element requires a slightly more complex analysis. It focuses on the “character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment.” Id. Essentially, “[a]n accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment.” Id. This element may refer either to a plaintiffs status as an employee or to some personal characteristic or fact particular to “this” plaintiff, such as an attack |sby a jilted lover who would know precisely where the plaintiff worker would be at a given time. Id: at 350.

Within the analytical nexus of the “in the course of’ and “arising out of’ elements, Louisiana’s courts have developed rules and exceptions. Germane to the case at bar is the rule that accidents occurring while an employee is either going to or returning from work do not occur in the course of nor arise out of employment unless the employee is actually performing services at the employer’s behest when the accident occurs. Id. & n. 3. The primary exception to this rule is the “threshold doctrine,” which holds that employee injuries resulting from accidents or incidents that occur within the vicinity of an employer’s premises will be subject to workers’ compensation if “special” or “unusually hazardous” risks exist in the area that are “attributable to the location of the work premises [and either] different from the risks to which the general traveling public is exposed or... more aggravated in the area adjacent to the employer’s premises than elsewhere.” Id. at 350. The “threshold doctrine” asks whether conditions leading to the incident or accident are “peculiar and distinctive” to the vicinity of the workplace, such that employees are exposed to a greater extent or frequency of risk than the general public. Id. (citing Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969)).

In Mundy, the supreme court reasoned that the plaintiff was not “in the course of’ her employment when she was attacked in the elevator, as she had neither begun her employment duties nor reached her work station or any place where she would be “under the supervision and control” of her employer. Id. The court also found that Ms. Mundy’s injuries did not “arise out of’ her employment, as the risk of a stabbing attack by a random stranger was a “neutral risk” unrelated either to her employment status or to | aher personal life. Id. Finally, the court declined to apply the “threshold doctrine” exception because “the risk [of an attack by a random violent stranger] was no more dangerous in the immediate vicinity of the employer’s premises than elsewhere along her [Ms. Mun-dy’s] route of travel to work.” Id. at 351. Thus, the court concluded that Ms. Mun-dy’s employer had no immunity and her suit in tort could continue; she was not limited to recovery through workers’ compensation.

In the case at bar, Ms. Harris alleges that under the substantive law of workers’ compensation, genuine issues of material fact persist such that the trial court’s granting of summary judgment was. inappropriate. Specifically, she alleges that DPSC has not refuted with any certainty her ability to show that she was not in the course of her employment at the time of the attack.

As noted above, the state defendants must have shown in their motion that “it is quite clear what the truth is and excludes any real doubt as to the existence of material fact.” BellSouth, 96-0682 at pp. 3-4, 690 So.2d at 148. In the case at bar, this question is clearly one concerning a “material fact” as defined in Louisiana Code of Civil Procedure article 966(C)(2) and explained in BellSouth, 96-0682 at p. 3, 690 So.2d at 148. Ms. Harris’s ability to show that she was not in the course of her employment at the time of the attack is an essential element in her bid to proceed in tort rather than workers’ compensation, thus it is material to her claim or action.

Ms. Harris alleged in both her petition and her affidavit that she was returning to work at the time of the attack [R3, 92]. The affidavit explains that she had originally been scheduled to work that day at the hospital from 11n6:45 in the morning to 7:00 in the evening, had been excused at about 4:00 in the afternoon to attend her grandson’s graduation, and that due to staff shortages, she was arriving at 6:50 that evening to pick up a shift until 9:00 that night. Clearly, then, Ms. Harris has established that her absence from work between 4:00 and 6:50 was not work-related and her presence in the parking lot at the time of the attack was arguably excluded from workers’ compensation due to the rule that excludes injuries sustained while “either going to or returning from work” unless the threshold doctrine applies. See supra p. 800.

DPSC, in its memorandum in support of the motion for summary judgment and briefs to this court, argues that Ms. Harris was in the course of her employment at the time and that she essentially admitted or judicially confessed as much in her pleadings as well as by the manner in which she completed the necessary human resources paperwork associated with the incident and by her acceptance of workers’ compensation benefits since the date of the incident.

At the outset, we point out that acceptance of benefits does not necessarily constitute an admission or confession by the recipient as to employment status at the time of an accident or incident. See Dye v. Ipik Door Co. Inc., 570 So.2d 477, 479 (La.App. 5 Cir.1990); see also Boudreaux v. Falco, 215 So.2d 538, 541 (La.App. 1 Cir.1968). [B7] Ms. Harris thus has not waived her right to sue in tort. Further, Ms. Harris’s factual allegations must be viewed in her favor and with the benefit of the doubt, as is the case in summary judgment analysis. Schroeder, 591 So.2d at 345. Given this, we conclude that Ms. Harris’s employment “status” at the moment of the attack is a genuine issue of material fact. It is an essential Inelement of this litigation and one that Ms. Harris may be able to establish at trial.

B. Workers’ Compensation

Ms. Harris’s next assignments of error concern the trial court’s substantive determination that her remedy is limited exclusively to workers’ compensation, presumably because the court determined that her injuries either arose out of her employment status or occurred while she was in the course of her employment [R250]. Applying the two-pronged “in the course of’ and “arising out of’ test introduced above resolves these questions; we apply this test in the case at bar to review whether, as a matter of law, DPSC is entitled to summary judgment limiting Ms. Harris’s recovery to workers’ compensation.

As discussed above, the “course of employment” aspect of Louisiana Revised Statutes 23:1031(A) is a fact-dependent inquiry into the particular time, place, and employment activity at issue in a given case. As for the time factor, workers’ compensation has been interpreted to cover a wide span of time periods, as much as forty-five minutes before a shift begins. See Bosse v. Westinghouse Elec., Inc., 93-1898, p. 1 (La.App. 4 Cir. 5/17/94), 637 So.2d 1157, 1158; writ denied, 94-1623 (La.9/30/94), 642 So.2d 878. In Mundy, however, the nurse plaintiff “was attacked before she arrived at her work station and before she began her employment duties.” Mundy, 593 So.2d at 350. This occurred about three minutes before the scheduled start of her shift. Id. at 348. In the case at bar, Ms. Harris was attacked perhaps ten minutes before the scheduled start of her shift, thus, this factor tends to favor Ms. Harris.

The factor of “place” refers to the actual situs where work activities occur. Id. at 350. In Mundy, the supreme court noted that the attack | ^occurred when the elevator reached the second floor, but Ms. Mun-dy’s job duties were limited to the eleventh floor. Thus, Ms. Mundy was not in the course of employment at time of the attack because “[s]he clearly had not yet reached the place where she would be under the supervision and control of her employer.” Id. In the case at bar, similarly and to a greater degree, Ms. Harris was in the parking lot and thus clearly not in a place where she was in the course of employment when Mr. Thinh attacked her. This factor favors Ms. Harris.

The “employment activity” factor in Mundy favored the plaintiff, who was attacked “before she began her employment duties.” Id. at 350. Similarly, this element clearly favors Ms. Harris, who was quite obviously not engaged in any job duties or responsibilities at the time of the attack. In fact, as a respiratory therapist, it is questionable whether she could even perform her work duties outside the confines of the hospital building. Based on the foregoing analysis, we conclude that Ms. Harris has a reasonable chance of proving that this accident did not occur “in the course of’ her employment.

As discussed above, the “arising out of’ prong of this inquiry asks whether “the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment.” Id. at 349. In Mundy, the supreme court resolved this question in the plaintiffs favor, deeming the attack a “neutral risk that was not related either to plaintiffs employment or to her personal life.” Id. at 350. Describing Mundy, the United States Court of Appeals for the Fifth Circuit has written that Ms. Mundy was injured by a “third-party criminal attack which could have occurred (1) to anyone (2) anywhere. The presence and act of the criminal was certainly unanticipated equally by an employee or an invitee” who |1smight have been riding in the hospital elevator. Harris v. Wal-Mart Stores, Inc., 205 F.3d 847, 850 (5th Cir.2000).

In the case at bar, Ms. Harris’s experience mirrors Ms. Mundy’s. Nothing in the record suggests, and DPSC has not argued, that Ms. Harris parked in a special or required employee parking lot at Earl K. Long, which might place her more squarely within Earl K. Long’s ambit than a visitor or member of the general public. Rather, it appears that Ms. Harris parked in a public parking area open and available to any worker, guest, or other visitor to the hospital. She could have been anyone in the wrong place at the wrong time; the risk that Mr. Thinh would escape and attack her was not greater for her than for anyone else who might have been at that place and at that time. We conclude that Ms. Harris has a reasonable prospect of showing that this injury did not “arise out of’ her employment.

As a final matter, consideration of the “threshold doctrine” described above cannot be used to discount Ms. Harris’s claims at this point in the litigation, just as the supreme court rejected its use in Mundy. 593 So.2d at 351. Presumably, the parking lot where Mr. Thinh attacked Ms. Harris is located within the “threshold” of the hospital premises. It is not abundantly clear, however, that the lot itself presented a special, different, or otherwise particularized risk greater to employees like Ms. Harris than to the general public. Additionally, the lot’s apparently public nature, as well as the public nature of the hospital, mitigates against finding a specialized risk under the threshold doctrine. At any rate, the record does not present a clear enough | ushowing of these facts such that summary judgment is appropriate at this time.

We realize that Mundy has not been unscathed in the years since it was decided in 1992. See Harris, 205 F.3d at 848 (citing Bosse, 93-1898 at p. 5, 637 So.2d at 1159-60). A careful reading of the jurisprudence reveals, however, that where courts have refused to extend Mundy, they have specified that the cases are easily distinguishable. In Harris, the employer defendant made a far stronger showing that the plaintiffs injury arose out of her employment status than in Mundy, in Bosse, the plaintiffs injury resulted from a tangible physical defect in the actual employment premises, a misleveled elevator. Harris, 205 F.3d at 850; Bosse, 93-1898 at p. 1, 637 So.2d at 1158. See also Mitchell v. Brookshire Grocery Co., 26,755, p. 4 (La.App. 2 Cir. 4/5/95), 653 So.2d 202, 205, writ denied, 95-1115 (La.6/16/95), 655 So.2d 339. Even while declining to extend Mundy, the Bosse court expressed the distinction from Mundy in strong terms: “A random act of violence could occur anywhere, but a defect in the premises at the place of employment is ‘peculiar and distinctive’ to that location” and thus more suitable for workers’ compensation than for tort recovery. Bosse, 93-1898 at p. 4, 637 So.2d at 1159. Thus, DPSC’s critiques of Mundy do not apply to the case at bar, which is factually “on all fours” with Mun-dy.

Ms. Harris’s next assignment of error challenges the trial court’s finding that workers’ compensation is her sole source of recovery from the State of Louisiana and excluding the possibility of tort litigation. Ms. Harris’s assertions that she has not waived her right to a tort claim against DPSC by accepting workers’ compensation benefits under the aegis of her employer, the Department of Health (as administrator of Earl K. Long), have been addressed above. See supra, pp. 801-02.

| ¶ (¡Further, DPSC contends that Ms. Harris is attempting to obtain double recovery by suing it in tort while she also collects workers’ compensation benefits from her employer. Because we conclude that questions of fact remain as to whether Ms. Harris was in the course of employment when she was attacked such that her injuries may not have arisen out of her employment, we also conclude that she has not waived her tort claim against the state defendants. In the event that Ms. Harris wins a verdict in tort that outstrips the workers’ compensation benefits she has received, the State may seek a credit or offset pursuant to ordinary intervention as allowed under Louisiana Code of Civil Procedure article 1091 or through the “third party” procedures set out in Louisiana Revised Statutes 23:1101.

DPSC has also argued that because Ms. Harris and Sgt. Stanwood were both state employees, albeit of different departments, acting in the course of their employment at the time of the incident, the State of Louisiana’s immunity from tort litigation is even more secure; they claim that as the “ultimate defendant,” the State “cannot be considered a ‘third person’ tortfeasor when two of its departments are involved in litigation.” Wright v. Moore, 380 So.2d 172,173-74 (La.App. 1 Cir.1979).

This reasoning ignores the primary lesson of Mundy. When a defendant cannot show sufficiently either that the plaintiff was in the course of employment at the time of the injury or that the injury arose out the plaintiffs employment status, the plaintiff is free to sue in tort as if he or she had been any member of the general public. In this scenario, any responsible or negligent entity may be a defendant. It matters not whether the defendant is the plaintiffs employer, a state agency, or a private business. In the case at bar, DPSC has not shown as an undisputed material fact that Ms. Harris was in the course of her employment when Mr. Thinh |1(i attacked her; nor has it shown as an undisputed material fact that the risk of the attack arose out of the circumstances of Ms. Harris’s employment. Thus, DPSC has not succeeded in proving immunity from tort.

Ms. Harris’s final assignment of error argues that DPSC’s negligence amounted to a breach of its duty to prevent inmate escape and to protect the general public against injuries that may arise in the furtherance of an inmate escape attempt. Because we find that the state defendants have not shown immunity from tort suit in this matter, we conclude that the question whether their actions amount to negligence under Louisiana’s duty risk analysis is a genuine issue of material fact suitable for trial.

Having reviewed the law, the record, and the arguments of both parties, we conclude that Ms. Harris’s assignments of error have merit. Genuine issues of material fact remain such that summary judgment is not procedurally appropriate at this time. As a substantive matter, DPSC has not shown with sufficient certainty that Ms. Harris’s recovery is limited to workers’ compensation. Her suit in tort may continue.

CONCLUSION

For the above and foregoing reasons, we reverse the November 9, 2005 judgment that granted defendants’ motion for summary judgment and dismissed plaintiffs cause of action with prejudice. We also remand for further proceedings in accordance with this ruling. Costs of this appeal are assessed against the Department in the amount of $614.53.

REVERSED AND REMANDED.

      . In July 2003, DPSC enacted more restrictive policies to ensure that corrections personnel have control over a prisoner-patient's restraints and are either present with or can see the inmate at all times,

      . Louisiana Revised Statutes 23:1031 refers specifically to injuries "arising out of and in the course of" the plaintiff’s employment. The phrase "course and scope of employment” is often used loosely in workers’ compensation analysis, but belongs more properly to the subject of an employer's vicarious liability for torts caused by an employee. See generally William E. Crawford, Tort Law, Louisiana Civil Law Treatise vol. 12, 145 (2000); H. Alston Johnson, III, Workers' Compensation Law and Practice, Louisiana Civil Law Treatise, vols. 13 & 14, 266-69 (2002).

      . Unfortunately for Ms. Mundy, she ultimately lost on the merits of her case; it was found that the employer’s duty of reasonable care did not include the risk that occurred. Mun-dy v. Dep’t of Health & Human Resources, 609 So.2d 909 (La.App. 4 Cir. 1993), affd, 620 So.2d 811 (La.1993). For this reason, the Mundy litigation demonstrates both the advantages and risks attendant in the decision whether to accept worker's compensation or attempt a suit in tort.

      . Defendants cite Louisiana Casino Cruises, Inc. v. Liberty Mutual Fire Insurance Co., an unpublished opinion by the United States Court of Appeals, Fifth Circuit, available at 88 Fed.Appx. 721 (5th Cir.2004). That case, in which the plaintiff employee was raped in a casino parking lot, is distinguishable on the facts from the case at bar; the plaintiff parked pursuant to her employer’s policy that required workers to park in a special lot designated for employees; the employee lot was farther away from the premises than the general public lot and more dangerous because it was easy to determine that victims might be regularly walking back and forth.