source: Caselaw Access Project

license: Public Domain

text:
    U.S. Trustee, John Clifton CONINE for the ESTATE OF Dennis ADDIE, Plaintiff-Appellant, v. UNIVERSAL OIL PRODUCTS COMPANY, Defendant-Appellee.
    No. 42,409-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.

      . Nelson W. Cameron, Shreveport, for Appellant.
    John T. Cox, Jr., Baton Rouge, for Ap-pellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ. ,
   WILLIAMS, J.

hPlaintiff, U.S. Bankruptcy Trustee, John Clifton Conine for the Estate of Dennis Addie, seeks reversal of the trial court’s ruling granting summary judgment in favor of defendant, Universal Oil Products Company (“UOP”). For the reasons that follow, we affirm the judgment of the trial court.

FACTS

Dennis Addie was employed by UOP as a maintenance technician from June 30, 1992 until January 9, 2002. Addie suffered a migraine headache on June 12, 2001 and was absent from work June 14-16, 2001. He returned to work on June 18, 2001, but he left work that day complaining of another headache. Addie remained absent from work June 18-July 11, 2001. He returned to work July 12-19, 2001, but he left work again on July 19, 2001, complaining of a headache. Addie did not return to work until August 6, 2001, after obtaining a full medical release. He worked the next two weeks, but on August 20, 2001, Addie called UOP with complaints of headaches.

On September 17, 2001, Addie was examined by the company physician, Dr. James Dossey, who placed Addie on medical restrictions due to complaints of dizziness. On October 19, 2001, Addie was evaluated by his private physician, who restricted Addie from working on ladders or from unprotected heights. However, due to the nature of Addie’s job duties, UOP required a “no restrictions release” before allowing Addie to return to work.

At some point, Addie was placed on leave under the Family and Medical Leave Act (“FMLA”). After the maximum twelve weeks was exhausted, he was placed on paid short term disability leave with | .instructions to notify the company once his symptoms resolved. By letter dated November 27, 2001, Addie was advised that his short term disability leave would end on December 13, 2001.

On December 5, 2001, Addie obtained an unrestricted release to return to work from his primary care physician. When Addie notified UOP that he had been released to return to work, UOP arranged for him to be examined by Dr. Dossey. On December 13, 2001, Addie was examined by Dr. Dossey, who refused to provide a full release for Addie to return to work due to continued symptoms of dizziness. When UOP received a copy of the unrestricted release from Addie’s private physician and the conflicting report from Dr. Dossey, UOP arranged for Addie to be reevaluated by the neurologist who had previously examined him.

On December 19, 2001, Addie was examined by the neurologist. The neurologist noted that Addie’s headaches were controlled with medication and he had not experienced any dizziness in approximately two months. Therefore, the neurologist opined that Addie could return to work without restrictions. Dr. Dossey then released Addie to return to “normal work without restrictions.”

The management of UOP reviewed Addie’s medical records and discovered that his dizziness had been resolved for two months prior to his release to return to work. Consequently, on January 9, 2002, UOP terminated Addie for excessive absenteeism.

On April 12, 2002, Addie filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging violations of the | 3 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. The EEOC dismissed the claim, finding that Addie had not established an ADA violation.

On July 13, 2006, Addie’s bankruptcy trustee filed suit against UOP, alleging that UOP wrongfully discharged Addie from his position in violation of the Louisiana Human Rights Act (“LHRA”). In response, UOP moved for summary judgment. The district court granted summary judgment, finding that plaintiff faded to prove that Addie’s headaches substantially limited his ability to work. This appeal followed.

DISCUSSION

Plaintiff contends the district court erred in concluding that the evidence was insufficient to raise a genuine issue of material fact. Therefore, according to plaintiff, summary judgment should have been denied.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be rendered if the pleadings, depositions, answers to | interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(2) and (B).

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).

LSA-R.S. 23:323 provides, in pertinent part:

A. No otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment.
B. An employer, labor organization, or employment agency shall not engage in any of the following practices:
|R(1) Fail or refuse to hire, promote, or reasonably accommodate an otherwise qualified disabled person on the basis of a disability, when it is unrelated to the individual’s ability, with reasonable accommodation, to perform the duties of a particular job or position.
(2) Discharge or otherwise discriminate against an otherwise qualified disabled person with respect to compensation or the terms, conditions, or privileges of employment on the basis of a disability when it is unrelated to the individual’s ability to perform the duties of a particular job or position.

“Disabled person” means any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment. LSA-R.S. 23:322(3). “Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. LSA-R.S. 23:322(7).

To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a prima facie case that: (1) he has a disability, as defined by the statute, (2) he is qualified for the job, and (3) an adverse employment decision was made solely because of the disability. Thomas v. Louisiana Casino Cruises, Inc., 2003-1937 (La.App. 1st Cir.6/25/04), 886 So.2d 468, writ denied, 2004-1904 (La.10/29/04), 885 So.2d 598; Hook v. Georgia-Gulf Corp., 99-2791 (La.App. 1st Cir.1/12/01), 788 So.2d 47.

The LHRA, codified in LSA-R.S. 23:301, et seg., is modeled after the ADA. In interpreting Louisiana’s employment discrimination laws, our | ficourts have relied upon similar federal statutes and the interpreting federal jurisprudence. See Thomas, supra; Boudreaux v. Louisiana Casino Cruises, Inc., 99-1168 (La.App. 1st Cir.6/23/00), 762 So.2d 1200, writ denied, 2000-2229 (La.10/27/00), 772 So.2d 651; Hicks v. Central Louisiana Electric Company, Inc., 97-1232 (La.App. 1st Cir.5/15/98), 712 So.2d 656, 658.

The proper analysis of an employment discrimination case based on a disability under the LHRA must begin with a determination of the threshold issue of whether or not the individual qualifies as “disabled” under the Act. Hook, supra. In the instant case, plaintiff does not argue that Addie is actually disabled. Rather, he contends that Addie was “regarded as” disabled by UOP.

An individual is “regarded as” disabled where a covered entity mistakenly believes that: (1) the person has a physical impairment that substantially limits one or more major life activities; or (2) an actual, non-limiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Mason v. United Air Lines, Inc., 274 F.3d 314 (5th Cir.2001); Varner v. Blessey Enterprises, Inc., 2006-168 (La.App. 5th Cir.9/26/06), 942 So.2d 1147, writ denied, 2006-2574 (La.12/15/06), 945 So.2d 697; Beaumont v. Exxon Corp., 2002-2322 (La.App. 4th Cir.3/10/04), 868 So.2d 976, writ denied, 2004-1174 (La.9/3/04), 882 So.2d, 609. In both instances, the covered entity must entertain some misperception regarding the individual — either that he has a substantially | limiting impairment that: (1) he does not have; or (2) is not so limiting as believed. As stated above, major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Mason, supra; Varner, supra.

Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term impact. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir.1995); Thomas, supra. When the major life activity under consideration is that of working, the statutory phrase “substantially limits” requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. Sutton, supra; Blanks v. Southwestern Bell Communications, 310 F.3d 398 (5th Cir.2002); Thomas, supra. An inability to perform a single job, or a narrow range of jobs, can be seen as not constituting a substantial limitation on the major life activity of working, or as not reaching a major life activity. Blanks, supra; Dutcher, supra. The inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to a substantial limitation of the activity of working. Dutcher, supra.

Whether an impairment substantially limits a claimant in a broad range of jobs, or only in a narrow range, is a mixed question of law and fact. Thomas, supra, citing Bridges v. City of Bossier, 92 F.3d 329 (5th Cir.1996), cert. denied, 519 U.S. 1093, 117 S.Ct. 770, 136 L.Ed.2d 715 (1997). The question of what constitutes a substantial limitation on a major life 1 ^activity is a legal question. Id. An underlying factual question could involve what type of jobs and how many were available to the claimant despite his impairment. Id.

In Sutton, supra, the plaintiffs, who had severe myopia, applied for employment as commercial global airline pilots. The airline refused to hire them because they failed to meet the minimum vision requirement. The plaintiffs filed suit alleging disability discrimination under the ADA. The United States Supreme Court held that the plaintiffs failed to properly allege that their poor eyesight was “regarded as” an impairment that substantially limited them in the major life activity of working. The Court stated:

By its terms, the ADA allows employers to prefer some physical attributes over others and to establish physical criteria. An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level- of an impairment — such as one’s height, build, or singing voice — are preferable to others, just as it is free to decide that some limiting, but not,m&-stantially limiting, impairments make individuals less than ideally suited for a job.
To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs.
* * *
Because the position of global airline pilot is a single job, this allegation does not support the claim that respondent regards petitioners as having a substantially | cilimiting impairment.

119 S.Ct. at 2150-51 (emphasis in original).

In Varner, supra, the plaintiff, who was employed by the defendant as a tanker-man, suffered a heart attack in an incident unrelated to his employment. Five months later, the plaintiff was released to return to work with medical restrictions. The employer advised the plaintiff that he would have to be examined by the company physician before returning to work. The plaintiff filed suit alleging that the employer refused to allow him to return to work, contending he was a “qualified individual with a disability” within the meaning of the LHRA. The appellate court rejected the claim, stating:

If the oil and gas industry in New Orleans is a major employer of seamen as averred by Varner, it is by no means the only one. Blessey was free to determine that Varner’s medical condition limited him to the extent that it made him unsuited for a position on its type of vessel. Under these circumstances, we hold that Varner does not meet the criteria of either being disabled or that he was regarded as disabled within the meaning of the applicable statutes. Thus, we find no question of material fact and conclude that the summary judgment was properly granted.

Id. at 1152.

In Thomas, supra, the plaintiff, who had a chronic medical condition, worked as a security guard for a casino. He presented a note to his employer from his doctor indicating that he “must work inside only.” Shortly thereafter, the employer terminated the plaintiff for “chronic medical condition which prohibits him from performing necessary duties of a security officer.” The court held that the plaintiff failed to establish that |10he was disabled under the LHRA, stating:

A physical impairment, standing alone, is not necessarily a disability as contemplated by the applicable law for discrimination claims. From our review of the record before us, we find that Mr. Thomas failed to demonstrate a genuine issue of material fact existed as to how many jobs or job categories were available, and whether he was unable to work in a broad range of jobs as a result of his asserted impairment.

Id. at 471-72 (internal citation omitted).

In Smith v. Thurman Oils, Inc., 2006-0743 (La.App. 1st Cir.12/28/06), 951 So.2d 359, writ denied, 2007-0207 (La.3/23/07), 951 So.2d 1106, an employee filed suit alleging that he was wrongfully terminated in violation of the Louisiana Employment Discrimination Law. The plaintiffs supervisor had stated that he felt it was dangerous for the plaintiff to drive a fuel truck. The court held that the plaintiff failed to meet his burden of proving that his employer regarded him as being disabled. The court concluded that the testimony of the plaintiffs supervisor did not establish that the plaintiff was unable to perform a broad class of jobs.

In the instant case, in granting summary judgment, the district, court stated:

The inquiry now turns to whether or not Addie’s condition substantially limits his ability to work. While migraine headaches can and often do affect one’s ability to work, the petitioner has put forth no evidence that Addie’s headaches substantially limit his ability to work. The mere fact that Addie is limited in some work-related activities due to his condition, such as the inability to safely climb ladders due to dizziness, does not satisfy the inquiry.

We agree. It is clear from the depositions of the members of UOP’s management team that UOP believed Addie’s dizziness rendered him |nunable to safely perform the duties of a maintenance technician because climbing was an essential element of the job. James Labanosky, the manager of UOP’s Shreveport plant, testified that the facility consisted of multiple levels and virtually every position in the plant required climbing. However, there is no evidence in the record that Addie’s condition substantially limited his ability to work in general, or more specifically, that UOP “regarded” him as unable to work in general. Therefore, the district court was correct in concluding that Addie did not meet the statutory definition of “disabled person,” an essential element of a discrimination claim under the LHRA.

CONCLUSION

For the foregoing reasons, we find no error in the trial court’s grant of summary judgment in favor of UOP. The judgment is affirmed at appellant’s costs.

AFFIRMED.

      . Addie also filed a claim with the Louisiana Commission of Human Rights. However, the Commission dismissed the claim, deferring to the EEOC.

      . Plaintiff originally filed suit in U.S. District Court, where plaintiff's ADA claim was dismissed on the grounds that it was untimely filed. However, the state law claims were not dismissed.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Daryl Germaine ROSHELL, Appellant.
    No. 42,398-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.

      Louisiana Appellate Project by Edward K. Bauman, Daryl Germaine Roshell, for Appellant.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Dhu Thompson, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   STEWART, J.

hThe defendant, Daryl Germaine Ro-shell (“Roshell”), was convicted by a jury of armed robbery (among other counts which are not the subject of the instant appeal) and was subsequently adjudicated to be a second felony offender based on the armed robbery count. He was sentenced to 80 years hard labor without .the benefit of probation, parole or suspension of sentence, with the sentence to run concurrently with defendant’s other sentences. The defendant now appeals the sentence imposed as excessive. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On August 23, 2002, three City of Shreveport employees, Alvin Cox, Calvin Cross, and Elmo Rogers, were working to clear a sewer drain when two individuals wearing bandannas over their faces approached them and demanded their money. One of the assailants was hollering and waving a gun around. Both Rogers and Cross gave the gunman their money, but Cox told the gunman that he did not have any money. After Cox refused the gunman’s second demand for money, the gunman walked behind him and shot him in the back of the head. At the sound of the gunshot, Rogers and Cross fled by diving into the drainage ditch.

The evidence compiled during the investigation ultimately led police to interview Roshell as a suspect in the crimes. He eventually gave a statement to the police admitting his involvement in the crimes. The facts are more fully set forth in State v. Roshell, No. 40,374 (La.App.2d Cir. 12/14/05), 916 So.2d 1268, 1269-70, writ denied, 2006-0771 (La.10/06/06), 938 So.2d 69.

Following a trial by jury, the defendant was convicted of attempted manslaughter (Count I), attempted armed robbery (Count II), and two counts of armed robbery (Counts III and IV)- Roshell was originally adjudicated a third felony offender based on one of the armed robbery counts (Count III) and was sentenced to 100 years hard labor to be served concurrently with his sentences of 20 years hard labor for attempted manslaughter, 35 years for attempted armed robbery and 40 years for the other armed robbery count. On appeal (No. 40,374-KA), the defendant’s adjudication as a third felony offender and his sentence of 100 years hard labor based on Count III were reversed because the Court determined that one of the convictions utilized by the State to bill the defendant as a third felony offender included an offense (forgery) of which defendant had not yet been convicted as of the time of the commission of the third felony. The matter was remanded for the state to bring a new habitual offender proceeding and for re-sentencing on Count III, the armed robbery count.

On remand, Roshell was adjudicated a second felony offender and was sentenced to 80 years hard labor without the benefit of probation, parole or suspension of sentence, such sentence to run concurrently with his other sentences.

| .¡DISCUSSION

Excessive Sentence

The defendant argues that his sentence as a second felony offender on Count III (armed robbery) to 80 years hard labor with the benefit of probation, parole or suspension of sentence was constitutionally excessive. Defendant asserts that there was a complete lack of “aggravating factors” warranting the 80-year sentence and that the trial court did not consider all factors in making its sentencing determination. Roshell argues that the sentence imposed, even though it was admittedly within the statutory parameters of La. R.S. 15:529.1, was not particularized to fit both the offender and the offense.

The state counters by asserting that the sentence imposed was not excessive. The state points out that the sentence was less than half of the maximum possible sentence for a second felony offender convicted of armed robbery. The state asserts that the trial court properly based its sentence on the factors set forth in La. C. Cr. P. art. 894.1 and La. R.S. 15:529.1. The factors included, among other things, the violent nature of the multiple crimes committed against multiple individuals by defendant on August 23, 2002, along with defendant’s prior history of violent crimes (including his 1999 felony conviction for purse snatching). The state also asserts that the 80-year sentence was not so disproportionate as to shock one’s sense of justice and thus was not unconstitutional.

This court’s case law on sentencing is well settled. The test imposed by the reviewing court in determining the ex-cessiveness of a sentence is |4two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, a sentence violates La. Const, art. 1 § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in the light |fiof the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

A trial court has broad discretion to sentence. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

At sentencing on October 10, 2006, the trial court stated that it considered the following factors:

In sentencing, the Court looks to the violent nature of the four offenses, the multiple victims, and the defendant’s prior criminal history. The Court has also reviewed the Code of Criminal Procedure Article 894.1 and Revised Statute 15:529.1, the Multiple Offender Act [sic ].

The record reflects that on August 23, 2002, Roshell committed four crimes of violence against three different City of Shreveport employees while they were on duty, including shooting one of the victims in the back of the head simply because he said he did not have any money. The record also reflects that Roshell has a prior criminal history, including crimes of violence. He pled guilty to felony purse snatching on August 31, 1999 and was sentenced to 2 years at hard labor. There clearly is an adequate factual basis for the sentence imposed.

We conclude that the defendant’s sentence is not so disproportionate to the seriousness of the offenses as to shock one’s sense of justice. The minimum sentence for armed robbery for a second felony habitual offender is 49½ years’ imprisonment at hard labor; the maximum sentence is 198 [¿years. La. R.S. 15:529.1; La. R.S. 14:64. Defendant’s sentence was 43¾ years less than the mid-range. In addition, the trial court expressly stated that it reduced the defendant’s sentence from the prior sentence of 100 years to 80 years so as to reflect that the October 2002 forgery could not be utilized to enhance his status as a multiple offender.

Roshell’s assertion that there were no aggravating factors sufficient to warrant his 80-year sentence is incorrect. There certainly are no facts which demonstrate that the trial court committed reversible error in sentencing him to serve a low range 80 years at hard labor for his heinous crime.

This assignment is therefore without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Otherwise, this court affirmed the defendant’s convictions and sentences. See, State v. Roshell, No. 40,374 (La.App.2d Cir. 12/14/05), 916 So.2d 1268, 1269, writ denied, 2006-0771 (La.10/06/06), 938 So.2d 69.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Tarome HARRIS, Appellant.
    No. 42,376-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.

      Louisiana Appellate Project by Mark 0. Foster, for Appellant.
    Taróme Harris, Pro Se.
    J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

LThe defendant, Tarome Harris, was charged by bill of information with aggravated escape, in violation of LSA-R.S. 14:110(C)(1), and two counts of aggravated battery, in violation of LSA-R.S. 14:34. Following a jury trial, the defendant was found guilty as charged of aggravated escape. With regard to the charges of aggravated battery, the jury found the defendant guilty of the responsive verdict of second degree battery. The defendant was sentenced to serve 10 years in prison on the aggravated escape conviction and five years in prison on each of the second degree battery convictions. ' The latter were ordered to run concurrently with each other, but consecutively with the former. For the reasons that follow, we affirm the defendant’s convictions and sentences.

FACTS

On October 15, 2005, the defendant and three other inmates escaped from the Webster Parish Jail. According to the testimony, Deputies Shelton Layfield and James Thompson \vere in the process of “locking down” the inmates for the night. As the deputies ordered a group of inmates in the jail’s common room to go to their cells, one of the inmates, Christopher Whitehead, started a scuffle with Deputy Layfield. The defendant ■ and two other inmates joined Whitehead in an attempt to-push past the deputy and escape. Deputy Thompson came to the aid of Deputy Lay-field, and. in the scuffle, the defendant reached for Deputy Layfield’s metal baton. The defendant missed the baton, grabbing the flashlight instead. The defendant threw the flashlight to the floor and managed to grab the deputy’s pepper 1 ¡.spray. The defendant sprayed each of the deputies in the face with' thq pepper spray. As Deputy Layfield .lay on the floor incapacitated from the spray, a struggle ensued between the defendant and Deputy Thompson. Deputy Thompson hit the defendant, and the defendant sprayed him and kicked him multiple times. The defendant made it past Deputy Thompson, and eventually, the four inmates broke the key mechanism in a sliding door and escaped down the back stairs of the jail. Deputy Thompson called “911” for assistance, and the two deputies were taken to Minden Medical Center for treatment for exposure to the pepper spray, as well as bruises and contusions.

Three of the inmates were apprehended within hours of the escape. However, the defendant was not apprehended until approximately seven months later. The defendant was charged by bill of information with aggravated escape, the aggravated battery of Deputy Layfield and the aggravated battery of Deputy Thompson. Following a jury trial, the defendant was convicted of aggravated escape and the responsive verdict of second degree battery with regard to the aggravated battery charges. The defendant was sentenced to serve 10 years in prison on the aggravated escape conviction and five years in prison on each of the two second degree battery convictions. The latter were ordered to run concurrently with each other, but consecutively with the former.

The trial court denied the defendant’s motion for post-verdict judgment of acquittal and motion to reconsider sentence. The defendant now appeals.

| «DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence was insufficient to support his convictions for second degree battery of the deputies because no one was seriously injured. Although the defendant admits that he sprayed both of the deputies with the pepper spray, he asserts that the spray, “by its very design and purpose,” does not cause serious injury. The defendant contends there was no unconsciousness, extreme physical pain, protracted and obvious disfigurement, protracted loss or impairment of the function of a bodily member, or substantial risk of death.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the | credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Second Degree Battery

Battery is the intentional use of force or violence upon the person of another or the intentional administration of a poison or other noxious liquid or substance to another. LSA-R.S. 14:33. LSA-R.S. 14:34.1 provides, in pertinent part:

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For -purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
⅜ ⅜ $

After reviewing the record in the instant case, we find that the evidence was sufficient to support the defendant’s convictions for second degree battery. The great majority of batteries can produce some physical pain, so the adjective “extreme” serves to distinguish lesser degrees of pain that would not support a conviction for the more serious crime of second degree battery. Although the term “extreme physical pain” is not defined by statute, in State v. Thompson, 399 So.2d 1161 (La.1981), the Supreme Court stated that the term describes a condition which most people of | ^common intelligence can understand.

In our view, a eommonsense understanding of the term would include the pain inflicted by the pepper spray used in this case. It was not necessary for the spray to produce permanent injuries, but simply to produce “extreme physical pain,” and that degree of pain was evident by the testimony of the deputies. Deputy Lay-field admitted that he basically panicked after being sprayed “when I couldn’t see and I was hurting and burning real bad, that was it.” Deputy Layfield testified that he was taken by ambulance to the hospital where “it took them awhile to flush my eyes out.” He further stated that he had “real bad headaches from the spray” and his foot was “bruised up pretty bad.” Deputy Thompson also testified that he was taken to the Minden Medical Center for treatment from the pepper spray and that his left leg was x-rayed because his knee was swollen. Plainly, the spray is intended to produce such intense physical pain that it basically incapacitates a human being. Furthermore, it is for the legislature, not the courts, to determine whether or not “extreme physical pain” should be of the same stature as protracted and obvious disfigurement, etc., for purposes of defining second degree battery.

Additionally,' aggravated battery, under LSA-R.S. 14:34, is a battery committed with a dangerous weapon, and under the provisions of LSA-C.Cr.P. art. 814, second degree battery is a responsive verdict to aggravated battery. In State v. Johnson, 31,390 (La.App.2d Cir.3/31/99), 730 So.2d 1035, where a deputy who was sprayed with mace was blinded and lost consciousness, we concluded that the use of mace could be considered the [ ¿use of a dangerous weapon as that term is defined under LSA-R.S. 14:2. Additionally, in State v. Rembert, 312 So.2d 282 (La.1975), the defendant was charged with aggravated battery. The trial court quashed the bill of information, finding that “the aerosol container of mace spray used in the battery was not a ‘dangerous weapon’ within the meaning of the statute defining the crime charged.” Id. at 283. The Supreme Court reversed the ruling,- finding that the trial court erred “in sustaining the motion to quash on the basis of. the factual evidence tending to prove that, as used in this instance, the mace was not a dangerous weapon.” Id. at 284.

We also reject the defendant’s “policy” argument. According to the defendant, if his convictions are affirmed based on spraying a person with a “mace-type” spray, the effects would be drastic because every time a law enforcement officer sprays a citizen with mace, the officer would have to consider the risks of facing a felony charge if the justification for using the spray proves to be wrong. The defendant’s argument is unreasonable because a large number of law enforcement officers carry firearms, which are certainly “dangerous weapons” that could support a conviction for the even more severe crime of aggravated battery. However, that concern has not prevented officers from carrying out their duties, including the use of firearms when necessary. Therefore, we are not concerned that affirming the defendant’s convictions will have a drastic effect on law enforcement officers who carry mace-type spray.

ItAggravated Escape

The defendant next contends the evidence was insufficient to support his conviction for aggravated escape. The defendant does not dispute his guilt of escape. Rather, he contends the escape was not aggravated, as no dangerous weapons were used and no one was harmed during the escape.

LSA-R.S. 14:110(0(1) provides: Aggravated escape is the intentional departure of a person from the legal custody of any officer of the Department of Public Safety and Corrections or any law enforcement officer or from any place where such person is legally confined when his departure is under circumstances wherein human life is endangered.

To prove that human life is endangered, the state need not prove that the offender was armed. State v. Rice, 31,871 (La.App.2d Cir.3/31/99), 736 So.2d 956, writ denied, 99-1314 (La.10/15/99), 748 So.2d 464; State v. McManus, 94-0974 (La.App. 1st Cir.6/23/95), 658 So.2d 811; State v. Desselle, 614 So.2d 276 (La.App. 3d Cir.1993). Under the clear wording of the statute, if the circumstances indicate beyond a reasonable doubt that human life was endangered, then that particular element of aggravated escape is proven sufficiently. State v. Desselle, supra.

In State v. Rice, supra, the defendant slammed a 70-year old jailer into a wall or door and sprayed him with mace. The jailer received a gash to his head, was temporarily blinded by the mace and passed out. This court affirmed his conviction for aggravated escape, finding that a rational jury could have found that human life was endangered.

In the instant case, we first point out that the defendant was armed with, and in fact used, a weapon which was dangerous in the manner in | swhich it was used, i.e., pepper spray. The only disputed element for aggravated escape, the endangerment of human life, was established by the testimony of Deputy Layfield and Deputy Thompson. Deputy Layfield testified that the defendant sprayed the pepper spray in his eyes and that he was unable to see. He stated, “I was burning, I was hurting, I was out of it.” When asked if he felt that his life was in danger, Deputy Layfield responded in the affirmative, stating:

Because I could not see to defend myself. When I got sprayed I had never been hit with nothing like that outside the military, and that scared the daylights out of me. The — I could not control what was going on. I did not know what he could grab or any of them.

Deputy Thompson testified that he was sprayed and kicked multiple times during his struggle with the defendant. He stated that during the fight, he was “blinded with pepper spray” and was swinging blindly, seeing a blur. When asked if he felt that his life was in danger, Deputy Thompson replied:

Definitely I did. I felt like that, you know, the gentleman was at the point in his life that he, you know, all he wanted out and if it meant taking a life that was just to be it. He’d take a life to get out. And I felt that if we had 58 people in there, inmates, that he could let loose if he had the keys to do so.

Moreover, the escapees left the only two guards on duty, who were in charge of approximately 60 inmates, incapacitated, blinded after being sprayed with pepper spray.

Although the facts of this case arguably are not quite as severe as those in Státe v. Rice, supra, this escape involved both physical altercations and the use of a dangerous weapon. Furthermore, both deputies testified that they considered their lives to be in danger, and we particularly note the | fltestimony of Deputy Thompson who stated that he felt the defendant “was at that point in his life that he, you know, all he wanted out and if it meant taking a life that was just to be it. He’d take a life to get out.”

We also note that at the sentencing hearing, the trial court stated that the defendant is a fourth felony offender who, in 1997, had been sentenced to five years at hard labor concerning possession of marijuana, second offense, and distribution of cocaine; in 1991 he had pled guilty to distribution of cocaine and had received a six-year hard labor sentence; and in December of 1990, he had pled guilty to attempted distribution of cocaine and had been sentenced to six years at hard labor. Furthermore, at the time of sentencing, the defendant had other drug charges pending and the state intended to bill him as a habitual offender, which in all likelihood, would result in him serving a life sentence. Thus, the record indicates that it was reasonable for the jury to believe that the defendant, who was thought to be the “leader” of the escapees, would have done whatever was necessary in order to accomplish the escape.

Viewing the evidence in the light most favorable to the prosecution, based on the testimony of the deputies, a rational jury could have found that human life was endangered during the escape. This court will not disturb the jury’s apparent conclusion. See, State v. Mussall, 523 So.2d 1305 (La.1988); State v. Rice, supra; State v. Ford, 28,724 (La.App.2d Cir. 10/30/96), 682 So.2d 847, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12. Thus, we find that the- evidence was. sufficient, under Jackson v. Virginia, supra, to convict the defendant of aggravated escape. This assignment lacks merit.

\-tJ3entence

The defendant also argues that the trial court erred in ordering his sentence for aggravated escape to run consecutive with his sentence for second degree battery. He maintains that there is no question that the convictions herein stem from the same act or transaction, and, therefore, the sentences should have been. ordered to run concurrently.

LSA-C.Cr.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be. served- concurrently unless the court expressly directs that some or all be served consecutively.

(Emphasis added). Although Article 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Walker, 2000-3200 (La.10/12/01), 799 So.2d 461; State v. Williams, 445 So.2d 1171 (La.1984); State v. Carter, 412 So.2d 540 (La.1982).

A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Boudreaux, 41,600 (La.App.2d Cir.12/13/06), 945 So.2d 898; State v. Mitchell, 37,916 (La.App.2d Cir.3/3/04), 869 So.2d 276, writ denied, 2004-0797 (La.9/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005). However, the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Boudreaux, supra; State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, 2004-2380 (La.6/3/05), 903 So.2d 452.

Among the factors to be considered are the defendant’s criminal history, State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766 (La.App. 2d Cir.1986); the gravity or dangerousness of the offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir. 1983), writ denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an unusual risk of danger to the public, State v. Jett, 419 So.2d 844 (La.1982); the potential for the defendant’s rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); and whether the defendant has received a benefit from a plea bargain, State v. Jett, supra; State v. Adams, supra.

In the instant case, as stated above, the trial court noted the defendant’s long record of criminal activity, and the court’s recitation of that history revealed multiple serious felony offenses. The court then stated l^that it had considered the defendant’s criminal record, the offender class, and the serious nature of the current charges, and that lengthy sentences were recommended in the presentence investigation report. The court gave the defendant an opportunity to address the court before sentence was imposed. The defendant stated that, at the time of the escape, he was “frustrated” and he “wasn’t in [his] right state of mind because [he] was going through a lot of things.” After listening to the defendant, the court noted that defendant had been in trouble “for a very long time doing all kinds of things, and it’s culminated in this aggravated escape and it’s a thousand wonders that somebody didn’t get killed.... ” Under these circumstances, we find that the record is sufficient to support consecutive sentences for this defendant.

Pro Se Assignment of Error — Ineffective Assistance of Counsel

The defendant argues that his trial counsel was ineffective because she failed to interview, investigate or allow any of his co-defendants to testify with regard to whether he had discussed escaping with them prior to the offense. The defendant also contends he was denied effective assistance of counsel due to a conflict of interest between him and his attorney. According to the defendant, defense counsel was married to an assistant district attorney in Webster Parish, and the district attorney of Webster Parish had represented the defendant in two unrelated matters.

Generally, ineffective assistance of counsel claims are usually addressed in post-conviction proceedings, rather than on direct appeal. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108, cert denied, — U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Deruise, 98-0541 (La.4/3/01), 802 So.2d 1224, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001). The post-conviction proceeding allows the trial court to conduct a full evidentiary hearing, if one is warranted. State v. Leger, supra; State v. Howard, 98-0064 (La.4/23/99), 751 So.2d 783, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). However, where the record contains evidence sufficient to decide the issue, and the issue is raised on appeal by an assignment of error, the issue may be considered in the interest of judicial economy. State v. Leger, supra; State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

We find that the record on appeal is sufficient to decide the defendant’s claim of ineffective assistance of counsel. The defendant points to various instances in which he informed the trial court pretrial of deficiencies in appointed counsel’s performance, which he claims the court failed to address. Moreover, since the ineffective assistance claim overlaps with the claim of conflict of interest, we will address these issues together.

Under the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Louisiana Supreme Court in State v. Washington, 491 So.2d 1337 (La.1986), a reviewing court must reverse a conviction if the defendant establishes: (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect.

l14With regard to the element requiring a showing of prejudice, this element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra. The defendant- must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim: general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.

The assessment of an attorney’s performance requires that his conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to a trial counsel’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.

A review of the record reveals that on the morning of trial, the defendant requested that he be appointed another attorney because his attorney was “ineffective” because she had not adequately conferred with |1Rhim. The defendant first represented to the court that the morning of trial was the first time he had seen his counsel. The defendant later admitted that defense counsel had been to the correctional center to confer with him, but she had not shown him any “motions or anything pertaining to [his] case.” Defense counsel and the district attorney then informed the court of some of the negotiations that had taken place with regard to the defendant’s case. They indicated that some of the previous charges against the defendant had been reduced as a result of defense counsel’s actions. The defendant then responded, “I just want to say, state for the record, as far as the two charges being dropped, I didn’t know nothing about it till [sic] now.” The court then denied the defendant’s request to dismiss counsel.

The following day, the defendant informed the trial court that he did not want his counsel to continue to represent him because she was married to an assistant district attorney who worked for the district attorney, who was once his defense counsel in two unrelated matters. The trial court again denied the defendant’s request to dismiss counsel.

In his brief to this court, the defendant contends his defense counsel was ineffective because she failed to call his co-defendants, who had all pleaded guilty to aggravated escape, to testify on his behalf. According to the defendant, the testimony of his co-defendants could have established that the escape was not pre-planned and could have discredited the deputies’ | ^version of the facts.

Based on our review of the record, since the defendant did not deny spraying the deputies with the pepper spray and escaping from jail, it is obvious that defense counsel’s trial strategy was aimed at avoiding a conviction for aggravated battery and aggravated escape. The defense centered around the contention that the escape was not under circumstances where human life was endangered and no dangerous weapon was used.

We find no abuse of the trial court’s discretion in failing to remove the defendant’s appointed trial counsel. Prior to trial, defense counsel objected to the original charges, resulting in the elimination of some of the charges against the defendant. During the trial, defense counsel made objections and cross-examined witnesses. Following the trial, defense counsel filed a motion for post-verdict judgment of acquittal, a timely motion to reconsider sentence and motion for appeal.

Although the defendant did not agree with his counsel’s trial strategy, the record indicates that trial counsel was competent and that her actions did not prejudice the defendant or deprive him of a fair trial in any manner. Thus, we find that the defendant has failed to demonstrate that he was prejudiced by any perceived deficiencies in his trial counsel’s performance. This assignment is therefore without merit.

Pro Se Assignment of Error — Excessive Sentence

The defendant further contends the sentences imposed are constitutionally excessive. According to the defendant, the trial court failed to state which LSA-C.Cr.P art. 894.1 considerations it took into account 117when imposing the sentences.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, supra. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writs denied, 2006-2768, 2006-2781 (La.6/22/07), 959 So.2d 494; State v. Brisco, 33,179 (La.App.2d Cir.4/5/00), 756 So.2d 644, writ denied, 2000-1478 (La.5/25/01), 792 So.2d 749; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541. Past records of drug offenses weigh heavily in the decision to uphold the imposition of maximum sentences. State v. Adams, 39,792 (La.App.2d Cir.6/29/05), 907 So.2d 844, writ denied, 2006-0259 (La.8/18/06), 935 So.2d 136; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

As stated above, prior to imposing sentence, the trial court reviewed the defendant’s extensive criminal history, which indicated that the defendant was a fourth felony offender. The defendant had multiple convictions for possession of marijuana. He had a prior conviction for attempted distribution of cocaine (sentenced to six years at hard labor) and two previous convictions for distribution of cocaine (sentenced to six years at hard labor on one and five years at hard labor on the other). At the time l1sof sentencing, the defendant had other drug charges pending, and the state indicated its intent to file a multiple offender bill of information against him.

For the same reasons noted above, we find that the record is sufficient to support the sentences imposed. The sentences are not disproportionate to the offense, nor do they shock the sense of justice. This assignment lacks merit.

Sentencing Delays

The defendant further argues that the trial court violated LSA-C.Cr.P. art. 873 by sentencing him without waiting 24 hours after the denial of his motion for post-verdict judgment of acquittal. LSA-C.Cr.P. art. 821(A) provides:

The defendant may move for. a post verdict judgment of acquittal following the verdict. A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.

LSA-C.Cr.P. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

In this case, the defendant was convicted on August 8, 2006 and was sentenced on November 6, 2006. Thus, the three day delay had clearly elapsed between the conviction and sentence. We find that the trial court did not err in imposing the sentence immediately after denying the motion for post-verdict judgment of acquittal. The 24-hour delay under LSA-jC.Cr.P.20 art. 873 does not apply following a denial of a post-verdict judgment of acquittal. State v. Scott, 98-2642 (La.App. 4th Cir.2/16/00), 754 So.2d 1108, writ denied, 2000-0723 (La.9/29/00), 769 So.2d 1219. Article 821 only requires a motion for post-verdict judgment of acquittal to be “disposed of before sentence.” LSA-C.Cr.P. art. 873 only requires the 24-hour sentencing delay for a motion for new trial or in arrest of judgment. This argument is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The deputies were not armed with firearms. Each of the deputies carried a can of pepper spray and a flashlight. Deputy Layfield also carried a metal extendable baton.

      . LSA-R.S. 14:2(A)(3) provides, "Dangerous weapon” includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.

      . The defendant also stated to the court that he had hired Peter Flowers to represent him. The trial court then listened to statements by the district attorney, who stated that he had been in contact with Mr. Flowers, who was representing the defendant on an unrelated matter, and Mr. Flowers had indicated that he did not intend to represent the defendant on the instant matter. The' trial court reviewed a letter from Mr. Flowers to the defendant and concluded that Mr. Flowers did not represent the defendant in this case.


author: WILLIAMS, Judge.

text:
    Sharanita S. THOMAS, Plaintiff-Appellant, v. Dr. Paul CRAWFORD and Louisiana Patients Compensation Fund, Defendant-Appellee.
    No. 42,386-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2007.

      S.P. Davis, for Appellant.
    Robert G. Pugh, Jr., Baton Rouge, for Appellee.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   WILLIAMS, Judge.

LThe plaintiff, Sharanita Thomas, appeals a judgment in favor of the defendant, Dr. Paul Crawford. The district court sustained defendant’s exception of prescription, dismissing plaintiffs claim. For the following reasons, we affirm.

FACTS

On August 27, 2001, Sharanita Thomas first saw Dr. Paul Crawford, an obstetrician, regarding her fourth pregnancy. Previously, she had given birth to a boy/ in October 1996, after having a miscarriage in ’ 1993 and stillborn twins in 1992. An ultrasound showed a twin pregnancy with an estimated gestational age of nine weeks. Thomas also sought medical treatment on the following dates:

—September 26, 2001, visited Dr. Crawford. Twin fetal heart tones were heard;

—October 8, 2001, seen by Dr. Crawford for lightheadedness and dizziness, she was advised to eat regular meals;

—October 24, 2001, an ultrasound showed twin gestation with appropriate fetal growth;

—November 15, 2001, admitted to Willis Knighton-Pierremont for observation after a car accident, in which another vehicle backed into her auto in a fast food drive-through lane. Thomas was not seen by Dr. Crawford, but was monitored by another physician for several hours and then discharged;

—November 21, 2001, visited Dr. Crawford, who heard twin fetal heart tones.

|2On November 24, 2001, at approximately 12:30 p.m., Thomas went to the Willis Knighton Labor and Delivery Unit with a complaint of abdominal pain and contractions during the previous night. She was admitted for premature rupture of membranes and pre-term labor. Dr. Crawford consulted with Dr. Selman Welt, a perinatologist, who opined that the prognosis for the pregnancy was poor.

At 8:00 a.m. on November 25, 2001, an ultrasound examination showed the death of one of the twins. Labor was induced and stillborn twins were delivered. The following day, November 26, 2001, Thomas was discharged from the hospital. A pathology report found acute chorioamnioni-tis of the placenta of the first fetus.

One year later, on November 25, 2002, Thomas mailed a medical malpractice complaint and request for a medical review panel to the Patient’s Compensation Fund Oversight Board (“PCF”), which informed her attorney that the request needed to be filed with the Division of Administration. Thomas’ attorney then mailed another complaint, which was deemed filed on December 11, 2002, the date of receipt by the Commissioner of Administration.

In January 2005, the medical review panel issued an opinion finding that Thomas had been appropriately evaluated and monitored after the auto accident, that such an impact was not related to her premature delivery and that Dr. Crawford’s notes showed that Thomas was regarded as a high risk patient. The panel further found that her medical history was not consistent with incompetent cervix syndrome, since she had previously delivered a |3child at 36 weeks. The panel opined that Dr. Crawford met the applicable standard of care and that the loss of the twins at 21 weeks was caused by cho-rioamnionitis, pre-term labor and fetal demise.

On April 8, 2005, the plaintiff, Sharanita Thomas, filed a petition for damages against the defendant, Dr. Crawford, alleging medical malpractice. In April 2006, the defendant filed a peremptory exception of prescription and plaintiff later filed an opposition. Neither party called any witnesses at the hearing on the exception. In its reasons for judgment, the district court found that the plaintiff possessed sufficient knowledge to start the running of prescription on November 26, 2001, the date that she was discharged from the hospital after losing the twins, based on plaintiffs experience with her previous pregnancies and her awareness that she was a high risk patient. The court rendered judgment sustaining the exception of prescription. The plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the district court erred in sustaining the exception of prescription. Plaintiff argues that the court was clearly wrong in finding that prescription began to run on the date plaintiff was discharged from the hospital, simply because she felt a mere dissatisfaction with the defendant’s services at the time.

The prescriptive period for medical malpractice is found in LSA-R.S. 9:5628, which provides that an action for damages against a physician arising out of patient care must be filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of | ¿discovery of the alleged act, omission or neglect. The one-year prescriptive period commences on the date a patient discovers or should have discovered the facts upon which the cause of action is based. When a party has sufficient information to incite curiosity, excite attention or place a reasonably minded person on guard and call for inquiry, she has the constructive knowledge necessary to start the running of prescription. Cruse v. LSU Medical Center, 34,779 (La.App.2d Cir.6/20/01), 792 So.2d 798; Bossier v. Ramos, 29,766 (La.App.2d Cir.8/20/97), 698 So.2d 711, writ denied, 97-2583 (La.12/19/97), 706 So.2d 463. Constructive knowledge sufficient to commence the running of prescription requires more than a mere apprehension that something might be wrong. Griffin v. Kinberger, 507 So.2d 821 (La.1987); Bossier v. Ramos, supra.

Prescription does not run so long as it is reasonable for a patient not to recognize that the undesirable condition may be related to treatment. When a patient has knowledge of facts strongly suggestive that her condition may be the result of improper treatment and the physician has not attempted to conceal information which is available to the patient through inquiry, then the facts and cause of action are reasonably knowable. A patient’s inaction for more than one year under these circumstances is not reasonable. Cruse, supra; Bossier, supra.

Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiffs petition shows on its face that the prescriptive period has expired, the burden shifts to the plaintiff to allege and prove facts indicating that the injury and its |scausal relationship to the alleged misconduct were not apparent or discoverable until within one year before the action was filed. Cruse, supra. An appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993).

In this case, the district court was not clearly wrong in finding that the petition was prescribed on its face and that the burden of proof was on the plaintiff to show that the lawsuit was filed within one year of her discovery of the alleged malpractice. The record shows that plaintiffs petition was filed more than one year after the date of her discharge from the hospital following the loss of her twins and the petition does not allege that she was unaware of the facts upon which her medical malpractice claim is based.

Contrary to plaintiffs contention in her appellate brief, her deposition testimony demonstrates that at the time of the death of her twins, plaintiff possessed more than a vague apprehension that something was wrong. She testified that on November 26, 2001, the date of her discharge from the hospital, she believed that defendant had not provided her with proper care and that her twins would have survived if she had received appropriate treatment. This testimony indicates that plaintiff was aware of facts suggesting that the loss of her twins was specifically related to defendant’s alleged failure to provide proper prenatal care.

Here, the plaintiff’s claim is based on the delivery of stillborn twins following treatment by the defendant during the period from August 2001 through November 2001. As of November 26, 2001, plaintiff knew she had undergone premature labor and that medical complications had resulted in | fithe death of her twins. Thus, when the plaintiff was discharged from the hospital in November 2001, the information available to plaintiff was sufficient to incite her curiosity and place her on notice of the need for further inquiry.

After reviewing the record, we cannot say the district court was clearly wrong in finding that in November 2001, the plaintiff was aware of facts which constituted the constructive knowledge necessary to begin the running of prescription. Thus, plaintiff failed to file her claim within one year of the date on which she knew or should have known of the alleged malpractice. Consequently, the plaintiffs cause of action has prescribed. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment sustaining the defendant’s exception of prescription is affirmed. Costs of this appeal are assessed to the appellant, Sharanita Thomas.

AFFIRMED.


author: GASKINS, J.

text:
    Chris ROTON, Plaintiff-Appellant, v. VERNON E. FAULCONER, INC., Defendant-Appellee. Edith Reneé Roton, Individually and as Natural Tutrix of her Minor Son, Michael Lee Roton, Plaintiff-Appellant, v. Vernon E. Faulconer, Inc. and Tommy D. Stewart, Defendants-Appellees. Chris Roton, Plaintiff-Appellant, v. T & R Stewart, Inc., Defendant-Appellee.
    Nos. 42,452-CA to 42,454-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 3, 2007.

      Houck & Riggle, L.L.C. by Tracy W. Houck, Ruston, Ronald L. Riggle, for Appellant, Edith Reneé Roton.
    Dollar Laird, L.L.P. by Johnny E. Dollar, Monroe, for Appellant, Chris Roton.
    Hudson, Potts & Bernstein, L.L.P., by Gordon L. James, Monroe, Donald H. Zeigler, III, for Appellees, Tommy D. Stewart & T & R Stewart, Inc.
    Mayer, Smith & Roberts, L.L.P., by Caldwell Roberts, Jr., Shreveport, for Ap-pellee, Vernon E. Faulconer, Inc.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

JjThe parents of a 15-year-old boy, who was killed while trespassing on a pumping unit, appeal from the granting of summary judgment in favor of the operators of the well. We affirm.

FACTS

On June 25, 2003, Michael Roton and Colby Moon went by four-wheeler to a pumping unit on property near McCullen Road in rural Lincoln Parish, Louisiana. In the weeks since the end of the school year, the boys had devised a game whereby they removed metal rods from the fence surrounding the pumping unit and placed them in holes on the counterweight. They then held onto the rods or pins in an effort to be lifted or slung in the air when the counterweight moved upward. On this day, Michael took a metal bar and balanced it on top of a pin the boys had stuck in the counterweight. As he was raised in the air, he let go of one end and fell. Michael was then struck in the torso by the counterweight. The boys returned to the home of Michael’s father. Prior to their arrival there, they agreed to lie that Michael’s injures were sustained in a four-wheeler accident. Michael was transported by ambulance to a hospital where he died of internal injuries. When questioned by the police after Michael’s death, Colby told the truth about how Michael was injured.

In August 2003, Michael’s father, Chris Roton, filed a wrongful death and survival action against Vernon E. Faulconer, Inc., a Texas corporation which allegedly owned and operated the oil well site (“Faulconer”). He alleged negligence, strict liability, and attractive nuisance. Although removed to federal court on the defendant’s motion due to diversity ^jurisdiction, the case was eventually remanded back to state court following the addition of a Louisiana defendant. In April 2004, the father filed an amended complaint adding Tommy D. Stewart, a Louisiana resident, as a defendant. Stewart was alleged to have entered into an operating agreement with Faulconer, which covered the well site at issue.

In April 2004, Edith Reneé Roton, Michael’s mother, filed suit, individually and as Michael’s natural tutrix, in state court against Faulconer and Stewart. She also alleged negligence, strict liability, and attractive nuisance. In June 2004, Stewart filed an answer in which he stated that T & R Stewart, Inc. entered into the operating agreement with Faulconer. He also asserted that Michael was solely at fault in trespassing on the well site, vandalizing the fence surrounding the well site, climbing over the surrounding fence, and playing on the pumping unit despite the posted danger signs. Stewart filed a similar answer in the father’s lawsuit.

In June 2004, the father filed suit in state court against T & R Stewart, Inc., alleging the same basis as his prior suit. In its answer, T & R Stewart, Inc., again stated that Michael was solely at fault.

In November 2004, the parties jointly moved to consolidate the three eases. The motion was granted.

In June 2005, Faulconer filed a motion for summary judgment. It asserted that a guardrail was in front of the counterweight to prevent accidental contact with it and that warning signs were on the guardrail. It further contended that the 15-year-old decedent trespassed on the pumping unit and constructed an unstable hand grip in order to be lifted in the air |swhile playing on the unit. Faulconer asserted that the boy knew that he had engaged in reckless behavior, as demonstrated by the fact that he and his friend fabricated a false story about how he was injured. In support of the motion, Faulconer attached the depositions of 14-year-old Colby Moon, who was present when the decedent was injured, and Heath Mullins, the decedent’s 14-year-old stepbrother, who recounted playing at the accident site with Michael and Colby a week or two before the fatal incident. Heath indicated that on that occasion, the boys hid the four-wheeler so no one would see them near the pumping unit. That day Heath fell and hit the fence; after that, he never played on the unit again.

Also submitted in support of Faulconer’s motion for summary judgment was the affidavit of William Griffin, a registered professional engineer who owned and operated an oil and gas consulting business. He stated that the pumping unit at issue here was equipped with a three-rail guardrail, which exceeded standard industry practice and protected against accidental contact with rotating counterweights. The pumping unit also had conspicuously displayed warning signs. Griffin stated that the nearest residence to the well site was 450 feet away and that the pumping unit was 208 feet from the road.

In July 2005, Tommy D. Stewart and T & R Stewart, Inc., also filed a motion for summary judgment. Stewart asserted that, operating as T & R Stewart, Inc., he was an independent contractor providing periodic maintenance service for Faulconer; as such, he was not responsible for the design, safety or signage of the oil well equipment. He further contended |4that the accident was caused by the decedent’s reckless and grossly negligent conduct. These defendants adopted the arguments and facts set forth by Faulconer in its motion for summary judgment. They also attached excerpts of Heath Mullins’ deposition testimony in which he admitted that he fell and was injured the first time he played on the pumping unit, that he never did it again, that Michael witnessed his accident, and that he and the other boys hid when they saw someone drive by the well. They also presented deposition excerpts from the decedent’s brother Christopher in which he stated that a chainlink fence would not have been a deterrent to him accessing the pumping unit unless it had razor wire on the top. Christopher said he never paid attention to the signs on the pumping unit until after his brother died. The decedent’s mother stated in her deposition that Michael lied about how he was injured because he knew he would be in trouble if his father found out that he had been on the pumping unit.

In April 2006, the decedent’s father filed an opposition to the motions for summary judgment. In support of his opposition, he filed an affidavit and report from Edward Ziegler, a consulting petroleum engineer and safety consultant. According to Ziegler, it is well known in the oil and gas industry that children in rural Louisiana play in the fields and woods near their homes and that being struck by moving equipment is a recognized hazard. Also, a properly designed, constructed and installed guard on a pumping unit cannot be moved by young people. Ziegler also stated that the signs in place were inadequate; according to him, signs must describe the hazard, the potential harm, and a way to avoid the hazard or potential harm. |BHe also offered his opinion that the decedent did not contribute to his injury because he was attracted to equipment which was not properly or reasonably guarded.

The decedent’s mother likewise filed an opposition to the motions for summary judgment in which she relied upon Ziegler’s testimony. She argued that Ziegler’s affidavit showed that the defendants failed to comply with industry standards in safeguarding the pumping unit. She claimed that the pumping unit was unreasonably dangerous, that the defendants failed to properly guard and enclose it, and that the nature of the pumping unit made it “peculiarly attractive” to her son and boys his age. She also attached the depositions of Christopher Roton, Jr. and Colby Moon.

In July 2006, the trial court issued written reasons for ruling and granted the motions for summary judgment. The court relied upon Robertson v. State ex rel. Department of Planning and Control, 32,309 (La.App.2d Cir.12/10/99), 747 So.2d 1276, writ denied, 2000-0041 (La.2/25/00), 755 So.2d 882, in which a Louisiana Tech student died after falling from the roof over the university natatorium. The court found no distinction between a college student climbing a roof and a 15-year-old boy trespassing on another person’s property and altering the pumping unit by removing a steel bar to assist in his ride. The court distinguished the present case from Killough v. Bituminous Casualty Corp., 28,329 (La.App.2d Cir.5/8/96), 674 So.2d 1091, in which a nine-year-old boy was injured on an oil well that the well owner knew was located 129 feet from a residence and near a school and playground. Here the nearest residence was |fi450 feet away and there was no school or playground in the vicinity. The court considered the actions taken by the decedent and his friends to conceal their activities, including lying about how he was injured, and determined that it appeared that no reasonable preventive measures would have deterred the boys from “their adventure.” The court held that the well operator did not have a duty to completely enclose, fence and lock all pumping stations. Furthermore, the court found no additional duty owed to trespassers who make intentional recreational contact with the pumping mechanism. As to strict liability, the trial court found no defect in the pumping station and no knowledge by the defendants of the boys’ trespassing and dangerous conduct. On the issue of attractive nuisance, the trial court ruled that it was inapplicable to the 15-year-old decedent. Judgment in conformity with the opinion was signed on July 25, 2006.

The parents appealed. In April 2007, they and Faulconer filed a joint motion to dismiss the appeal with prejudice as to Faulconer. The motion was granted by this court in May 2007.

SUMMARY JUDGMENT

Law

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and l7admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Rustan, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

Initially, the movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant successfully meets this burden, then the burden shifts to the other party to present factual support adequate to establish that he/she will be able to satisfy the evidentiary burden at trial. If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827 (La.5/22/07), 958 So.2d 634.

Discussion

Since Faulconer is no longer a party to this matter, we consider only the liability of Stewart and T & R Stewart, Inc. (“Stewart”).

According to the terms of the operating agreement between Stewart and Faulconer, Stewart agreed to: (1) operate the well in a good and workmanlike manner and in accordance with accepted oil producing industry standards and practice; (2) pay promptly all just claims for materials, equipment, etc.; (3) pay all claims for damage to property in any manner arising directly [or] indirectly from Stewart’s work, limited to acts | Rof negligence by Stewart or its employees; (4) comply with all federal, state and municipal laws, rules and regulations applicable to Stewart, Stewart’s business, equipment or personnel; (5) obtain and pay for all necessary permits and comply with all applicable laws and regulations in qualifying for and in performing the work; and (6) conduct its activities in a lawful way and to comply with laws and governmental regulations applicable to Stewart, Stewart’s business or personnel.

Stewart argues that if it is deemed to have had the garde of the pumping unit under the terms of its agreement with Faulconer, it is entitled to the protection of La. R.S. 9:2800.4. We agree. This statute provides, in relevant part:

A. As used in this Section:
(1) “Owner” means the owner and also a tenant, lessee, occupant, or person in control of any farm or forest land or in control of any oil, gas, or mineral property.
(4) “Oil, gas, or mineral property” shall mean any land leased for the development and production of oil, gas, or minerals.
E. An owner of oil, gas, or mineral property shall not be liable to any person who unlawfully enters upon his oil, gas, or mineral property, for damages for any injury, death, or loss which occurs while on the oil, gas, or mineral property of the owner, unless such damage, injury, or death was caused by the intentional act or gross negligence of the owner. [Emphasis added.]

Thus, in order to be liable for the death of the trespassing decedent, Stewart must have been grossly negligent or committed an intentional act causing the death.

| ciGross negligence has a well-defined legal meaning distinctly separate, and different, from ordinary negligence. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” It has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” [Internal citations omitted.] Rabalais v. Nash, 2006-0999 (La.3/9/07), 952 So.2d 653; Foshee v. Louisiana Farm Bureau Casualty Insurance Co., 41,842 (La.App.2d Cir.1/31/07), 948 So.2d 1171, writ denied, 2007-0483 (La.4/20/07), 954 So.2d 169.

La. R.S. 9:2800.4 does not define “intentional act.” We find useful the definition given for the term by the Louisiana Supreme Court when considering the intentional act exception to the exclusivity provision of the Workers’ Compensation Act. In White v. Monsanto Company, 585 So.2d 1205 (La.1991), the court stated:

The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.

| ^“Substantially1 certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Reeves v. Structural Preservation Systems, 1998-1795 (La.3/12/99), 731 So.2d 208.

According to the uncontradicted evidence, the pumping unit was located in a heavily wooded rural area. The three nearest homes were 450 feet north, 780 feet east, and 1,170 feet west of the well site. The pumping unit was 208 feet from a nearby road. It was equipped with a three-rail guardrail. There were several warning signs attached to the guardrails. The word “DANGER” was displayed in white letters on a red background. The sign further cautioned that “this equipment starts automatically at any time.”

The record is devoid of evidence that Stewart was grossly negligent or committed an intentional act causing Michael’s death. A fence and warning signs were in place at the accident site; both of these measures were calculated to alert potential trespassers to stay away from the equipment. In the instant case, these reasonable measures were simply ignored by intelligent teenagers in pursuit of summer entertainment.

We note that the plaintiffs sought application of the attractive nuisance doctrine. Like the trial court, we find that this doctrine — which [ n applies to “children of tender years” — is not available in the instant case due to the 15-year-old decedent’s age. See Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21, in which the supreme court refused to apply the attractive nuisance doctrine to a situation involving boys who were fourteen and fifteen years old.

We find that summary judgment in favor of Stewart was appropriate under the circumstances presented in this case.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellants, Chris Roton and Edith Reneé Roton.

AFFIRMED.

      . There is a question as to whether the fence was fully enclosed. In his deposition, Colby indicated that an end of it was open. However, Heath testified that the fence was not open at one end and that they normally had to climb over the fence to get close to the pumping unit. We do not believe that this discrepancy is sufficient to defeat summary judgment.