author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Chuck J. JOLLY.
    No. 05-KA-672.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Donald A. Rowan, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for PlaintiffiAppel-lee.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

| ^Defendant, Chuck E. Jolly, was charged with a violation of LSA-R.S. 14:56, simple damage to property over $500. Following a bench trial, he was found guilty. On the same day, after waiving sentencing delays, he was sentenced to two years on home incarceration with the special conditions that he pay a fine of $300, that he pay restitution to the victim in the amount of $543.42, and that he pay court costs. In addition, Jolly was required to pay the costs of the electronic monitoring during his home incarceration. He appeals his conviction and sentence. For the following reasons we reverse.

Timothy Chan, the owner of the damaged BMW, testified that he parked his car in front of Jolly’s house, which was two houses down from a friend’s home, at about 4:00 p.m. on October 23, 2004. He did not know Jolly before this incident. Chan testified that the scratches he found on his car when he was leaving were not on his car when he parked it. Chan was positive there were no scratches, because | she had just had his car cleaned and, after he parked the car, he viewed it as he walked around the back of the car and then the other side of it along the sidewalk. Chan testified that his insurance agent gave him an estimate amount of $543.42, and he paid a body shop that amount to repair his car.

Sidney Dugas, Jr., the next-door neighbor of both Jolly and of the friend whom Chan was visiting, testified that he lives at 6204 Morton Street. He testified that, on October 23, 2004, he learned about the incident and informed Chan, whom he had never met before, that he (Dugas) had a camera videotaping and that he was welcome to view the tape. Dugas testified that the videotape played for the court was the same one that he and Chan watched before it was given to the police and had not been altered or changed. Dugas identified Jolly on the tape as the man who got out of the truck. Dugas stated that for the past several years, there had been vandalism on both his house and vehicles, and that was the reason he placed a camera to tape Jolly’s front yard. He testified that Jolly’s front yard is the direction from which most of the vandalism has occurred. Every time his vehicle was damaged, it was on the side by Jolly’s house. Dugas testified that the vandalism included eggs and paint thrown on his car that destroyed the paint job, windows and lights shot out of two vehicles, and bullets in his house that he had to dig out.

Some of the vandalism to his cars occurred when they were parked on the street. After he moved the vehicle “inside the house,” the vandalism started to occur on the side of his house facing Jolly’s home. When these incidents occurred, he put up a big light and some cameras. Later, the light was shot out with a .22 caliber bullet. Dugas did not view the entire six-hour tape.

Jolly testified that, on the day of the incident, he returned from Wal-Mart and parked his pickup truck in his usual spot, on the curbside grass. When he | ¿arrived, he saw the BMW parked on the street, but he had no objection to it and had “no hard feelings.” When he first saw the car he thought it was his sister-in-law’s car, until he saw the BMW symbol. He had no idea who owned the auto, but he thought it might belong to someone at a neighbor’s party, even though no one was parked in front of that neighbor’s house. Jolly unloaded groceries from his front cab and then went around the back of the car by the tailgate to remove a flat spare tire from the bed, but his money fell out, approximately $300. He bent down behind his truck to pick his money up, lifted the tailgate, and then went back to Wal-Mart to have the tire fixed. Jolly testified that he purposefully drove off in the opposite direction of Dugas’ driveway, because Du-gas had accused him of “a lot of stuff,” in the past year. When he returned from Wal-Mart, approximately a half hour later, he saw the Jefferson Parish officer and thought that Dugas had called the police for him.

Jolly testified that he was not angry at anyone who owns a BMW and that he did not scratch, key, or cause the damage to the BMW. He also claimed not to have vandalized Dugas’ property. In fact, he claimed that his property was also vandalized, i.e., tires slashed and windshields broken, at the same time Dugas’ was damaged. Jolly stated that he knew that Du-gas thought he committed the acts of vandalism and had placed several cameras pointing in the direction of his house. He testified that he thinks the reason that Dugas is always taping him is to catch him in an act that would affect his workers’ compensation claim, so he could sell the tape.

The videotape was played for the court. Chan is seen arriving four hours and forty-three minutes into the six-hour and six-minute videotape. He parks next to the curb, gets out, and turns toward the back of his car. An extraneous commercial is seen for the next eight seconds of the tape. When the tape resumes, |Bthere is no activity near Chan’s car until Jolly arrives five hours and twenty-seven minutes into the tape. He parks his truck on the curbside grass between the curb and the sidewalk. The truck completely obstructs the view of Chan’s car. Jolly exits his truck and walks around the back of Chan’s car to his passenger-side door. He then moves one or more bags in three successive trips to and from his property. On his last trip, Jolly walks to the back of his truck and puts down the tailgate. Next, he takes a step in the direction of Chan’s car, but abruptly stops. Then, he moves around the back of his car to the passenger side of his truck bed. He looks and reaches into his truck bed, and then another truck comes down the street. As the truck pulls into the driveway across the street, Jolly moves to the back of his truck and bends down by the driver’s-side corner of his truck bed. Next, he lifts the tailgate and then bends down again. After, standing up, he walks around to the passenger side and front of his truck before driving away. Jolly leaves, backing off the grass and down the street, five hours and thirty-one minutes into the tape. No one is seen by Chan’s car for the remainder of the videotape. Chan is never seen returning to his car.

The trial court found that Chan’s vehicle was “very clean,” and that the video showed Jolly stooping down on the side of the car where two scratches were found. Accordingly, the court determined the circumstantial evidence went beyond a reasonable doubt and excluded every hypotheses of innocence.

Jolly claims that the trial court erred in finding him guilty based on only circumstantial evidence, i.e., a videotape, especially when he offered a reasonable explanation. Jolly avers that he squatted down behind his truck, near the damaged car to retrieve money he dropped and that this explains all his actions on the videotape. Although he initially claimed he squatted down once, after viewing the tape, he admitted that he bent down twice to retrieve all of the money, which was |Bin twenty dollar bills. He also claims that the tape is incomplete because it did not record the entire time prior to Chan returning to his car. Therefore, he concludes that it is reasonable to assume that someone other than he could have scratched the car.

Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion. LSA-R.S. 14:56(A).

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that assuming every fact to be proved that the evidence tends to prove, to convict it must exclude every reasonable hypothesis of innocence. However, this requirement of LSA-R.S. 15:438 does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient.

When determining the existence of reasonable doubt where circumstantial evidence is involved, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Instead, the, court must evaluate the evidence in the light most favorable to the prosecution and determine whether the possible | .¡.alternative hypothesis is sufficiently reasonable that the trier of fact could not have found proof of guilt beyond a reasonable doubt under Jackson.

A determination of the weight of evidence is a question of fact that rests solely with the trier of fact. The reviewing court must not impinge on the finding of fact, in a criminal case, except to the extent necessary to guarantee constitutional due process. “Therefore, in order for a reviewing court to reverse a conviction based on an alternative hypothesis of innocence, the court must find that the jury could not have negated a potential alternative hypothesis.”

“The actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing are preserved ... by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.” ... The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.... Rather, the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt....

(Citations omitted.)

In the present case, the court found the testimony of Chan and Dugas to be credible. However, in the absence of any eyewitness or other evidence, and considéring the remarks of the trial judge, we are bound to conclude that the only evidence upon which to find that Jolly was the perpetrator is the videotape. That tape, however, is incomplete. It does not evidence the time of day it was taken, and although Dugas testified that he set it to begin sometime on the morning of the incident, he did not know either what time he set it or the time the events depicted took place. The tape ends before Chan returned to his car and discovered the Ldamage. The amount of time missing is unknown. The car was parked on the street for an undetermined period of time for which the videotape does not account. Considering the evidence presented at trial, we find that the court could not have negated the sufficiently reasonable alternative hypothesis that someone else scratched the car.

For the foregoing reasons, the conviction is reversed.

REVERSED.

      . State v. Harris, 03-1297 (La.App. 5 Cir. 3/30/04), 871 So.2d 599, 609-610, writ denied, 04-1287 (La.10/29/04), 885 So.2d 583, and writ denied, 04-1289 (La.10/29/02), 885 So.2d 584.

      . State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884.

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Lathers, supra.

      . See, State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

      . State v. Pagan 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d 435.

      . State v. Upchurch, 00-1290 (La.App. 5 Cir. 1/30/01), 783 So.2d 398, 402.

      . State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.

      . Id.

      . Id.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge. GORBATY, J.

license: Public Domain

text:
    Jeremy Dean FOLEY and Joy Dawn Foley, Individually and on Behalf of Their Minor Children, Nikolas Foley and Dylan Foley v. ENTERGY LOUISIANA, INC., Feliciana, a Louisiana Partnership in Commendam and Latter & Blum, Inc.
    No. 2004-CA-1967.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 2006.
    Rehearing Denied March 30, 2006.

      William P. Con nick, Connick and Con-nick, L.L.C., Patrick G. Kehoe, Jr., New Orleans, Counsel for Plaintiffs/Appellants.

      Kenneth P. Carter, Louis Leonard Gal-vis, Catharine Ohlsson Gracia, Hammond, Margaret Jenkins Savoye, Baton Rouge, Counsel for Defendant/Appellant, Entergy Louisiana Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hOn November 12, 1998, Jeremy Foley was working as a roofer for Robertson Roofing and Siding, Inc. (Robertson Roofing) making roofing repairs on Building D at the Feliciana Apartments in Harvey, Louisiana when he and his co-worker, Jason Rodriguez, raised a twenty foot aluminum ladder into an uninsulated overhead power line owned and operated by Enter-gy Louisiana, Inc. (Entergy) causing substantial injury by electrocution to Jeremy Foley. At the time of the accident, Jeremy Foley was twenty-four years old and was married to Joy Foley and was the father of two young children.

The power line, which ran in front of Building D was part of an Entergy single phase line system that consisted of two separate wires: a neutral “shield” line that did not carry an electrical current and a live “phase” line that carried 8,000 volts of electricity. Entergy’s sole method of insulating its live power lines at the complex of three story buildings was “insulation by isolation”, which consisted of stringing the lines at a vertical height that it believed was out of reach. There were no warning signs or instrumentalities such as orange foam balls on or in the ^vicinity of the lines. At the site of the accident, the neutral shield line was strung directly above the live phase line with a distance of approximately three feet separating the lines. At 16 of the 23 identical apartment buildings in the Feliciana/Alouette complex, the neutral shield line was instead placed directly under the live phase line. At 7 of the 23 buildings, including Building D, the neutral shield was placed directly above the live phase line. Approximately twelve years before Jeremy Foley’s accident, two painters, Carl and Craig Davis, were electrocuted when they raised their ladder in front of Building D just a few feet from where Jeremy Foley and Jason Rodriguez raised their ladder.

Jeremy Foley and Joy Foley, individually and on behalf of their minor children, Nikolas Foley and Dylan Foley, brought a suit for damages against Entergy, Latter & Blum Property Management, Inc. (Latter & Blum), the manager of the property, and WFMFT Real Estate Limited Partnership (WFMFT), the owner of the property. Prior to trial, Latter & Blum and WFMFT were dismissed from the case on summary judgment. A bench trial took place on January 12-16 and May 3, 2004. At the commencement of the proceedings, the trial court ruled that it would not consider any evidence Entergy wished to introduce as to the fault of co-defendants, Latter & Blum and WFMFT. The trial court found that Jeremy Foley was 20% at fault for the accident, Jason Rodriguez was 5% at fault, Robertson Roofing was 40% at fault, and Entergy was 35% at fault. Based on these findings, the trial court rendered judgment in favor of the plaintiffs and against Entergy, awarding Jeremy Foley $4,735,297.70; $105,000.00 to Joy Foley; |3and $70,000.00 to each of the minor children. In addition, Robertson Roofing was awarded $575,673.87 on its intervention claim. Both Entergy and Jeremy Foley appeal the trial court’s judgment.

On appeal, Entergy contends that the trial court erred in finding that it was negligent in any manner that caused or contributed to the plaintiffs’ damages and the trial court erred and abused its discretion in denying Entergy the right to introduce at the trial of this matter evidence of the fault of Latter & Blum and WFMFT. The plaintiffs contend that the trial court erred in its determination of the percentages of fault of the various parties and actors involved.

An appellate court’s review of a trial court’s findings is governed by the manifest error (clearly erroneous) standard. Stobart v. State of La. Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in testimony, reasonable inferences of fact should not be disturbed on review even if the appellate court may feel that its own evaluations and inferences are just as reasonable. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if it is convinced that it would have weighed the evidence differently if it had been sitting as the trier of fact. Id.

As with other factual determinations, a trier of fact is vested with much discretion in its allocation of fault. Thonn v. Cook, 2003-0763 (La.App. 4 Cir. 12/10/03), 863 So.2d 628. Therefore, an appeals court should only disturb the trier of fact’s allocation of fault when it is manifestly erroneous.

|4In the instant case, Entergy specifically pled the fault of third parties as a cause of the plaintiffs accident and injuries as an affirmative defense in its answer to plaintiffs’ petition for damages. Pursuant to Louisiana Civil Code Article 2323 and the Louisiana Supreme Court’s holdings in Keith v. United States Fidelity & Guaranty Co., 96-2075 (La.5/9/97), 694 So.2d 180, 182-84 and Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563 (La.10/15/02), 828 So.2d 530, Entergy was entitled to present evidence of the negligence and fault of third parties at the trial of this matter. The trial court denied Entergy that right on the grounds that the parties against whom Entergy wanted to offer such evidence had been dismissed on summary judgment as statutory employers of Jeremy Foley. However, a party’s status as a plaintiffs employer, immune from any claim by the plaintiff for damages, cannot prohibit a defendant from introducing evidence as to the employer’s fault for the accident and injuries sustained by the plaintiff. Thus, there is no basis for excluding such evidence offered against a party who is the plaintiffs statutory employer. On the contrary, Article 2323 requires that the fault of every person responsible for plaintiffs injuries be compared, whether or nor such person is a party, and regardless of the legal theory of liability asserted against such person. The trial court erred in depriving Entergy the opportunity to present such evidence. As such we reverse this ruling.

We have examined the evidence proffered by Entergy regarding the fault of third parties. Harry Jackson, the maintenance supervisor at the Feliciana Apartments, testified that he did not warn the roofers about the wire at Building D, |Bor that a prior accident had occurred. Andrew Lawyer, who performed an accident reconstruction, opined that the management or employees of the Feliciana Apartments should have pointed out the wires to the roofers, and advised them of the prior accident. Although we have found that the trial court erred in not allowing Enter-gy the opportunity to present evidence of third party fault, based on the proffered evidence, we conclude that Latter & Blum and WFMFT were not at fault in this accident in any way. As such, we assign no percentage of fault to these parties.

In determining percentages of fault, various factors should be considered, including: (1) whether the conduct resulted from inadvertence or an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Cas., Ins. Co., 469 So.2d 967 (La.1985). In the instant case, Entergy was clearly aware of the danger; an electrocution had taken place at the same location some twelve years earlier. See Davis v. Louisiana Power & Light Co., 612 So.2d 235 (La.App. 4 Cir.1993). In its reasons for judgment, the trial court recognized that “Entergy did little if anything to take any corrective action during the 12 year interim between the two accidents such as adequately inspect its lines, raise its lines, adjust the final sag in the line and/or invert the neutral shield line with the live phase line so that the former would provide an additional buffer of safety that would have | (¡eliminated this catastrophic accident.” Entergy was also the superior actor under the facts and circumstances of this case. This likewise was recognized by the trial court when it pointed out that the facts and circumstances of Dobson v. LP & L, 567 So.2d 569 (La.1990) bear a notable resemblance to the present matter. In that case, the Supreme Court held that a live power line is one of the most dangerous things known to man. Id. at 572. The Supreme Court further noted that “[n]ot only is the current deadly, but the danger is hidden away in an innocent looking wire ready at all times to kill or injure anyone who touches it or comes near to it. For the average citizen, there is no way of knowing whether the wire is harmless or lethal until it is too late to do anything about it.” Id. at 572 citing Godesky v. Provo City, Corp., 690 P.2d 541, 548 (Utah 1984) quoting Brigham v. Moon Lake Electric Assoc., 24 Utah 2d 292, 470 P.2d 393, 395 (1970).

In spite of all this, the trial court only apportioned 35% of the fault in this matter to Entergy with 40% apportioned to Robertson Roofing, 20% to the plaintiff and 5% to Jason Rodriguez. In our view, this is clearly wrong. Because high power lines are inherently dangerous, utility companies that maintain and employ high voltage electric power lines are required to exercise the “utmost care” to reduce hazards to life as far as to properly insulate them, or give adequate warnings of the danger, or to take other proper and reasonable practical steps. Pillow v. En-tergy Corp., 36,384 (La.App. 2 Cir. 9/18/02), 828 So.2d 83, 87. Considering the facts of this case, with particular attention to the history of the site and the |7capacities of the various actors, 50% of the fault should be apportioned to Entergy and the fault allocated to the plaintiff should be reduced to 5%. We find no error in the trial court’s allocation of fault to Robertson Roofing or Jason Rodriguez. As such, Entergy should pay the following sums to the plaintiffs: $6,414,711.00 to Jeremy Foley; $150,000.00 to Joy Foley; and $100,000.00 each to Nikolas and Dylan Foley.

For the foregoing reasons, we affirm in part, reverse in part and render judgment as stated above.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

GORBATY, J. concurs in part and dissents in part with reasons.

GORBATY, J.

Concurring in Part and Dissenting in Part.

hi concur with the majority that Enter-gy Louisiana, Inc. (“ELI”) was entitled to present evidence of the negligence and fault of third parties. Likewise, I find no fault on the part of Latter and Blum and WFMFT.

I respectfully dissent from the majority’s decision to reverse the trial court’s apportionment of fault. An appellate court’s review of a trial court’s findings is governed by the manifest error (i.e. clearly erroneous) standard. Stobart v. State of La. through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in testimony, reasonable inferences of fact should not be disturbed on review even if the appellate court may feel that its own evaluations and inferences are just as reasonable. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if it is convinced that it would have weighed the evidence differently if it had been sitting as the trier of fact. Id.

It is well accepted that the trier of fact is charged with the determination of how much credibility it assigns to expert witnesses, and therefore with the determination of which expert witness among those testifying is more credible. Lasyone v. Kansas City Southern R.R., 2000-2628 (La.4/3/01), 786 So.2d 682. 12Credibility determinations, including the evaluation of expert testimony and the resolution of conflicts in such testimony, are factual issues to be resolved by the trier of fact, and therefore must not be disturbed on appeal in the absence of manifest error. Id.

As with other factual determinations, a trier of fact is vested with much discretion in its allocation of fault. Thonn v. Cook, 2003-0763 (La.App. 4 Cir. 12/10/03), 863 So.2d 628. Therefore, an appeals court should only disturb the trier of fact’s allocation of fault when it is manifestly erroneous.

In the instant case, the power line, which ran in front of Building “D” of the Feliciana apartment complex, was part of an Entergy single phase line system that consisted of two separate wires: a neutral “shield” line that did not carry an electrical current, and a live “phase” line that carried 8,000 volts of electricity. Enter-gy’s sole method of insulating its live power lines at the complex of the three story buildings was “insulation by isolation,” which consisted of stringing lines at a vertical height believed to be out of reach. There were no warning signs or instru-mentalities, such as orange foam balls, on or in the vicinity of the lines.

The record shows that the configuration of the two wires played a primary role in the plaintiffs accident. At Building D, the neutral shield line was strung directly above the live phase line, with a distance of approximately three feet separating the lines. At sixteen of the twenty-three identical apartment buildings in the Feliciana complex, the neutral shield line was instead placed directly under the live phase line. At seven of the twenty-three buildings, including Building D, the neutral shield line was placed directly above the live phase line. Thus, persons raising a ladder or other object in front of those seven buildings were not afforded the same element of protection as was available at the other sixteen buildings where the neutral shield line was in the bottom position, and the live phase line was in the higher, harder to reach position. With respect to a worker raising a[Rladder from the ground, placement of the neutral shield line would provide an extra margin of safety.

ELI’s single phase line systems at all other nearby apartment complexes that also had three-story apartment buildings consisted exclusively of the safer configuration, from the perspective of human safety, of locating the neutral shield lines below the live phase lines. This unshielded construction comported with Entergy’s mandatory safety policy documented as “single-phase laterals will be constructed unshielded.” If ELI had used this safer configuration of placing the neutral shield line in the bottom position, the accident probably would not have occurred.

At the pointing front of Building D where plaintiff and his co-worker raised their un-extended ladder, there was a 15.63 foot horizontal clearance between Entergy’s two lines and the front side of the building. The live phase line that carried the 8,000 volts of electricity was strung at a vertical distance of 18.83 feet above the ground. The neutral shield line that was above the phase line was strung at a vertical distance of 21.25 feet above the ground. The evidence showed that plaintiffs ladder was un-extended at the time of the accident. In its un-extended state, the ladder was 20.25 feet tall, thus capable when raised of contacting the lower strung live phase line, but not capable of contacting the higher strung neutral shield line. Therefore, if the live phase line in front of Building D had been above, instead of below, the neutral shield line, plaintiffs un-extended ladder could not have contacted-the live phase line.

Duty-risk is the appropriate analysis in an action brought against an electric utility company for negligence. Pillow v. Enter-gy Corp., 36-384 (La.App. 2 Cir.9/18/02), 828 So.2d 83. Because high power lines are inherently dangerous, utility companies that maintain and employ high voltage electric power lines are required to exercise the utmost care to reduce hazards to life as far as to properly 14insulate them, or give adequate warnings of the danger, or to take other proper and reasonable practical steps. Id.

Evidence of prior similar accidents in which a worker was electrocuted is admissible and relevant for showing that Enter-gy’s live phase line in front of Building D was dangerous and that Entergy knew of the dangerous condition it posed. Davis v. Louisiana Power & Light Company, 92-0082 (La.App. 4 Cir.12/29/92), 612 So.2d 235. In an electrocution case involving Entergy’s predecessor, and that resulted in the plaintiffs death, the Louisiana Supreme Court stated that a live power line is one of the most dangerous things known to man. Dobson v. LP & L, 567 So.2d 569 (La.1990). The Supreme Court further stated that “[n]ot only is the current deadly, but the danger is hidden away in an innocent looking wire ready at all times to kill or injure anyone who touches it or comes near to it. For the average citizen, there is no way of knowing whether the wire is harmless or lethal until it is too late to do anything about it.” Id.

Applying the foregoing principals of law to the situation at hand, I cannot say that the trial court erred in finding ELI liable in this matter. The electrocution of the Davis brothers nearly twelve years prior to plaintiffs electrocution, at virtually the same spot in front of Building D, and by the same unmodified instrumentality, rendered this accident foreseeable to ELI. The distinguishing difference between the present case and Davis is the fact that a prior accident occurred. Despite knowing that an injury occurred at nearly the same exact spot where Jeremy Foley’s injury occurred, ELI took no action to make that particular power line safer.

In Davis, this court held that LP & L was not liable because they did not receive reports of similar accidents. Clearly, the Davis and Foley accidents are similar. ELI was aware after Davis’s accident that workers using aluminum ladders to repair or maintain the apartment building in the vicinity of that power [ filine could come in contact with that line. However, ELI did little if anything to take corrective action. The evidence at trial showed that the cost for raising and inverting the lines would have been minimal, if not inconsequential. Instead of exercising the requisite utmost care with respect to its lines in front of Building D, the evidence indicates that Entergy instead exercised minimal care. The final sag that existed in ELI’s lines at the time of plaintiffs electrocution, the damage to the guy line at the pole where the lines were connected, and the aberrant vertical clearance of the lines in front of Building D, along with the totality of the evidence in this case, shows that ELI breached its duty to make certain that its live power lines remained insulated by its self-chosen method of insulation by isolation. The record shows that ELI’s conduct created a great risk to plaintiff, and its breaches of its aforementioned duties were a eause-in-fact of the plaintiffs injuries. As such, I would find that the trial court properly assigned thirty-five percent of the fault to ELI.

I would further affirm the trial court’s ruling that Robertson Roofing breached its duty to train Jeremy Foley and Jason Rodriguez properly and to provide them a safe work environment. The trial court properly gave evidentiary weight to the alleged violation of Occupational Safety and Health Administration (“OSHA”) regulations by plaintiff and his employer, in a context in accordance with the law and the particular facts and circumstances of this case. Robertson Roofing failed to train Foley and Rodriguez regarding applicable OSHA regulations requiring: (1) that an employer instruct each employee in the recognition and avoidance of unsafe conditions on the jobsite and the regulations applicable to his work; (2) that an employer train unqualified persons in electrically safe work practices within their respective jobs; (3) that employees working on the ground in the vicinity of overhead power maintain a minimum of ten feet of clearance from the lines; (4) that ladders with conductive side rails not [8be used in the vicinity of overhead power lines; and (5) that if Foley and Rodriguez could not maintain the required ten-foot clearance from the power liens, they were required to notify ELI of that fact so that ELI could take appropriate measures, such as de-energizing the line, to eliminate the risk of an unintended electric contact accident.

Robertson Roofing also failed to comply with OSHA regulations requiring that an employer perform a pre-job safety analysis to ascertain whether there are electrical hazards on the work site that might cause electric shock injuries and then to warn its employees of the hazards and determine work methods to mitigate the risk of shock.

Robertson Roofing additionally failed to supervise Foley and Rodriguez properly to insure that they performed the work at the Feliciana Apartments in conformance with OSHA regulations that require that work not be done by unqualified persons within ten feet of an energized overhead line that prohibit the use of aluminum ladders in the vicinity of an energized overhead line. In light of these factors, I would find that the trial court properly found Robertson Roofing forty percent at fault in this accident.

The record also supports an assignment of twenty percent of the fault to the plaintiff himself. Plaintiff did use an aluminum ladder in the vicinity of live power lines. However, the lack of uniformity of ELI’s lines at the Feliciana complex, the minimal cost to Entergy to have taken corrective action, the fact that plaintiff and his coworker had safely raised their aluminum ladder sixty to seventy other times at the other buildings in the complex, the fact that the Davis electrocution went virtually unheeded by Entergy but also made plaintiffs accident foreseeable, and the totality of the facts and circumstances of this case, properly prevent the assignment of a greater magnitude of fault to the plaintiff.

|7Acting in conjunction with the negligence of plaintiff, Jason Rodriguez was also at fault for causing or contributing the accident, because he was clearly aware of the danger of overhead power lines and the risks attendant on raising their aluminum ladder in the vicinity of those lines. Nevertheless, he assisted Foley in improperly working near the power lines. He, too, was aware of Robertson Roofing’s policies, and he could and should have encouraged Foley to use proper and safe work procedures. As such, I would find that the trial court did not err in assigning five percent of the fault to Rodriguez.

Accordingly, for the foregoing reasons, I would affirm in part, reverse in part, and render the judgment of the trial court.

      . In Dobson, the Supreme Court found that LP & L was 60% at fault where a tree trimmer was electrocuted when he contacted uninsulated power lines. The Supreme Court reasoned that LP & L was in a superior position to correct the problem when it apportioned a majority of fault to LP & L.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    Gay PARKER v. Stephanie ROBINSON, Colony Insurance Company, The Department of Public Safety and The Government Employees Insurance Company.
    No. 2005-CA-0160.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2006.
    As Amended on Grant of Rehearing March 30, 2006.

      Darleen M. Jacobs, A1 Ambrose Sarrat, Jacobs & Sarrat, New Orleans, LA, for Plaintiff/Appellant, Gay Parker.
    Amos H. Davis and H. Alston Johnson III, Phelps Dunbar LLP, Baton Rouge, LA, for Colony Insurance Company and Mid-City Automotive Repairs LLC.
    Trina T. Wilson, Masterson & Arostegui, New Orleans, LA, for Government Employees Insurance Company.

      (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

| ¶ This case involves an appeal of an award of damages in connection with an automobile accident. The trial court jury-awarded special damages to the plaintiff, Gay Parker, but did not award general damages. Ms. Parker is appealing the trial court’s judgment insofar as it failed to award general damages.

FACTS AND PROCEDURAL HISTORY

Ms. Parker was stopped in her car at a red light at the intersection of Napoleon Avenue and Clara Street in New Orleans when a car driven by Stephanie Robinson hit Ms. Parker’s car from the rear. Ms. Parker did not report any injuries at the time of the accident and did not seek medical treatment even though the accident occurred on a street next to a hospital. The rear bumper of her car [¡^incurred minor damage, but, according to Ms. Robinson’s testimony, the vehicle she was driving did not incur any visible damage.

The police officer who investigated the accident wrote on the accident report that Ms. Robinson was traveling at a speed of 35 miles per hour, which was the speed limit in the area. In her videotaped deposition, however, Ms. Robinson testified that her cell phone rang while she was stopped behind Ms. Parker’s car. Ms. Robinson took her foot off of the brake momentarily when she reached for her cell phone to answer it. At that moment the car she was driving rolled forward and hit Ms. Parker’s car, but Ms. Robinson stated that she did not have her foot on the gas pedal when the car rolled into Ms. Parker’s vehicle. Ms. Robinson testified that she was traveling at a rate of one or two miles an hour at the time of impact. Ms. Robinson was issued a citation for traffic law violations.

The day after the accident Ms. Parker’s shoulder, back, and neck were stiff and aching, and her hands and wrists felt numb. Ms. Parker testified that prior to the accident, she had not experienced pain and numbness in her hands and wrists.

Three days after the accident Ms. Parker saw her family physician in connection with pain, tingling, and numbness in her hands, a “pulling” sensation in her arms, swelling of her legs, pain in her back, and a burning sensation in her shoulders. When her symptoms persisted for almost a month, Ms. Parker consulted Wilmot Plo-ger, M.D., an orthopedic surgeon. Dr. Ploger ordered x-rays, and he prescribed medication and physical therapy for Ms. Parker. He also had |aMs. Parker obtain an MRI of her back and neck and an EMG of her arms and hands. Ms. Parker was diagnosed by Dr. Ploger with carpal tunnel syndrome, a disorder that causes numbness in the hand and pain in the wrist due to compression of a nerve that runs down the arm to the fingers. Dr. Ploger confirmed the diagnosis with an EMG. In Ms. Parker’s case both of her hands and wrists were affected by carpal tunnel syndrome. Dr. Ploger also determined that the neck and back pain that Ms. Parker suffered after the accident with Ms. Robinson was probably the result of a herniated disk, a condition in Which all or part of the gelatinous central portion of a cartilage disk that cushions the bones in the spine is forced through a weakened part of the disk, resulting in pain caused by nerve root irritation. Dr. Ploger diagnosed this condition from MRI studies. The MRI studies showed that Ms. Parker had a herniated disk in the cervical spine of her neck.

Ms. Parker had been involved in two automobile accidents prior to the accident with Ms. Robinson. In one of those earlier accidents Ms. Parker suffered a herniated disk, but it was asymptomatic at the time of the accident with Ms. Robinson. Therefore, Dr. Ploger testified that it was his opinion that Ms. Parker’s recurrence of pain after the accident with Ms. Robinson was the result of the accident causing an existing herniated disk that had become asymptomatic to become symptomatic.

14At the trial Dr. Ploger testified that Ms. Parker’s bilateral carpal tunnel syndrome was more probably than not related to the accident. He also testified that the neck and back pain experienced by Ms. Parker were more probably than not a result of the injuries she received in the accident. Finally, Dr. Ploger testified that he had recommended that Ms. Parker undergo surgery to correct the bilateral carpal tunnel syndrome.

At the trial the defendants, Mid-City Automotive Repairs, LLC (“Mid-City”), Colony Insurance Company (“Colony”), and the Government Employees Insurance Company (“GEICO”), contended that Ms. Parker’s carpal tunnel syndrome existed prior to her accident with Ms. Robinson. Mid-City, Colony, and GEICO called S. Daniel Seltzer, M.D., an orthopedic surgeon, to testify at the trial. Dr. Seltzer had treated Ms. Parker for injuries that she sustained in one of the prior automobile accidents in which she was involved. Dr. Seltzer testified that he had not diagnosed Ms. Parker with carpal tunnel syndrome and that at the time he treated her, her symptoms were not consistent with that condition. He further admitted that carpal tunnel syndrome can be caused by an injury such as the one Ms. Parker contended that she suffered when she grabbed the steering wheel of her ear after the car driven by Ms. Robinson hit her car from the rear.

Gregor Hoffman, M.D., an orthopedic surgeon, testified at the trial on behalf of the defendants. He opined that Ms. Parker’s job, which involved working with a computer for approximately half of her workday each day, was the probable cause of the carpal tunnel syndrome that afflicted her. He also opined that her back pain was probably caused by degenerative disk disease rather than by the effects of the accident.

| fiMs. Parker originally sued several parties, including (1) Stephanie Robinson, (2) her insurer, State Farm Insurance Company, (3) Mid-City, the owner of the car driven by Ms. Robinson, (4) Colony, the insurer of Mid-City and the excess insurer of Ms. Robinson, and (5) GEICO, Ms. Parker’s uninsured motorist carrier. Prior to the trial, Ms. Robinson and State Farm settled with Ms. Parker for $25,000 plus interest, and they were dismissed from the case.

After Ms. Parker presented her case at the trial, Mid-City was granted a directed verdict on three issues: (1) the claim that Mid-City had negligently entrusted its car to Ms. Robinson, who had been in several automobile accidents and had received several speeding tickets; (2) the claim that there was a mechanical defect in the car loaned to Ms. Robinson; and (3) the claim for future lost income capacity. The trial court judge found that Ms. Parker had not proven these claims. After the defendants had presented their case, the trial court judge found that Ms. Robinson’s negligence caused the accident with Ms. Parker. None of these verdicts was appealed.

The jury rendered a unanimous verdict in favor of Ms. Parker. The jury found that Ms. Parker sustained injuries that were caused or aggravated by the accident with Ms. Robinson. The jury also found that Ms. Parker should receive a total amount of $30,881.00, including $5,381.00 for past medical expenses, $20,000.00 for future medical expenses, $500.00 for past lost wages, and $5,000.00 for future lost wages. The jury further determined that Ms. Parker was not entitled to damages for past or future pain and suffering or for permanent | ¿residual disability. The trial court judge entered a judgment in favor of Ms. Parker and against Colony in the total amount of $30,881.00 as set forth in the jury verdict. The trial court judgment also granted Colony a credit in the amount of $25,000.00 against the $30,881.00 judgment, because State Farm had already paid Ms. Parker $25,000.00 plus interest prior to the trial as part of the settlement Ms. Parker reached with Ms. Robinson and her insurer, State Farm. Because the judgment in favor of Ms. Parker did not exceed the policy limits of the Colony policy, Ms. Parker’s uninsured motorist carrier, GEICO, was dismissed from the suit with prejudice. Finally, Mid City was also dismissed from the suit with prejudice pursuant to the directed verdict that had been granted in its favor.

Both Ms. Parker and Colony have appealed the trial court judgment. Ms. Parker has appealed the amount of her award. Colony has appealed the amount of the credit granted to it in connection with the settlement with State Farm and Ms. Robinson.

DISCUSSION

Ms. Parker has urged a single assignment of error on appeal. Likewise, Colony has urged a single assignment of error. Ms. Parker contends that she should have been awarded general damages in light of the fact that the jury found that the carpal tunnel syndrome and the neck and back pain from which she suffered were caused by Ms. Robinson’s negligence. Colony contends that the judgment against it should have been credited with not only the $25,000.00 settlement amount that was paid to Ms. Parker by State Farm pursuant to a settlement agreement but also the amount of interest that was paid by State Farm.

^Assignment of Error by Ms. Parker

The jury erred in failing to award the plaintiff an amount for past and future pain and suffering, and past mental anguish, despite awarding her amounts for past medical expenses and future medical expenses, and despite the uncontroverted testimony of the plaintiff and her treating physicians, which provided evidence of such damage.

Ms. Parker asserts that she should have been awarded general damages, because she was awarded special damages. She argues that the failure to award general damages where special damages are awarded constitutes an abuse of discretion on the part of the jury and the trial court. Ms. Parker argues that “[i]t is a well-settled rule that a jury cannot award special damages for personal injuries and refuse to award any amount in general damages where the injuries present objective symptoms.” Colony and Mid-City alternatively argue that in Wainwright v. Fon-tenot, 2000-0492, (La.10/17/00), 774 So.2d 70, the Louisiana Supreme Court rejected the rule cited by Ms. Parker. We find that neither of these arguments is completely accurate.

The Wainwright case involved a young boy, who suffered from post traumatic stress syndrome. He was prescribed five milligrams of the antidepressant drug Prozac to be taken once daily. The pharmacist who filled the prescription put incorrect dosing instructions on the prescription label. Therefore, instead of taking the prescribed five milligrams of Prozac a day, the boy took an adult dosage of twenty milligrams a day. After the boy had taken three incorrect doses of Prozac, he had become violent and irrational. His doctor was contacted, the incorrect dosage instructions were discovered, and the boy was hospitalized overnight for observation and testing. While he was hospitalized, the boy was alert, attentive, and calm. The boy’s parents sued the pharmacist, and after a jury trial, the jury awarded $15,000.00 in medical expenses. The jury did not award |sgeneral damages, however. The Supreme Court in Wainwright upheld the jury verdict and said that the jury could have reasonably concluded that placing the boy in the hospital was “a reasonable precaution for prudent parents to take” after learning of their son’s overdose, that his irrational and violent behavior was caused by something other than the Prozac, and that the only adverse effect on the Boy from the Prozac overdose was the one-night hospital stay.2002-0492, pp. 10-11, 774 So.2d at 77.

The Supreme Court concluded in Wainwright that “a verdict awarding medical expenses yet denying general damages is not per se invalid.” 2000-0492, p. 9, 774 So.2d at 76. The Supreme Court in Wainwright was addressing for the first time a situation in which the jury had found that the defendant was legally at fault for the plaintiffs injuries and was liable to the plaintiff for medial expenses incurred by the plaintiff but had declined to award the plaintiff any general damages for pain and suffering. 2000-0492, p. 6, 774 So.2d at 74. The Supreme Court did “not dispute that, as a general proposition, a jury verdict such as the one currently before us may be illogical or inconsistent.” 2000-0492, p. 8, 774 So.2d at 76. The Supreme Court, however, found that in certain cases “a jury, in the exercise of its discretion as a factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of the defendant’s fault.” Id. The Supreme Court then cited as an example of such a situation a case in which a plaintiff sustained no injuries in an automobile collision. The plaintiff was awarded special damages for medical expenses but no general damages. The Supreme Court said that this did not constitute an abuse of the jury’s discretion, because the jury could have concluded that even though the 19plaintiff suffered no injuries in the accident, the plaintiff was justified in incurring expenses for a medical examination following the accident to determine if any injuries did, in fact, exist.

In Wainwright, the Supreme Court found that an appellate court reviewing a verdict that awards special damages but no general damages “must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion.” Id. Only if the appellate court “determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.” 2000-00492, p. 9, 774 So.2d at 76. Therefore, the standard of review we are to apply in the instant case is whether the trial court judge and jury abused their discretion by awarding only special damages.

In Green v. K-Mart Corp., 2003-2495 (La.5/25/04), 874 So.2d 838, the Louisiana Supreme Court was again faced with a jury verdict awarding a plaintiff special damages but no general damages. The Supreme Court stated as follows regarding the jury verdict:

Here, the court of appeal correctly determined that the jury abused its discretion in failing to award general damages while awarding a substantial amount for past and future medical expenses. In this case, the jury determined that plaintiff suffered injuries causally related to the accident which required • medical attention, and is still suffering an injury that will, in fact, require medical attention in the future. Failing to make a general damage award in such circumstances was an abuse of discretion.

2003-2495, p. 8, 874 So.2d at 844 (emphasis added).

In the instant case the jury obviously determined that Ms. Parker suffered injuries causally related to the accident with Ms. Robinson, that the injuries |inrequired medical attention, and that Ms. Parker was still suffering from carpal tunnel syndrome, which would require surgery in the future. Therefore, as in the Green case, the failure of the jury in the instant case to award general damages constituted an abuse of discretion. Therefore, as required by the Wainwright case, we are required to conduct a de novo review of the record.

Our review of the record confirms that as a result of the accident with Ms. Robinson, Ms. Parker suffered neck and back pain because aggravation of a preexisting herniated cervical disk caused that condition to become symptomatic. Additionally, the record supports a finding that Ms. Parker suffered from pain and numbness in both of her wrists and hands as a direct result of the accident. None of the physicians who testified disputed that bilateral carpal tunnel syndrome was a debilitating and painful condition, and Ms. Parker testified that she personally suffered from pain and numbness. Ms. Parker also testified that as a result of the accident she suffered pain in her neck and back. Additionally, Dr. Ploger testified that Ms. Parker suffered from a small percentage of permanent disability from her injuries, and this testimony was uncontradicted.

Nevertheless, there was no testimony from Ms. Parker that she could no longer perform activities that she had performed prior to the accident. Ms. Parker did, however, testify that she took an Extra Strength Tylenol on a daily basis for her pain. There was also some evidence, based on Ms. Parker’s testimony, that she suffered some mental anguish due to her injuries because of her concerns about being absent from work as a result of the injuries suffered in the accident. Based l^on our de novo review of the record, we find that an award of general damages in the instant case is required.

In Rogers v. State, Through Department of Transportation and Development, 2000-1424 (La.App. 4 Cir. 3/7/02), 813 So.2d 495, this Court discussed the amount of damages that an appellate court can award after that court finds that there has been an abuse of discretion by the trial court. This Court stated that “[ajfter it has been determined that there has been an abuse of discretion, the appellate court can increase the amount of the award to the lowest reasonable amount within the discretion of the trier of fact.” 2000-1424, p. 10, 813 So.2d at 504. The ruling in Rogers comports with the Louisiana Supreme Court’s statement in Powell v. Regional Transit Authority, 96-0715 (La.6/18/97), 695 So.2d 1326, 1332 n. 10 that “the award [of damages], if abusive of discretion, is not disregarded, but rather is reduced to the highest amount or raised to the lowest amount within the reasonable range of discretion.” If the appellate court determines that the trial court abused its discretion in making or withholding an award for general damages, only then may the appellate court “refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion.” Andrus v. State Farm Mutual Automobile Insurance Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210.

We have* reviewed a number of similar cases in which awards of general damages have been made in connection with injuries resulting in carpal tunnel syndrome and pain from herniated disks. The amounts of general damages that hghave been awarded in these cases range from a high of $175,000.00 to a low of $25,000.00. In Scamardo v. New Orleans Stevedoring Co., 595 So.2d 1242 (La.App. 4th Cir.1992), a plaintiff was awarded $175,000.00 in general damages for injuries that included fractured ribs, chest trauma, aggravation to pre-existing degenerative changes in his lumbar spine, generalized anxiety disorder, and bilateral carpal tunnel problems. In the Scarmardo case, the plaintiff was able to work only four hours a day in a very limited capacity as a result of his injuries. In Wheelis v. CGU Insurance, 35, 230 (La. App. 2 Cir. 12/7/01), 803 So.2d 365, a plaintiff was awarded general damages of $25,000.00 for pain and suffering that lasted approximately fourteen months as a result of injuries that included a broken wrist that resulted in carpal tunnel syndrome.

In several of the cases we reviewed, general damages awards between $35,000.00 and $45,000.00 were given to plaintiffs who suffered from carpal tunnel syndrome. In Trunk v. Medical Center of Louisiana at New Orleans, 2004-0181 (La.10/19/04), 885 So.2d 534, the Louisiana Supreme Court reinstated a jury verdict awarding $35,000.00 in general damages to a plaintiff who suffered from ligament injuries to her left wrist that required surgery and from carpal tunnel syndrome. Her injury had occurred over six years prior to the trial, and she still suffered from pain in her wrist at the time of the trial. In Elliott v. Robinson, 612 So.2d 996 (La.App. 2d Cir.1993), a plaintiff was awarded general damages of $40,000.00 in a malpractice action that she brought in connection with carpal tunnel surgery that she had undergone. As a result of the surgery, the plaintiff suffered from damage to the median nerve, which is the nerve affected by carpal tunnel syndrome, and she also had a permanent 30% disability in her left thumb. She was awarded $40,000.00 in general damages for the pain she suffered as a | ^result of the nerve damage and disability. In another case that we reviewed, Williams v. Finley, Inc., 2004-1617 (La.App. 3 Cir. 4/6/05), 900 So.2d 1040, the plaintiff was awarded general damages in the amount of $45,000.00 for headache, back pain, carpal tunnel syndrome, and several other conditions that he suffered as a result of a fall. The plaintiff in the Williams case was unable to participate in several activities that he had enjoyed prior to his fall, his decreased mobility and pain affected his mood, and he was unable to engage in intimate relations with his wife.

Based on our review of these cases, we have determined that the lowest reasonable amount that can be awarded in the instant case is $ 60,000.00 for general damages in connection with Ms. Parker’s bilateral carpal tunnel syndrome and the aggravation to her pre-existing herniated disk that occurred as a result of the accident. Therefore, we award a total amount of $60,000.00 in general damages to Ms. Parker.

Assignment of Error by Colony

The trial judge erred in failing to make it dear that the proper amount of the credit in favor of Colony Insurance Company against the judgment rendered in favor of plaintiff should he $29,92149 rather than $25, 000.00.

The judgment in this case contains the following language:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Gay Parker, and against Colony Insurance Company in the principal sum of THIRTY THOUSAND EIGHT HUNDRED EIGHTY-ONE ($30,881.00) DOLLARS, subject to a credit for the sum of $25,000, previously paid by Stephanie Robinson and State Farm Mutual Automobile Insurance Company, together with legal interest thereon from the date of suit until paid.

Colony contends that the language is unclear and that the phrase “together with legal interest thereon from the date of suit until paid” modifies the phrase “the sum |14of $25,000.” Alternatively, Ms. Parker asserts that the phrase “together with legal interest thereon from the date of suit until paid” refers to the phrase “the principal sum of THIRTY THOUSAND EIGHT HUNDRED EIGHTY-ONE ($30,881.00) DOLLARS.” We agree with Ms. Parker.

It is clear to us that the interest to which the judgment refers is interest on the principal sum of $30,881.00 rather than to interest on the amount of the credit for insurance that has been previously paid. The amount of insurance owed by State Farm was the $25,000.00 settlement amount, and the amount of insurance owed by Colony is the total principal amount of the judgment less the $25,000.00 in insurance previously paid. State Farm and Colony are both liable to Ms. Parker for interest on the amount of insurance owed by them. State Farm has paid interest on the $25,000.00 insurance payment that it owed, and Colony is responsible for paying interest on the amount of insurance that it owes.

DECREE

Based on the foregoing discussion, we hereby affirm the trial court judgment with respect to the award of special damages in the principal amount of $30,881.00, we hereby reverse the trial court judgment insofar as the judgment fails to award general damages to Ms. Parker, and we hereby amend the trial court judgment to provide that Ms. Parker is awarded a total of $ 60,000.00 in general damages. The general damages are being awarded in connection with both the bilateral carpal tunnel syndrome and the aggravation of her pre-existing herniated disk that occurred as a result of the accident with Ms. Robinson.

Judgment is hereby rendered against Colony and in favor of Ms. Parker in the total principal amount of $65,881.00 plus interest as provided by law. This total 11Bprincipal amount includes a credit in favor of Colony for the $25,000.00 insurance payment previously made by State Farm.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND RENDERED AS AMENDED.

      . Special damages are those that must be specially pled or that can be determined with relative certainty, and they include such things as the medical expenses a plaintiff has incurred. Wainwright v. Fontenot, 2000-0492, pp. 5-6 (La.10/17/00), 774 So.2d 70, 74.

      . General damages are those damages that are inherently speculative in nature and cannot be fixed with mathematical certainly. Id. This Court has defined general damages as damages that "involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors that affect the victim's life.” Coleman v. Deno, 99-2998, p. 6 (La.App. 4 Cir. 11/6/02), 832 So.2d 1016, 1021, writ denied, 2003-0166, 853 So.2d 635, 2003-0167, 853 So.2d 635, and 2003-0168 (La.9/13/03), 853 So.2d 635.

      .MRI is an acronym for magnetic resonance imaging, which is a procedure in which a magnet linked to a computer is used to create detailed images of areas inside the body.

      . EMG is an acronym for electromyography, which is a test that assesses the health of the muscles and the nerves controlling the muscles. EMG is an objective test that can be used to confirm a diagnosis of carpal tunnel syndrome, which Ms. Parker asserts was caused in her case by the automobile accident involving Ms. Robinson.

        . The car driven by Ms. Robinson was loaned to her by Mid-City while her own car was being repaired or serviced by Mid-City,


author: WALTER J. ROTHSCHILD, Judge.

text:
    Richard TASTET and Sylvia Tastet, Individually and as Curators of their Incompetent Son, Shawn M. Tastet v. Charlie M. MAY, Jr., Jones Bros. Enterprises, Incorporated, Eagle Industries of Louisiana, State of Louisiana through the Department of Transportation and Development, the Parish of Jefferson, and Clarendon National Insurance Company.
    No. 05-CA-755.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2006.

      John S. Hunter, Carl J. Hebert, New Orleans, Louisiana, for Plaintiff/Appellant.
    Daryl A. Higgins, Gretna, Louisiana, Robert E. Kerrigan, Jr., John Jerry Glas, Alexis M. Myers, New Orleans, Louisiana, Richard A. Chopin, Jason P. Foote, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| sIn this wrongful death and survival action, plaintiffs appeal from a summary judgment granted in favor of defendants. For the reasons stated more fully herein, we affirm the ruling of the trial court.

Facts and Procedural History

This litigation arises from a motor vehicle accident which occurred-on November 24, 1997 at the intersection of Evans Road and River Road in Jefferson Parish. The driver of one of the vehicles, Shawn M. Tastet, was critically injured in the accident when his vehicle was struck by a dump truck. His parents, Richard Tastet and Sylvia Tastet, filed the present lawsuit on his behalf on November 20, 1998. Shawn Tastet died in 2004 as a result of injuries sustained in the accident, and his parents were substituted as plaintiffs in this lawsuit.

In their original petition, plaintiffs named as defendants Charlie May, Jr., the driver of the dump truck involved in the accident, and May’s employer and its insurer. Plaintiffs subsequently amended their petition to name as defendants E.B. Ludwig, Jr., the owner of a fence which plaintiffs alleged obstructed their son’s view at the intersection, and the Parish of Jefferson and Road District No. 1, whom plaintiffs alleged were responsible for maintenance of the intersection. Plaintiffs also added as defendant | travelers Property Casualty, the commercial general liability insurer of the Parish of Jefferson and Road District No. 1.

Defendants, E.B. Ludwig, Jr., the Parish of Jefferson, Road District No. 1 and Travelers Insurance Co., subsequently filed separate motions for summary judgment on the basis no genuine issues of fact remain as to their liability for this accident. These motions were heard by the trial court on March 24, 2005. By judgment rendered on April 27, 2005, the trial court granted defendants’ motions, dismissing the claims of plaintiffs with prejudice. Plaintiffs now appeal from this judgment, arguing that issues of fact preclude summary judgment in this ease.

Summary Judgment Standard

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Bua v. Dressel, 96-79 (La. App. 5th Cir.5/28/96), 675 So.2d 1191; unit denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. Tassin v. City of Westwego, 95-307 (La. App. 5th Cir.12/13/95), 665 So.2d 1272. The appellate court must consider whether the, summary judgment is appropriate under the circumstances of the case. Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Id. at 1008.

I,Hinder the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits. J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the mov-ant’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 trial court that there is an absence of factual support for 'one or more elements essential to the adverse party’s claim, action, or defense. 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. La. C.C.P. art. 966(C)(2).

In considering expert opinion testimony at the summary judgment stage, Louisiana has adopted the Daubert standard for admissibility of expert opinion evidence. In Independence Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 235-36, the Supreme Court stated:

Thus, having determined that, rather than automatically excluding expert opinion evidence at the summary judgment stage, the Daubert-Foret standards should be considered by the trial judge in deciding whether to admit expert opinion evidence, several important underlying principles must be reinforced. The first is that the trial judge cannot make credibility determinations on a motion for summary judgment. Second, the court must not attempt to evaluate the persuasiveness of competing scientific studies. In performing its gatekeeping analysis at the summary | ^judgment stage, the court must “focus solely on the principles and methodology, not on the conclusions they generate.” Third, the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion.” Fourth, and most importantly, summary judgments deprive the litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial.

Applying these principles, we will examine each of the motions for summary judgment filed in this case as well as the plaintiffs’ opposition and supporting documentation attached thereto.

Plaintiffs’ claims against the Parish of Jefferson and Road District

In this suit against the Parish, the plaintiffs must establish that the thing which caused the damage was in the custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was a cause in fact of plaintiffs injuries. Bessard v. State, Dept. of Transp. and Development, 94-0589 (La.11/30/94), 645 So.2d 1134, 1136. The Parish of Jefferson has a duty to maintain public roads in a safe condition so as not to expose the public to unreasonable dangers. Ruttley v. Lee, 99-1130 (La.App. ,5 Cir. 5/17/00), 761 So.2d 777, 785 writ denied, 2000-1781 (La.9/22/00), 768 So.2d 1287. The Parish of Jefferson, while not the insurer of the safety of drivers using state highways, cannot knowingly allow a condition to exist that is hazardous to a reasonably prudent motorist. Id.

|7In its motion for summary judgment, the Parish and the Road District argue that there is an absence of factual support for the elements of plaintiffs’ claims. Specifically, defendants argue that plaintiffs have failed to produce evidence sufficient to support their claim that the intersection was defective pursuant to the requirements of La. R.S. 9:2800. They also contend that plaintiffs failed to produce factual support to show they' met the requirement that the public entity had actual or constructive- notice of the alleged defect at the intersection.

In support of its motion, the Parish and Road District No. 1 submitted the deposition testimony of Charlie May, the driver of the dump truck, who testified that Shawn Tastet did not yield the right of way before entering the intersection. Mr. May testified that prior to the accident he saw Shawn Tastet’s head looking straight ahead and not toward his lane of traffic. The evidence also indicates that the dump truck was near intersection at the time Shawn pulled onto River Road. Defendants also rely on the voluntary statement of Suzanne McKey who was traveling behind the dump truck at the time of the accident, and stated that the dump truck was not speeding but that the vehicle from Evans Road pulled right out in front of the truck.

Defendants also submitted the testimony of Douglas Roberts, the traffic engineer for the Parish, who stated that the stop sign conformed to regulations on traffic devices, and that there was no mandatory requirement to place a stop line at the intersection. Mr. Roberts explained that the intersection was referred to as a “wide-throat” intersection, and the stop sign was placed away from the actual corner to allow for a radius for turning trucks.

| ¡¡Defendants also rely on the deposition testimony of Dr. Olin Dart, a traffic engineering expert who was retained by plaintiffs, who stated that if Shawn Tastet had pulled up to the closest point at which he could have seen upcoming traffic, he would have been able to see the dump truck. Defendants rely on this testimony to show that an adequate sight line exists at this intersection if a motorist complies with the requirements of La. R.S. 32:123(B).

In opposition to this motion, plaintiffs submitted the deposition testimony of Duaine Evans, a traffic engineer who stated that he found the fence at this intersection to be a sight obstruction and the cause of this accident. Mr. Evans stated that the intersection as it existed on the date of the accident is unreasonably dangerous because it requires a driver, without an adequate reference point provided by the Parish, to position his vehicle so close to River Road, before an adequate view of oncoming traffic on River Road can be obtained, so the driver is in danger of encroaching his vehicle onto River Road. He testified that it was possible, although difficult, for a driver in the same type of vehicle Shawn was driving to stop at the intersection at a point where oncoming traffic could be seen while keeping the vehicle from protruding onto River Road. Mr. Evans also testified that the stopping distance of 4 feet from an intersection is not considered safe, although he admitted that this was the distance required by the traffic regulations.

IflMr. Evans reviewed the previous accidents which occurred in the several years before this accident, and found several incidents which indicated the intersection was defective and the fence was a sight obstruction. However, only two of these accidents occurred prior to November 24, 1997, the date of the present accident and it is unclear whether the presence of the fence or the condition of the intersection was a factor in these accidents.

Plaintiffs also submitted the affidavit of A.J. Valenti, an investigator who conducted a videotaped experiment of this intersection to determine the sight distances. He concluded that the fence restricted a driver’s view of River Road traffic until he was approximately 8 feet from River Road.

Plaintiffs contend that the Parish is responsible for the permitting of the fence, the placement of the stop sign, and the lack of stop lines at this intersection, all of which contributed to the defective condition of the intersection. Plaintiffs argue that the Parish had the required notice of the defective condition as it was aware of the previous accidents at this intersection.

The undisputed facts of this case indicate that the stop sign controlling the intersection was placed on Evans Road 38 feet back from River Road. There is no dispute that the placement of the sign was in conformation with the Manual for Uniform Traffic Control Devices and parish regulations. Further, the Parish issued a building permit authorizing Ludwig to construct the fence at this intersection on August 8, 1973, and the fence was constructed according to specifications.

At the point where the stop sign was placed, no driver could obtain a sight line to River Road because of the presence of the fence. As such, the |indriver was required to pull his vehicle close up to the intersection of the two roadways in order to achieve an adequate sight line. The Manual for Uniform Traffic Control Devices requires a minimum stopping point of 4 fee from an intersecting road. The facts also indicate that once a driver pulled his vehicle to within four feet of the intersection, the driver had an adequate sight line of approaching traffic on River Road.

Under the circumstances presented here, we find that plaintiffs have failed to meet their burden to defeat the summary-judgment filed by the Parish in this case. The undisputed facts presented fail to support plaintiffs’ argument that the intersection in this case was unreasonably dangerous. Although the stop sign was not placed directly on the corner of the intersection, this did not violate traffic regulations and was actually required for this type of intersection. Further, the evidence also indicates that although the fence blocked a driver’s view at the stop sign, it also shows that if the driver pulled up to the intersection as required by La. R.S. 32:123, an adequate sight line existed to see oncoming traffic. In addition, the evidence shows that the fence was not placed in violation of law and did not obstruct a driver’s view of River Road if the driver complied with law and stopped at the intersection.

Finally, plaintiffs have failed to produce documentation of complaints or notices to the Parish of a dangerous condition at the intersection, and the evidence regarding prior accidents at this intersection fails to create an issue of fact regarding whether this intersection was defective. Although the expert testimony presented by plaintiffs concludes that the intersection was dangerous, the evidence presented does not support such a conclusion. We conclude that the expert opinion testimony offered is not of sufficient quality |nor quantity to allow a reasonable juror to conclude that the expert’s opinion is more likely than not true. We therefore find that summary judgment in favor of the Parish was properly granted in this case.

Plaintiffs’ claims against E.B. Ludwig, Jr.

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. La. C.C. art. 2317.1. Plaintiffs argue that as a property owner adjoining this intersection, Ludwig should have been aware that the intersection was unreasonably dangerous because of the position of the fence. They rely on Ludwig’s deposition testimony in which he admits that a driver stopped at the stop sign at this intersection could not see oncoming traffic in either direction on River Road because of the presence of building and the fence at this intersection.

In support of its motion for summary judgment, E.B. Ludwig, Jr. argues that there is no support for plaintiffs claim that Ludwig had notice of any defects in this intersection as is required by La. C.C. art. 2317.1. Ludwig attached his deposition testimony, in which he stated that he had owned the property since 1973 and that the fence was constructed according to the specifications of a Parish permit in 1974. He stated during this 23 year period, he was not aware of any accidents at this intersection which would have been related to the presence of his fence. Although he testified that he was aware that the fence obstructed a driver’s view of River Road from the stop sign placed at the intersection, he knew that if a driver pulled 11gup to within a few feet of the actual intersection, there was an adequate sight line in both directions on River Road.

In plaintiffs’ opposition to this motion for summary judgment, they fail to present any competent or admissible evidence to show how they will meet their burden at trial of proving that Ludwig had notice that the presence of the fence at this intersection created an unreasonably dangerous situation. After Ludwig pointed out to the trial court that there was an absence of factual support for this element of plaintiffs’ claim, the burden shifted to plaintiffs to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden at trial. Our review of the record shows that plaintiffs have failed to meet this burden as to the notice requirement in its claim against Ludwig. Accordingly, there is no genuine issue of material fact as to this defendant. La. C.C.P. art. 966(c)(2). Summary judgment as to this defendant was property granted.

Conclusion

Accordingly, for the reasons assigned, we find no genuine issues of material fact which preclude summary judgment in this case. The trial court’s judgment is therefore affirmed.

AFFIRMED.

      . La. R.S. 32:123 B provides: Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Barry GENTRY v. WEST JEFFERSON MEDICAL CENTER.
    No. 05-CA-687.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2006.
    Timothy W. Cerniglia, Christine E. Cer-niglia, Sharp, Hymel, Cerniglia, Colvin, Weaver & Davis, Baton Rouge, Louisiana, for Defendant/Appellant.
    Edward D. Maride, Markle and Associates, New Orleans, Louisiana, for Defendant/Appellee-2nd Appellant.
    Barbara Malik Weller, Metairie, Louisiana, for Defendanb-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| ¡>This case involves two summary judgments relating to contractual defense and indemnification clauses. Because we find that these judgments are premature, we vacate them.

The underlying facts are these. The West Jefferson Medical Center, a public entity, contracted with Fibre Tech, Inc. for repairs on a pool in its health center. Fi-bre Tech in turn procured the services of Ardsley Maintenance Services, Inc. to perform the actual work. While that work was progressing West Jefferson kept its health center open, and Barry Gentry, plaintiff, was using some equipment there. Gentry filed suit against West Jefferson, Fibre Tech and Ardsley alleging that fumes from the pool work had caused him various injuries. West Jefferson in turn filed a third party demand against Fibre Tech seeking indemnification and a | .¡defense under the terms of its contract. Fibre Tech filed a similar third party demand against Ardsley.

West Jefferson urged a summary judgment against Fibre Tech asserting that it was entitled to indemnification and a defense under the terms of its contract with that party. Fibre Tech urged a similar judgment against Ardsley based on similar contractual language in its alleged contract with that party. Both summary judgments were granted and both have now been appealed.

In Suire v. Lafayette City-Parish Government, 2004-1459 (La.4/12/05), 907 So.2d 37, the court held unambiguously that any claim under an indemnity-defense clause in a contract is premature until the indemni-tee has actually made payment or sustained a loss. In the present case neither West Jefferson nor Fibre Tech has made any payment or sustained any loss, and their claims against the contractual indem-nitors are thus premature. We therefore vacate both ■ judgments and remand the matter for further proceedings.

JUDGMENTS VACATED; REMANDED FOR FURTHER PROCEEDINGS.


author: GENOVESE, Judge.

text:
    Richard Stacy BROWN v. Leslie Lejean Wilson BROWN.
    No. 2005-1346.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.

      Michael H. Davis, Alexandria, Louisiana, for Plaintiff/Appellant, Richard Stacy Brown.
    Bradley R. Burget, Jonesville, Louisiana, for Defendant/Appellee, Leslie Lejean Wilson Brown.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| iPlaintiff, Richard Stacy Brown (Richard), appeals the judgment of the trial court splitting custody between him and Defendant, Leslie Lejean Wilson Brown Evans (Leslie). For the following reasons, we reverse and remand for further proceedings.

FACTS

Richard and Leslie were married on June 22, 1995. Two children were born of the marriage, namely, Justiss Cole Brown, born February 2, 1995, and Austin Lane Brown, born June 5, 1996. Richard filed a petition for divorce on October 23, 1998. At a hearing held on October 30, 1998, pursuant to Richard’s motion for a temporary restraining order against Leslie and for sole custody of the minor children, the court ordered the parties to submit to a drug screening. Leslie tested positive for THC and methamphetamine. The trial court awarded sole custody of the children to Richard; Leslie was granted only supervised, restricted visitation with the minor children on every other Saturday. Leslie was also ordered to enroll in a drug abuse program and “to submit to any recommended treatment that is advised by the clinic.”

On June 11, 2001, the parties were divorced, and a judgment was signed adopting the terms of the prior judgment of October 30, 1998 “granting [Richard] sole custody of the minor children, with limited supervised visitation” awarded to Leslie on the “1st, 3rd, 5th weekends of month with [Leslie’s brother or mother] to transport children.”

On January 13, 2005, Leslie filed a rule for modification of custody and visitation. On February 17, 2005, Richard notified Leslie of his intent to relocate to Stock-bridge, Georgia, with the minor children. Leslie filed an objection to the | .¡proposed relocation on March 1, 2005.

The trial court held a hearing on Leslie’s rule for modification of custody and objection to Richard’s relocation with the minor children on March 4, 2005. At this hearing, the trial court modified the custodial arrangement on a temporary basis by ordering the minor children to reside with Leslie for the months of March, April and May of 2005 in order to complete their 2004-2005 school year at Sandy Lake Christian Academy in Jonesville, Louisiana. Richard was granted visitation every other weekend, and his mother was granted visitation one afternoon a week and Saturday of each week. The trial court ordered an evaluation of the minor children and rescheduled another hearing for May 13, 2005. Though there was an objection to Richard’s relocation to Georgia with the children, there was no specific ruling or adjudication on the objection; therefore, it is a non-issue on appellate review.

At the May 13, 2005 hearing, the trial court ordered that custody of the minor children be shared equally between Richard and Leslie for the 2005-2006 school year. Leslie, who continued to live in Catahoula Parish, Louisiana, with her second husband, would be the domiciliary parent from August 10, 2005 until January 1, 2006; and Richard, who now resides in Stockbridge, Georgia, would be the domiciliary parent from January 1, 2006 until the end of the spring school term of 2006. Additionally, the trial court ordered that a review hearing be held on May 19, 2006, in order to evaluate the progress of Justiss, who has a learning disability due to dyslexia. A judgment to that effect was signed on April 25, 2005, and Richard appeals.

| «ISSUES

The following- issues are presented for our review:

1.Whether the trial court erred in ordering a shared custody plan which requires that the minor children, one of whom has a learning disability, attend two different schools in one school year.
2. Whether the trial court erred in failing to name Richard as the domiciliary parent.
3. Whether the trial court erred in not finalizing the issue of custody, but instead ordering a review hearing in May of 2006 after the children had attended two different schools in two different states in one school year.

LAW AND DISCUSSION

Richard’s brief on appeal mainly attacks the alternating equal custodial periods. Leslie has not filed an appellate brief.

Leslie’s motion to modify custody alleged that circumstances had changed and that it was in the best interest of the minor children that she and Richard be made joint custodians and share visitation. Leslie’s motion specifically alleges that the following circumstances have changed:

a) At the time of the consent judgment, the mother, LESLIE WILSON EVANS, was addicted to several controlled dangerous substances, to wit: marijuana and crystal methamphetamine. Mrs. Evans courageously overcame her addiction and has been clean since 2002. Mrs. Evans will provide negative drug screens to this Honorable Court and Mr. Brown;
b) Mrs. Evans has recently married Jason Evans and both have good jobs. Mrs. Leslie Evans works at Jackie’s Riverside Restaurant in Jonesville, Louisiana, and her husband is employed locally at Bradley McDowell Logging Company;
c) Mrs. Evans and her husband attend Utility Baptist Church, Jonesville, Louisiana; [and]
d) Mrs. Evans and her husband can provide a stable and nourishing environment to raise her minor children[.]

|4In custody cases, the paramount consideration is always the best interest of the child. See La.Civ.Code art. 131; Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245, 1249; Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). The factors to be considered by the trial court in making a custody determination are set out in Louisiana Civil Code Article 134 as follows:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court’s determination in a child custody case is entitled great weight on appeal and will not be disturbed absent a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir.); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365. When considering all of these factors, we find that the trial court clearly abused its discretion in ordering that the parties share physical custody, thereby requiring that the minor children change schools and states in the middle of the 1 sschool year.

We find no factual basis to establish that the custody plan imposed by the trial court was in the best interest of these young children. Leslie does not allege nor was evidence adduced -to support any claim that Richard is an unfit parent. Though the allegation is made that Richard has hindered Leslie’s contact, with the minor children in the past, Leslie acknowledges that Richard is a good father.

The record in this case clearly indicates that Leslie requested a modification of custody three years after her alleged cessation of drug abuse, after remarrying, after establishing employment, and after becoming an active church member. While we acknowledge that the changes in Leslie’s life are commendable, and a step in the right direction, these changes do not negate the fact that Richard has been the sole custodian and solely responsible for the, rearing of these children since 1998. There is no evidence in the record that Richard’s custody of the children has been detrimental to the children or not in their best interest. On the other hand, Leslie’s involvement with the children consisted only of supervised visitation from 1998 until March of 2005. Even assuming Leslie has been “drug free” since 2002, she was sparsely involved with her children for some three years from 2002 to 2005. Motherhood is not a part time job. It was clearly an abuse of discretion for the trial court at the March 2005 hearing to remove Richard as the sole custodial parent and set up a joint “shared custody” plan with Leslie being the domiciliary parent in Louisiana during the fall 2005 school term, and Richard being the domiciliary parent in Georgia during the spring 2006 school term, with a “review hearing” in May of 2006. Additionally, it should be noted that review hearings are held in juvenile cases as set forth in La.Ch.Code art. 1454, not in civil custody cases.

[fiHowever, the trial court did state that at said review hearing:

[i]f Justiss is doing well, I’m not going to separate the children and I’m going to permit them to reside with their father ... if Justiss is doing well, if his grades are okay and he’s not having any psychological problems, I intend to permit the children to live with their father during the school year and go to school and spend the bulk of the summer and the bulk of the holidays with their mother.

Considering the above stated language in the trial court’s opinion, it appears that the trial court was inclined to return custody of the children to Richard, barring poor educational performance by the children or psychological problems. At present, we find that it is in the best interest of these children that Richard be granted sole custody of the minor children.

We therefore reverse the judgment of the trial court on the issue of custody. We render judgment naming Richard as the sole custodian of the children, and we award Leslie reasonable and liberal visitation privileges. We remand the matter to the trial court for a hearing on the establishment of a visitation plan.

DECREE

The judgment of the trial court is reversed. Richard is awarded sole custody of the minor children subject to reasonable and liberal visitation privileges in favor of Leslie. We remand this case to the trial court for a hearing to establish a reasonable visitation schedule in favor of Leslie as set forth herein. Costs of this appeal are assessed against Leslie Lejean Wilson Brown Evans.

REVERSED AND REMANDED.