text:
    Chanda HESTER v. John T. NING, M.D., et al.
    No. 07-1205.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendants/Appellees, Louisiana Medical Mutual Insurance Company, John T. Ning, M.D.
    R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Chanda Hester.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

^The plaintiff alleged that the defendant urologist rendered substandard care in the treatment of her complaints. The trial court found in favor of the defendant following a bench trial. The defendant’s exception of prescription was found moot due to the ruling on the merits. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Chanda Hester, began treatment with Dr. John T. Ning, a urologist, on January 24, 2001. She complained of blood in the urine, painful urination, and stress urinary incontinence. She reported having had a hysterectomy with cervical cancer as well as a history of a vaginal vesical fistula.

On March 7, 2001, Dr. Ning examined Ms. Hester under anesthesia and performed cystourethroscopy, a bilateral retrograde pyelogram, a bladder distention, and also a biopsy. Dr. Ning’s postoperative diagnosis was gross hematuria and interstitional cystitis. Ms. Hester’s symptoms persisted and, according to her testimony, escalated for a period after the procedures.

Dr. Ning ultimately recommended that Ms. Hester undergo a right urethral reim-plant as her complaints continued. In June 2001, Ms. Hester obtained a second opinion from another urologist, whose notes reflect that he “had no objection” to her allowing Dr. Ning to perform the right urethral reimplant. Although she returned to Dr. Ning, she did not have the procedure performed. By April 2001, Ms. Hester reported that her symptoms had lessened.

In February 2004, Ms. Hester began treatment with Dr. William Kubricht for both vaginal and urinary complaints. After diagnostic testing, Ms. Hester was placed on medication. She remained under Dr. Kubricht’s care and, in December 2005 ^underwent cystoscopy, which revealed inflammatory polyps. She was treated with antibiotics.

On March 3, 2004, Ms. Hester filed a complaint, seeking a medical review panel due to her allegations of substandard care and treatment by Dr. Ning. Thereafter, on March 3, 2005, Ms. Hester filed suit against Dr. Ning and his insurer, Louisiana Medical Mutual Insurance Company, alleging that the physician performed inadequate clinic and/or laboratory work for the diagnoses reached and the procedures performed. The defendants filed an exception of prescription, noting that Ms. Hester’s final appointment with Dr. Ning was in April 2001, yet suit was not filed until March 2005.

After a bench trial, the trial court determined that Ms. Hester failed to establish a breach of the standard of care and found the exception of prescription to be moot.

[aMs. Hester appeals and assigns the following as error:

| Jn a medical malpractice case where Lammico and John T. Ning, M.D. waived the medical review panel, faced a subsequent treating urologist critical of the doctor’s care, and called an expert urologist regarding the standard of care who testified adverse to the defendant doctor, the trial judge erred in finding that the plaintiff failed to prove that the defendant breached the standard of care expected for a urologist or award damages.

Discussion

Ms. Hester contends that the trial court was clearly wrong in determining that she failed to prove that Dr. Ning breached the applicable standard of care. She appears to argue, in particular, that Dr. Ning breached the standard of care in scheduling her for the examination under anesthesia and ensuing procedures without first obtaining a urine culture and urine cytology. She points to testimony from the defendant’s expert urologist, Dr. Mark Pos-ner, for this point.

Louisiana Revised Statutes 9:2794 provides, in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

See also Fusilier v. Dauterive, 00-0151 (La.7/14/00), 764 So.2d 74. On appeal, we consider the trial court’s determination that Ms. Hester failed to establish these | ¿factors under the manifest error standard of review. Id. After review, we find that the record supports the trial court’s determination. In fact, the vague nature of Ms. Hester’s claim makes discussion of the evidence in light of the burden of proof challenging insofar as it is difficult to determine what, precisely, she identifies as the standard of care, how Dr. Ning breached that standard, and how the breach resulted in injuries.

Ms. Hester indicates in her brief that the procedures performed under anesthesia by Dr. Ning were unnecessary and exacerbated her symptoms. However, her physician, Dr. Kubricht, made no reference to this as a breach of the standard of care. While the defendant’s expert urologist, Dr. Posner, explained that he would have performed further diagnostic testing prior to the procedures performed under anesthesia, it is unclear whether the procedures would have been indicated after these diagnostic tests. Dr. Posner noted his preference for performing a urine culture, but also opined that the “evaluation of her symptoms, his evaluation of her symptoms, his biopsy and the pathologic evaluation of the biopsy, was a reasonable way to diagnose a patient with interstitial cystitis[.]”

Further, while Dr. Posner testified that the procedures performed by Dr. Ning could, for a short duration, exacerbate the symptoms of someone suffering from interstitial cystitis, as diagnosed by Dr. Ning, his testimony does not indicate that it did so in this case or that the procedures were a breach of the standard of care. He noted that the procedures could, however, also improve symptoms and could be used for evaluation purposes.

Ms. Hester also asserts that Dr. Ning recommended a right urethral reimplant without adequate testing. However, and although the physician Ms. Hester chose for |fia second opinion approved of her proceeding with the surgery, she did not have the procedure performed. Notwithstanding any deficiencies in Ms. Hester’s burden of proof as to Dr. Ning’s recommendation breaching the standard of care, the record is lacking as to the causation of her injuries insofar as there is no indication that the recommendation caused her further injury or complaints outside of her physical problems.

For these reasons, the trial court’s determination that Ms. Hester failed to offer adequate proof of her malpractice claim is not manifestly erroneous.

Like the trial court, we find that this determination pretermits discussion of the defendants’ exception of prescription.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to-the appellant, Chanda Hester.

AFFIRMED.'

      . In written reasons for ruling, the trial court explained:
      This is a medical malpractice case wherein the standard of care is established by Statutes R.S. 9:2794 and R.S. 40:1299.39.
      Two doctors testified as medical experts in this case.
      Dr. William S. Kubricht testified, at page 11, lines 13 through 25, page 12 lines 1 through 25, as follows:
      "Q. Would you agree that Dr. Ning's use of the bilateral retrograde pyelogram and biopsies were appropriate?
      A. He performed those, I believe, because of a history of gross hematuria, if I understand her initial story correctly from reviewing his records. A cysto with bilateral retrogrades is a method to determine if— it is a method to determine intravesical and intralumenal sources of hematuria.
      Q. So you would agree that that would be appropriate treatment, considering the symptoms?
      A. Yes.
      Q. Do you agree that Dr. Ning's testing did not indicate that she was suffering from interstitial cystitis?
      A. No.
      Q. Why not?
      A. Well, a patient presents to him, and I’ll have to refer to-interstitial cystitis is a diagnosis of exclusion which requires one to rule out several features before they can come to that conclusion. Performance of a cysto and a retrograde is appropriate to assess hematuria, blood in the urine. In an individual that's passing gross blood, you must rule out a renal etiology of the bleeding. So if your work up for hematuria is a cystoscopy and a retrograde, that's appropriate, but it's not a complete evaluation. So no renal source of the bleeding has been identified. So we still, at this point, have no awareness of could she have referred pelvic pain from her kidneys as the source, an abnormality causing it. So that's why, in my opinion, I” ...
      and at page 16, lines 21 through 25 and page 17, lines 1 through 12, as follows:
      "Q. Would you agree that no damage could have resulted from the procedures, treatments and/or testing performed by Dr. Ning upon Ms. Hester?
      A. She had a — the only thing that would be concerning is hydro distension of the bladder is a procedure designed intuitively to disrupt neuromuscular junctions and alleviate urinary symptomatology and diagnose it. So the unknown lies in what, if any, long term effects come from that. Aside from that, the retrograde is very commonly done and not considered to be a detrimental procedure. She had a biopsy performed, which is pretty routine and .typical, not thought to be harmful.”
      Dr. Mark Posner testified at page 25, lines 20 through 25 and page 26, line 1, as follows:
      ... "But in my opinion, his evaluation of her symptoms, his biopsy and the patho-logic evaluation of the biopsy, was a reasonable way to diagnose a patient with interstitial cystitis, except that I would have preferred to see an actual urine culture for the patient.”
      page 19, lines 5 through 9, as follows:
      "Q. All right, sir. But as of the procedure that was done by Dr. Ning on the 8th of March, you have no disagreements with the procedure itself that was done?
      A. I do not.”
      and page 23, lines 7 through 10, as follows:
      Q. The use of the bilateral retrograde pyelogram and the biopsies performed by Dr. Ning, in your opinion, were appropriate?
      A. Sure, yes, sir.”
      Considering the testimony of these two experts, the Court finds that defendant did not breach the standard of care. The exception of prescription is, therefore, moot. Let there be judgment for defendant.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Jessie LEARY, III and Doris Spears Leary v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Andre B. Dobison.
    No. 2007-1184.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Jerold Edward Knoll The Knoll Law Firm, L.L.C., Marksville, LA for Plaintiffs/Appellees: Jessie Leary, III, Doris Spears Leary.
    David Hughes, Hughes & LaFleur Alexandria, LA for Defendant/Appellant Andre B. Dobison.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   PETERS, J.

hOne of the defendants in this automobile accident litigation, Andre B. Dobison, appeals the trial court’s quantum award to the plaintiffs, Jessie Leary, III and Doris Spears Leary. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

This litigation arises from a December 23, 2005 automobile accident which occurred on Louisiana Highway 29 (La. 29) in Avoyelles Parish, Louisiana, at approximately 2:25 a.m. The accident occurred when a vehicle being driven by Dobison crossed the centerline of La. 29 and struck a vehicle being driven by Jessica Shant-relle Leary (Jessica). Jessica died as a result of the injuries she sustained in the accident.

Both drivers sustained serious physical injuries in the collision. Emergency medical personnel initially transported Jessica to Bunkie General Hospital (Bunkie General) in Bunkie, Louisiana where she received immediate treatment for her injuries. At approximately 10:00 a.m. on that same morning, Jessica was transferred by ambulance to Christus St. Francis Cabrini Hospital (Cabrini Hospital) in Alexandria, Louisiana, where she underwent surgery for treatment of her injuries. At approximately 6:22 a.m. on Christmas Eve, Jessica died from her injuries.

Emergency medical personnel also transported Dobison to Bunkie General from the accident scene. The medical personnel at the Bunkie General emergency room extracted a blood sample from Dobi-son to test for alcoholic content. The test results revealed that at 4:43 a.m., or some two hours and eighteen minutes after the accident, Dobison’s blood alcohol concentration was 0.07 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood. After receiving some initial treatment at Bunkie General, Dobison was transferred to Rapides | ^Regional Medical Center in Alexandria, Louisiana, where he remained for eleven days.

Jessie Leary, III and Doris Spears Leary, who are Jessica’s parents, brought this action for damages against Dobison and his liability insurer, State Farm Mutual Automobile Insurance Company (State Farm). Following a June 8, 2007 bench trial, the trial court entered judgment in favor of the Learys, awarding $650,000.00 in survival damages; $900,000.00 in wrongful death damages; $1,700,000.00 in punitive damages; and $75,181.90 in hospital, medical, and funeral expenses. In his appeal, Dobison asserts the following assignments of error:

1. The trial court committed error in awarding plaintiffs $650,000.00 survival damages.
2. The trial court committed error in awarding each plaintiff $450,000.00 wrongful death damages.
3. The trial court committed error in awarding plaintiffs punitive damages.
4. The trial court committed error in awarding each plaintiff $850,000.00 in punitive damages or a total of $1,700,000.00 punitive damages.

OPINION

In the first two assignments of error, Dobison argues that the trial court awarded excessive damages, and that a review of prior awards for survival and wrongful death damages would establish this error. He does not contest the Lear-ys’ right to recover survival or wrongful death damages. Instead, he asserts only that the awards are excessive.

Rln considering these assignments of error, we first note the guidance supplied by the supreme court to appellate courts in Youn v. Maritime Overseas Corp., 628 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994):

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Thus, the first step is to determine whether the trial court abused its vast discretion. Consideration of prior awards play no part in resolving that issue.

Resorting to a comparison of prior awards is only appropriate after the reviewing court has concluded that an abuse of discretion has occurred. Thus, the initial inquiry for this court is whether the jury abused its discretion in assessing the amount of damages. If the court concludes that it has, then and only then may the prior awards be used for determining the highest or lowest amount that was reasonably within that discretion.

Cone v. Nat’l Emergency Serv., Inc., 99-934, p. 8 (La.10/29/99), 747 So.2d 1085, 1089 (citations omitted, emphasis added).

Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976). In determining survival damages, the court should consider the severity and duration of any pain or any pre-impact fear experienced by the deceased, and any other damages sustained by the deceased up to the moment of death. Guillot v. Valley Forge Ins. Co., 99-1044 (La.App. 3 Cir. 12/8/99), 753 So.2d 891. “Survival damages are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compen-sable.” Patrick v. Employers Mut. Cas. Co., 99-|94, 17 (La.App. 3 Cir. 8/11/99), 745 So.2d 641, 652, writ denied, 99-2661 (La.11/24/99), 750 So.2d 987. When a person dies due to the fault of another, leaving no surviving spouse or children, her parents acquire the right to recover all damages suffered by her prior to her death. La.Civ.Code art. 2315.1(A)(2).

The record establishes that in December of 2005, Jessica was on holiday break from her studies at the University of Louisiana, in Lafayette, Louisiana. During the holiday break, she had obtained employment at the Paragon Casino in Marksville, Louisiana and, at the time of the accident, was returning to her parents’ home in Bunkie, Louisiana, after completing a work shift at the casino.

The physical evidence at the scene of the accident established that Jessica obviously realized her precarious position when Do-bison entered her lane of travel because the point of impact occurred at a point where her vehicle was only partially on the travel lane. Louisiana Master Trooper Nathan Beaubouef, the investigating officer for the Louisiana State Police, concluded that Jessica had slowed her vehicle before the collision, and may have even come to a stop. Despite her every effort to avoid the collision, Dobison came completely across Jessica’s lane of travel. The impact drove Jessica’s vehicle fifteen feet off the roadway, and another nineteen feet down an embankment. Emergency personnel worked for over an hour to extract her from her mangled vehicle.

Jessica suffered massive blood loss from a liver laceration. Additionally, she sustained fractures in her right foot and left femur, a contusion of the bladder, and a separated pelvis. At Bunkie General, Jessica was conscious, somewhat incoherent, and in tremendous pain. She received blood transfusions because of the initial loss of blood. According to Doris Leary, her daughter continually asked that her body be |sturned over because of the pain in her back. Mrs. Leary accompanied Jessica during the ambulance trip to Alexandria on the morning of December 23. According to Mrs. Leary, the treating EMT who accompanied Jessica had to request that the driver negotiate the curves in the highway at a slow speed because that slight movement caused Jessica significant pain, and she was constantly moaning and groaning in each such maneuver.

At Cabrini Hospital, Jessica continued to request that she be turned on her side because of the pain in her back. After her surgery, Jessica was placed in the intensive care unit and continued to receive blood transfusions. The record reflects that, overall, she received three times her volume of blood and this continuous requirement caused her entire body to swell. By the early morning hours of December 24, Jessica’s body had essentially shut down. She died at 6:22 that morning.

Considering the obvious pre-impact fear Jessica suffered, as well as the pain and suffering she endured during the approximately twenty-eight hours of her remaining life, we find no abuse of discretion in the trial court award of $650,000.00 in survival damages.

Louisiana Civil Code Article 2315.2(A)(2) provides that when a person dies due to the fault of another, leaving no surviving spouse or children, her parents may bring suit to recover the damages which they sustained as a result of her death. A wrongful death action is intended to compensate the deceased’s loved ones for the losses they sustained as a result of the death. “While it is impossible to place a monetary value on the life of a child, our jurisprudential system has established that a monetary award is the appropriate remedy to one who has suffered the loss of a loved one as a result of the negligence of another.” Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 833 (La.1991). The elements of damage for wrongful death are loss of love and affection, loss of services, loss of support, medical expenses, and funeral expenses. Todd v. Sauls, 94-10 (La.App. 3 Cir. 12/21/94), 647 So.2d 1366, writs denied, 95-206, 95-219 (La.3/24/95), 651 So.2d 289. “Damages awarded for wrongful death are general damages since the valué of the loss is not subject to a pecuniary calculation.” Patrick, 745 So.2d at 652. Thus, this court must first review the award of damages to determine whether the trial court abused its vast discretion. Youn, 623 So.2d 1257.

The Learys first became aware of Jessica’s accident at approximately 3:30 a.m. when an officer with the Bunkie Police Department notified them. Mr. Leary immediately traveled to the accident scene while his wife remained at home with their younger daughter, Shaylan. When Jessica was transported to Bunkie General, Mr. Leary called home and told his wife and Shaylan to meet him at the hospital. During Jessica’s stay at Bunkie General, her parents were close at hand.

As previously stated, Mrs. Leary traveled in the ambulance with her daughter to Cabrini Hospital. She remained with her daughter until the early morning hours of December 24, when Mr. Leary insisted that she and Shaylan return to Bunkie and get some rest. Mr. Leary remained with Jessica. During those final hours, Mr. Leary remained by Jessica’s hospital bed and, even though she was not responsive, he continued to speak to her in an attempt to lend comfort. When it became obvious that Jessica was not going to survive, he called his wife and told her to return to the hospital. Jessica died before Mrs. Leary and Shaylan arrived.

In summary, the Learys lost their daughter on Christmas Eve. The record reflects that she was twe'nty-one years old when she died, was one year from a college 17degree in accounting, and was consistently on the Dean’s List at college. It is obvious from the record that she and her parents had a very loving relationship and that they were intimately involved in each other’s lives. -Her parents were proud of her and she of them. For approximately twenty-eight hours before her injuries claimed her life, her parents were by her side and witnessed both her fight for life against impossible odds and her extreme pain and suffering. Given the record as a whole, we do not find that the trial court abused its vast discretion in awarding each parent $450,000.00 in wrongful death damages.

In his last two assignments of error, Dobison contests both the award of punitive damages and the amount of punitive damages. He asserts that the Learys failed in their burden of proving that he was intoxicated and that Jessica’s injuries and subsequent death was caused by his wanton or reckless disregard for her rights and safety.

Louisiana Civil Code Article 2315.4 provides that punitive damages “may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.” In awarding punitive damages, the trial court obviously concluded that the Learys were successful in proving this issue by a preponderance of evidence. The trial court’s determination as to whether the elements requisite to recovery under La.Civ.Code art. 2315.4 have been proven is a question of fact, which this court will not set aside in the absence of manifest error. Riser v. Acadiana Limousine Serv., Inc., 96-1687 (La.App. 3 Cir. 4/30/97), 693 So.2d 330, writ denied, 97-1420 (La.9/19/97), 701 So.2d 173.

| sThe trial court based its finding that Dobison was intoxicated at the time of the accident on the testimony of Jimmy Barnhill, a forensic chemist and System Director of the North Louisiana Criminal-istics Laboratory, and Trooper Beaubouef. Barnhill testified that, through retrograde extrapolation of the results of Bunkie General’s blood alcohol testing, he determined that Dobison’s blood alcohol concentration was between 0.104 and 0.127 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood. Trooper Beaubouef testified that he smelled alcohol on Dobison’s breath, and when he asked Dobison if he had been drinking, Dobison refused to answer. Louisiana Revised Statute 14:98(A)(l)(b) provides that an individual operating a motor vehicle when his blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood is guilty of the offense of operating a vehicle while intoxicated.

At trial, Dobison testified that he had two mixed alcoholic drinks on the evening of December 22, 2005 — one at 10:30 p.m., and the other at midnight. He did not dispute that he entered Jessica’s lane of travel, but blamed his actions on fog and not alcohol. As to his refusal to answer Trooper Beaubouefs question, he asserted that he was unable to respond because of his physical pain at that time. Furthermore, he argues that the evidence was insufficient to establish his intoxication at the scene because Trooper Beaubouef did not testify as to obvious signs of intoxication such as slurred speech or staggering. Additionally, he asserts that Barnhill’s retrograde extrapolation was inaccurate.

Both Trooper Beaubouef and Mr. Leary testified that there was no fog on the highways on the night of the accident. Additionally, Trooper Beaubouef testified that, given the surrounding circumstances at the accident scene, he did not speak to |9or observe Dobison long enough to determine whether he was visibly impaired. Furthermore, the trial court accepted Barnhill’s expert testimony as accurate. The trial court is free to assign whatever weight it deems appropriate to the testimony of expert witnesses subject to the manifest error standard of review on appeal. Massie v. Deloach, 04-1425 (La. App. 3 Cir. 3/2/05), 896 So.2d 1246, writ denied, 05-786 (La.5/6/05), 901 So.2d 1107.

Given Barnhill’s expert testimony, Dobi-son’s admission that he had consumed some alcohol on the night of the accident, the particulars of the accident itself, and Trooper Beaubouefs detection of the odor of alcohol at the accident scene, we find no manifest error in the trial court’s determination that Dobison was intoxicated at the time of the accident and that his intoxication was a cause-in-fact of the accident. See Phelps v. White, 94-267 (La.App. 3 Cir. 10/5/94), 645 So.2d 698, writ denied, 95-151 (La.3/17/95), 651 So.2d 272.

Dobison also contends that proof of the element of wanton or reckless disregard for the rights and safety of others is lacking. With regard to that issue, this court has stated:

To be considered wanton and reckless, typically, the necessary level of conduct is somewhere between an intent to do wrong and mere negligence. Actions knowingly taken which would likely cause injury to another fall within this category. Although no specific conduct by an actor is necessary, a conscious indifference to consequences must be shown. If the actor knows or should know that his actions will cause harm and proceeds anyway, there is a conscious indifference to consequences so that there is a wanton or reckless disregard for the rights and safety of others.

Blackshear v. Allstate Ins. Co., 94-765, pp. 8-9 (La.App. 3 Cir. 12/7/94), 647 So.2d 589, 594-95 (citations omitted).

Applying these criteria to Dobison’s actions as previously stated, we find that a trier of fact could conclude that the Learys overcame their burden of proof on this element. |, (/Therefore, we find no merit in the argument that the Learys are not entitled to punitive damages pursuant to La. Civ.Code art. 2315.4.

In his final assignment of error, Dobison argues that the punitive or exemplary damage award of $850,000.00 to each parent is excessive. Exemplary damages are given to plaintiffs over and above the full compensation for their injuries for the purposes of punishing the defendant, of instructing him not to repeat the offensive action, and of deterring others from following the defendant’s conduct. Mosing v. Domas, 02-12 (La.10/15/02), 830 So.2d 967. “As with the review of a general damage award, the role of an appellate court in reviewing an award of exemplary damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Id. at 979.

Again, Dobison’s primary argument is that in comparison with the exemplary damages awarded in other, similar, cases the award in this case is excessive. But our supreme court has specifically said that when considering whether an award is excessive, the reviewing court is not to compare the exemplary damages with awards from other cases. Id. Instead, our supreme court has set out four criteria to be used in determining whether the finder of fact has abused its discretion in setting an award of exemplary damages: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the harm suffered by the plaintiffs and the exemplary damages awarded; (3) the difference between the exemplary damages awarded and the civil or criminal penalties authorized or imposed in comparable cases; and (4) the defendant’s economic wealth. Id.

InWe have no hesitation in saying that the first factor fully justifies the award: Dobison’s actions in driving after consuming enough alcohol to bring his blood level to at least 0.104 were reprehensible, and his irresponsible conduct led to actions that could clearly have been foreseen.

In applying the second factor, the court must examine the award “in light of the facts of the case and with reference to the actual damages awarded and the potential harm that could have resulted from the defendant’s conduct.” Id. at 981. In Mos-ing, our supreme court approved a ratio of compensatory to exemplary damages that was 1 to 9. The Learys were awarded $1,625,181.90 in compensatory damages and $1,750,000.00 in exemplary damages, a ratio of almost 1 to 1. This direct ratio is appropriate because here there is no greater potential harm that could have resulted from Dobison’s conduct; Jessica died as a result of his driving while intoxicated.

The third factor requires us to compare the exemplary damages awarded with the possible criminal or civil penalties that could be imposed on Dobison for driving while intoxicated, first offense. Louisiana Revised Statute 14:98(B)(1) provides that the penalty for that offense is a fine of $300.00 to $1,000.00 and imprisonment of not less than ten days nor more than six months. As our supreme court noted in Mosing, “[wjhile the possible criminal monetary penalty is significantly less than the exemplary damage award in this case, the fact that the offense carries a term of imprisonment makes the difference in monetary penalties less relevant.” Id. at 982.

The final factor to consider is Dobison’s assets and income. Dobison is an independent contractor with Primerica Financial Services and is licensed with the Securities and Exchange Commission to issue insurance and mortgage loans. He earned $100,000.00 in 2005 and $115,000.00 in 2004. He and his former wife own j^a rental home together, and he owns his own home, although it is subject to two mortgages. Additionally, he owns two vehicles. Based on this bare record of Mr. Dobison’s earnings, the exemplary damages imposed, while at the high end, are not excessive.

After reviewing these factors and the record as a whole, we conclude that the trial court did not abuse its discretion in making this award.

CONCLUSION

We affirm the trial court’s judgment in all respects. We assess all costs of this appeal to the defendant, Andre B. Dobi-son.

AFFIRMED.

      . State Farm has not appealed. Its insurance policy provided bodily injury liability limits of $25,000.00 per person. On June 13, 2007, State Farm paid the Learys its policy limits and court costs through that day. In exchange, the Learys executed a partial release and satisfaction of judgment.

      . Dobison asserts that the trial court's award is excessive under the Due Process Clause of the 14th Amendment to the United States Constitution, and therefore this court's review should be de novo. However, he failed to raise this constitutional issue in the trial court, and therefore it is waived. Mosing v. Domas, 02-12 (La. 10/15/02), 830 So.2d 967.


author: DECUIR, Judge.

text:
    CHASE BANK USA, N.A. v. Wendy ROACH.
    No. 07-1172.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    Gregory M. Eaton, Linda L. Lynch, Eaton Group Attorneys, LLC, for Plaintiff/Appellant Chase Bank USA, N.A.
    Wendy Roach, In Proper Person, Lafayette, LA.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   DECUIR, Judge.

Lin this case a creditor appeals the denial of its petition to confirm an arbitration award. For the reasons that follow, we reverse the judgment of the trial court and enter judgment confirming the arbitration award.

FACTS

Wendy Roach, a resident of Lafayette, Louisiana, defaulted on her credit card payments to Chase Bank. The credit card agreement contained the following:

Arbitration: Any claim, dispute or controversy (“Claim”) by either you or us against the other or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure in effect at the time of claim is filed. Rules and forms of the National Arbitration Forum may be obtained and Claims may be filed at any National Arbitration Forum office, tmow.arb-forum.com, or P.O. Box 50191, Minneapolis, Minnesota 55405, telephone 1-800^474-2371. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. 1-16. Judgment upon any arbitration award may be entered in any court having jurisdiction.

Chase filed a claim for the defaulted payments in the amount of $6,929.95. Roach was sent two notices prior to the award proceeding. Roach did not respond or appear, and subsequently an award was issued out of the New Orleans office of the National Arbitration Forum on Sept. 20, 2006. Notice of the award was sent to Roach but she did not respond nor submit any other communication to the arbitrator. On November 2, 2006, Chase sent a demand letter to Roach, identifying the arbitration award and the credit card account upon which it was based.

On March 9, 2007, Chase filed a petition to confirm the arbitration award in Lafayette City Court. The Lafayette City Court, relying on La.R.S. 9:4209, denied |2the motion for confirmation of the arbitration award for want of jurisdiction in that the confirmation rule was filed in an improper venue. Chase lodged this appeal.

DISCUSSION

Chase contends that the trial court erred in applying La.R.S. 9:4209, which provides that an arbitration award be confirmed in the parish where the award was made. We agree.

The arbitration clause on its face provides that it is governed by Federal Arbitration Law. La.R.S. 9:4216 provides that Louisiana arbitration law does not apply “to contracts for arbitration which are controlled by valid legislation of the United States.” Chase points out that the Uniform Arbitration Act and Revised Uniform Arbitration Act provide for confirmation in the county where the award was made, the county where the debtor resides or signed the contract, or where designated in the agreement. However, Chase also notes that the Fair Debt Collection Practices Act 15 U.S.C. § 1692(i) requires that the confirmation be filed where the contract was signed or the debtor resides. Accordingly, we find the trial court erred in refusing to confirm the arbitration award based on lack of jurisdiction and improper venue.

Turning to the issue of whether the award should be confirmed we note:

Arbitration is favored and an arbitration award is res judicata. Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed, and the burden of proof is on the party attacking the award.

Louisiana Physician Corp. v. Larrison Family Health Ctr., L.L.C., 03-1721 p. 2 (La.App. 3 Cir. 4/7/04), 870 So.2d 575, 578.

In this ease, the defendant has raised no issues challenging the arbitration. Accordingly we find the motion to confirm the arbitration award should be granted.

IsDECREE

For the foregoing reasons, the judgment of the trial court is reversed and judgment is entered confirming the arbitration award in favor of Chase Bank and against Wendy Roach. All costs of these proceedings are taxed to appellee, Wendy Roach.

REVERSED AND RENDERED.


author: GENOVESE, Judge.

text:
    Amy M. TRAHAN v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2007-1170.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Michael Harson, District Attorney — Fifteenth Judicial District, Lafayette, Louisiana, James E. Simon ADA — Fifteenth Judicial District Court, Broussard, Louisiana, for DefendanVAppellant: Lafayette Parish School Board.
    J. Issac Funderburk, Funderburk & Herpin, Abbeville, Louisiana, for Plain-tiffAppellee: Amy M. Trahan.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|! Defendant, Lafayette Parish School Board (School Board), appeals the trial court judgment in favor of the Plaintiff, Amy M. Trahan, making her writ of mandamus peremptory and ordering the School Board to renew her contract of employment as a grants administrator for the School Board for a two-year term. For the following reasons, we affirm as amended.

FACTS

Ms. Trahan was employed by the School Board when she was appointed to the position of Grants Administrator. On June 8, 2006, a Contract of Employment for Grants Administrator (the contract) was executed by Ms. Trahan and Dr. James H. Easton, Superintendent of Schools for the Lafayette Parish School System, containing the following provisions:

This contract is entered into on this 8th day of June, 2006, by and between the Lafayette Parish School Board (hereinafter referred to as “the Board”), a political subdivision of the State of Louisiana, represented herein by its Superintendent of Schools, Dr. James H. Easton, who is duly authorized to act herein by virtue of action taken by the Board at its meeting on June 7, 2006, and Amy [M.] Trahan (hereinafter Appointee). The terms of this agreement are as follows:
I. AUTHORITY TO CONTRACT
This contract is entered into pursuant to the authority of and in accordance with the applicable policies of the Lafayette Parish School Board.
II. POSITION AND TERM OF APPOINTMENT
The Board hereby names Appointee to the position of Grants Administrator for a period of one year, commencing on June 8, 2006, and ending of June 7, 2007, and Appointee hereby accepts such appointment.
]£/11. NON-RENEWAL OF APPOINTEE
(A) The parties hereto acknowledge that, by its terms, this contract expires on June 7, 2007. Appointee understands and agrees that the Board may decide not to renew this agreement.
(B) If the Board decides not to renew this agreement, the decision must be based on the recommendation of the Superintendent not to renew following an evaluation. Appointee shall be given written notice of this action as well as the reason for non-renewal within a reasonable amount of time prior to the expiration of the contract.
IX. RENEWAL OF CONTRACT
It is understood and agreed by both parties that, with mutual consent, this agreement may be renewed and/or renegotiated for an additional term and may contain such lawful terms and conditions as may then be established by the parties.

Dr. Easton performed an evaluation of Ms. Trahan and found “successful performance.” At the February 7, 2007 School Board meeting, Dr. Easton recommended that Ms. Trahan’s contract be renewed for an additional two-year term. The School Board deferred action on the recommendation at that time. Later, at the April 4, 2007 School Board meeting, Dr. Easton again made the recommendation that Ms. Trahan’s contract be renewed for a two-year term; however, the School Board rejected Dr. Easton’s recommendation and voted not to renew her contract. Thus, Ms. Trahan’s contract was terminated effective June 7, 2007.

Ms. Trahan filed a Petition For Issuance of Writ of Mandamus, Declaratory Judgment, and Attorney Fees. The application for writ of mandamus came before the trial court on May 14, 2007. Finding in favor of Ms. Trahan, the trial court issued a writ of mandamus to the School Board ordering it to renew Ms. Trahan’s contract has Grants Administrator for a term of two years. The trial court also awarded Ms. Trahan attorney fees and costs. A judgment was signed in accordance therewith on May 14, 2007.

The School Board subsequently filed a Motion For New Trial, Written Reasons for Judgment, and Stay of Judgment. The trial court.issued Reasons for Judgment and signed a judgment denying the School Board’s motion for a new trial on July 3, 2007. It is from this judgment that the School Board appeals.

ASSIGNMENTS OF ERROR

The School Board appeals the judgment of the trial court, asserting four assignments of error:

1. The [Trial] Court erred in holding this matter to be properly handled as an action in mandamus.
2. The [Trial] Court erred in upholding the validity of the contract in question since no evidence indicated that said contract was validly approved by the Lafayette Parish School Board nor was it signed by [its] president.
3. The [Trial] Court erred in not finding that to uphold the contract as worded would be contra bonos mores as essentially and totally abdicating [School] Board responsibility for employee hiring.
4. The [Trial] Court erred in ordering that the contract had to be enforced for a period of two years which provision did not appear in the contract.
LAW AND DISCUSSION
We observe that a denial of an application for a new trial is an interlocutory judgment and can only be appealed on a showing of irreparable injury. La.C.C.P. art. 2083; Tregre v. Tregre, 444 So.2d 675 (La.App. 5th Cir.1984). Nevertheless, our Louisiana Supreme Court has held that where the motion for appeal refers to a judgment by date and that judgment is one denying a motion for a new trial, but the appellant exhibits the clear intention in brief and argument to appeal from the adverse judgment on the merits, the appeal should be considered. Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969), and Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968).

Walsh v. Walsh, 544 So.2d 720, 721 (La. App. 3 Cir.1989). See also Fuqua v. Gulf Ins. Co., 525 So.2d 190 (La.App. 3 Cir. 1988); Johnson v. Johnson, 432 So.2d 1140 (La.App. 3 Cir.1983). It is clear from the School Board’s brief that it intended to appeal the May 14, 2007 judgment on the merits. Thus, we will treat the appeal accordingly.

Validity of the Contract

The School Board contends that the trial court erred in upholding the validity of the contract in question. Specifically, it asserts that there was “no evidence to establish that this contract was in fact, in its terms, authorized or approved or accepted by the School Board.... ” We disagree.

The contract was generated by the School Board itself. Notably, by its express terms, it states that this “contract is entered into ... by and between the Lafayette Parish School Board ... represented herein by its Superintendent of Schools, Dr. James H. Easton, who is duly authorized to act herein by virtue of action taken by the Board at its meeting on June 7, 2006, and Amy [M.] Trahan.... ” Thus, the capacity of Dr. Easton to execute the contract on behalf of the School Board is set forth at the inception of the document, as well as the means by which his authority to act was granted by the School Board. Additionally, the authority of Dr. Easton to contract is set forth in paragraph I of the contract which provides that the “contract is entered into pursuant to the authority of and in accordance with the applicable policies of the Lafayette Parish School Board.”

Consistent with the contract provisions, Dr. Easton testified that as part of his job as the superintendent, he signs contracts for employees who are hired by the | sSchool Board. Dr. Easton testified that he did not have any doubt upon entering into the contract with Ms. Trahan that he had the authority from the School Board to do so. Furthermore, it was Dr. Ea-ston’s understanding that if he made a recommendation to renew the contract, as was done in this case, the School Board was required to renew the contract.

The School Board, citing La.R.S. 17:83, asserts that in order to be valid, the contract would have to be signed by the president of the School Board. Louisiana Revised Statutes 17:83 contains the following language:

The president of each school board, or in his absence the vice-president, shall preside at all meetings of the board, call meetings when necessary, advise with and assist the parish superintendent of schools in promoting the success of the schools, and, generally, do and perform all other acts and duties pertaining to his office. All deeds and contracts for the schools shall be signed by him, but the contracts with teachers shall be signed by the parish superintendent and the contracting teachers.

Louisiana Revised Statutes 17:83 states that contracts for the schools are to be signed by the president of the school board; however, there is nothing to prohibit the delegation of this authority. In the instant matter, the authority to sign the contract on behalf of the School Board was conferred upon Dr. Easton.

The issue of whether a school board can grant authority to a superintendent to enter into contracts on its behalf was addressed in Attorney General Opinion Number 92-373 of March 22, 1993. The questions presented for response by the Attorney General were as follows: “1. May a School Board authorize the Superintendent to sign certain contracts' on behalf of the School Board instead of the Board President; and 2. If so, are there any limitations[?]” The opinion issued by the Attorney General | (¡recognizes the powers granted to school boards pursuant to La.R.S. 17:81. After noting that the superintendent is “not statutorily authorized to contract ... on behalf of the school board” the Attorney General states that it “has concluded the board, if it so chooses, may grant to the superintendent such power by regulations adopted by the board. Atty.Gen.Op. No. 91-191.” The limitations identified in the opinion were any which were contained in the school board resolution and “those set forth by the law and regulations of the State Board of Education with regard to entering contracts.” “Opinions of the Attorney General are advisory only and not binding.” McCaig v. Town of Gueydan, 01-140, p. 3 (La.App. 3 Cir. 6/27/01), 788 So.2d 1283, 1285. However, “[w]e have recognized their persuasive authority, particularly where no cases on point exists [sic].” Id. (citing Roy v. Avoyelles Parish Sch. Bd., 552 So.2d 63 (La.App. 3 Cir.1989). “Although the Attorney General’s opinion is not binding, we agree with its result and further find that it provides guidance in this case.” Bailey v. City of Lafayette, 05-29, p. 4 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 924, writs denied, 05-1054, 05-1690, 05-1691, 05-1692 (La.1/9/06), 918 So.2d 1054, 1055. (quoting Hayes v. City of Alexandria, 629 So.2d 435, 437 (La.App. 3 Cir.1993)).

In the instant matter, the contract itself, which was supplied by the School Board, evidences the representative status of Dr. Easton and his authority to act on behalf of the School Board. The contract, by its own terms, also proclaims that it is being “entered into pursuant to the authority of and in accordance with the applicable policies of the Lafayette Parish School Board.” This is wholly consistent with the 17testimony of Dr. Easton and is otherwise unrefuted. Moreover, we have found no authority, statutorily or otherwise, which denies the School Board the power to delegate the authority to Dr. Easton to execute the contract on its behalf. For the foregoing reasons, we find that the trial court was not manifestly erroneous in finding that the contract was a valid contractual agreement between the parties.

Abdication of School Board Responsibility

The School Board also asserts on appeal that upholding the contract at issue would be contra bonos mores since “to do so would essentially constitute a total abdication by the board of its responsibilities for the hiring of school personnel particularly by contract....” The School Board, in brief, emphasizes the contractual provision restricting termination of the employee by the School Board absent a specific recommendation by the superintendent to not renew the contract subsequent to an evaluation.

The parties in this matter cite differing provisions of Title 17 of the Louisiana Revised Statutes in support of their respective positions. This court has considered the legal authority referenced by the parties; however, we conclude that the contract at issue does not fall squarely within the ambit of any of these statutory provisions. For example, the School Board references La.R.S. 17:444. This statute only governs a “teacher,” and Ms. Trahan is not a teacher. As previously set forth, the School Board also references La.R.S. 17:83, which states that all contracts are to be signed by the president. However, there is no statutory prohibition against the School Board delegating this authority to Dr. Easton, which it did. Thus, we do not find the School Board’s delegation of authority to Dr. Easton to be in conflict with any statute, nor |sdo we find that it is against public policy. In this instance, the School Board was not “denied or prevented from exercising its legal authority.” Rather, it delegated that authority to Dr. Easton, which was not prohibited by law or public policy. We And this assignment of error to be without merit.

Action in Mandamus

The School Board contends that the trial court erred in holding that the present action could properly be handled as an action in mandamus. We disagree.

Louisiana Civil of Civil Procedure Article 3863 provides that “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.” The question, thus, is whether the mandamus in the instant matter was for the performance of a “ministerial duty.” We conclude that the renewal of the contract was ministerial.

The School Board refused to renew the contract at issue despite Dr. Easton’s recommendation that it be renewed. The express language of paragraph VII of the contract did not relegate the renewal or non-renewal of the contract to the discretion of the School Board. Rather, absent a recommendation that Ms. Trahan’s contract not be renewed, the School Board had no alternative but to act in accordance with the recommendation of the superintendent. We agree with the trial court that “[t]he superintendent recommended the contract be renewed. Therefore, the [School Board was] required to renew the contract and mandamus was the proper procedural remedy when the [School Board] failed to honor the contract.”

We find that mandamus was the appropriate remedy for Ms. Trahan to enforce her rights. Her rights were fixed by contract, and the School Board’s duty was | Jikewise contractually defined. The School Board was obligated to comply with the contractual provisions and had a non-discretionary duty to renew Ms. Trahan’s contract. Therefore, we find no manifest error in the finding of the trial court that the duty of the School Board to renew the contract was ministerial in nature and, consequently, may be compelled by a writ of mandamus.

Two-Year Term Provision

The School Board also asserts that the trial court erred in issuing its writ of mandamus ordering Ms. Trahan’s contract to be renewed for a period of two years. We agree.

Undisputedly, the contract states that it was “for a period of one year.” Additionally, paragraph IX of the contract governing renewal states that “the agreement may be renewed and/or renegotiated for an additional term.” The fact that the contract was renewed does not alter the duration or term of the contract. There being no language in the contract as to the term of renewal, “[a]n additional term” of Ms. Trahan’s contract can only be for a period of one year as was the original term. Although it was the recommendation of Dr. Easton that Ms. Trahan’s contract be renewed for a period of two years, there is no legal or contractual authority for extending the duration or term of the contract beyond its original term of one year. In issuing the writ of mandamus, the trial court was, therefore, without the legal authority to compel the School Board to renew Ms. Trahan’s contract for a period beyond the one-year duration or term provided for in the original contract. For these reasons, we find that the trial court erred in ordering the contract to be renewed for a two-year period.

ImDECREE

For the foregoing reasons, the judgment of the trial court making the writ of mandamus peremptory and ordering the Lafayette Parish School Board to renew the Contract of Employment of Grants Administrator, Amy M. Trahan, is affirmed. However, the portion of said judgment ordering that the contract be for a period of two years is hereby amended to provide that said contract is to be renewed for a period of one year. Costs of this appeal are assessed against Lafayette Parish School Board.

AFFIRMED AS AMENDED.

      . The petition for declaratory judgment was placed on a later rule docket of the trial court to proceed via ordinary process.

      . Louisiana Revised Statutes 17:81 (C) provides that ‘‘[e]ach city or parish school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.”

      . Louisiana Revised Statutes 17:444 appears in Chapter 2 "Teachers and Employers,” Part II “Tenure,” Subpart A "Teachers in General,” of Title 17 "Education.”


author: PICKETT, Judge.

text:
    Jeremy CAMPIONE v. Andrew ALDERMAN, et al.
    No. 2007-1254.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Glen R. Galbraith, Amy Lawler Gonzales, Seale & Ross, P.L.C., Hammond, LA, for Defendant/Appellee, Red Rocket Fireworks Co., Inc.
    Joshua M. Palmintier, Attorney at Law, Baton Rouge, LA, for PlaintiffiAppellant, Jeremy Campione.
    Andrew Alderman, In Proper Person, Lafayatte, LA, Defendant/Appellee.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| ?The plaintiff, Jeremy Campione, appeals a judgment of the trial court granting a motion for summary judgment filed by the defendants, Andrew Alderman and Red Rocket Fireworks, Inc., which sought dismissal of the plaintiffs “intentional tort” suit. After a de novo review, we affirm the judgment of the trial court.

FACTS

On December 29, 2003, both the plaintiff, Jeremy Campione, and the defendant, Andrew Alderman, were employed by the defendant, Red Rocket Fireworks, Inc. (Red Rocket), which owned and operated a fireworks stand (in a tent) located on Cameron Street in Scott, Louisiana. The defendant, Andrew Alderman, was already at work when the plaintiff arrived sometime that afternoon to begin his shift. The record reveals some dispute as to what happened as the plaintiff entered the tent. The defendant testified, in deposition, that as the plaintiff entered the tent he began engaging in horse-play or rough-housing with another employee, Jason Walker— punching, or at least, feinting punching Jason. In his deposition, the plaintiff first stated that he only “high-fived” Jason, but then admitted that he was clowning around with Jason and may have acted as though he was going to punch him. However, he denied actually throwing a punch.

As to the accident itself, the defendant stated that after the plaintiff “greeted” Jason, the plaintiff advanced towards him, his hands raised in the same manner as he had done with Jason. The defendant, who had been opening boxes and who had a box cutter in his had, turned to face the plaintiff and threw up his hands to ward off a perceived blow. The plaintiff brought his right hand and arm down toward the defendant and the plaintiffs right wrist came in contact with the box cutter in the ^defendant's hand, cutting the plaintiffs wrist. In their depositions, both the plaintiff and the defendant agreed that the de fendant had no intention to cut the plaintiff.

LAW AND ARGUMENT

The plaintiff asks this court to expand the definition of “substantially certain to follow5’ to include the defendant’s act in this case. See Bazley v. Tortorich, 397 So.2d 475 (La.1981). In Bazley, the plaintiff argued “that the concept ‘intentional act’ should be equated with ‘voluntary act.’ He [asked the court to] interpret ] ‘intentional’ to mean merely that before the actor acted he directed his mind on his own physical movement and not on the consequences of his act.” Bazley at 480. In rejecting the plaintiffs argument in Bazley, the court explained:

In drawing a line between intentional and unintentional acts we believe the legislative aim was to make use of the well established division between intentional torts and negligence in common law. The lawmakers probably perceived this distinction as entirely consistent with the division in civil law between offenses, which require an intention to injure, and quasi offenses, damages caused without intention to harm. Universally, harmful conduct is considered more reprehensible if intentional. As Holmes said, “Even a dog distinguishes between being stumbled over and being kicked.” There is a definite tendency to impose greater responsibility upon a defendant whose conduct has been intended to do harm, or morally wrong.
Although the theorists have not always agreed, the words “act” and “intent” now have generally accepted meanings in the fields of tort and criminal law. The word act is used to denote an external manifestation of the actor’s will which produces consequences. There cannot be an act subjecting a person to civil or criminal liability without volition. Therefore, a contraction of a person’s muscles which is purely a reaction to some outside force, such as a knee jerk or the blinking of the eyelids in defense against an approaching missile, or the convulsive movements of an epileptic, are not acts of that person. The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself.
|4Our jurisprudence likewise reflects approval of the general notions of act and intent. This Court as early as 1936, approvingly recited the following: “It seems clear that, in the absence of language expressing a contrary meaning, an ‘act’ involves an exercise of the will. It signifies something done voluntarily.” Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional....
Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

Bazley, 397 So.2d at 480-82 (citations omitted).

Thus, in a situation where a coworker’s actions produce injury, in order to recover in tort, a plaintiff must prove his injury resulted from coworker’s intentional tor-tious act, i.e. “the actor entertained a desire to bring about the consequences that followed” or he knew that the consequences were certain, or substantially certain, to result from his act, and still proceeded. Such was not the case here. What happened here was simply an unfortunate accident. Both the plaintiff and the defendant stated in their respective depositions that the defendant’s action was not deliberate. There is simply no evidence that the defendant had any intent, aim, plan, desire, objective or goal to injure the plaintiff. Likewise, there is no evidence that the defendant proceeded knowing the consequences were certain, or substantially certain, to result from his act. The plaintiff approached the defendant and the defendant, believing that the plaintiff was, at least, going to feint a punch in his direction, put up his own hands in a blocking maneuver. It was the plaintiffs own momentum which brought him into contact with the box cutter in the defendant’s hand, not a swing or swipe by the defendant.

In this ease, the “pleadings, depositions, answers to interrogatories, and |f¡admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Thus, summary judgment was appropriate.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff/appellant, Jeremy Campione.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Carolyn STROH v. CALCASIEU PARISH SCHOOL BOARD.
    No. 2007-1238.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Christopher M. Trahan, Raggio Cappel, Chozen & Berniard, Lake Charles, LA, for Defendant/Appellant Calcasieu Parish School Board.
    Kevin L. Camel, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellee Carolyn Stroh.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

| defendant, the Calcasieu Parish School Board (the School Board), appeals a June 29, 2007 judgment finding that plaintiff, Carolyn Stroh, was the victim of a battery which resulted in her being disabled from returning to her position as an elementary school teacher and entitling her to be paid sick leave without a reduction in pay. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Stroh was employed as a third grade teacher at Brentwood Elementary School. On November 22, 2003, while escorting a disruptive student to the principal’s office, Ms. Stroh fell to the ground when her feet became entangled with the student’s feet as he was resisting her efforts.

Ms. Stroh filed suit on February 2, 2005 asserting that, because she was rendered disabled as a result of an assault or battery in the course and scope of her employment, she was entitled to receive sick leave benefits pursuant to La.R.S. 17:1201 (the assault pay statute) for the duration of her disability. According to Ms. Stroh, although she had initially been paid her full salary during her disability, the School Board terminated her assault pay on January 7, 2004.

The School Board answered, admitting the occurrence of Ms. Stroh’s on-the-job accident, but denying that the injuries she received were the result of an assault or battery, and denying that Ms. Stroh was disabled. Accordingly, the School Board asserted that it did not owe Ms. Stroh sick leave benefits pursuant to the assault pay statute.

LA bench trial was held on November 7, 2006, following which the trial court left the record open for the appointment of a physician to perform an independent medical examination (IME). After examining Ms. Stroh, the IME physician submitted a report to the trial court, and the matter was reset for hearing on June 28, 2007. Following the hearing, the trial court ruled that Ms. Stroh “was a victim of a battery as contemplated by Revised Statu[t]es 17:1201(C)(l)(a) and the applicable jurisprudence.” The trial court further ruled that Ms. Stroh was “disabled from returning to her position as an elementary-school teacher as a result of injuries sustained in the November 22, 2002, incident.” The School Board was ordered to pay Ms. Stroh “sick leave without reduction in pay pursuant to Revised Statutes 17:1201(C)(l)(a) from January 8, 2004, forward.”

The School Board appeals, claiming in its sole assignment of error that the trial court erred in finding that Ms. Stroh carried her burden of proving, by a preponderance of the evidence, that she was a victim of a battery.

LAW

Louisiana Revised Statutes 17:1201(C)(l)(a) provides as follows:

Any member of the teaching staff of the public schools who is injured or disabled while acting in his official capacity as a result of assault or battery by any student or person shall receive sick leave without reduction in pay and without reduction in accrued sick leave days while disabled as a result of such assault or battery. However, such member of the teaching staff shall be required to present a certificate from a physician certifying such injury and disability.

In a case with remarkably similar facts, this court affirmed a trial court’s grant of summary judgment in favor of a teacher who was injured after being kicked by a Lstudent and ordered the St. Martin Parish School Board to pay the teacher sick leave pursuant to La.R.S. 17:1201(C)(l)(a). Lott v. St. Martin Parish Sch. Bd., 01-3 (La.App. 3 Cir. 5/2/01), 784 So.2d 838, writ denied, 01-1564 (La.9/14/01), 796 So.2d 680. The teacher had fallen to the floor after being kicked by a disruptive first grader who was resisting her efforts to remove him from a restroom where he had fled after being verbally reprimanded. On appeal, the School Board asserted that the trial court erred in finding that the teacher was a victim of assault or battery, as envisioned by La.R.S. 17:1201(C)(l)(a). In rejecting the School Board’s contention, this court stated:

Contrary to the Board’s argument, a finding of the intent to commit a battery is not an absolute requirement. Instead, there must be present either of the following: (1) the intent to commit the act which resulted in a harmful or offensive touching, that is, the battery; or, alternatively, (2) the knowledge that if the actor behaved in a certain way, the harmful or offensive touching would follow. Applied to the facts of this case, in order for there to be a finding of intent to commit a battery, all that is required is that either [the student] was flailing his legs in an attempt to kick Ms. Lott, or [the student] reasonably should have known that if he swung his legs in the direction of Ms. Lott, he would likely kick her. Here, the requirement of a showing of intent was satisfied.

Id. at 842-43.

In the instant matter, the trial court stated that it was “convinced that — more probably than not the intentional resistance that was given by this child caused this incident to happen.” The trial court further stated that it was “satisfied that it constitutes a battery, much as ... was done in the Lott case.” The trial court made specific reference to the testimony of a witness who, consistent with the testimony of Ms. Stroh, indicated that the child was pulling and leaning back as Ms. Stroh tried to lead him out of the classroom and down the hall to the principal’s office. In finding that the child’s actions amounted to intentional resistance, the trial court noted that 14“[t]he child should have known that I am pulling this teacher down with the potential she is going to fall down on me or fall down with me. The flailing about and kicking is just concomitant with that.”.

As testified to by Ms. Stroh, the third grader had arrived at her classroom late on the morning of the accident and had loudly begun explaining oral sex as she was giving the students a review before a scheduled math quiz. After refusing Ms. Stroh’s request to be quiet and sit down, the student began fighting with her and forcefully resisting her efforts to bring him out of the classroom and down the hall. Another teacher who was in the hall at the time of the accident confirmed that the student was pulling away from Ms. Stroh and that he was trying to prevent her from taking him to the principal’s office. We conclude that the evidence overwhelmingly supports the trial court’s finding that Ms. Stroh met her burden of proving that she was injured as a result of a battery.

The School Board argues that the Lott decision is wrong and that it is “out-of-step” with the Louisiana Supreme Court’s decision in Bazley v. Tortorich, 397 So.2d 475 (La.1981). In the alternative, the School Board contends that the facts of the instant case are distinguishable from the facts in Lott.

Ms. Stroh counters that “[t]he Lott decision is not only supported by the Supreme Court’s discussion in Bazley of the distinction between intentional torts and negligence, but also by the extensive jurisprudence regarding intentional torts before and since.” Moreover, Ms. Stroh contends that the facts of the instant case present an even more clear-cut example of battery than the facts of Lott because here the student’s intentional pulling on her arm constituted a battery in and of itself. As a result, Ms. Stroh submits that the student is liable for any consequences resulting | Bfrom his intentionally pulling on her arm. Thus, Ms. Stroh argues that contrary to the School Board’s suggestion, she was not required to additionally prove that the student intended to trip her.

We agree with Ms. Stroh’s contention that the Lott decision is in line with Baz-ley. See also Caudle v. Betts, 512 So.2d 389 (La.1987), where the Louisiana Supreme Court held that a defendant’s liability for harm resulting from a battery extends to consequences which defendant did not intend and which defendant could not reasonably have foreseen. Moreover, the facts of the instant case are not readily distinguishable from the facts in Lott, which has not been overruled and thus remains the law of this circuit.

CONCLUSION

The decision of the trial court is affirmed. The Calcasieu Parish School Board is cast with all costs of this appeal.

AFFIRMED.

      . Plaintiff's surname is spelled both "Strohe” and "Stroh” throughout the record. For purposes of this opinion, we use "Stroh.”

      . According to Ms. Stroh, after January 7, 2004, the School Board reduced her benefits to the amount owed under the workers’ compensation statute.

      . In its brief to this court, the School Board acknowledges that the trial court was presented with conflicting evidence on the question of whether Ms. Stroh is disabled. As a result, while disagreeing with the entire judgment, the School Board does not assign error in the trial court's finding that Ms. Stroh is disabled.


text:
    Mary DANTLEY v. LAKE CHARLES MEMORIAL HOSPITAL.
    No. 2007-1227.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      A.R. Johnson, IV, Plauche, Smith & Nieset, Lake Charles, Louisiana, for Defendant/Appellee, Lake Charles Memorial Hospital.
    Scott J. Pias, Attorney at Law, Lake Charles, Louisiana, for Plaintiff/Appellant, Mary Dantley.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

| plaintiff, Mary Dantley, appeals a June 26, 2007 judgment rendered by the Office of Workers’ Compensation dismissing her claims against Lake Charles Memorial Hospital (LCMH) with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Dantley began working as a housekeeper at LCMH in 1995. In November of 2004, she applied for Social Security Disability benefits. She resigned from LCMH in December of 2004. She underwent surgery on her right shoulder in January 2005 and again in June of 2005. On June 22, 2005, Ms. Dantley filed a 1008 Claim for Compensation. In her initial claim, she was unable to point to any specific event as having caused her shoulder complaints. She listed the date of injury as “12/24/04 last day worked.” At a mediation that took place on July 26, 2005,- Ms. Dantley amended her claim with a notation that she “felt increased pain in [her] right shoulder” in October of 2004 when “lifting beds to change sheets, etc.”

Trial was held on January 25, 2007. The only witness to testify live was Ms. Dantley. Both parties offered the deposition of Dr. John Noble, the physician who treated Ms. Dantley for her shoulder condition and who performed both of her surgeries. The matter was taken under advisement and on June 14, 2007, the Workers’ Compensation Judge (WCJ) rendered oral reasons for judgment in favor of LCMH dismissing Ms! Dantley’s claim against it with prejudice. Written judgment was signed on June 26, 2007.

Ms. Dantley now appeals, assigning the following as error:

|¾1. The trial court erred in finding that no corroborative evidence exists. This resulted in the court finding that the plaintiff failed to carry her burden of proof.
2. The trial court’s findings are clearly wrong and not supported by the evidence in the record.
3. The trial court failed to find that Mary Dantley aggravated her shoulder injury during the period that she continued to work after the onset of the initial symptoms of a shoulder injury.

LAW

A worker bringing a compensation action against her employer bears the burden of proving, as a threshold requirement, that she suffered “personal injury by accident arising out of and in the course of employment.” La.R.S. 23:1031; Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La. 1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1). Jurisprudence has held that an accident may include a routine movement or task that the employee regularly performs, provided that the claimant is able to identify, with some particularity, the time, place, and manner in which the accidental injury objectively manifested itself. McCall v. Wal-Mart Stores, Inc., 02-1343 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, writs denied, 03-1329, 03-1343 (La.9/19/03), 853 So.2d 639, 641.

The plaintiff bears the burden of establishing that a work-related accident occurred by a preponderance of the evidence. Bruno, 593 So.2d 357. This burden of proof is applicable even when the worker is the sole witness of the accident. Id.

| SA worker’s testimony alone may be sufficient to discharge her burden of establishing a work-related accident provided that no evidence discredits or casts serious doubt upon her version of the incident and the worker’s testimony is corroborated by the circumstances following the alleged incident, including medical evidence or the testimony of co-workers, friends, or the worker’s spouse. Id.

The trial court’s determinations as to whether a plaintiff in a workers’ compensation case is credible and whether she has discharged her burden of proof are factual determinations that should not be disturbed upon appellate review unless clearly wrong or manifestly erroneous. Id.

This court has noted, in the context of a workers’ compensation suit, the well-accepted principle that credibility calls are the function of the trial court. McCall, 846 So.2d 832.

DISCUSSION

The WCJ issued oral reasons for judgment in conjunction with its decision to dismiss Ms. Dantley’s case against LCMH. Those reasons provide, in pertinent part:

[Ms. Dantley] testified as to the occurrence of an accident; however, she couldn’t really remember any real incident. She made complaints of shoulder pain to Dr. Noble. Ultimately, she had surgery to the shoulder in January of 2005. She testified she didn’t report a job injury to Dr. Noble nor to Lake Charles Memorial Hospital because she said, “It wasn’t like I broke a leg or something, so I just didn’t report it.” She and her co-workers even discussed a possible workplace explanation for her disability according to Ms. Dantley. However, no corroborative evidence exists. In fact, the medical evidence casts doubt on Ms. Dantley’s version of the incident, and Ms. Dantley even testified no real incident occurred in the workplace. Dr. Noble performed two right shoulder surgeries on Ms. Dantley, and both surgeries were filed and paid for by Ms. Dantley’s health care insurer. Ms. Dantley, obviously, is a long time employee of the hospital. The court is not convinced that Ms. Dantley suffered from an occupational disease during the course and scope of her employment with Lake Charles. Memorial Hospital. She is unable to carry her burden of proof.

|4Ms. Dantley testified that she never reported an on-the-job accident regarding her right shoulder to LCMH or to Dr. Noble. Nevertheless, she asserts that “[t]he record is full of corroborative evidence” that she received an injury while on the job and that the WCJ’s findings to the contrary are clearly wrong and not supported by the evidence. She claims that she reported her shoulder problems to several nurses with whom she worked and that those nurses thought that she should report her injury to the hospital’s administration and that it would be covered under workers’ compensation. She further claims that, because she was a minimum wage worker with no social life aside from attending church services once a week, she had no opportunity to injure her shoulder outside of work. Ms. Dantley additionally submits that Dr. Noble testified that the type of shoulder injury that she suffered from is one that can be caused by doing the type of housekeeping work that she did at LCMH.

Ms. Dantley’s arguments are flawed. Even assuming that she did tell some of her co-workers that she had injured her shoulder at work and that they thought she had suffered a compensable injury, the burden was on Ms. Dantley to present any such corroborating evidence to the WCJ. She did not do so. While Ms. Dantley’s simple lifestyle may have made it unlikely that she would suffer a shoulder injury while not at work, she had the affirmative burden of proving that she suffered an injury while on the job at LCMH. Again, she failed to meet that burden as even her own story as to whether and when she suffered an injury at work was inconsistent. Her reliance on Dr. Noble’s deposition testimony, is also misplaced. He did not state that a shoulder injury such as the one suffered by Ms. Dantley could be caused by the type of activities she performed as a housekeeper at LCMH. What Dr. Noble actually stated was that those type of activities could exacerbate or worsen the condition of | ^someone with rotator cuff degeneration. As pointed out by LCMH, Dr. Noble testified that he thought Ms. Dantley’s shoulder problem was possibly cervical in origin. In addition, in a statement that he filled out at the request of Ms. Dantley’s income protection insurer, Dr. Noble indicated that Ms. Dantley’s disability was not related to her employment. That opinion was echoed in Dr. Noble’s trial deposition.

We have reviewed the record in its entirety and are convinced that the WCJ correctly found that no corroborative evidence was presented by Ms. Dantley to substantiate her claim that she suffered a work-related accident. In the absence of any such corroborative evidence, and in the face of her treating physician’s opinion that her shoulder disability was not related to her employment, Ms. Dantley’s testimony alone was insufficient to discharge her burden of proof. Thus, Ms. Dantley’s first and second assignments of error are without merit.

Ms. Dantley claims that the WCJ erred in failing to find that she aggravated her shoulder injury during the period that she continued to work at LCMH after the onset of the initial symptoms of her shoulder injury. Just as she failed to present a scintilla of evidence to corroborate an initial on-the-job shoulder injury, Ms. Dant-ley likewise failed to offer any evidence to corroborate her claim that she exacerbated any prior injury to her shoulder. Ms. Dantley’s third assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation dismissing Mary Dantley’s claims against Lake Charles Memorial Hospital is affirmed in its entirety. Ms. Dantley is cast with all costs of this appeal.

AFFIRMED.

      . This document was entered into evidence by LCMH as Exhibit D-3.

      . This Attending Physician’s Statement is attached to Dr. Noble’s deposition as Exhibit No. 2.