text:
    STATE of Louisiana, Appellee v. Clavin BIRCH, Appellant.
    No. 41,979-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Walter E. May, Jr., District Attorney, H. Russell Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   GASKINS, J.

hThe defendant, Clavin Birch, was convicted by a jury of armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. He was sentenced to serve 30 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm the conviction, vacate the sentence and remand for resentencing.

FACTS

Deb’s Place is a small convenience store in Ringgold, Louisiana, serving the community near the Bienville Parish public boat launch on Lake Bistineau. On the afternoon of June 20, 2003, Shayne Rowell and Janice Flowers were working at Deb’s Place. According to Mr. Rowell, they knew “about ninety-nine percent” of the store’s clientele. At about 1:30 p.m., a young man came into the store whom they did not know. The man, who was later identified as Wataski Willis, came in, looked around, and went to the coolers in the back of the store to get a drink. Mr. Willis paid for the drink and left. Mr. Rowell and Ms. Flowers discussed Mr. Willis after he left and concluded that they did not know him; they also did not see a vehicle outside the store.

Sometime before 2:00 p.m., Mr. Rowell left the store and went to a house close by. Ms. Flowers remained in the store and waited on a male customer. When that customer left, just after 2:00 p.m., Ms. Flowers had commenced preparing a sandwich when she heard the store’s door open. She looked up and saw two young men come into the store and approach the register. Ms. Flowers went to the register as well and asked the men if she |acould help them. The first man, whom Ms. Flowers later identified as Mr. Willis, produced a handgun, pointed it at Ms. Flowers, and demanded money.

Ms. Flowers opened the cash register, and as Mr. Willis took the money from the register, Ms. Flowers saw that the second man also had a handgun and was pointing it at her. She subsequently identified the second man as the defendant, Clavin “Eric” Birch. She also noticed a third man standing in the door of the store with the door half-open. This individual was later identified as Mario Owens. As Mr. Willis took the money from the register, the defendant took cigarettes and cigars. The three men then fled the store; as they ran away, Ms. Flowers heard a single gunshot.

Ms. Flowers called 911, but the robbers had already fled before deputies could arrive. No usable fingerprints were found at the scene. A local resident, Zena Mitchell, had seen the defendant’s car near the store at about 1:15 p.m. She recognized the defendant and Mr. Willis, as two of the three occupants of the car. Subsequent investigation led the Bienville Parish Sheriffs Office (“BPSO”) to consider the defendant, Mr. Willis, and Mr. Owens as suspects. As a result, BPSO Deputy Randy Price created photo lineups including photos of these three men.

About two days after the robbery and before Ms. Flowers had a chance to view the lineups, the defendant’s father, Eddie Allums, came into Deb’s Place. Mr. Al-lums was not affiliated with BPSO or any other investigative agency. Ms. Flowers said that when Mr. Allums came into the store, he put the defendant’s photo ID down on a table in front of her and | asked her if he was one of the robbers. Ms. Flowers was frightened and told Mr. Al-lums that she did not know; however, in fact she did recognize the defendant from the photo ID as one of the robbers. The next day, on the telephone, she told Mr. Allums that the defendant was one of the robbers.

On June 25, 2003, Deputy Price showed a lineup including Mr. Willis to Mr. Rowell and Ms. Flowers; both identified Mr. Willis as the man who came into the store and bought a drink. Additionally, Ms. Flowers identified Mr. Willis as one of the robbers. Ms. Flowers was not able to identify the defendant in the first photo lineup; Deputy Price explained that the photo of the defendant in the lineup was a close-up where he had a different hair style.

Deputy Price prepared a second photo lineup including the defendant, this time with his current hairstyle, and showed it to Ms. Flowers on July 22, 2003. She identified the defendant in that lineup. She was also able to identify Mr. Owens as the other robber in a different lineup. As a result of Ms. Flowers’ identifications, deputies arrested all three men, and they were charged with armed robbery. Mr. Willis and Mr. Owens reached plea agreements with the state in which they pled guilty to this offense in exchange for an agreed-upon sentence. They agreed to testify truthfully in the defendant’s trial.

On January 31, 2005, Ms. Flowers signed an affidavit questioning her identification of Clavin Birch as one of the robbers. The affidavit states:

I, Janice Flowers was employed at Deb’s Place on June 20, 2003, when three black males entered the store and robbed the place of tobacco and money at gunpoint.
14On July 25, 2003, I identified Clavin (Eric) Birch from a photo line-up. Approximately July 23, 2003, Clavin’s father, Eddie Allums, came to the store and showed me a picture I.D. of Clavin. I believe that the showing of this I.D. is what made me choose Clavin’s picture on the day that the police showed me the picture to identify the robbers.

In May 2005, the defendant filed a motion to suppress Ms. Flowers’ identification of him in the photo lineup. The defendant alleged that Ms. Flowers’ affidavit proved that there was a substantial likelihood that she misidentified him as the perpetrator when she identified him in the second photo lineup.

The court held a hearing on the motion on August 10, 2005; the only witness at the hearing was Deputy Price. The deputy testified that Ms. Flowers was not able to identify the defendant in the first lineup. This lineup was shown to her shortly after the date when Mr. Allums showed Ms. Flowers the photo of the defendant. Deputy Price said that Ms. Flowers told him that the robbers had “poofy” hairdos; the photo of the defendant in the first lineup shows him with a flatter haircut. The deputy explained that Ms. Flowers was immediately able to pick the defendant out of a group of similar looking men when the hairstyles were more like the one the defendant had at the time of the robbery. Deputy Price said that he spoke with Ms. Flowers about the affidavit and she told him that the photo shown to her by Mr. Allums had influenced her choice on the second lineup. The court concluded that Ms. Flowers’ contact with Mr. Allums was relevant |f¡only to the weight to be given her identification and denied the motion to suppress.

Ms. Flowers testified at trial that the affidavit was false. During the course of the investigation, Ms. Flowers became aware that others in the community knew of her identity as the victim. She explained:

Well, Mr. Eddie Allums contacted ... a friend of mine that was living with me at the time, and said that he wanted to speak to me. And I ... knew what he wanted. He wanted me to make a statement saying that his son’s not the one that robbed me, which I refused to do. And I’d had strange vehicles coming up and down the road in front of my house — they figured out who I was.... I’ve got two children who play in the yard and I was scared. I mean, I knew that [an individual] had told me that they wanted to talk to me, wanted to talk to me, had to talk to me. And I was frightened....
[An individual] had told me that Mr. Eddie Allums wanted to talk to me again, which I knew that it was the same guy that had come in and brought the picture. And we had met at the church in Ringgold and he asked me if I would make the statement to save his son. His son’s going to jail and I told him that I couldn’t make a statement saying that he wasn’t the one. The statement says that I believe the showing of his ID which made me choose the picture on that day — well, made me choose the picture out of the ID that you just showed me. The photo lineup. Which in no way affected what I, who I chose. I mean, it was him. I knew when he showed me the ID that that was him and I knew when Mr. Randy Price brought and showed me the pictures of the six guys that that was definitely him. There is no doubt in my mind. This was to make me feel safer, to make these people leave me alone. And it did. I had got no more — I wasn’t — no more strange vehicles up and down the road. You know, I stay out of Ringgold now. I still do. But, I mean, this was for safety of my children and to make me feel better.

[¿The defendant was tried by jury. Both Mr. Owens and Mr. Willis testified at the defendant’s trial and, although their stories differed in some respects, both men identified the defendant as one of the robbers. The defendant extensively cross-examined both Mr. Owens and Mr. Willis concerning the terms of their plea agreement and the benefits they received for testifying against the defendant.

The jury convicted the defendant as charged. The defendant filed a motion for post-verdict judgment of acquittal, urging that the evidence against him was insufficient to prove his guilt. He also filed a motion for new trial, urging that several alleged errors during the trial prejudiced him. The court denied both motions on May 24, 2006.

The defendant waived sentencing delays, and the court sentenced him to serve 30 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The court relied in part upon a statement from the victim, that she read aloud in court, saying in part that the incident had caused her to suffer a fear of people and public places that has required her to seek therapy. The court also took into consideration the presentence investigation and a letter from the defendant in which he “refused to take responsibility for his actions in this matter.” The judge did not specifically articulate the basis for his sentence under La. C. Cr. P. art. 894, nor did he specify whether any portion of the sentence was the result of the firearm enhancement under La. R.S. 14:64.3.

|7The defendant did not file a motion to reconsider the sentence; he now appeals.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence adduced at trial was not sufficient to support a conviction of armed robbery with a firearm. This argument is without merit.

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

|sIn the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Chism, 591 So.2d 383 (La.App. 2d Cir.1991). This includes the testimony of accomplices. An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify; those inducements only affect the witness’s credibility. The credibility of an accomplice’s testimony is not within the province of the court of appeal to decide. Rather, credibility evaluations are well within the ambit of the trier of fact. State v. Jetton, 32,893 (La.App. 2d Cir.4/5/00), 756 So.2d 1206, writ denied, 2000-1568 (La.3/16/01), 787 So.2d 299.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App. 2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12. A witness’s failure to identify the suspect at a pretrial lineup is not grounds to bar the in-court identification; rather, it affects the weight of the testimony. Evidence may be introduced to explain any discrepancy. State v. Long, 408 So.2d 1221 (La.1982); State v. Ford, 26,422 (La.App. 2d Cir.9/21/94), 643 So.2d 293.

|8To convict a defendant of armed robbery, the state is required to prove: (1) a taking (2) of anything of value (3) from a person or in the immediate control of another (4) by the use of force or intimidation (5) while armed with a dangerous weapon. La. R.S. 14:64; State v. Jeselink, 35,189 (La.App. 2d Cir.10/31/01), 799 So.2d 684. Armed robbery with a firearm, La. R.S. 14:64.3, additionally requires proof that the dangerous weapon used in the commission of the armed robbery was a firearm. This court has held that the crime of armed robbery with the use of a firearm must be charged by bill of information and proven to the jury. State v. Jefferson, 40,439 (La.App. 2d Cir.1/27/06), 920 So.2d 984.

In the case sub judice, ample evidence was presented to show that the defendant committed the charged offense. The testimony of Zena Mitchell put the defendant and his accomplices in the area at the time of the offense. Ms. Mitchell saw the defendant driving his car with Mr. Willis in the passenger seat and a man she did not know in the back seat in the vicinity of the store shortly before the robbery. The seating arrangement observed by Ms. Mitchell was corroborated by Mr. Willis and Mr. Owens, who testified that they were transported to the store by the defendant in his car.

The jury also heard testimony from the victim and the defendant’s two accomplices identifying the defendant in court as one of the robbers. The victim testified that the defendant was not only armed with a handgun during the commission of this offense, in which the defendant took money and tobacco products, but also that he aimed the handgun at her during the course of the robbery. The state further presented the testimony of Mr. |inWillis and Mr. Owens concerning the way the robbery was carried out with the defendant. Although there were some inconsistencies in their testimony, they both testified that all three men took part in the robbery of the store, at gunpoint, that cash and tobacco products were taken from the store, and that they drove to the defendant’s house to split up the goods and money taken from the store.

The jury was fully apprised of the circumstances surrounding the victim’s identification of the defendant. In particular, the jury had the opportunity to consider that the victim failed to identify the defendant in the first photo lineup. A reasonable explanation for that fact was presented at trial. The jury also considered the victim’s affidavit concerning her identification of the defendant in a subsequent photo lineup and her explanation that her affidavit, casting doubt on her identification, was false. The victim testified that she signed the document due to attempts by the defendant’s friends and family to influence her testimony. The jury heard the victim testify that she was sure that the defendant was one of the individuals who robbed her at gunpoint of cash and tobacco products.

The jury also heard the testimony of the defendant’s accomplices concerning the favorable consideration they received by testifying against the defendant and the impact that factor had on their testimony. After considering all the testimony, the jury concluded that the defendant was the perpetrator. Under the legal standards cited above, this court cannot “second guess” the jury’s conclusions based upon the credibility of the witnesses.

|71The record contains sufficient evidence to support the defendant’s conviction in this case. When the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of armed robbery with a firearm beyond a reasonable doubt.

MOTION TO SUPPRESS

The defendant argues that the trial court erred in failing to grant his motion to suppress the pretrial identification made by Ms. Flowers in the second photo lineup. He claims that showing Ms. Flowers two lineups was unduly suggestive. He also points out that his father showed her a single photo of him prior to her viewing of the second photo lineup which influenced her identification of him. These arguments are without merit.

A defendant attempting to suppress an identification must first show that the identification procedure was suggestive, and secondly, that there was a likelihood of misidentification by the eyewitness. Even if the identification procedure was suggestive, the identification will be admissible if, under the totality of the circumstances, it is found to be reliable. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writs denied, 1996-1459 (La.11/15/96), 682 So.2d 760; 1998-0282 (La.6/26/98), 719 So.2d 1048.

The circumstances surrounding Ms. Flowers’ identification of the defendant is set forth above. The trial court correctly concluded that the question here was the credibility of Ms. Flowers as a witness and not the traditional due-process analysis under Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). As this court stated in State v. Jones, 33,657 (La.App. 2d Cir.8/23/00), 765 So.2d 1191, writ denied, 2000-2779 (La.6/29/01), 794 So.2d 825:

[A]n essential requirement in any due process challenge is that the claimant must show some property or liberty interest has been adversely affected by state action....

In this case, as in State v. Jones, supra, issues of due process are not implicated because it was not the state, but the defendant’s father, who showed the victim a single picture of the defendant and inquired whether he was the perpetrator of this offense. Where no state action is involved, there are no due process implications. Any defects in an identification procedure which do not offend the defendant’s due process rights go to the weight, rather than the substance, of the evidence submitted to the jury. State v. Jones, supra.

In State v. Jones, supra, the victims of an attempted carjacking struggled with the defendant and he fled. The victims found Jones’ wallet in their vehicle containing his photo ID. This court found that viewing the single photograph of the defendant was not the result of state action and therefore did not violate due process. We also held that viewing the photo ID did not make viewing of a subsequent photo lineup unduly suggestive. Even single photo identifications involving state action are not inadmissible [ 13per se. See State v. Goldston, 35,271 (La.App. 2d Cir.12/5/01), 804 So.2d 141.

There is no evidence that the police in this ease had any connection to the actions of the defendant’s father. Further, in compiling the photo lineups, there is no showing that the state used the ID photo of the defendant that the defendant’s father showed Ms. Flowers. The pretrial identification resulted from private, not state action. In the absence of state action, the question became one of credibility, not admissibility of the identification. Further, there is no showing that the photo lineups were suggestive. Accordingly, the trial court correctly denied the pretrial motion to suppress.

EXCESSIVE SENTENCE

The defendant argues that the 30-year sentence without benefit of parole, probation, or suspension of sentence constitutes an excessive sentence under the facts and circumstances of this case. Because we find as error patent that the sentence imposed in this case is indeterminate, necessitating that the sentence be vacated and the matter remanded for re-sentencing, we pretermit discussion of the defendant’s argument regarding excessiveness.

The crime of armed robbery with the use of a firearm under La. R.S. 14:64.3 is a more serious form of armed robbery for which the penalty range is effectively 15 to 104 years. State v. White, 39,634 (La.App. 2d Cir.6/16/05),14 907 So.2d 180, writ denied, 2005-2097 (La.3/10/06), 925 So.2d 510. At the time the defendant committed this crime, La. R.S. 14:64.3 did not explicitly say, as it does now, that the additional term must be served at hard labor. Acts 2006, No. 208, § 1.

In the instant case, the jury found the defendant guilty as charged of armed robbery with a firearm, but the trial court did not specify what portion, if any, of the defendant’s 30-year sentence was imposed under La. R.S. 14:64.3. La. C. Cr. P. art. 879 requires a determinate sentence. In the absence of a specification that the defendant’s sentence includes a term under La. R.S. 14:64.3, Birch’s sentence is indeterminate. See State v. Weaver, 38,322 (La.App. 2d Cir.5/12/04), 873 So.2d 909; State v. Price, 04-812 (La.App. 5th Cir.3/1/05), 909 So.2d 612. Therefore, we vacate the sentence and remand for resen-tencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. The trial court is instructed to consider State v. Williams, 2001-1398 (La. App. 1st Cir.3/28/02), 815 So.2d 378, writ denied, 2002-1466 (La.5/9/03), 843 So.2d 388, noting that, at the time the defendant’s sentence was imposed, La. R.S. 14:64.3 did not provide for the enhanced penalty to be served at hard labor.

|1sAt resentencing, the trial court should take cognizance of La. C. Cr. P. art. 894.1 in sentencing the defendant and should state those factors that form the basis for the defendant’s sentence.

CONCLUSION

For the reasons stated above, we affirm the conviction of the defendant, Clavin Birch, for armed robbery with a firearm, but vacate the sentence imposed and remand for resentencing in accordance with this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . We note a discrepancy in the dates in the affidavit executed by Ms. Flowers. She was shown photo lineups on June 25, 2003 and July 22, 2003. She was not shown a lineup on July 25, 2003, as alleged in her affidavit. Ms. Flowers did not identify the defendant until July 22, 2003. However, she stated that Mr. Allums visited her a couple of days after the robbery, which occurred June 20, 2003. Therefore, the statement in the affidavit that Mr. Allum's visit occurred on July 23, 2003 also appears to be in error.

      . Mario Owens pled guilty with an agreed-sentence cap of 10 years imprisonment, and Wataski Willis was sentenced to an agreed 15-year term.

      . Manson v. Brathwaite, supra, held that reliability is the linchpin in determining the admissibility of identification testimony. The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

      . Interestingly, the defendant did not object to Ms. Flowers’ in-court identification of the defendant and did not argue that the in-court identification was tainted by the allegedly suggestive lineup.

      . La. R.S. 14:64 provides that whoever commits the crime of armed robbery "shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years without benefit of parole, probation, or suspension of sentence.” At the time of the defendant's conviction on January 25, 2006, La. R.S. 14:64.3 provided that the enhanced penalty for armed robbery committed with a firearm was imprisonment for an additional five years without benefit of probation, parole, or suspension of sentence, to be served consecutively to the sentence imposed under La. R.S. 14:64.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Stephen McCOY, Plaintiff-Appellant v. LIBERTY MUTUAL LIFE INSURANCE COMPANY, American States Insurance Company, Brian A. Grill and Donna Grill, and James Gordon, Defendants-Appellees.
    No. 42,118-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      W. Brett Cain, Shreveport, for Appellant.
    Joseph P. Williams, Jr., Natchitoches, for Appellees, James Gordon and American States Insurance Co.
    Caldwell Roberts, Jr., Shreveport, for Appellees, Liberty Mutual Fire Insurance Company, Brian A. Grill and Donna Grill.

      Before STEWART, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|tA heating and air conditioning contractor who fell down a flight of temporary stairs while working at a home construction site filed suit for damages against the framing contractor and owner of the home. The trial court granted summary judgment in favor of both defendants and their insurers finding that the flight of stairs located in a home construction site did not create an actionable hazard. Finding no error in the trial court ruling as a matter of law, we affirm.

Facts

As part of the construction of their new home, Donna and Brian Grill secured the services of Stephen McCoy, a heating and air conditioning system contractor. Brian Grill acted as his own contractor for the home project and he also hired framing contractor, James Gordon, to frame the house. Gordon had assisted Grill with the construction of two prior homes. Because the house was to have two stories, Gordon constructed the initial frame for the staircase to allow access to the second floor pending the finishing of the stairway at the end of construction. The temporary staircase was made of 2x8 tread boards, 40 inches wide, nailed onto three support stringers. The staircase rose from the ground floor slab to an intermediate landing where it turned and led to the second floor. The structure had no handrails. The testimony indicates that the stringers were eventually used in the finished staircase with oak treads and railings.

|2On June 6, 2004, while in the process of installing a heating/cooling system at the construction site, McCoy fell down the flight of temporary stairs onto his lower back breaking his coccyx and right wrist bone. Ten months after the accident he underwent back surgery. Seeking to recover damages for his injuries, McCoy instituted suit against the Grills and their liability insurer, Liberty Mutual Fire Insurance Company (“Liberty Mutual”), and Gordon and his liability insurer, American States Insurance Company (“American”), alleging that the stairs created an unreasonable risk of harm.

The Grills and Liberty Mutual sought summary judgment urging that they were not liable for the actions of Gordon over whom they retained no operational control. In support of the motion, the Grills included the depositions of Brian Grill, Gordon and McCoy and a photograph of the stairway. Gordon and American also sought summary judgment arguing that the stairs did not present an unreasonably dangerous condition based upon McCoy’s knowledge of the lack of handrails. Further, Gordon and American argued that Gordon owed no duty to McCoy who was injured during a normal risk that was associated with his regular job duties.

Five days prior to the scheduled hearing on the motion for summary judgment, McCoy filed his opposition to the summary judgment. He attached a letter from Curtis Chambers, CSP, which expressed his opinion that the stairway violated the Occupational Safety and Health Administration (“OSHA”) standards due to the lack of handrails. The Grills and Liberty Mutual filed a motion to strike the letter on the grounds | sthat it did not constitute admissible summary judgment evidence and was untimely filed.

At the hearing on the motions, the parties reiterated their arguments regarding the validity of the Chambers letter and in support of and opposition to the summary judgment. Ultimately, the court rejected McCoy’s argument and granted summary judgment in favor of the defendants ruling as follows:

Motion for Summary Judgment against both those defendants is granted, sir ... I just — I don’t think there’s any genuine issue of material fact. If all allegations are true and if I consider this report to be true written by Mr. Curtis Chambers, I just don’t think it creates, and I’m going to say for the record, a genuine issue of material fact based on if all the findings are in favor of what he says, it’s a construction site, it’s not a completed building and that’s just not a hazard that I think that the law would allow recovery for.

McCoy appealed the judgment urging that the opinion of Chambers, stating that the lack of handrails on the temporary stairway violated OSHA standards, raised a material issue of fact regarding the unreasonably dangerous condition of the stairway. McCoy also argues that because the defendants did not object to the trial court's consideration of Chambers’ letter or raise the issue by way of answer to the appeal, they are precluded from now doing so on appeal. The defendants restate the arguments they made in support of their motions for summary judgment and Grill’s and Liberty Mutual’s motion to strike Chambers’ letter.

Discussion

Louisiana courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d4 129; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Pursuant to a 1996 amendment to the summary judgment article, the summary judgment procedure is now favored under our law. La. C.C.P. art. 966(A)(2); Costello, supra.

This case presents a negligence claim. La. C.C. art. 2317 states that persons are responsible for damages caused by things in their custody. The Civil Code further states this principle with regard to the owners of buildings in Article 2322, as follows:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the 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....

As a part of the 1996 tort revision, the law of strict liability was altered by the addition of the requirement of knowledge on the part of the owner or custodian of the thing. See Jackson v. Gardiner, 34,643 (La.App.2d Cir.4/4/01), 785 So.2d 981. This revision establishes a negligence standard where the owner’s duty is to exercise reasonable care to recognize Land repair or remove a vice or defect in the building which presents an unreasonable risk of harm to others. Id. at 985.

A defect under Article 2322 cannot be inferred simply because an accident occurred. Carroll v. Holt, 36,615 (La.App.2d Cir.12/11/02), 833 So.2d 1194; see Sanders v. Bain, 31,362 (La.App.2d Cir.12/9/98), 722 So.2d 386; Dufour v. E-Z Serve Convenience Stores, Inc., 98-996 (La.App. 5th Cir.3/30/99), 731 So.2d 915. The question of a defect turns on whether the thing presents an unreasonable risk of harm. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, many factors are to be considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, 1012; Pepper v. THplet, 03-0619 (La.1/21/04), 864 So.2d 181, 190. The method for determining whether a thing under garde poses an unreasonable risk of harm is similar to that of taking into account all of the social, moral, economic and other considerations as would a legislator regulating the matter, and the analysis is virtually identical to the risk-utility balancing test used in both negligence and product liability theories. Pepper v. Triplet, supra.

The owner of a building cannot be held responsible for all injuries resulting from any risk posed by his building, only those caused by an unreasonable risk of harm to others. Entrevia v. Hood, 427 So.2d 1146, 61149 (La.1983). Where a risk of harm is obvious, universally known and easily avoidable, the risk is not unreasonable. Jackson, supra.

Jackson, supra, involved a damaged roof and a fall by an inspector of the roof. As in the present ease, this court determined that the facts regarding the condition of the premises and the accident were undisputed so that summary judgment was appropriate. In determining no unreasonable risk of harm, we noted that the injured plaintiff was not an innocent passerby or guest, but one who had contracted services regarding the defective roof in question. Additionally, the damaged roof with recent storm debris remaining on its surface presented an obvious risk that the plaintiff chose to encounter. We concluded that plaintiff “did not show how the risk posed by the obviously dangerous condition of the building’s roof, resulting from the storm damage, presented an unreasonable risk of harm.” Id. at 986.

In similar cases involving construction site accidents or work on buildings, courts have found no unreasonable risk of harm where the temporary condition of the work in progress made the risk obvious. Barron v. Webb, 29,707 (La.App.2d Cir.8/20/97), 698 So.2d 727; Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5th Cir.1/28/03), 839 So.2d 319; McCart v. Sears, Roebuck and Co., 460 So.2d 1104 (La.App. 2d Cir.1985). The rationales of Barron and Dauzat did not expressly employ the utility/risk analysis to the ongoing temporary conditions of the construction site finding that such risky conditions do not constitute a building defect as |7contemplated by Civil Code Article 2322. “There is no liability for ‘ruin’ during the construction of a building.” Dauzat, supra at 322.

In this case, McCoy was providing his installation services in the home after its initial framing. There was no drywall covering the studs of the walls and the staircase was roughly framed. In his deposition McCoy acknowledged that for purposes of his work, stairways at construction sites were used to get the large air conditioning unit, equipment and duet work to the second floor. Gordon explained in his deposition that the existence of handrails would have impeded the lifting of materials or equipment employed in the construction of the upper floor. McCoy admitted that at approximately 50% of his construction jobs no such handrails existed, that he had navigated these very stairs prior to this incident, and that a co-worker had just warned him to be careful before he fell.

Admittedly, a temporary flight of stairs without handrails poses a risk which would require the exercise of precaution. Nevertheless, the lack of handrails on this temporary flight of stairs at a construction site creates a risk that is obvious to the contractors of the job. Our Supreme Court in its important Entrevia ruling, supra, examined another flight of stairs that collapsed at an abandoned farm house causing injury. Employing the unreasonable risk of harm test for a trespasser’s claim, the court found no suggestion “that the property posed any dangers other than those typically associated with a somewhat rundown old farm house.” Id. at 1150 (emphasis added). The risk presented to McCoy in this instance is 1 ¿‘typically associated” with the job sites he routinely encountered and was not a defect in the premises posing an unreasonable risk of harm.

Also, consideration of the economic interests of this construction site setting that brought McCoy to the job as an independent contractor and caused Gordon and the Grills to avoid expense of cumbersome precautions leads to the conclusion that an unreasonable risk of harm was not present. The somewhat risky state of the staircase under construction was necessary and served a useful purpose for the construction efforts. There is no fault attributable to the Grills, as owners of the building, under the circumstances.

Likewise, under a duty/risk analysis, we find no negligence by Gordon in the construction of the staircase. The stairs were not alleged to be unstable. Gordon was a separate independent contractor with no contractual relations with McCoy. While McCoy asserts a duty by Gordon to construct the staircase with handrails to guard against falls by other workers, we find no such duty. Having held under the risk/utility analysis that no unreasonable risk of harm existed on the owners’ property, we will not formulate a rule of conduct or duty applicable to the framing contractor concerning the very same risk.

Finally, the issue regarding alleged OSHA violations was inappropriately presented in non-affidavit form by plaintiffs expert and | ^inadequately briefed. La. C.C.P. art. 967 requires that evidence in opposition to the summary judgment motion be presented by affidavit. Legal issues not briefed are considered abandoned. U.R.C.A, Rule 2-12.4. Other than citing certain provisions of the Code of Federal Regulations, plaintiff makes no review of the federal law demonstrating the application of OSHA regulations in this setting. The main thrust of the issue was not a matter for plaintiffs lay expert but for legal argument and explanation regarding OSHA’s application to an independent contractor’s accident in a non-employment setting.

Conclusion

The trial court’s findings of no material fact disputes and the absence of an unreasonable risk of harm were correct and support its grant of summary judgment in favor of defendants. Costs of appeal are assessed to appellant.

AFFIRMED.

      . McCoy’s business name was McCoy's AC and Heating d/b/a Stephen C. McCoy.

      . Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/ risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corp., 06-477 (La.12/18/06), 944 So.2d 564; Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 633.


author: PEATROSS, J.

text:
    Kathy S. BROWN, Plaintiff-Appellant v. GUIDE CORPORATION, Defendant-Appellant.
    No. 42,141-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Hudson, Potts & Bernstein L.L.P., by Brian P. Bowes, Monroe, Travis Oliver, IV, for Appellant, Guide Corporation.
    Gary D. Nunn, for Appellant, Kathy S. Brown.
    Before WILLIAMS, PEATROSS & MOORE, JJ.
   PEATROSS, J.

| ,In this workers’ compensation case, claimant, Kathy Brown, was awarded medical benefits and mileage, but denied supplemental earnings benefits (“SEBs”), penalties and attorney fees. The employer, Guide Corporation (“Guide”), appeals and Ms. Brown answered the appeal. For the reasons stated herein, we affirm.

FACTS

Ms. Brown went to work for Guide, a headlight assembly plant in Monroe, on September 27, 2002, as an assembly line worker. According to Guide’s documentation from its in-house medical clinic, Ms. Brown complained of bilateral hand, wrist, arm, shoulder and neck pain beginning on October 22, 2002, less than one month of her beginning date of employment. There were at least seven complaints made by her during the following year. According to Ms. Brown, the pain worsened over the course of the year. She was seen and evaluated by Guide’s doctor, David Yar-brough, on December 18, 2003, and he ordered a nerve conduction test, which revealed bilateral carpal tunnel syndrome. Dr. Yarbrough testified that hand and wrist pain is a common complaint of employees at Guide. It was his belief that Ms. Brown needed surgery and he referred her to orthopaedics.

On March 23, 2004, Ms. Brown then sought treatment from Dr. Marilyn Ritter, an orthopaedic hand surgeon of her choosing. Dr. Ritter confirmed bilateral carpal tunnel syndrome and recommended surgery. The surgery was apparently scheduled, but subsequently delayed because of Ms. Brown’s sister’s serious illness. According to Ms. Brown, the surgery |,,was delayed a second time because she was advised to include all of her related ailments, in particular, her “tennis elbow,” in the treatment plan. Guide’s workers’ compensation claims handler, Zurich Services Corp. (“Zurich”), subsequently cancelled the surgery and denied the claim on the basis that Ms. Brown’s condition was not causally related to her work at Guide. Specifically, Guide asserts that, because her symptoms manifested so soon after she commenced employment, Ms. Brown is unable to prove causation.

As previously stated, Guide is a headlight assembly plant. The record indicates that there are various classifications of jobs at the plant, including some assembly line work, quality control work and inspection-type work. Some of the job tasks are classified as ergonomically stressing tasks and are on a rotation schedule so that employees perform those tasks for a maximum of two hours at a time. It is not clear from the record which tasks are so classified or exactly which tasks and how long any task was performed by Ms. Brown. Ms. Brown testified that she was performing repetitive tasks and that she was not rotated among the work stations as she should have been to prevent injury to the hands and wrists. She testified that her pain began when she was assigned to the Bat room, where she was required to lift heavy racks. There is no clear and thorough description of exactly what tasks she performed while working at Guide; however, there is testimony that she was assigned several different positions during her tenure.

Despite her complaints, Ms. Brown continued to work until she was laid off in January 2004. She collected unemployment benefits for that|syear; and, in January 2005, she accepted a management position at a Sally’s Beauty Supply shop. Ms. Brown testified that she was contacted by Guide and offered various weekend and temporary positions and was offered a “conversion” to permanent employment in another assembly line position. According to Ms. Brown, she declined the offer for rehire because she could not perform the tasks required of the position offered. Dr. Ritter testified that Ms. Brown could not do assembly line work until after surgery and that she may have some restrictions even then.

The record indicates that Ms. Brown did clerical/typing work prior to working for Guide, but there is no evidence of complaints of hand and/or wrist pain before she began working at Guide. A former employer and friend testified that Ms. Brown had worked for him for a four- or five-year period prior to working for Guide. He could not recall any complaints of hand or wrist pain during that time. A former co-worker of Ms. Brown’s testified that the two worked together briefly in 2001 hanging wallpaper and painting. She could not recall any complaints by Ms. Brown regarding hand or wrist pain.

In addition, a former co-worker of Ms. Brown’s at Guide testified on her behalf. Like Ms. Brown, she described the repetitive movement required by various positions at the plant and stated that she also suffers from carpal tunnel syndrome.

Drs. Yarbrough and Ritter were questioned extensively regarding the issue of causation. Discussed in more detail infra, the doctors agreed that it is difficult to pinpoint the exact onset of carpal tunnel disease. Both |4doctors also testified that there are non-occupational factors that cause carpal tunnel syndrome, including gender, people with history of diabetes or rheumatoid arthritis and previous bone fractures or spurring. Dr. Yarbrough also stated that chemical imbalances, hormonal imbalances and pre-existing carpal tunnel areas can cause the onset of carpal tunnel symptoms. Specifically, while he acknowledged that carpal tunnel disease is prevalent at Guide given the repetitive nature of the work performed, Dr. Yarbrough was reluctant to definitively tie Ms. Brown’s carpal tunnel to her work at Guide due to the short time between her beginning employment and the time when her symptoms appeared. On the other hand, Dr. Ritter opined that it was more likely that, since Ms. Brown first began experiencing symptoms after beginning work at Guide, the carpal tunnel was a result of her job duties there.

The trial court correctly found the issue to be one of causation. The court credited Dr. Ritter’s testimony on that issue, emphasizing Dr. Ritter’s specialization in hand surgery and ultimately finding that Ms. Brown’s carpal tunnel developed as a result of her work at Guide. The court awarded Ms. Brown medicals and mileage, but denied SEBs, penalties and attorney fees. Guide appeals the award and Ms. Brown has answered the appeal challenging the denial of SEBs, penalties and attorney fees.

DISCUSSION

Entitlement to Medical beneñts, mileage and/or SEBs

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. 5Lewis v. Chateau D’Arbonne Nurse Care Center, 38,394 (La.App.2d Cir.4/7/04), 870 So.2d 515. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Newsome v. Atmos Energy, 41,413 (La.App.2d Cir.8/23/06), 938 So.2d 1098; Culotta v. A.L. & W. Moore Trucking Company, 35,344 (La.App.2d Cir.3/5/03), 839 So.2d 1063, writ denied, 03-0998 (La.5/30/03), 845 So.2d 1052. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989).

La. R.S. 23:1031.1(A) entitles every employee who is disabled because of the contraction of an occupational disease to receive compensation benefits, provided that the employee’s illness arises out of and in the course of his employment. An occupational disease or illness is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease. La. R.S. 23:1031.1(B). This statute specifically includes “work-related carpal tunnel syndrome” in the definition of occupational disease.

La. R.S. 23:1031.1 provides, in part: In Johnson v. Johnson Controls, Inc., 38,495 (La.App.2d Cir.5/12/04), 873 So.2d 923, this court explained application of this presumption:

D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ | ¡¡limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence.
In other words, where an employee worked for an employer for less than twelve months, there is a rebuttable statutory presumption that her employment did not cause her occupational disease. However, that presumption can be overcome if she proves by a prepon-dei’ance of the evidence that the disease was contracted during her employment, specifically proving that there is a disability which is related to an employment-related disease, the disease was contracted during the course of employment, and the disease is a result of the work performed. Ball v. Wendy’s Intern., Inc., 36,922 (La.App.2d Cir.3/5/03), 839 So.2d 1208, writ denied, 03-0978 (La.5/30/03), 845 So.2d 1056.

Here, while Ms. Brown was not diagnosed with carpal tunnel syndrome until after twelve months from her employment with Guide, the record clearly shows that Ms. Brown’s symptoms manifested only weeks after her initial employment; and, therefore, Guide is entitled to the statutory presumption of lack of causation. Johnson, supra, citing Jackson v. Conagra Poultry Co., 02-492 (La.App. 3d Cir.3/5/03), 839 So.2d 1079, writ denied, 03-0986 (La.5/30/03), 845 So.2d 1054. It was, therefore, incumbent upon Ms. Brown to prove by a preponderance of the evidence that her carpal tunnel syndrome was caused by her work at Guide.

First, we note that there is no dispute .that Ms. Brown suffers from bilateral carpal tunnel syndrome. Likewise, there seems to be no dispute that|7carpal tunnel syndrome is prevalent among the workers at Guide due to the repetitive nature of the tasks involved. Recall that a co-worker of Ms. Brown’s who worked at the same stations as Ms. Brown testified and also suffers from carpal tunnel syndrome. Next, while it is true that Ms. Brown’s sympto-mology began only weeks after her employment with Guide, there is no evidence in the record that Ms. Brown ever experienced or complained of hand and/or wrist pain or numbness prior to commencing work there. In fact, a former employer, coworker and Ms. Brown herself testified that she never had such complaints before her employment with Guide.

Finally, while both doctors agreed that the precise onset of carpal tunnel syndrome is difficult to determine, they differed in their testimony regarding causation. Dr. Yarbrough was reluctant to specifically relate Ms. Brown’s condition to her work at Guide due to the short period of time between her employment and the onset of symptoms. To the contrary, based on Ms. Brown’s lack of prior history of complaints and the repetitive nature of the work performed at Guide, Dr. Ritter, a specialist in hand surgery, opined that it was more probable than not that Ms. Brown’s condition developed as a result of her work at Guide.

Guide argues that Dr. Ritter’s opinion should be discounted because Ms. Brown did not provide Dr. Ritter with a precise job description of the actions she was required to perform at her job. In cases such as this, however, where there is sufficient knowledge that repetitive work is being performed, we disagree. We noted in Johnson, supra:

|SA worker is not required to relate her history to a doctor with mathematical precision and the imprecise histories given are insufficient to show manifest error when the overall tenor of [a claimant’s] complaints of pain as portrayed in her medical records related the onset of symptoms to her work.

The facts of Johnson, supra, were very similar to the case sub judice. In Johnson, as here, there was no evidence of prior complaints and a rapid onset of carpal tunnel symptoms upon the claimant’s commencing work. We found that, where there was “no medical evidence showing-complaints of similar pain prior to [the claimant’s] work for [the employer],” but where there did exist “medical evidence connecting her condition to her employment with Johnson Controls,” there was no manifest error on the part of the WCJ in finding causation. We reach the same conclusion here. The WJC chose to credit the testimony of the expert in orthopedic hand surgery and accept her testimony that it was more probable than not that Ms. Brown’s carpal tunnel was caused by her work at Guide. We find no manifest error in that conclusion; thus, we find no error in the award of medical benefits and mileage reimbursement.

We further find no manifest error in the WCJ’s denial of SEBs. The record clearly indicates that Ms. Brown was offered and declined a position with Guide and was at no time found to be disabled. There is no evidence in the record of any medical restrictions or determinations of disability by any physician. Ms. Brown received unemployment benefits for the maximum allowable period and subsequently secured alternative employment. We will not disturb the WCJ’s findings on SEBs.

_J¡¡Penalties and Attorney Fees

Ms. Brown argues that she is entitled to penalties and attorney fees as provided by La. R.S. 23:1201(F) based on Zurich’s cancellation of her surgery and denial of the claim. The determination of whether an employer should be cast with penalties and attorney fees is a question of fact for the WCJ, whose findings shall not be disturbed on appeal absent manifest error. Johnson, supra, citing Taylor v. Garrett, 28,729 (La.App.2d Cir.10/30/96), 682 So.2d 831. To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant. Id. To meet this standard, the employer must have some “valid reason or evidence upon which to base his denial of benefits.” Feild v. General 10Motors Corp., 36,339 (La.App.2d Cir.9/18/02), 828 So.2d 150. The court must determine whether the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Feild, supra. Penalties are stncti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay.

We agree with the WCJ that the “short period between claimant’s commencement of employment and her symptoms provides defendant with a reasonable basis to deny her claim.” Guide’s denial was not frivolous and we find no evidence of a lack of good faith and just cause in its actions.

CONCLUSION

For the foregoing reasons, the judgment of the Workers’ Compensation Judge awarding medical benefits and mileage, but denying supplemental earnings benefits, penalties and attorney fees is affirmed. Costs are assessed equally to Kathy S. Brown and Guide Corporation.

AFFIRMED.

      . Acts 2001, No. 1189, § 1, at the end of subsec. D, substituted "a preponderance" for "an overwhelming preponderance"; the amendment applies retroactively. See Johnson v. Johnson Controls, Inc., 38,495 (La.App.2d Cir.5/12/04), 873 So.2d 923, citing Davies v. Johnson Controls, Inc., 36,498 (La.App.2d Cir. 10/23/02), 830 So.2d 462, writ denied, 02-2855 (La. 1/31/03), 836 So.2d 70.

      . That subsection provides as follows:
      F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
      (1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
      (2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.


author: STEWART, J.

text:
    Frederick BATES and Patricia A. Bates, Plaintiffs-Appellants v. William S. PRATER, et al., Defendants-Appellees.
    No. 42,149-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Culpepper & Carroll, by Bobby L. Cul-pepper, Jonesboro, for Appellants.
    John C. Milkovich, Shreveport, for Ap-pellee, James E. Brown.
    Mayer, Smith & Roberts, by Walter 0. Hunter, Jr., Shreveport, for Appellees, Zurich American Ins. Co., William S. Prater and R.G. Darby Co.
    Davenport, Files & Kelly, by W. David Hammett, Monroe, for Appellees, Jerry N. Amburgey, Home and State County Mutual Ins.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

| plaintiffs, Frederick and Patricia Bates, seek reversal of the summary judgment granted in favor of defendants, Jerry N. Amburgey and his insurer, Home State County Mutual Insurance Company (“Home State”). The judgment dismissed the Bates’s claims for damages resulting from a rear-end collision. For the following reasons, we affirm the trial court’s judgment.

FACTS

On August 8, 2004, at about 3:00 p.m. on a clear day, a 2002 GMC pickup truck driven by Patricia Bates collided into the rear of a car trailer being towed by Jerry Amburgey westbound along Interstate 20 (“1-20”). Amburgey was driving a 1995 Chevrolet motor home with the car trailer attached behind. Amburgey had come to a stop on the interstate because of traffic congestion resulting from a prior accident. A tractor/trailer owned by R.G. Darby Co., and driven by William S. Prater had collided with a motorcycle owned and operated by James E. Brown.

Bates and her husband filed an action for damages naming Amburgey and Home State as defendants, along with James E. Brown, William S. Prater, R.G. Darby Co., and its insurer, Zurich American Insurance Company.

Amburgey and Home State filed a motion for summary judgment alleging that no genuine issue of material fact existed and that Bates would be unable to present any evidence to rebut the presumption of negligence imposed on a following motorist by La. R.S. 32:81. In support of the motion, defendants attached the deposition testimony of Patricia Bates and [¡.that of Johnny Scott Brown, the Louisiana State Trooper who investigated the accident. The accident report prepared by Brown was attached as an exhibit to his deposition.

Bates testified in her deposition that the accident occurred on a clear, sunny day as she was returning to her home in Choud-rant from her daughter’s home in Monroe. She was traveling in the left-hand westbound lane of 1-20 at about 70 miles per hour when, according to her account of the accident, the following happened:

I was coming down a hill. This RV looked like he was going, and I can’t state how far ahead he was of me. And it looked like he was steadily going, because he had no lights on. And then when I realized that he was stopped, I put on my brakes, but then it was too late, so I tried to dodge his car, and I hit the left part at the taillight.

Despite repeated questioning, Bates could not give any estimation of how far in front of her the motor home was either when she first saw it or when she first applied her brakes. She also stated that the motor home blocked her view and that she did not recall seeing any other vehicle stopped on the road. She could not say where other vehicles were in relation to her either before or at the time of the accident. After impact, her vehicle rolled over several times before coming to rest on the left side of the roadway.

Trooper Brown’s deposition indicates that he had very little independent recollection of his investigation, but he was able to refresh his memory from a copy of the accident report prepared by him. According to the report and his testimony, the accident occurred at about “Milepost 104.9” of 1-20 on a straight-level part of the roadway. He indicated there |3was a distance of about three hundred to four hundred yards from the site of the accident back to the crest of the hill. Brown did not find any skid marks, but he did find twelve feet of “yaw marks” on the road. He described the “yaw marks” as evidencing a “sharp turning motion with the wheel” that “started on the left edge of the westbound lane and traveled onto the left shoulder and then back into the left lane.” Brown observed nothing about the area that would have obscured Bates’s vision, nor did he observe any defects in the road or the vehicles which would have contributed to causing the accident. Brown observed that Amburgey’s right brake light on both the motor home and trailer displayed a steady red light and the left brake light of both was flashing. He explained that he likely cheeked the lights as a routine part of his investigation of the rear-end collision. Brown concluded that Bates had been inattentive and had failed to recognize that Amburgey’s vehicle was stopped for the traffic congestion. He issued her a citation for careless operation of a motor vehicle.

In opposition to the motion for summary judgment, Bates filed her own affidavit in which she attested that she came upon a vehicle stopped in the inside lane of 1-20 with neither its brake nor caution lights activated.

The trial court granted the motion for summary judgment and dismissed the plaintiffs’ claims against Amburgey and Home State. This appeal followed.

DISCUSSION

Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any |4affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Patton v. Strogen, 39,829 (La.App.2d Cir.8/17/05), 908 So.2d 1282, writ denied, 2005-2397 (La.3/17/06), 925 So.2d 548. On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual evidence 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, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C)(2).

Summary judgments are reviewed on appeal de novo. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate, whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Magnon, supra. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), 923 So.2d 627.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of |sLouisiana Civil Code article 2315. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care; (2) the defendant failed to conform his conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. Duty is a question of law. Beck v. Schrum, 41,647 (La.App.2d Cir.11/01/06), 942 So.2d 669. The inquiry is whether a plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his or her claim. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

In moving for summary judgment, the defendants focused their arguments on Bates’ duty as a following motorist and the evidence suggesting that she breached that duty by failing to maintain a proper lookout. In opposing the motion, Bates asserted the Amburgey was in violation of La. R.S. 32:141(A) for stopping on the roadway.

The duty of a following motorist is governed by La. R.S. 32:81(A), which provides:

A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

The following motorist in a rear-end collision is presumed to be at fault. Taylor v. Voigtlander, 36,670 (La.App.2d Cir.12/11/02), 833 So.2d 1204; Wheelis v. CGU Ins., 35,230 (La.App.2d Cir.12/7/01), 803 So.2d 365. To | ¿rebut the presumption and avoid liability, the following motorist must prove that he had his vehicle under control, that he closely observed the lead vehicle, and that he followed it at a safe distance under the circumstances. Id. Alternatively, the following motorist must show that the lead driver negligently created a hazard which could not reasonably be avoided. Id.

With regard to vehicles stopped on a roadway, La. R.S. 32:141 provides in relevant part:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.

In Royer v. Travelers Indemnity Co., 251 So.2d 116 (La.App. 3rd Cir.1971), the court found that La. R.S. 32:141 did not require a driver who first came upon the scene of an accident that obstructed the highway to remove her vehicle from the road. Mrs. Royer was the first at the accident scene and had been there only two minutes when her vehicle was hit from behind. The accident occurred on a dark, misty evening, and Mrs. Royer tried to alert the driver approaching from the rear by pumping her brake lights. The investigating officer examined Mrs. Royer’s vehicle over an hour after the accident and found her lights to be operative. The driver who hit her claimed he saw no lights, but the court found that he failed to keep a proper lookout. Though the facts of Roy-er, supra, and this matter somewhat differ, |7the same conclusion applies here where Amburgey was stopped for traffic backed-up because of a prior accident.

We find La. R.S. 31:141 to be inapplicable to this matter. We have found no case wherein this provision was applied to a vehicle stopped on an interstate because of congested traffic caused by a prior accident. In such instances, it would be impracticable for the lead motorist to do anything other than come to a stop behind the traffic ahead of him.

We do not find that Bates’ claim that she did not see any lights on the Ambur-gey vehicle creates a genuine issue of material fact for trial. Trooper Brown found the lights on the Amburgey vehicle to be operative post-accident. Moreover, Bates did not suddenly come upon a stopped vehicle as claimed in her affidavit. Rather, the exhibits in support of the motion for summary judgment establish that traffic was congested and coming to a stop in both westbound lanes of 1-20 due to a prior accident. Bates testified in her deposition that she was looking ahead at the motor home as she came down a hill but failed to reahze that it was stopping. She could not recall any vehicles around her and apparently failed to notice traffic slowing to a stop in the adjacent lane as well. Her testimony establishes that she failed to keep a proper lookout, failed to recognize the slowing traffic, and obviously failed to follow at a safe distance under the circumstances. Closing in on the vehicle ahead of her should have provided warning that the traffic was slowing down before Bates had to hit the brakes at the last moment to try to avoid a collision.

IsBates has failed to come forward with any evidence to show that she will be able to overcome the presumption of negligence on the following motorist. She has also failed to come forward with any evidence to show that she will be able to establish any negligence on the part of Amburgey. Summary judgment was properly granted.

CONCLUSION

For the reasons set forth in this opinion, we affirm the trial court’s judgment. Costs are assessed to the appellant, Bates.

AFFIRMED.


author: LOLLEY, J.

text:
    Michael O. CRAIG, Plaintiff-Appellee, v. Tobie Young CRAIG, Defendant-Appellant.
    No. 42,363-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.
    Rehearing Denied May 31, 2007.

      Susan D. Scott, for Appellant.
    James D. Hall, Bossier City, for Appel-lee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

__[iTobie Y. Craig (“Tobie”) appeals a judgment from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, which modified a prior stipulated judgment and joint custody plan by designating Michael 0. Craig (“Mike”) as the domiciliary parent of the minor children, altering physical custody periods, and terminating child support. For the following reasons, we reverse.

FACTS

Mike and Tobie were divorced by judgment dated October 7, 1999, after nearly nine years of marriage. By consent judgment, they were granted shared physical custody of their two minor children, a daughter, born September 27, 1996, and a son, born January 22, 1998, alternating seven day period (“7/7”), exchanging the children every Friday.

In August 2000, Mike married Dorothy, his current wife. In 2001, Tobie filed for child support. In response, Mike filed to change the shared custody arrangement. The two dismissed the suit with prejudice and agreed that Tobie would receive child support in the amount of $500.00 per month. Tobie and Mike submitted, and the trial court approved, their Joint Custody Implementation Plan which encompassed the 7/7 custody schedule and a “eo-domiciliary” designation.

In March 2004, Tobie entered into a covenant marriage with Jerry Markham. Tobie and Jerry moved into Jerry’s house. On July 30, 2004, Tobie and Jerry separated and Tobie filed suit for legal separation on September 7, 2004. Tobie also filed a petition for a protective order and was granted a temporary restraining order, alleging among other things that|2Jerry had verbally harassed and physically abused her. Jerry and Tobie eventually entered into a consent judgment, and the temporary restraining order was dismissed voluntarily by Tobie. At this time, Tobie moved in with her parents. Tobie and Jerry began seeing each other again in late 2004. On December 30, 2004, Mike filed the instant suit to terminate the 7/7 custody schedule, alleging that Tobie’s intention to reconcile with Jerry would expose the children to harm, wherein Mike asked to be named the domiciliary parent.

Tobie moved into her own apartment in January 2005. In February 2005, a judgment was entered prohibiting the parties and their spouses from discussing the case in front of the children. In June 2005, Tobie and Jerry resumed living together. In October 2005, Tobie and Jerry separated for the last time. Tobie moved back into the original house she lived in prior to marrying Jerry.

At the conclusion of the trial, the trial court modified the existing custody decree and designated Mike as the domiciliary parent and awarded Tobie every other week Wednesday to Sunday, every spring break, and one-half the remaining holidays. The trial court further awarded To-bie summer visitation of two weeks in June, two weeks in July, and one week in August. Subsequently, the trial court terminated Mike’s obligation to pay child support and prohibited Tobie from having the children in the presence of her estranged husband, Jerry. Tobie now appeals.

|SLAW AND DISCUSSION

Child Custody

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 1997-0541 (La.02/06/98), 708 So.2d 731. In cases such as the present, where the original custody decree is a stipulated judgment, the party seeking modification must prove that: (1) there has been a material change of circumstances since the original custody decree was entered; and, (2) the proposed modification is in the best interest of the child. Id. at 738. Louisiana C.C. art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interests of the child. The consideration of all relevant factors under La. C.C. art. 134 should be followed in actions to change custody, as well as in those to fix custody initially. La. C.C. art. 134, Revision Comment (d). A trial court’s determination of child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Warlick v. Warlick, 27,389 (La.App.2d Cir.09/29/95), 661 So.2d 706.

Mike’s burden was initially to show that a material change in circumstances had occurred that warranted a change in the custody arrangement. Here, his basis for filing a change of custody was due, in large part, to the reconciliation of Tobie and Jerry. At the end of trial, the trial court stated that it was “a fairly close case and I think that both of these parents are good parents and I’m convinced that both of them love these | ¿children and have the best interest of the children at heart.” However, the trial court relied heavily on Tobie’s “bad decision [to go] back to Mr. Markham” and ultimately modified the 7/7 plan designating Mike as the domiciliary parent.

The record does reflect that Tobie made a futile attempt to save her marriage when she reunited with Jerry. However, shortly after her reconciliation she ended the relationship and assured the family there would be no future contact with him. The evidence at trial depicted a family that was well adjusted to the 7/7 plan. In addition, despite some disagreement, Tobie and Mike were able to cooperate and make decisions together including determining the school district best for the children, which after-school activities to participate in, and how to handle their son’s recent ADHD diagnosis.

The court-appointed psychologist, Dr. Bruce McCormick, reported in his evalúation that the children are good students, and that both children “deeply love both parents and are comfortable with both.” Although both parents have a different parenting style, Dr. McCormick believed that they have cooperated well. Most notably, Dr. McCormick opined that “... a change in domicile to the point that they’re spending more time in one household ... that is going to be even more distressing to them than the risk that they’re likely to run by difference in regimentation or inconsistency.” We further point out that the family therapist hired by Mike, Sandi Davis, qualified as an expert and testified at trial that the children seem “well-adjusted” spending a week with Tobie and a week with Mike. She also felt |Rthat all parties had made them fair share of mistakes when dealing with the children.

After a thorough review of the record, we find the trial court was clearly wrong in modifying the custody arrangement. It is evident that the lines of communication between Tobie and Mike were strained in light of the reconciliation. However, the situation, which appears to be resolved, did not rise to the level of a material change that warrants a change in custody. In fact, the trial court, without identifying the material change in circumstance, modified the agreement with no indication of what purpose the change in time actually served, stating that it “was a slight change.” The modification seems to impute the trial court’s views on shared custody and punish Tobie for her “bad decision” instead of determining what is in the best interest for the children. It is undisputed that both parents have managed with the 7/7 arrangement for more than eight years, love their children, and are able to provide care and guidance. All who testified agreed that the parents provide a good home and arrange their schedules according to the children’s needs. We find the trial court’s concerns about To-bie’s priorities when it comes to her children are unsupported. Although the trial court disagreed with the 7/7 plan, the custody arrangement has worked for this family for a number of years and we find no reason to modify it.

Designation of a Domiciliary Parent and Child Support

The Joint Custody Implementation Plan that Mike and Tobie had in place prior to the instant suit named both parents as co-domiciliary. | ^Although La. R.S. 9:335(B)(1) states, “[i]n a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown,” we need only to address this requirement if we find that a change of circumstances occurred and the best interest of the children requires a different custody agreement. See Lincecum v. Lincecum, 2001-1522 (La.App. 3 Cir. 03/06/02), 812 So.2d 795; Brewer v. Brewer, 39,647 (La.App.2d Cir.03/02/05), 895 So.2d 745. As mentioned above, we find that there has not been a material change in circumstances to validate a change in the original custody decree which, by voluntary agreement, established the custody, the co-domiciliary status and child support altogether. While sharing domiciliary status, Tobie and Mike have been able to work out the truly important decisions regarding their children (e.g., health, education). To name a domiciliary parent would defeat the purpose of the original custody decree which reflected a compromise that allowed Tobie and Mike to maintain the 7/7 arrangement and the child support agreement.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. Costs are assessed against Michael Craig.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, PEATROSS, and LOLLEY, JJ.

Rehearing denied.