text:
    David H. FOSHEE and Lori S. Foshee, Plaintiff-Appellants v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY and Steven F. Bates, Defendant-Appellees.
    No. 41,842-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.
    Rehearing Denied Feb. 22, 2007.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, for Appellants.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., by John Hoychick, Jr., Rayville, for Appellees.
    Before BROWN, MOORE and SEXTON (Pro Tempore), JJ.
   MOORE, J.

1 Jfhe sole question raised by this appeal is whether a summary judgment in favor of the defendants was prudently granted pursuant to La. R.S. 9:2796, which statutorily precludes a cause of action for damages caused by certain entities and their members, including any non-profit organization and its members, when the damage occurred “during or in conjunction with or related to” a parade sponsored by such organization. For the reasons stated below, we affirm.

Facts

A vehicular/pedestrian accident occurred on December 6, 2002 in Winnfield, Louisiana, prior to the Winnfield Christmas parade. The defendant, Stephen F. Bates, was using his 1997 Ford pick-up truck to pull a Winnfield Livestock Club/4-H Club float that was built on a gooseneck trailer. David Foshee, a police officer for the Winnfield Police Department, was directing traffic at the intersection of East Maple Street and King Street. The floats were being lined up in numerical order in the west-bound lane of Maple Street in preparation for the parade, so Officer Foshee parked his police vehicle at the intersection blocking entry into the westbound lane of Maple to block other traffic entering that lane. The east-bound lane was kept open to drive the floats to their proper position in the line-up in the westbound lane. After stopping at the intersection where Ofcr. Foshee was directing traffic, Bates proceeded to go around the parked police vehicle into the east-bound lane on Maple Street. At this point, there is some factual dispute over whether Ofcr. Foshee told Bates to proceed after an oncoming pick-up truck passed or told him he could go after the traffic was | ^cleared. While making the maneuver into the eastbound lane of Maple Street, a crank handle from the gooseneck trailer struck Ofcr. Foshee in the back and knocked him to the pavement. Foshee alleges he suffered injuries as a result of the accident and filed this suit to recover damages.

The Christmas parade was sponsored by the Winnfield Kiwanis Club, a state-chartered, non-profit organization. Bates is a member of the Winnfield Kiwanis Club and was assigned to work the parade later that day as a member of the Kiwanis Club. At the time of the accident, he was assisting the 4-H Livestock Club, also a nonprofit organization, by parking their float in the pre-parade line-up. Bates was not paid to drive or park the float by either the 4-H Club or the Kiwanis Club.

The plaintiff filed suit against Bates and his insurer, Farm Bureau. He did not sue the Kiwanis Club or its insurer. Defendants moved for summary judgment on grounds that there were no genuine issues of fact, arguing that Ofcr. Foshee was solely at fault in causing the accident, and, secondly, La. R.S. 9:2796 extends immunity from suit to them. After a hearing on the motion, the trial court ruled from the bench and stated that it was granting the summary judgment in favor of defendants on the basis of the immunity statute.

Discussion

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 3(La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and 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). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2 Cir.1/25/06), 920 So.2d 355.

The burden of proof is on the movant. If, as in this case, the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Williams v. Shoney’s, Inc., 99-0607 (La.App. 1 Cir. 3/31/00), 764 So.2d 1021.

Plaintiff contends that the trial court erred in granting the defendant’s motion of summary judgment because there is a material issue of fact regarding negligence in this ease that would preclude summary judgment, and that the court incorrectly concluded that the immunity afforded certain entities by La. R.S. 9:2796 applied to the defendants in this case. First, he Lcontends that there is a genuine dispute of material fact regarding what he (Ofcr.Foshee) told Mr. Bates in regard to proceeding west onto Maple Street which would preclude summary judgment. Officer Foshee stated in his deposition that he told Mr. Bates that he could go after he cleared the east-bound traffic, but he admitted that he could have told Mr. Bates that he could go as soon as the pick-up passed.

The remainder of plaintiffs arguments relate to the applicability of La. R.S. 9:2796. He argues that the intent of the legislature in passing La. R.S. 9:2796 was to extend immunity to parades associated with Mardi Gras and Holiday in Dixie festivals only, and not parades such as the Winnfield Christmas parade. Even if the statute was intended to extend to other parades, plaintiff contends that the nonprofit sponsoring organization must be a sponsor of a fair or festival that presents a parade. Plaintiff submits that the statute does not protect the defendant from suit because his action in parking the float for the 4-H Club had nothing to do with his membership in the Kiwanis Club and that the statute does not provide immunity for someone driving a motor vehicle.

After reviewing the statute and the record in this case, we conclude that plaintiffs arguments are without merit. We first consider the scope and applicability of La. R.S. 9:2796(A), which provides:

A. Notwithstanding any other law to the contrary, no person shall have a cause of action against any krewe or organization, any group traditionally referred to as Courir de Mardi Gras, or any member thereof, which presents Mardi Gras parades, including traditional rural Mardi Gras parades, processions, or runs in which participants ride on horseback, march, walk, or ride on horse-drawn or motordrawn floats, or wheeled beds, or other parades, whether held on a public or |r,private street or waterway, or in a building or other structure, or any combination thereof, connected with pre-Lenten festivities or the Holiday in Dixie Parade, or against any nonprofit organization chartered under the laws of this state, or any member thereof, which sponsors fairs or festivals that present parades or courirs, for any loss or damage caused by any member thereof, during or in conjunction with or related to the parades or courirs presented by such krewe or organization, unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization, or any member thereof as the case may be, or unless said member was operating a motor vehicle within the parade or festival and was a compensated employee of the krewe, organization, or courir. The provisions of this Section shall not be intended to limit the liability of a compensated employee of such krewe or organization for his individual acts of negligence.

(Emphasis added).

The rules of statutory interpretation provide that a law must be applied as written if it is clear and unambiguous and its application does not lead to- absurd consequences; with regard to such laws, no further interpretation may be made in search of the intent of the legislature.

La. C.C. art. 9. Statutes, such as La. R.S. 9:2796, that grant immunities or advantages to special classes in derogation of the general rights available to tort victims, must be strictly construed against the party claiming the immunity or advantage. Weber v. State, 93-0062 (La.4/11/94), 635 So.2d 188; Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210; Galloway v. Baton Rouge General Hospital, 602 So.2d 1003 (La.1992). Medine v. Geico General Ins. Co., 1997-2393 (La.App. 4 Cir. 11/17/99), 748 So.2d 532, writ denied, 1999-3556 (La.2/11/00) 754 So.2d 945.

Plaintiff first argues that the immunity granted by La. R.S. 9:2796 applies only to Mardi Gras and Holiday in Dixie festivals and parades. | Although most reported cases involve Mardi Gras parades, the statute unambiguously states that in addition to these events, the immunity is granted to “any nonprofit organization chartered under the laws of this state, or any member thereof, which sponsors fairs or festivals that present parades or courirs.” In Trondsen v. Irish-Italian Parade Committee, 95-CA-28 (La.App. 5 Cir. 5/10/95), 656 So.2d 694, writ denied, 95-C-1467 (La.9/22/95) 660 So.2d 476, the Louisiana Fifth Gircuit interpreted the statutory language in question and held that the immunity provision of La. R.S. 9:2796 applied to the Louisiana Irish-Italian Association, Inc., a non-profit organization that sponsored the Louisiana Irish-Italian parade in Jefferson Parish, Louisiana. During the parade a spectator was hit in the head by a cabbage thrown from a parade float. Although the statute has been amended several times since Trondsen, generally to expand the scope of the statute, the Trondsen court was interpreting the same statutory language at issue in this case. Accordingly, we conclude that the statute applies to the Winnfield Christmas Parade in this instance.

Next, plaintiff argues that the statute does not apply in this case because, although the Kiwanis Club of Winnfield sponsored the parade, it did not sponsor a fair or festival that put on the parade. Indeed, a close reading of the statutory language implies that the immunity is granted only to sponsors of fairs or festivals that present parades. We note that the statute does not require that members of krewes and members of Mardi Gras processions sponsor any “festival” to obtain immunity under the statute, ^although Mardi Gras is a festival proper. A festival is simply a celebration such as a feast or holiday that usually occurs on a certain date once a year. Christmas is obviously a holiday and hence, the Winnfield Christmas parade is a celebration or festival just as Mardi Gras is a festival celebrating the end of the pre-Lenten season. In view of the statute’s expansive language regarding the types of parades for whom the nonprofit sponsors are afforded immunity, we conclude that the statute does not require that the non-profit organization sponsor an additional or broader celebration or “festival” of which the parade is a part. The expansive language in La. R.S. 9:2796(A) was intended to cover a broad spectrum of risks and losses associated with parading. Binkley v. Landry, 2000-1710 (La.App. 1 Cir. 9/28/01), 811 So.2d 18, writ denied, 2001-2934 (La.3/8/02, 811 So.2d 887) (La.3/8/02); Gardner v. Zulu Social Aid and Pleasure Club, Inc., 98-1040, p. 5 (La.App. 4 Cir.2/10/99), 729 So.2d 675, 678, writ denied, 99-0697 (La.5/7/99), 740 So.2d 1285.

Next, plaintiff contends that although the Winnfield Kiwanis Club was covered by the statute, defendant Bates, who is a member of the Winnfield Kiwanis, was not acting in his capacity as a member of the Kiwanis, but was in fact placing the float into the parade line for the 4-H wing of the Winnfield Livestock Club. In other words, Bates was not carrying out his assigned Kiwanis parade duties when the accident occurred. While this “course and scope” argument would have appeal if this were a worker’s compensation case, we do not need to apply those principles since the statute provides its own status and activity criteria. La. R.S. 9:2796 [ ¿¡provides immunity to non-profit organizations who sponsor festivities such as this Christmas parade as a service to the public. The immunity extends to the organizations’ voluntary, non-compensated members. Once it is established that the defendant in question is a non-compensated member of the protected non-profit organization, the sole question is whether the loss caused by the member occurred “during or in conjunction with or related to the parade.” The fact that the float was built by or belonged to the 4-H Club wing of the Winnfield Livestock Club is not pertinent to the inquiry inasmuch as the defendant was driving the float to a position designated by the Kiwanis Club as the sponsors and organizers of the parade.

Likewise, it is of no moment that the accident occurred prior to the parade. In Graves v. Krewe of Gladiators, Inc., 2001-0986 (La.App. 4 Cir. 6/27/01), 790 So.2d 155, the plaintiff was injured while descending a ladder on a carnival float during a pre-parade party. The court found that the statute was applicable because it was related to the parade. Accordingly, we find that the accident in this case occurred in conjunction with and was related to the parade.

Finally, plaintiff submits that there are genuine issues of material fact regarding fault that preclude summary judgment. La. R.S. 9:2796 does not apply if the loss was caused by the deliberate and wanton act or gross negligence of the krewe or organization or the member in question, and plaintiff alleged in his petition that the acts of the defendant were wanton and grossly negligent. The plaintiff would have to carry the burden of proving at trial that Mr. Bates’ actions were deliberate and wanton or 13grossly negligent.

In their motion for summary judgment, the defendants allege that Mr. Bates was in no way negligent, and the cause of the accident was solely the fault of Ofcr. Fosh-ee. As previously stated, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Goins v. Wal-Mart Stores, Inc., 2001-1136 (La.1/28/01), 800 So.2d 783; Williams v. Shoney’s, Inc., 99-0607 (La.App. 1 Cir. 3/31/00), 764 So.2d 1021.

After reviewing the pleadings, depositions and affidavits, including a sworn statement by Ofcr. Foshee, we conclude that the plaintiff has not established factual support sufficient to establish his evi-dentiary burden at trial. Accordingly, there is no genuine issue of material fact regarding the allegations that Mr. Bates’s conduct was wanton or grossly negligent.

The primary factual disagreement in this case is whether Ofcr. Foshee told Mr. Bates to drive into the east-bound lane of Maple Street after a pick-up truck passed or to wait until the traffic cleared altogether. Even in his sworn statement Ofcr. Foshee stated that he believed that Mr. Bates did not intentionally hit him and that Mr. Bates simply got caught up in the [ inexcitement of the parade and did not see him as he drove forward. Clearly then, both parties agree that Mr. Bates’ conduct was not “deliberate and wanton” as required by the statute.

Nor is there evidence that his conduct constituted gross negligence. Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (La.1942). Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Hendry Corp. v. Aircraft Rescue Vessels, 113 F.Supp. 198 (E.D.La.1953) (applying Louisiana law). Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” W. Page Keeton, et al., Prosser & Keeton on the Law of Torts, § 34, at 211 (5th ed.1984); 65 C.J.S. Negligence, § 8(4)(a), at 539-40 (1966 & Supp.1993). “There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning.” Falkowski v. Maurus, 637 So.2d 522 (La.App. 1 Cir.), writ denied, 629 So.2d 1176 (La.1993) (quoting Prosser & Keeton, supra, at 214). Gross negligence, therefore, has a well-defined legal meaning distinctly separate, and different, from ordinary negligence. Rosenblath’s, Inc. v. Baker Industries, Inc., 25,685 (La.App. 2 Cir. 3/30/94), 634 So.2d 969, writ denied, 94-1102 (La.6/24/94), 640 So.2d 1348.

|nIn Binkley v. Landry, supra, litigation arose out of an accident in Baton Rouge at the Spanish Town Mardi Gras Parade which was sponsored by a non-profit organization, The Mystic Krewe for the Preservation of Lagniappe in Louisiana, Inc. (Mystic Krewe). During the parade, a pick-up truck suddenly left the parade route after its driver, John E. Landry, who had been drinking, momentarily lost consciousness. Mr. Landry drove into the crowd of spectators where plaintiffs were viewing the parade. Seven-year old Tiffany Binkley was seriously injured when she was run over by the pick-up truck.

Plaintiffs sued both the driver and Mystic Krewe, alleging that both were guilty of gross negligence. The defendants moved for summary judgment based upon the immunity granted by La. R.S. 9:2796. The trial court granted the motion, finding that the facts did not support gross negligence. On appeal, the Louisiana First Circuit affirmed the summary judgment, stating:

The difference between ordinary negligence and gross negligence is the level or degree of lack of care shown by the offending party. To amount to gross negligence, the conduct of the offender must not only show a lack of care, it must show an “entire,” “utter,” “complete,” or “extreme” lack of care. Mullins v. State Farm Fire and Cas. Co., 96-0629 (La.App. 1 Cir. 6/27/97), 697 So.2d 750. Operating a vehicle after having an alcoholic beverage, as Mr. Landry did in the instant case, may constitute a negligent act. Likewise, the lack of closer supervision of drivers in the parade could be construed as negligence on the part of Mystic Krewe. However, we believe such actions taken, without more, would only amount to ordinary negligence rather than gross negligence.
* * *
[Plaintiffs failed to prove the existence of a genuine issue of material fact concerning whether members of Mystic Krewe acted in a deliberate and wanton or grossly negligent manner in |1?the supervision of the drivers in the parade. We conclude that the record does not

reveal any facts evidencing gross negligence on the part of Mr. Bates. Therefore the “deliberate and wanton act” and “gross negligence” exceptions to the immunity granted by La. R.S. 9:2796 do not apply. Accordingly, the trial court correctly granted summary judgment in favor of the defendants based upon La. R.S. 9:2796.

Defendants filed an answer to the appeal requesting that the summary judgment be affirmed on the alternative ground that Mr. Bates’ conduct did not constitute negligence or fault. Because we conclude that Mr. Bates is immune from suit under La. R.S. 9:2796, we pretermit discussion of this alternative basis.

Conclusion

For the foregoing reasons, the summary judgment granted by the trial is affirmed at appellants’ cost.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, DREW, MOORE and SEXTON (Pro Tempore), JJ.

Rehearing denied.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Sondra LAWRENCE, Plaintiff-Appellee v. City of SHREVEPORT, Defendant-Appellant.
    No. 41,825-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.

      Davis Law Office, LLC, by S.P. Davis, Sr., for Appellant.
    Hayter & Odom, L.L.C., by Mark W. Odom, Shreveport, for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   CARAWAY, J.

11 After spending an afternoon boating, plaintiff exited her friend’s boat and moved across a concrete dock owned by the City of Shreveport onto a grassy waterfront lot. As she left the edge of the concrete, plaintiff fell into a hole caused by lake water erosion and received injuries to her left knee. Claiming that the hole was not apparent due to overgrown grass, plaintiff successfully sued the City of Shreveport and was awarded damages for the injuries from the accident. The City of Shreveport appeals the fault findings of the trial court, and the plaintiff seeks an increase in the damage award. Finding no manifest error in the trial court’s judgment, we affirm.

Fads

On April 4, 2004, during spring break, Sondra Lawrence was invited to go boating on Cross Lake in Shreveport with her friend Wilma Watkins. Lawrence’s roommate at the time, Randall Behrens, joined her for the excursion. As was their custom, the three planned to spend the day fishing and relaxing on Watkins’ party barge. Lawrence and Behrens met Watkins at the Ford Park public boat launch at approximately 1:30 or 2:00 in the afternoon. The two boarded the boat without incident and enjoyed five to six hours of eating, drinking, fishing and relaxing with Watkins. Lawrence admitted to drinking three, twelve ounce beers during the boat trip in addition to consuming food.

By late afternoon, Lawrence asked Watkins to return to the public boat launch. Watkins docked the boat at the same launch and Lawrence disembarked alone. She stepped onto a concrete slab forming the edge of 1 athe seawall skirting the dock. Lawrence’s pathway to her car and the public restroom required her to step off of the concrete slab and onto a grassy area. As her left foot moved from the concrete to the grass, however, Lawrence’s left leg encountered a large washed out area on the edge of the cement. Her leg dropped into the hole to hip level.

Lawrence contended she could not see the washed out hole because it was covered by grass which in her approximation measured between 6 or 8 inches above the concrete. Behrens corroborated her estimate and Watkins guessed the grass measured four to five inches over and around the hole. Lawrence claimed that she was not intoxicated or distracted as she fell.

Upon falling, Lawrence yelled for help from Behrens and Watkins who remained on the barge. They found her sitting on the ground with her leg still in the hole. They put her back on the boat and applied an ice pack on her knee which had begun to swell. The three testified inconsistently about taking Lawrence home, but she returned home that night without seeking medical attention for her knee.

Lawrence had recovered from previous knee replacement surgery on her left knee in 1999. After trying to work as a coach and teacher the week after the accident, she sought medical care when she realized her leg was not getting better. She saw an orthopedic specialist, Dr. Steven Atchi-son, first on April 12, 2004, and reported marked increased pain in her left knee since her fall 8 days earlier. Lawrence was relieved from work by Dr. Atchison for the balance of the school term. Dr. Atchison treated her conservatively until May 9, 2005, when Lawrence underwent surgery for a prevision of the prior knee replacement and the repair of a loose tibial tray. After surgery, Lawrence attended physical therapy through July and was released by Dr. Atchison on October 28, 2005.

Lawrence instituted this action against the City of Shreveport (“the City”) as custodian of the municipal boat ramp alleging improper maintenance of the premises. The day before trial, the City moved to compel discovery of photographs Lawrence took of the accident site right after she fell, which Lawrence claimed she lost. The trial court ultimately accepted Lawrence’s explanation for the missing photographs. The trial proceeded and the trial court assessed the City with total fault, awarding Lawrence $38,969 in special damages and $75,000 in general damages.

In its thorough eleven-page ruling, the trial court found the sink hole presented a known, unreasonably dangerous condition that the City failed to remedy within a reasonable time. The court rejected the City’s spoliation claim regarding the photographic evidence.

The City appeals the trial court’s determination of fault of the parties. Lawrence also seeks a higher award of general damages, for her pain and suffering.

Discussion

I.

Regarding its liability, the City argues that the trial court erred in finding that the evidence showed that an accident or injury to Lawrence occurred and in failing to find Lawrence totally or at least 95% at fault due to her intoxication. Great emphasis is placed on certain inconsistencies in |4the testimony of the three witnesses to the accident. The City also argues it had no actual or constructive notice of the hole or the uncut grass.

In relevant part, the provisions of La. R.S. 9:2800 set forth the requirements of liability for public bodies as follows:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Where other constructions are placed upon state property by someone other than the state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state’s benefit and use.
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.

The determination of whether a defect presents an unreasonable risk of harm involves factual findings which differ in each case. Thus, there is no fixed or mechanical rule for determining whether a defect presents an unreasonable risk of harm. Buchignani v. Lafayette Ins. Co., 41,384 (La.App.2d Cir.8/23/06), 938 So.2d 1198; McAdams v. Willis Knighton Medical Center, 38,181 (La.App.2d Cir.12/19/03), 862 So.2d 1186; Reitzell v. Pecanland Mall Assoc., Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229. The unreasonable risk of harm analysis requires the trier of fact to balance the gravity and risk of harm against individual and Rsocietal rights and obligations, the thing’s social value and utility, and the cost and feasibility of repairing the defect. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Reitzell v. Pecanland Mall Assoc., Ltd., supra. The accident history of the defect is also a pertinent consideration. Boyle v. Board of Supervisors, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080; Reed v. Wal-Mart Stores, Inc, supra. The question for the trier of fact is whether the social value and utility outweigh, and thus justify, the potential harm to others. Reed v. Wal-Mart Stores, Inc., supra.

Under La. R.S. 9:2800, constructive notice is defined as the existence of facts which imply actual knowledge. This definition allows for the inference of actual knowledge to be drawn from the facts demonstrating that the defective condition had existed for such a period of time that it should have been discovered and repaired if the public entity had exercised reasonable care. Johnson v. City of Bastrop, 41,240 (La.App.2d Cir.8/1/06), 936 So.2d 292.

The district court’s findings pursuant to R.S. 9:2800 are subject to manifest error review. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566; Johnson v. City of Winnfield, 37,939 (La.App.2d Cir.12/10/03), 862 So.2d 433; Joseph v. City of New Orleans, 02-1996 (La.App. 4th Cir.3/5/03), 842 So.2d 420. Under this standard, the appellate court will review the entire record to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. Stobart v. State, through Dept. of Transp. and Dev’t., 617 So.2d 880 (La.1993). In order to reverse, the appellate | ficourt must find that a reasonable basis does not exist for the finding of the trial court and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

Because of its superior position to view the demeanor of witnesses, the district court’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are more reasonable. Rosell v. ESCO, supra; Collins v. City of Shreveport, 35,172 (La.App.2d Cir.10/31/01), 799 So.2d 630.

Comparative fault is an affirmative defense. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002; Murray v. Ramada Inns, 521 So.2d 1123 (La.1988). The courts that have required proof by a preponderance of the evidence for establishing an affirmative defense constitute an overwhelming majority. Hanks v. Entergy Corp., 06-477 (La.12/18/06), 944 So.2d 564; Harmon v. Lumbermens Mutual Casualty Co., 247 La. 263, 277, 170 So.2d 646, 651 (1965).

The structure in question where the barge docked was principally a seawall around a small peninsula. The seawall photographs show a wide slab of concrete running along the top of the seawall and a low railing for which to tie a boat. This sidewalk-like slab formed part of the seawall structure and provided a place to step on board or disembark. The concrete did not lead to the parking lot like a sidewalk but followed the wall as itpextended along the shoreline. Therefore, a pedestrian exiting a boat would step over the low railing onto the “sidewalk,” and then be expected to get off the concrete and walk across the grass to reach the parking lot.

The undermining of the ground beneath the sidewalk-like slab was depicted in Lawrence’s photographs from June 2004. Duane Stautzenberger, the chief supervisor of grounds for Shreveport Parks and Recreation, testified concerning the City’s knowledge of the problem. He stated that he visited the public boat launch at least three times a month. Further, grounds maintenance employees inspected the boat launch area for holes and grass conditions daily. He was familiar with the holes caused by erosion and aware that the City filled the holes with asphalt fifteen to twenty times. Stautzenberger explained holes can form overnight, generally in different places. During mowing season, tractors cut the grass once a week and the trim crews cut what is left every three to four weeks. According to the City’s records, the trim crews last worked the area on January 22, 2004, and no further work was documented until April 19, 2004. He surmised that this lapse in work activity occurred because the grass does not grow much in late January or February and tends to sprout in early April. He admitted that clover and early spring grasses would be present in April. Stautzenber-ger concluded that the hole in question was not filled until August 12, 2004.

Under examination by the City, Staut-zenberger testified that he had never seen April growth taller than 2 inches. He admitted that the City got complaints about the holes, but no prior accident had occurred. When ^complaints occurred, a priority work order was prepared and the problem was handled the same day or the next morning. No one reported the holes depicted in the June 2004 photographs presented at trial. Stautzenberger explained that there is a supervisor’s office at the park. Individuals from this office inspect the location daily for grass condition and holes. In his experience, the holes were obvious and never covered by grass.

From our review of this evidence and the record, we agree with the trial court’s conclusion that the erosion and sink holes along the edge of the concrete dock site posed an unreasonable risk of harm. The ground itself was weakened and undermined continuously by the water and wave action against the seawall, allowing the weight of Lawrence’s foot to unexpectedly slip into or open a hole. This, coupled with the early spring grasses, clover or weeds, created a trap giving the appearance of a solid and level landing to a person stepping off the concrete. There was no sidewalk leading away from the seawall to the parking lot. An individual getting off a boat would be expected to step onto weakened ground. There was no evidence of a warning about this condition to the public although the City knew of the problem and the ability of the sink holes to develop continuously because of the lake’s wave action.

The City argues that it did not have notice of the particular hole into which Lawrence fell, and there were no prior accidents at this location. This does not mean, however, that plaintiff failed to prove the knowledge element of her claim as required by La. R.S. 9:2800(C). The ongoing conditions for erosion which placed this type of trap before the public were | flwell-known to the City. These same conditions allow affirmance of the trial court’s ruling that Lawrence was not at fault. As described above, the record supports the reasonable conclusion that the ground adjacent to the sidewalk appears more solid when the grass disguises the dip on the surface. Moreover, the weakened soil adjacent to the concrete circumstantially allows for the conclusion that Lawrence’s weight caused the ground to further give way beneath her.

Additionally, the City focuses its arguments on inconsistencies in the testimony of the three witnesses as well as their demeanor and tone, which it contends were “obviously troublesome and suspect.” However, the jurisprudence holds that the trial court is in a superior position to view the demeanor of witnesses, and the decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Rosell v. ESCO, supra.

In its reasons for judgment, the trial court gave extensive credibility rulings in answer to the City’s arguments, as follows:

Just because there are some inconsistencies in how people describe things and how people recall a sequence of events does not automatically mean the plaintiff is lying as insinuated by the City.
⅜ ⅜ *
The Court carefully observed the plaintiffs demeanor in court during the two-day trial and listened carefully to her testimony. The Court found her to be credible. She was 41 years old at the time of trial. She has an athletic background, and played basketball in college. She is the mother of twin 16 year old boys. She is employed by the Caddo Parish School Board and teaches handicapped children. She also serves as the softball coach at Caddo Magnet High School. In June of 1999 she had double knee replacement surgery in Texas, which was a very painful experience. She testified she recovered fully from the |in1999 surgery and was in “good condition” at the time of the fall on April 4, 2004. This boating excursion was her first trip to Cross Lake in 2004 and came at the end of her school spring break. She candidly admitted she drank three (3) twelve (12) ounce Coors beers over the course of the five hour boat excursion. She also ate sandwiches, chips and other food and also drank water and Gatorade. She testified she was not impaired. Her friends corroborated that she was not drunk. She appeared to the Court to be a stoic person who clearly does not like to go to doctors or take pain medicine unless absolutely necessary. The Court believed her testimony that her left leg fell into a hole that she did not see. She testified she did not see the hole as it was obscured by grass and clover. She testified that she put off the surgery as long as possible because she knew how painful the procedure and physical therapy would be as she had experienced all this in 1999. She testified she kept hoping her knee would be better.

Likewise, Lawrence’s knee injury was adequately established not only through Behrens’ and Watkins’ testimony, but also by the testimony of other friends who observed Lawrence’s painful knee problems after the accident. Lawrence’s failure to immediately seek medical treatment was characterized by Dr. Atchison as appropriate, thus disproving the City’s argument that her actions were suspect.

The City also complains that the knee damage was caused by a subsequent accident on March 12, 2005. In rejecting this argument, the trial court accepted the testimony of Dr. Atchison that the April 4, 2004 fall caused the loosening of the prior knee replacement that was the ultimate cause for surgery. Lawrence’s subsequent twisting of her left knee merely aggravated the existing problem. The City presented no contrary medical testimony to refute Dr. Atchison’s conclusions. Thus, the trial court was free to accept Dr. At-chison’s opinion which was supported by Lawrence’s knee x-rays taken before and after the March 12, 2005 incident.

JjlH.

The City next argues the trial court committed manifest error when it accepted as true, Lawrence’s explanation for her failure to produce photographs she took of the accident site both on the day of the accident and on the following day. Further, the City argues that it was entitled to an adverse presumption in connection with the missing photographs.

Where a litigant fails to produce evidence available to him and he does not provide a reasonable explanation, the presumption is that evidence would have been unfavorable. That presumption does not apply where the litigant explains the failure to produce the evidence. Small v. Baloise Ins. Co. of America, 96-2484 (La.App. 4th Cir.3/18/98), 753 So.2d 234, writ denied, 98-1345 (La.7/2/98), 724 So.2d 733. A trial court has broad discretion in ruling on pre-trial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. Moak v. Illinois Central Railroad Co., 93-0783 (La.1/14/94), 631 So.2d 401.

On the day of the accident, Lawrence used her cell phone camera to photograph the hole where she fell. She testified that the cell phone was later destroyed when the team she coached poured water on her after a game and ruined it. She also testified that she misplaced the photographs she and Watkins took the next day and they were probably lost during a move. In denying the City’s motions, the trial court “accepted the plaintiffs explanation about the loss of the pictures” and specifically rejected the City’s argument that Lawrence intentionally destroyed evidence which was unfavorable.

112Significantly, the photographs which are the subject of this dispute were depictions of the defective property which remained continuously in the custody of the City. This is not a case of one party destroying, altering or concealing evidence exclusively in that party’s control. The June 2004 photos which were also taken by Lawrence reveal the same eroded condition of the ground adjacent to the concrete dock and seawall, with the primary change being the condition of the trimmed grass. The trial court accepted the testimony of the three witnesses regarding the high grass, and the City’s records corroborate the lack of maintenance of the grass during the time in question. The trial court’s acceptance of Lawrence’s explanation of the lost photos is a credibility determination which will not be disturbed on appeal.

III.

By answer to the appeal, Lawrence requests an increase in her general damage award of $75,000 to $125,000 and argues that the trial court erred in concluding that she failed to mitigate damages by prolonging the surgery. 'Lawrence also requests an increase of $165.23 in special damages, representing prescription medication denied by the trial court.

A plaintiff may ordinarily recover reasonable medical expenses, past and future, incurred as a result of the injury. Solito v. Horseshoe Entertain ment, 36,667 (La.App.2d Cir.12/18/02), 834 So.2d 610; Rhodes v. State, through Dep’t of Transp. & Dev., 94-1758 (La.App. 1st Cir.12/20/96), 684 So.2d 1134, writ not considered, 97-0242 (La.2/7/97), 688 So.2d 487. The plaintiff bears the burden of proving the causal | ^relationship between the accident and the injury by a preponderance of the evidence. Solito v. Horseshoe Entertainment, supra; Marshall v. Caddo Parish School Bd., 32,373 (La.App.2d Cir.10/29/99), 743 So.2d 943; Rhodes v. State, through Dep’t of Transp. & Dev., supra. The test is whether a plaintiff has shown through medical testimony that more probably than not, the subsequent medical treatment was necessitated by the trauma suffered in the accident. Rhodes v. State, through Dep’t of Transp. & Dev., supra.

In assessing damages, much discretion is left to the trier-of-fact. La. C.C. art. 2324.1; Solito v. Horseshoe Entertainment, supra; Scott v. Pyles, 99-1775 (La.App. 1st Cir.10/25/00), 770 So.2d 492, writ denied, 00-3222 (La.1/26/01), 782 So.2d 633; Juge v. Judson, 94-579, 94-580 (La.App. 5th Cir.1/18/95), 650 So.2d 312, writ denied, 95-0425 (La.3/30/95), 651 So.2d 846. Before an appellate court may disturb an award of damages, the record must clearly show the trial court abused its broad discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain, or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. McDaniel v. Hamilton, 41,588 (La.App.2d Cir. 12/13/06), 945 So.2d 272; Keeth v. State, through Dept. of Pubic Safety and Transp., 618 So.2d 1154, (La.App.2d Cir. 1993), writ dismissed, 619 14So.2d 563 (La.1993). The question before a reviewing court is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. McDaniel v. Hamilton, supra; Gladney v. May, 29,373 (La.App.2d Cir.5/7/97), 697 So.2d 1022, writ denied, 97-2417 (La.1/9/98), 705 So.2d 1101. To determine if the quantum is inadequate, the appellate court must view the evidence in the light most favorable to the defendant. McDaniel v. Hamilton, supra; O’Brien v. Remington Arms Co., 601 So.2d 330 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992). Only after an articulated analysis of the record discloses an abuse of discretion may the appellate court determine that the award is either excessive or insufficient. Reck v. Stevens, 373 So.2d 498 (La.1979); Gladney v. May, supra.

An injured party has a duty to mitigate her damages. Aisole v. Dean, 574 So.2d 1248 (La.1991); Sepulvado v. Turner, 37,912 (La.App.2d Cir.12/10/03), 862 So.2d 457. The victim has an affirmative responsibility to make every effort to mitigate damages, but the care and diligence required is the same as that which would be used by a person of ordinary prudence under like circumstances. Id. Personal injury plaintiffs must minimize their damages by submitting to reasonable corrective surgery necessary to eliminate any permanent disability. Pisciotta v. Allstate Ins. Co., 385 So.2d 1176 (La.1979).

Relating to special damages, Lawrence attempted to introduce a document generated by a pharmacy and sent to Lawrence that allegedly documented medications prescribed by Dr. Atchison. The trial court would hñnot allow it to be admitted under the business records exception to the hearsay rule because no custodian of the records was available to testify. The court allowed questioning of Lawrence, however, regarding the medications. Nevertheless, the court rejected the claim for lack of proof by Lawrence. We can find no error in this determination. In her testimony regarding the medications, Lawrence failed to state that Dr. Atchison prescribed the medication for her in relation to her knee pain or surgery. In fact, Lawrence admitted that $27.00 worth of the prescriptions were unrelated to her condition. Without a foundation being laid for introduction of the document into evidence or testimony relating those medications to the knee surgery or pain, we cannot conclude that the trial court erred in rejecting Lawrence’s claim for these special damages for lack of proof.

In making the general damage award to Lawrence, the trial court concluded that Lawrence should have elected to have the knee revision in June of 2004 rather than May of 2005. Because of Lawrence’s choice to delay the surgery that caused eleven months of pain and suffering, the court concluded that she failed to mitigate damages.

The record supports this conclusion. In his deposition testimony, Dr. Atchison testified that by June of 2004, he had determined that the revision surgery was necessary. He testified that he went over his conclusions and recommendations with Lawrence but noted that she was “certainly not interested in having anything done at this time; meaning having a knee replacement. I mean, I talked to her about knee replacement then, because a mechanically loose prosthesis isn’t going to get better.” Dr. Atchison added 11fithat it was not until March of 2005 that Lawrence decided to have surgery which was ultimately performed on May 9, 2005. From this testimony, the trial court could have reasonably concluded that Lawrence’s delay caused nearly a year of unnecessary pain and suffering for her. Absent this time period from the consideration of general damages, the award of $75,000 general damages, which represented two months of pain after the accident and surgical and post-surgery pain and suffering, indicates no abuse of the trial court’s discretion.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal in the amount of $214.00 are assessed to the City in accordance with La. R.S. 13:5112.

AFFIRMED.


author: SAUNDERS, Judge. THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana v. Leroy SEMIEN.
    No. 2006-841.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 2007.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Leroy Semien.
    Earl B. Taylor, District Attorney, Twenty-Seventh Judicial District Court, Alisa Ardoin Gothreaux, Assistant District Attorney, Opelousas, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Leroy Semien, C.P.C.F., Ferriday, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

pOn March 24, 2004, the Defendant, Leroy Semien, was charged by bill of information with distribution of cocaine, a violation of La.R.S. 40:967. The Defendant filed a written plea of not guilty on April 8, 2004.

Jury selection in the matter began on October 11, 2005, and the jury returned a verdict of guilty on October 13, 2005. On January 13, 2006, the Defendant was sentenced to twelve years at hard labor, with the first two years to be served without benefit of probation, parole, or suspension of sentence. An oral Motion for Reconsideration was made and set for hearing. A written Motion to Reconsider Sentence was subsequently filed on February 6, 2006. The motion was denied on May 12, 2006.

An oral Motion for Appeal was made on May 12, 2006. A written Notice of Appeal was subsequently filed on May 17, 2006. The Defendant is now before this court asserting three assignments of error through counsel and additionally asserts two pro se assignments of error. In his appeal, the Defendant asserts that the evidence does not support his conviction, that the trial court erred in preventing him from discussing the confidential informant’s criminal record, that his sentence is excessive, and that the trial court erred in not allowing an evidentiary hearing on his claims of jury misconduct. We find these assignments of error lack merit.

FACTS:

The Defendant was convicted of distribution of cocaine as the result of a controlled buy in Opelousas.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed on the face of the record for errors patent. After reviewing the record, we find no errors patent.

j .ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant contends the State did not prove the essential elements of the crime beyond a reasonable doubt because the identity of the Defendant was confused with other cases, the officer making the drug buy did not have a report, there was no photo lineup, and although there was testimony that two rocks were bought, only one rock weighing .13 grams was introduced into evidence.

Although the Defendant sets forth several issues regarding the evidence against him, he limits his actual argument, as well as the law set forth in his memo, to the issue of whether the evidence was sufficient to prove his identity as the person who sold drugs to Travis Ellis. Therefore, we will limit our review of the evidence to the issue of identity.

As a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one witness’s positive identification is sufficient to support the conviction); State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

State v. Neal, 00-674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Detective Mark Guidry testified that on January 25, 2002, he was in charge of a series of controlled buys that were planned for the day. The controlled buys were completed by Travis Ellis, who was employed by the Port Barre Police Department, and a confidential informant (C.I.). For security purposes, Ellis and the C.I. were equipped with an audio transmission device through which a monitoring team could | shear what transpired during the buy, which Detective Guidry testified was recorded for evidentiary purposes. The audio tape of the buy was played to the jury at the State’s request; however, it was not introduced into evidence.

Ellis testified that on the date of the offense, he and the C.I. were riding around Opelousas when they passed a residence on Hayward Street. Ellis got out of the car at the residence and attempted to buy narcotics from various people that were in standing in yards; however, no one wanted to deal with him; so, he returned to the car, and he and the C.I. continued to drive around. Ellis testified that he and the C.I. subsequently came into contact with the seller, who he described as wearing blue jeans, a white shirt, and a black knit hat. The seller put his bike in the trunk of the car and got into the backseat to discuss a possible drug transaction and to get a ride back to a residence on Hayward Street. The three men returned to the same residence at which Ellis and the C.I. had previously stopped. Once back at the residence, the seller went inside a trailer and came back out with two rocks that he subsequently sold to Ellis. Ellis testified that during the buy, the C.I. called the seller “Leroy.” He further testified that he initially called the seller “Leroy” and the seller responded, “No, my name’s not Leroy, it’s Jeremiah.” After the sale had been completed, Ellis met with the monitoring team and turned over the suspected drugs. Ellis testified that after the drugs were turned over to the monitoring team, he drove past the residence where the buy occurred, but the seller was no longer present.

|4No photograph lineup was conducted after the buy; however, Ellis made an in-court identification of the Defendant as the seller at the trial that began on October 13, 2005. He later testified that he was positive that the Defendant was the man from whom he bought the drugs. He stated that although he had not met the Defendant prior to the buy at issue or subsequent thereto, he remembered the Defendant’s face. Ellis stated that the transaction took place on January 25, 2002 between 6:00 and 7:00 p.m., when it was still daylight and that he looked at the Defendant “[f]or a minute,” and also watched him walk from the residence back to the cai’, where the buy took place.

Detective Guidry testified that he was familiar with the Defendant prior to the date of the buy and also made an in-court identification of the Defendant. He testified that during the buy, he could hear the names “Leroy” and “Jeremiah” but did not hear the name “Leroy Semien”. He did testify, however, that the C.I. gave the name of the seller as “Leroy”.

Detective Guidry testified that after the buy was completed, Ellis and the C.I. gave Mouton Street or Hayward Street as the area where the buy took place. However, he stated that no specific address was given. Once Ellis and the C.I. left the area, Detective Guidry and the monitoring team drove to the area in an attempt to locate and identify the seller. The team arrived on the scene approximately one to three minutes after the buy. Both Ellis and the C.I. had described the seller as a black male with a black hat, white shirt, and blue jeans.

15Detective Guidry stated that he saw the Defendant standing in the yard next to a trailer located at 1322 Hayward Street and, as Detective Guidry stated, “he fit the description that was given, and I knew him personally and knew his name was Leroy Semien at that time.”

However, because the C.I. could not give the last name of the seller, Detective Guidry testified that he drove Ellis back through the area two or three minutes after the buy, and Ellis identified the residence Detective Guidry had seen the Defendant standing in front of as the residence where the buy took place. However, the Defendant was no longer there.

Detective Guidry was questioned about the identification of the Defendant as follows:

Q. Okay. Did you look for any other black males hanging out dressed like that?
A. We rode through the area and didn’t see anybody else that I knew — • that I knew had the name of Leroy fit that description at that time.
Q. You could have missed someone, couldn’t you?
A. Possibly.
Q. Do you agree with that?
A. Yes, sir.
Q. You’ve seen other people named Leroy dressed like that, I assume, huh?
A. I’m pretty sure, yes. A white T-shirt and blue jeans is pretty common. That’s actually a technique used by a lot of dealers to circumvent being identified. They all wear the same, pretty much, clothing description.
Q. Right. And some non-dealers wear that, too,. — ■
|r,A. Yes, too.

Detective Guidry testified that a photographic lineup was not available in this case, since the police department had no photograph of the Defendant. Although a photographic lineup was mentioned in Detective Guidry’s investigation report, as well as in the affidavit of probable cause, Detective Guidry admitted there was a mistake in the affidavit.

Lieutenant Donald Thompson testified that he worked on the monitoring team on the date of the offense. He testified that ten to fifteen minutes before the buy, he passed through “that area” and saw the Defendant. During the buy, Lieutenant Thompson heard Ellis relay a description of the person from whom he had purchased drugs. According to Lieutenant Thompson, Ellis’ description indicated that the subject was wearing a white shirt, a dark-colored jacket, blue jeans, and a knit cap with a bib. Lieutenant Thompson testified regarding the Defendant as follows: “I knew what he was wearing and, of course, I knew where he lived, you know, so, you know, I knew that’s who they had purchased narcotics from.” He further testified that the name “Leroy Semien” was mentioned on the tape played to the jury. He was questioned about the tape as follows:

Q. Detective Thompson, you just — you heard — you reviewed the tape and you just heard that played for the jury, and in that tape, were you able to discern or understand you, yourself, saying, ‘Tes, I saw him a little bit earlier” or “I just saw that guy”?
A. Yes, ma’am.

Lieutenant Thompson then made an in-court identification of the Defendant and testified that the Defendant was the person he saw in the area before the buy wearing the same clothing as that described by Ellis. He also testified that he was |7sure the Defendant resided at 1322 Hayward Street on January 25, 2002; however, he later admitted he was not certain that was the exact address.

We note that Lieutenant Thompson did not write a report in this matter, nor did Detective Guidry’s report contain the information regarding Lieutenant Thompson’s sighting of the Defendant prior to the buy.

Detective Guidry testified that the Defendant was arrested on February 13, 2002 at 1322 Hayward Street. However, during booking, the Defendant indicated he lived on Lastrapes Street, which Detective Guidry testified was the home of the Defendant’s mother. Through surveillance, Detective Guidry determined that the Defendant lived with a female, who Detective Guidry thought was April Du-cote. Subsequent surveillance revealed the Defendant at, or around, a trailer on the thirteen hundredth block of Hayward Street. Detective Guidry testified that, at one time, all the trailers in the trailer park had the same address with a designated letter, which changed after 9-1-1 was implemented. A search revealed that the Defendant had contacts with 1328 Hayward Street, rather than 1322 Hayward Street. Willie Mae Washington, a clerk with the water department of the City of Opelousas, testified that there was no water service at 1322 Hayward Street on February 13, 2002. Washington further testified that in 2005, April Ducote resided at 1328 Hayward Street, Lot B, which had been 1320 Hayward Street prior to 9-1-1 changes, and that services for Ducote at that address had commenced on August 26, 2002, and ceased on March 15, 2004. Washington was not asked to run the Defendant’s name through the system, and she had no knowledge about whether the Defendant lived at 1328 Hayward Street prior to August 26, 2002.

IsSergeant Roylis Gallow arrested the Defendant at a trailer within the thirteen hundredth block of Hayward Street. In his opinion, at the time of the arrest, the Defendant had lived in the trailer between six months and a year.

It is well established that the standard of review to uphold a conviction is whether any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of the crime beyond a reasonable doubt. La.Code.Crim.P. art. 821, State v. Odom, 03-1772 at pp. 5-6, 878 So.2d 582.

There is evidence in the record to find that the jury was reasonable in finding that the Defendant was positively identified. Travis Ellis, an employee of the Port Barre Police Department, made an in-court identification of the Defendant as the seller. We find that it is reasonable for the jury to have found that identification credible enough to remove any reasonable doubt as to the identification of the perpetrator of the sale. Accordingly, we find there is no merit to the Defendant’s first assignment of error.

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, the Defendant contends the trial court erred when it prevented the defense from introducing evidence that the C.I. had eight prior convictions, yet allowed the State to argue that the same person was “reliable” in making cases.

During the cross-examination of Detective Guidry, defense counsel asked Detective Guidry if he would agree that the C.I. had been convicted at least eight times. The State objected, arguing the information was irrelevant. The trial court sustained the objection, and the jury was instructed to disregard the information.

18Louisiana Code of Evidence Article 609.1 provides for attacking credibility by evidence of conviction, in pertinent part, as follows:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a'prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
(1) When the witness has denied the conviction or denied recollection thereof;
(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Louisiana Code of Evidence Article 806 establishes the standard for attacking the credibility of a hearsay declarant as follows:

When a hearsay statement, or a statement defined in Article 801(D)(2)(c) or (D)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declar-ant had testified as a witness. Evidence of a statement or conduct by the declar-ant at any time, offered to attack the declarant’s credibility, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as a witness identified with an adverse party.

ImThe C.I. did not testify at trial. Therefore, we find article 609.1 inapplicable to the case at bar. Additionally, no statements made by the C.I. were admitted at trial. Therefore, we also find article 806 inapplicable to the case at bar.

The Defendant further argues that his right to impeach the credibility of the State’s witness was impinged, and his right to present a defense was prejudiced. We do not find that the Defendant’s right to present a defense was prejudiced, as he called witnesses in this matter and cross-examined those called by the State. Additionally, his right to impeach the credibility of Detective Guidry was not impinged, as he was able to cross-examine him regarding his role in the controlled buy. Furthermore, we do not find the reliability of the C.I. to be an issue in this case, as the C.I. did not testify at trial, nor did he provide police with information used in the prosecution of the Defendant. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3 AND PRO SE ASSIGNMENT OF ERROR NO. 2:

In his third assignment of error, the Defendant contends the twelve-year sentence imposed upon him as a first-time offender convicted of distribution of approximately l/10th of a gram of crack is excessive.

The Defendant argues that the trial court’s consideration of his prior ax-rest for assault, which had no disposition, violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Defendant asserts the sentence is unconstitutional because it is not based on facts tested by a jury in accordance with Ap-prendi. Additionally, in his pro se brief, the Defendant cites Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), for the same proposition. The Defendant also argues that the record does not support the sentence in this case, as he was a first offender and received a sentence near the maximum of Infifteen years. We note appellate counsel’s assertion regarding the maximum sentence is incorrect, as the Defendant could have been sentenced to a maximum of thirty years. La.R.S. 40:967. Additionally, the Defendant contends that the trial court did not consider the sentencing guidelines set out in La.Code Crim.P. art. 894.1.

Counsel for Defendant filed a Motion to Reconsider Sentence stating the following: “Defendant contends the sentence was excessively harsh.” Additionally, at the hearing on the motion, defense counsel merely argued that the Defendant’s sentence was excessive. “Failure to ... include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E). Defense counsel clearly failed to argue that the trial court did not comply with La.Code Crim.P. art. 894.1, or that consideration of the Defendant’s prior arrest violated the rulings set out in Apprendi and Blakely. Accordingly, we find that these issues are not properly before this court and should not be reviewed. We will, however, determine whether the Defendant’s sentence is excessive.

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 12(La.5/3l/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59 first two alterations in original.

The sentencing range for distribution of cocaine is two to thirty years at hard labor, with the first two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. La.R.S. 40:967(B)(4)(b). The Defendant in the instant case was sentenced to twelve years at hard labor by the trial court.

At the sentencing hearing, the trial court made the following remarks:

Considering the input from the defendant, the Pre-Sentence Investigation, and the guidelines set forth by Louisiana Code of Criminal Procedure Article 894.1,and other applicable sentencing statutes ... the Court notes the following factors pertinent to this sentence. The defendant is a first time felony offender. ... Also, the defendant was arrested for aggravated assault, as indicated by his Counsel, on July 7, 2005, where it was alleged that the defendant possessed a weapon, a gun, and he pointed it at other individuals. Accordingly, there is an undue risk that during a period of a suspended sentence or probation, the defendant would commit another crime. The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. A lesser sentence would deprecate the seriousness of the defendant’s crime. There are no mitigating circumstances and no remorse. In fact, the defendant, even at this time, indicates that certain things were or were not done and still professes, I guess, his innocence in respect to what he has indicated to the Court.

11sAlthough the Defendant is a first felony offender, we do not find the sentence imposed upon him by the trial court to be excessive. The twelve-year sentence imposed upon him is well within the thirty-year statutory limit set forth in La.R.S. 40:967(B)(4)(b). As previously discussed, the trial court is granted wide discretion in imposing a sentence, and absent an abuse of that discretion, we will not find the sentence imposed to be excessive when the sentence imposed falls within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. The only consideration before us on review is whether the trial court abused its wide discretion, not whether another sentence would be more appropriate. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). After reviewing the record and considering the evidence, we do not find that the trial court abused its discretion in sentencing the Defendant to twelve years at hard labor for distribution of cocaine, as it is less than half of the allowable maximum sentence set forth in La.R.S. 40:967(B)(4)(b). Accordingly, we find this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4:

In his forth assignment of error, the Defendant contends the record is defective and impairs his appeal of right because the minutes reflect that the trial court denied a Batson challenge during jury selection; however, the district court did not include the transcript of jury selection in the record, and therefore, appellate counsel cannot review, brief, or argue that issue.

We find this issue to be moot, as the transcript of jury selection was submitted to this court in a supplement record and provided to appellate counsel for review.

PRO SE ASSIGNMENT OF ERROR NO. 1:

[uIn his first pro se assignment of error, the Defendant contends the trial court violated his right to a fair trial by an impartial jury. Defendant asserts that the trial court was informed that the jury was influenced by an outside influence/communication that occurred between a witness and a jury member before the verdict was decided. However, the court denied an evidentiary hearing and a Motion for a New Trial, claiming that a jury member is protected and prevented from testifying under La.Code Evid. art. 606(B), directly in violation of the same and the Defendant’s rights under U.S. Const. Amends. V, VI, and XIV. On October 14, 2005, defense counsel informed the trial court that juror Marie Green informed him that Roylis Gallow spoke to her about the case. The trial court then requested that defense counsel file a formal motion.

On October 14, 2005, the Defendant filed a Motion to Set Aside Verdict Based Upon Jury Misconduct/Tampering. Therein, the Defendant alleged that juror Marie Green advised defense counsel that she and Roy-lis Gallow discussed the case during a trial recess. During their conversation, Green alleged, Gallow informed her that the Defendant had previously been arrested and was a known drug dealer. Additionally, Gallow allegedly also told Green that the Defendant had “gotten off’ in the past, and thought he would “get off’ again.

A Supplemental Motion to Set Aside Jury Verdict Based Upon Jury Misconduct was filed on October 31, 2005. Therein, the Defendant alleged that Green had recanted her story, but that Green admitted that another juror, Provost, committed jury misconduct by informing other jurors that she had spoken to the Defendant and that his voice was the same as the voice on the audio tape played to the jury.

|1BAt a hearing held on November 10, 2005, defense counsel informed the trial court that he had abandoned his original motion.

In his brief to this court, the Defendant addresses Gallow’s conversation with Green, but does not include the actions of Provost in his assigned error. As defense counsel abandoned his original motion regarding Green’s contact with Gallow, there was no ruling by the trial court as to that matter, and therefore, this issue is not properly before this court. Accordingly, we find this assignment of error lacks merit.

CONCLUSION:

The Defendant’s conviction and sentence are affirmed.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hThe key question on the issue of identity in a criminal case is whether the State has negated “any reasonable probability of misidentification.” State v. Smith, 430 So.2d 31, 45 (La.1983). While the majority recognizes this well-established legal principle, it fails to properly apply it.

The evidence, at best, tends to prove that Lieutenant Thompson saw the Defendant standing in front of a residence on Hayward Street prior to the buy. Ellis and the C.I. picked up the seller at a location not set forth in the record and returned to a residence on Hayward Street, where Ellis was sold drugs. After the buy, Detective Guidry saw the Defendant standing in a yard on Hayward Street. Ellis gave a description of the seller's clothing, which matched the clothing Lieutenant Thompson and Detective Guidry said the Defendant was wearing. However, Detective Guidry stated that the clothing described by Ellis was commonly worn and was worn by drug dealers in order to prevent identification. During the buy, the C.I. stated the seller’s name was “Leroy;” however, the seller said his name was “Jeremiah.” An acquaintance of the Defendant resided at an address on Hayward Street, but not the address at which Detective Guidry said he saw the Defendant ^standing. Ellis never identified the Defendant as the seller until trial, more than three and one-half years later, and only after he had seen the Defendant “[f]or only a minute” in the month of January. Ellis gave a description of the seller’s clothing after the buy, but never described the physical characteristics of the seller. Ellis’s recollection of the events surrounding the controlled buy, as described in footnotes 1 and 2 of the majority opinion, strains credulity.

The evidence does not support the finding that the Defendant was the person who sold drugs to Ellis. The State did not negate “any reasonable probability of mis-identification.” State v. Smith, 430 So.2d 31, 45. I would, therefore, reverse the Defendant’s conviction, vacate his sentence, and order an entry of acquittal.

For the foregoing reasons, I dissent.

      . Ellis testified that he met the monitoring team immediately, but then stated it could have been fifteen minutes later. He later testified that the monitoring team came by the buy location a few minutes later and met him and the C.I. at a secured location fifteen minutes after the buy.

      . Ellis testified that the buy at issue was one of three conducted on the same day. Detective Guidry testified that the buy at issue was the second or third of the day. He later testified a buy was made after the transaction at issue.

      . The two streets intersect.

      . Detective Guidry testified the address 1322 Hayward was posted on the mailbox or other pole in front of the residence.

      . One does not need expert testimony to know that it is dark, not daylight, between 6:00 p.m.-7:00 p.m. in January.


author: PAINTER, Judge.

text:
    Earline THIERRY, et vir. v. STATE of Louisiana, THROUGH the DEPARTMENT OF HEALTH AND HOSPITALS AND UNIVERSITY MEDICAL CENTER OF LAFAYETTE, Louisiana.
    No. 2006-1133.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Jude D. Bourque, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Baton Rouge, LA, for Defendant-Appellant: State of Louisiana through the Board of Supervisors of LSU representing University Medical Center in Lafayette.

      Alfred 0. Pavy, Opelousas, LA, for Plaintiffs-Appellants: Earline Thierry, et vir.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| An this medical malpractice claim, Plaintiffs, Earline Thierry and Arthur Lee Thierry, appeal the trial court’s grant of summary judgment in favor of Defendant, State of Louisiana through the Board of Supervisors of LSU representing University Medical Center in Lafayette. Defendant has answered the appeal to assert error in the trial court’s denial of its motion to strike one of the expert affidavits submitted by Plaintiffs. For the following reasons, we affirm both the denial of Defendant’s motion to strike and the summary judgment dismissing Plaintiffs’ case.

FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Mrs. Thierry was sixty years old and had a long history of cardiac problems, including hypertension, coronary artery disease, and congestive heart failure. She suffered heart attacks in 1983 and 1989 and also underwent a triple bypass in 1987. She also had diabetes. On January 17, 2002, Mrs. Thierry was admitted to University Medical Center in Lafayette (UMC) with a chief complaint of shortness of breath which had been getting worse over the previous week. At the time of admission, she was on the following medications: Lasix, Glucophage, Vasotec, Divan, Glucotrol, Co-reg, Prevacid, and insulin. She was discharged on January 22, 2002, with written discharge instructions, including an instruction to return to the emergency room if she had any problems. Her medications on discharge were Potassium, Imdur, Digoxin, a multivitamin, Nor-vasc, Glucotrol, and insulin. She was also given a prescription for Zaroxolyn, among other things. Zaroxolyn is a diuretic. Mrs. Thierry was on two diuretics, Zaroxo-lyn and Lasix, on discharge. Dr. Robert Carroll, who treated Mrs. Thierry at UMC, later opined in deposition that one of the potential causes of the Digoxin toxicity may have been dehydration.

12Mrs. Thierry alleges that she had the prescription for Zaroxolyn filled and took the first dose on January 24, 2002. She further alleges that after taking this first dose, she began to have tremors and shaking. Mrs. Thierry took the second dose of Zaroxolyn on January 25, 2002. She alleges that her symptoms worsened at that time, so she called the emergency room at UMC and reported her symptoms. She alleges that she was advised to continue taking her medication. Mrs. Thierry also asserts that her chart contains a notation, dated January 25, 2002, to alert the patient to stop taking Zaroxolyn but that there is an absence of any recorded response to her complaints. On January 26, 2002, Mrs. Thierry took the third dose of Zarox-olyn, and her condition worsened to the extent that she went to the emergency room at UMC with complaints of nonspecific chest pain. At that time, she was admitted to the intensive care unit with Digoxin toxicity and renal insufficiency. She required intubation. On January 30, 2002, the toxicity Digoxin was completely cleared. She was not discharged until February 12, 2002.

Mrs. Thierry filed a complaint against UMC alleging numerous acts of malpractice, including allegations that the nursing staff and physicians failed to respond to her oral complaint of January 25, 2002, negligently monitored her condition, failed to follow-up with her, caused Digoxin toxicity, and caused exacerbations of her preexisting conditions. She alleged that she cannot drive because, ever since taking the Zaroxolyn, she gets shaky. She further alleged that ever since being intubated, she is hoarse. Mrs. Thierry also alleged that she has problems with weakness in her hand from the apparatus providing intravenous injections that was inserted there.

In due course, a medical review panel was formed with Dr. Tina Wells, Dr. Lana Metoyer, and Dr. David Booher as panelists. On August 4, 2004, the panel | ¡^rendered an opinion finding no breach in the standard of care. Specifically, the panel found that Zaroxolyn was appropriately prescribed to Mrs. Thierry, given her diagnoses but that there was a question of patient compliance causing the toxicity. Apparently, when Mrs. Thierry was readmitted to UMC on January 26, 2002, her list of current medications included: Klor, Glucotrol, Vasotec, Neurontin, Spironolac-tone, Isosorbide, Zaroxolyn, Prevacid, La-six, Norvase, iron, and Lanoxin. These were not the same medications that were listed on the discharge list from January 22, 2002.

Following the unfavorable medical review panel opinion, Plaintiffs filed suit in district court. Plaintiffs obtained an affidavit from Dr. Metoyer which Plaintiffs assert was a “supplement” to her medical review panel opinion. In that affidavit, dated October 22, 2004, Dr. Metoyer retreated somewhat from her original opinion as given in the medical review panel proceedings. In the affidavit, Dr. Metoyer stated that the failure to respond to the patient’s complaints on January 25, 2002 was substandard medical care by the nursing personnel and probably resulted in an aggravation of the patient’s renal insufficiency, an exacerbation of her congestive heart failure, and Digoxin toxicity. Defendant then took Dr. Metoyer’s deposition on February 16, 2006. Following that deposition, Defendant filed a motion for summary judgment alleging that there was no genuine issue of material fact and that Plaintiffs did not have an expert to contradict the opinion of the medical review panel such that they had no evidence to support the basic elements of their case. Following a hearing, the trial court granted Defendant’s motion for summary judgment. Specifically, the trial court found that Plaintiffs failed to present factual support to establish that they would be able to satisfy their evidentiary burden of proof at trial that Mrs. Thierry suffered any damages due to the one-day delay in her reporting to |4the emergency room. Plaintiffs assert that there several genuine issues of material fact that preclude a grant of summary judgment and now appeal.

Defendant answered the appeal, asserting that the trial court erred in denying its motion to strike and admitting the affidavit of Dr. Metoyer. Defendant argues that Dr. Metoyer’s affidavit is based upon inadmissible hearsay from Plaintiffs’ attorney and not on admissible medical records or facts.

DISCUSSION

Motion to Strike

We first address Defendant’s contention that the affidavit of Dr. Metoyer was inadmissible since it was based upon hearsay information from Plaintiffs’ attorney rather than upon personal knowledge. The trial court denied Defendant’s motion to strike and, in its answer to Plaintiffs appeal, Defendant appeals that portion of the trial court’s judgment.

Louisiana Code of Civil Procedure article 967 requires that affidavits submitted in connection with summary judgment be made on “personal knowledge,” which “encompasses only those facts which the affi-ant saw, heard or perceived with his own senses.” Dominio v. Folger Coffee Co., 05-357, p. 4 (La.App. 4 Cir. 2/15/06), 926 So.2d 16, 18. Based on this, Defendant argues that Dr. Metoyer’s affidavit must be stricken as it was not based upon personal knowledge. We disagree.

The Louisiana Supreme Court case of Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, pp. 14-15 (La.2/29/00), 755 So.2d 226, 235 has considered this issue:

[I]t follows that we now adopt the Dau-bert standards for admissibility of expert opinion evidence at the summary judgment stage, as do the federal courts.
After all, it would be inequitable and illogical to allow a party who has eyewitness testimony to be granted a summary judgment over |Ra party who has no eyewitness testimony, but who does have expert opinion evidence, which if believed, would contradict the eyewitness testimony. In such a case, the party with only expert opinion evidence may have actually prevailed at trial but would lose on summary judgment because his evidence would not be admissible as it is not based on personal knowledge. For example, a driver of a vehicle, claiming that her brakes were defective, may testify that she was pressing the brakes of her car but nonetheless the ear increased its forward speed before a collision. She could file a motion for summary judgment attaching her affidavit attesting to the facts as she remembers them. The car or brake manufacturer, who has no eyewitness evidence, may nonetheless have expert opinion evidence that, based on his knowledge of the brake system and his training and experience, the brakes did not fail and the driver must have pressed the accelerator instead of the brakes. A jury may not believe the driver and may be convinced that based on the defendant’s expert evidence, which is based on the circumstances of the case (i.e., increased, rather than decreased, speed), the driver did in fact press the accelerator and not the brakes, and would find in favor of the defendant at trial. In such a case, it would be illogical and inequitable to allow that same plaintiff, who would have lost at trial, to prevail on summary judgment because the defendant’s evidence submitted in opposition to the motion was not based on personal knowledge under La. C.C.P. art. 967.

Expert testimony is frequently based on hearsay or other evidence that would be inadmissible at trial. For example, expert testimony based on police reports, which are inadmissible as hearsay, is allowable. Wiley v. City of New Orleans, 00-1544 (La.App. 4 Cir. 5/16/01), 809 So.2d 151, writ denied, 02-616 (La.5/10/02), 815 So.2d 842, writ denied, 02-641 (La.5/10/02), 815 So.2d 843. Furthermore, the admissibility of the opinion of the medical review panel and the testimony of the panelists is provided for by statute. La.R.S. 40:1299.47(H).

For these reasons, we find no error in the trial court’s denial of Defendant’s motion to strike the affidavit of Dr. Metoyer.

Motion for Summary Judgment

We will review this summary judgment de novo, “using the same criteria applied by the trial courts to determine whether summary judgment is appropriate.” Butler v. DePuy, 04-101, p. 3 (La.App. 3 Cir. 6/9/04), 876 So.2d 259, 261 (citing 6Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730). In Butler, 876 So.2d at 261, we explained that:

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but rather he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

The applicable burden of proof for a plaintiff in a medical malpractice case is found in La.R.S. 9:2794, which provides that a plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. Expert testimony is usually required to establish the applicable standard of care and whether or not that standard of care was breached. Butler, 876 So.2d 259 (citing Davis v. Atchison, 37,832 (La.App. 2 Cir. 10/29/03), 859 So.2d 931).

We do not find this to be a case of obvious negligence where expert testimony is not required because a lay person would be able to infer negligence without the guidance of expert testimony. See Thomas v. Southwest La. Hosp. Ass’n., 02-654 (La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-476 (La.4/25/03), 842 So.2d 401. Therefore, we find that Plaintiffs would be required to produce expert testimony to establish the applicable standard of care, that there was a breach thereof, and that there was a causal connection between the breach and any resultant injuries. Plaintiffs rely on the deposition testimony of Dr. Carroll and the affidavit of Dr. Metoyer to meet their burden of proof. However, we agree with the trial court that Plaintiffs failed to present factual support to establish that they could satisfy the 17evidentiary burden of proving that Mrs. Thierry suffered any damages caused by the one-day delay in her reporting to the emergency room. In her deposition, taken after she signed the affidavit submitted by Plaintiffs, Dr. Metoyer clearly stated that she had not found or received any evidence to indicate that her original medical review panel opinion was contradicted in any way. She further testified that it was not her opinion that any renal condition suffered by Mrs. Thierry at present was caused by either hospitalization at UMC. Importantly, even though Dr. Metoyer agreed that quicker intervention would have been helpful in alleviating Mrs. Thierry’s complaints, Dr. Metoyer further testified as follows:

Q: ... Did the time delay between this phone call and when she presented to the emergency room and was treated, what effect, if any, did that have on this patient’s eventual outcome and how she is doing today?
A: It didn’t have any effect.

Dr. Carroll does not address causation of Mrs. Thierry’s alleged resultant injuries. Accordingly, we find that Plaintiffs failed to successfully rebut Defendant’s showing on its motion for summary judgment and that the trial court’s grant of summary judgment in favor of Defendant was, therefore, appropriate.

DECREE

For all of the foregoing reasons, the judgment of the trial court is affirmed in its entirety. Costs of this appeal are assessed to Plaintiffs-Appellants, Earline Thierry and Arthur Lee Thierry.

AFFIRMED.