author: PATRICIA RIVET MURRAY, Judge.

text:
    Emilie Wiltz McLAIN v. Michael Christian McLAIN, Sr.
    No. 2007-CA-0752.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.

      Theon A. Wilson, Law Offices Of Theon A. Wilson, New Orleans, LA, for Plaintiff/Appellant.
    Lisa C. Matthews, Maria I. O’Byrne Stephenson, Catherine I. Chavarri, Kathleen D. Lambert, Laurie E. Heinrich, Stephenson, Matthews, Chavarri & Lambert, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   PATRICIA RIVET MURRAY, Judge.

11 This is a child relocation dispute under La. R.S. 9:355.1-9:355.17. Emilie Wiltz McLain appeals the trial court’s judgment ordering her to return her two minor children to New Orleans, Louisiana, from Tuscaloosa, Alabama, where she ultimately relocated with the children in the aftermath of Hurricane Katrina. Mrs. McLain additionally appeals the trial court’s designation of her former husband, Michael McLain, Sr., as the interim primary domiciliary parent. Finding no abuse of discretion in the trial court’s judgment, we affirm.

FACTUAL AND LEGAL BACKGROUND

On February 18, 1995, Mr. and Mrs. McLain were married in New Orleans. Two children were born of the marriage: Michael Christian McLain, Jr. (“Christian”), born on September 21, 1995, and Madeleine McLain (“Maddie”), born on January 28, 1997. From the time they were married until August 29, 2005, when Hurricane Katrina struck, the parties resided in the uptown area of New Orleans. Since 1997, Mr. McLain has been employed as a salesman for a food supply company located in the New Orleans area. Mrs. McLain, who has a | ^master’s degree, is a music educator with twenty-three years of teaching experience. She has worked in several schools in the New Orleans area; and she has taught at the elementary, secondary, and college level. She also has operated a private piano and voice lesson business.

On August 27, 2004, Mrs. McLain filed a petition for divorce. On November 15, 2004, Mr. and Mrs. McLain separated. When they separated, Mrs. McLain moved into an apartment across the street from the family home. Mr. McLain continued to reside in the family home. In June 2005, Mr. McLain moved into an apartment located in the Lusher School District and a few blocks away from Lusher School. Shortly thereafter (and before Hurricane Katrina struck the area), the parties sold the family home.

During the period of their separation, Mr. and Mrs. McLain mutually agreed on the custody of the children; however, they never obtained judicial approval of then-agreement. Under that agreement, Mrs. McLain was the de facto primary domiciliary parent, and Mr. McLain had visitation on Wednesday evenings and every other weekend. Beginning in mid-June 2005, Mr. McLain’s Wednesday visitation was extended to include the children staying overnight. Since November 2004 when they separated, Mr. McLain has voluntarily paid child support to Mrs. McLain at an amount consistent with the Louisiana child support guidelines.

During the 2004-2005 school year, the children attended St. Andrew’s Episcopal School in New Orleans. Even before the separation, Mr. and Mrs. McLain had difficulty affording the tuition; they borrowed money from Mr. ^McLain’s mother to pay the tuition. Following the separation, Mr. McLain expressed his concern that given their current circumstances — having to maintain two separate households — they could not afford to send the children to St. Andrew’s for the 2005-2006 school year. He proposed to send the children to Lusher. Mrs. McLain, however, insisted that the children remain at St. Andrew’s for another year. She expressed her belief that the children had undergone significant changes — their parents separating and both parents moving to new homes — and that they should not have to also change schools. Ultimately, Mr. and Mrs. McLain agreed that the children would attend St. Andrew’s for the 2005-2006 school year and that the tuition for that year would be paid out of the proceeds of the sale of their family home. They also agreed to revisit the issue of which school the children would attend when it was time to register for the 2006-2007 school year. At the time Hurricane Katrina struck the New Orleans area, the children had attended the first few days of school at St. Andrew’s.

Because Mr. McLain had the children for the weekend that the hurricane struck, he and the children, with Mrs. McLain’s consent, evacuated to his mother’s home in San Antonio, Texas. At that time, Mr. McLain investigated the potential schools in San Antonio that the children could attend.

Mrs. McLain, on the other hand, could not evacuate to her parents’ home in Biloxi, Mississippi, because Biloxi was also within the projected path of the hurricane. Since she did not have reliable transportation, Mrs. McLain evacuated with friends — Aaron Neville’s wife, daughter, and nephew — to Tuscaloosa, | ¿Alabama. Tuscaloosa was chosen because a friend of the Neville family, Fred Deloach, had secured hotel rooms there.

During the first week in September 2005, Mrs. McLain and the children, with Mr. McLain’s consent, relocated to O’Fal-lon, Illinois to stay with her sister. Mrs. McLain’s reason for relocating to O’Fallon was that the support of the children’s aunt, uncle, and cousins was important to the children’s emotional well-being following Hurricane Katrina. By e-mail dated September 3, 2005, Mrs. McLain characterized this relocation as “temporary” and stated that she hoped to return to New Orleans within a few months. A few days later, the children flew directly from San Antonio to St. Louis, where Mrs. McLain met them. On the next day, the children were enrolled at the same elementary school that their cousins attended in O’Fallon.

On September 11, 2005, Mrs. McLain sent Mr. McLain an e-mail that the children were adjusting well to their new home and school environment in O’Fallon. She further informed him that she had applied for a substitute teaching job. She still further informed him that her parents had returned to their home in Biloxi over the weekend and that there was “no major damage to their home.” On September 15, 2005, Mrs. McLain again e-mailed Mr. McLain and informed him that everything was going well in O’Fallon. She indicated that the kids were settling into a routine and that they were doing well academically and socially. She further indicated that she had unsuccessfully attempted to log onto the St. | ¡Andrew's school website. On September 15, 2005, Mr. McLain sent Mrs. McLain an e-mail updating her on his status in New Orleans. He stated that he was still employed and that St. Andrew’s might re-open by November. During the last week of September, Mr. McLain visited with the children in O’Fallon to celebrate Christian’s birthday.

During the first week in October, Mrs. McLain returned to New Orleans to check on her apartment. She found out that the roof had blown off of her home, and she was informed that she had one week to relocate. Mrs. McLain testified that she considered Biloxi, which was where the children were staying with their grandparents while she was in New Orleans, but she ruled out Biloxi as a possibility for two reasons. First, several of her family members who had extensive damage to their homes were staying at her parents’ home and thus there was no room. Second, the schools in Biloxi were not open.

During the weekend that the children were staying with Mrs. McLain’s parents in Biloxi, Mr. McLain had supper with them. At that time, the children mentioned that they were possibly moving to Tuscaloosa, Alabama. Mrs. Neville attested that when she returned to New Orleans after Hurricane Katrina she observed a moving truck in front of Mrs. McLain’s home, and she saw Mr. Deloach and others helping Mrs. McLain move her belongs. Mrs. Neville attested that she spoke with Mrs. McLain, and Mrs. McLain told her that she was moving to Tuscaloosa.

At some point between the end of September and the beginning of October 2005, Mrs. McLain, without Mr. McLain’s consent, decided to relocate with the | children to Tuscaloosa, Alabama. At that time, Mrs. McLain did not have any employment in Tuscaloosa and the only person she knew there was Mr. Deloach. During this time, Mrs. McLain failed to communicate with Mr. McLain despite his numerous efforts to reach her, which included leaving messages with her parents in Biloxi, on her moving truck that was parked in front of her apartment in New Orleans, and as a last resort with the children. During this move, there was a brief break in time when the children were not in school. There was also a period of time when Mr. McLain was unaware of where the children were living or attending school.

On October 10, 2005, Mr. McLain emailed Mrs. McLain regarding her lack of communication with him for the prior five days. On October 30, 2005, Mrs. McLain provided contact information to Mr. McLain regarding their new address in Tuscaloosa and the children’s school there. Mrs. McLain signed a nine month lease.

On March 16, 2006, Mrs. McLain emailed Mr. McLain proposing that the children be allowed to remain in Tuscaloosa for the upcoming 2006-2007 school year. On that same date, Mr. McLain filed a Rule to Show Cause Why Divorce Should Not Be Granted Under La. C.C. art. 102; Rule for Custody and Motion for Custody Evaluation; Ex Parte Motion to Set Deadline for Filing Detailed Descriptive Lists. This was the first pleading filed in the divorce case since Mrs. McLain initiated the proceeding by filing a divorce petition in 2004. In his post-trial memorandum, Mr. McLain explained that the reason he delayed seeking | judicial, relief regarding Mrs. McLain’s failure to comply with the relocation statutory provisions was that he did not want to disrupt the children’s school placement in November 2005 after they had attended three different schools in a matter of weeks.

In his pleadings, Mr. McLain summarized the post-Hurricane Katrina events that precipitated his seeking judicial relief as follows:

• After moving to Alabama with the children [in early October. 2005], Mother enrolled them in school and did not return to New Orleans, even though the children’s school in New Orleans [St. Andrew’s] reopened on November 2, 2005, and the school where Mother was employed reopened on November 11, 2005. Mother stated she would not make any decisions about when she would return to New Orleans until after the 2005-2006 school year. Most recently, Mother has stated that she would not make any decisions about returning to New Orleans or which school the children might attend until August of 2006.
• Mother has not sent Father notice of .any intention to relocate permanently -to Tuscaloosa, Alabama with the minor children of the marriage in accordance with La. R.S. 9:355.1, et seq., nor has she stated whether she intends to remain there indefinitely. However, she has failed and refused to return the minor children to live in New Orleans, which has interfered with the parenting schedule the parties had been following prior to Hurricane Katrina, and which has unduly delayed the children’s return to their home and community following Hurricane Katrina. Moreover, Mother has remained uncommunicative and unresponsive on multiple attempts from the Father to arrange visitation or follow previous arrangements regarding the children.
• Mother does not and did not have employment in any of the two locations [(¿&, O’Fallon, Illinois or Tuscaloosa, Alabama) ] she brought the children to live after Hurricane Katrina. The only reason Mother brought the minor children to Tuscaloosa, Alabama to live was so that she could thwart the minor children’s relationship with Father and so that she could be close to her boyfriend who lives in Tuscaloosa, Alabama, Mr. Deloach.
• Father returned to live in New Orleans on September 15, 2005, where he has remained since them.

In April 2006, the parties were divorced, and a consent judgment was prepared by the parties. In the consent judgment, the parties agreed that Alicia Pellegrin, Ph.D., would be the court-appointed independent custody evaluator and |sthat all appointments needed to complete the evaluation would be scheduled on or before June 1, 2006. Mrs. McLain, however, did not have her final interview with Dr. Pellegrin until August 3, 2006.

On July 20, 2006, Mr. McLain filed a Rule to Show Caúse Why Children Should Not Be Returned to New Orleans. On September 18, 2006, a hearing was held on Mr. McLain’s rule. At the hearing, four witnesses testified: (i) Mrs. McLain; (ii) Mr. McLain; (iii) Nancy Marshall, a member of St. Andrew’s Church; and (iv) Kristen Bryant, the youth director at St. Andrew’s Church. Dr. Pellegrin’s report was introduced by the trial court, on its own motion, and her deposition was introduced by Mr. McLain. Mr. McLain also introduced affidavits of Mrs. Neville and Reverend Susan Gaumer, the rector at St. Andrew’s Church. Various e-mails exchanged between Mr. and Mrs. McLain during the pertinent period of time also were introduced. Mr. McLain also introduced correspondence from the principal of Lusher Charter School. The letter indicated that the reserved places for the children at Lusher would no longer be available if the children were not physically present at school by October 20, 2006. Both parties also introduced evidence regarding the schools, in general, and the children’s performance in school, in particular, as well as their participation in other activities. Mrs. McLain also introduced evidence regarding her employment in Tuscaloosa, which included a part-time teaching job, various free-lance jobs, and teaching private music lessons.

On October 9, 2006, the trial court rendered judgment. The judgment ordered the return of the children to New Orleans in sufficient time to timely enroll at Lusher Charter School. The judgment further provided for interim custody to |3be joint with Mr. McLain as primary domiciliary parent and with Mrs. McLain to have liberal, reasonable and possible visitation. The judgment still further provided that upon Mrs. McLain’s return to the greater New Orleans metropolitan area, either party could seek a review of the interim custody if not sooner modified by then-mutual agreement in writing. Mrs. McLain filed a motion for a stay of the enforcement of the judgment and a motion for new trial. The trial court summarily denied the request for a stay; it denied the motion for new trial after a hearing. This appeal followed.

DISCUSSION

The standard of review in a relocation case is that the trial court’s determination “will not be overturned absent a clear showing of abuse of discretion.” Curole v. Curole, 02-1891, p. 4 (La.10/15/02), 828 So.2d 1094, 1096. In reviewing the record to determine whether the trial court’s ultimate conclusion constitutes an abuse of discretion, the appellate court must accept each factual finding the trial court made in arriving at that conclusion, unless the particular factual finding is manifestly erroneous. H.S.C. v. C.E.C., 05-1490, p. 1 (La.App. 4 Cir. 11/8/06), 944 So.2d 738, 750 (Murray, J., concurring)(citing Curole, supra); see also Leaf v. Leaf, 05-0592 (La.App. 4 Cir. 3/2/06), 929 So.2d 131.

As the trial court noted in its written reasons for judgment, La. R.S. 9:355.1 through 9:355.17 govern the issue of the relocation of a child’s residence out of state. Relocation is defined to include an “[ijntent to establish legal residence with the child at any location outside of the state.” La. R.S. 9:355.1(4)(a). The Louisiana Legislature has placed a two-fold burden of proof on the relocating |inparent, who must prove that (i) the proposed relocation is made in good faith, and (ii) is in the best interest of the child. La. R.S. 9:355.13. Guidance to the trial court in making its determination as to whether the relocating party has met this burden of proof is provided by La. R.S. 9:355.12, which lists a dozen factors the trial court is required to consider in reaching its decision regarding a proposed relocation. The Legislature has also instructed that in making this determination “[tjhe court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.” La. R.S. 9:355.12(B). “If the issue of relocation is presented at the initial hearing to ^determine custody of and visitation with a child, the court shall apply the factors set forth in R.S. 9:355.12 in making its initial determination.” La. R.S. 9:355.15.

On appeal, Mrs. McLain first assignment of error is that the trial court erred in making a custody determination considering that only the Rule to Show Cause Why Children Should Not Be Returned to New Orleans was set for hearing before the court. Mr. McLain counters that this is a non-issue.

In its reasons for judgment, the trial court addressed this issue and noted that “the true issue before the court was whether or not the children would be ordered to return to New Orleans or continue de facto relocation to Tuscaloosa, Alabama without prior notice to Mr. McLain or a court hearing.” The court further noted that it “considered the hearing to be one of allowing or denying relocation of the minor children.” Explaining the inclusion in the judgment of the provision designating Mr. McLain as the interim primary domiciliary parent, the trial court stated that this provision was simply the practical result of its ruling on the relocation issue. At the hearing on the motion for new trial, the trial court reiterated the practical reason for including this provision in the judgment, stating:

“I just don’t think it makes sense for the children to be here, for Daddy [Mr. McLain] to be here, for Mrs. McLain to be in Tuscaloosa, Alabama and then we’re going to argue about who’s the primary domiciliary parent? I can answer that question for you as a practical matter: The parent that’s here. If she returns, I am willing to change that immediately.”

The practical impact of a trial court’s decision denying relocation on the de facto custody of the children has been noted by the commentators. “[I]f a custodial parent is judicially prohibited from relocating the child, a de facto change of custody will occur if the custodial parent has no choice but to move and therefore has to leave the child in Louisiana with the non-relocating parent to serve as 112custodian of the child.” Laura C. Cocus, Comment, Louisiana’s Restrictive Relocation Laws: Jeopardizing Stability in Custodial Arrangements for the Sake of Geographical Proximity Between Divorced Parents, 53 Loy. L.Rev. 79, 86 (Spring 2007){“Cocus”). The trial court’s judgment in this case simply acknowledges that de facto change in custody results from its ruling on the relocation issue. We find no error in the trial court’s express recognition of the practical impact of its denial of relocation.

Mrs. McLain’s alternative argument is that the trial court’s award of domiciliary custody is not based on the law and is contrary to the evidence. She points out that La. C.C. art. 131 requires the court to award custody in the best interest of the children, and La. C.C. art. 134 enumerates the factors the court should consider in making the best interest determination. Mrs. McLain argues that the only best interest analysis the trial court engaged in involved the dozen relocation factors enumerated in La. R.S. 9:355.12.

Because this case involves an interim initial custody order, the requirements of Article 131 and 134 arguably are not applicable. Regardless, because this case involves not only a custody issue but also a relocation issue, the particular provision that governs this case is La. R.S. 9:355.15, which provides that when the relocation issue is presented at the initial hearing to determine custody and visitation, the court shall apply the relocation factors set forth in La. R.S. 9:355.12 in making its initial determination. See Walkowiak v. Walkowiak, 32,615, p. 5 (La.App. 2 Cir. 12/8/99), 749 So.2d 855, 858. Moreover, as the Louisiana Supreme Court noted in Cu-róle, the fundamental principle governing decisions under the Louisiana relocation statute is the “best interest of the child” standard. Curole, 02-1891 at p. 4, 828 So.2d at 1096; see also Rao v. Rao, 05-1523 (La.App. 1 Cir. 11/4/05), 927 So.2d 391 (finding jurisprudential change of custody standards inherent in the relocation factors and requirements of good faith and best interests of the children under La. R.S. 9:355.12 and 9:355.13).

Mrs. McLain’s argument that the trial court factually erred in awarding primary domiciliary custody to Mr. McLain is based on Dr. Pellegrin’s opinion that regardless of where the children reside she should be designated as the primary domiciliary parent. Dr. Pellegrin based this recommendation on the fact that Mrs. McLain has been the parent “who was accustomed to taking care of the children’s daily needs.” Dr. Pellegrin, however, expressly states in her report that she is not rendering an opinion on the relocation issue, which was the only matter before the trial court. As Mr. McLain points out, Dr. Pellegrin’s opinion did not contemplate that Mrs. McLain would not return to New Orleans if the court denied the relocation. Moreover, Dr. Pellegrin testified in her deposition that if the court orders the children returned to New Orleans and Mrs. McLain chooses not to relocate, she believes that Mr. McLain would be able to be the designated domiciliary parent and provide for the children’s needs. We thus find no error in the trial court’s interim custody award.

Mrs. McLain’s next two assignments of error relate to the trial court’s finding that she failed to satisfy her burden of proving the relocation was in good faith. She correctly notes that the statute does not define good faith and offers several definitions of that term, including, an absence of intent to defraud or seek an unconscionable advantage. However, the jurisprudence has defined the meaning of the term good faith in this context as a legitimate or valid reason for the move. See Johnson v. Johnson, 99-1933, p. 5 (La.App. 3 Cir. 4/19/00), 759 So.2d 257, 259. “Relocations that are based on a frivolous reason, no reason, or just to [ 14interfere with the noncustodial parent’s visitation with the children” do not satisfy the good faith requirement. Cocus, 53 Loy. L.Rev. at 98 (citing Janet L. Richards, Children’s Rights v. Parents’ Rights: A Proposed Solution to the Custodial Relocation Conundrum, 29 N.M. L.Rev. 245, 263 (Spring 1999)). Legitimate reasons include:

(i) to be close to significant family or other support networks;
(ii) for significant health reasons;
(iii) to protect the safety of the child or another member of the child’s household from a significant risk of harm;
(iv) to pursue a significant employment or educational opportunity; or
(v) to be with one’s spouse (or equivalent) who is established, or who is pursuing a significant employment or educational opportunity, in another location.

Richards, 29 N.M. L.Rev. at 263 n. 102 (citing American Law Institute’s Tentative Draft on Relocation); see also Dupre v. Dupre, 857 A.2d 242, 258-59 (R.I.2004)(citing these factors and noting that “[a] parent’s desire to relocate with his or her children ought not be predicated upon a whim.”)

At the hearing in this case, the trial court questioned Mrs. McLain regarding her reason for relocating to Tuscaloosa. The court asked her if Mr. Deloach had not been in Tuscaloosa would she have gone there, and she answered that she definitely would have considered it. She stated: “I was there for 10 days during the storm, I saw what it had to offer and I knew it was closer to home than Illinois.” Ultimately, the trial court found that Mrs. McLain’s relocation and | ^desire to continue indefinitely the relocation to Tuscaloosa, Alabama, was not made in good faith for the following reasons:

•Mother did not notify Father of her move from O’Fallon, Illinois to Tuscaloosa, Alabama nor of her intention to remain in Tuscaloosa.
• The move did not increase Mother’s income because she had not had nor did she have full time permanent employment at the time of trial.
• The court accepts Mother’s testimony as to the quality of the children’s schools in Tuscaloosa but also notes that St. Andrew’s where the children attended school reopened on November 2, 2005, and Ecole Bilingüe de la No-velle, where mother worked prior to Katrina reopened on October 11, 2005.
• Further, the only person that Mother knew in Tuscaloosa, Alabama, prior to relocating there was Fred Deloach. The nature and extent of Mother’s relationship with Mr. Deloach is not clear on this record.
• To the extent that Mother’s quality of life is enhanced by being near to Mr. Deloach, it does not compensate the children’s loss of frequent and continued contact with their father.
•Also, Tuscaloosa places the children a greater distance from their maternal and paternal grandparents. It should also be noted that the maternal grandparents had returned to their Biloxi home contrary to the representation made by Mother to Dr. Alicia Pellegrin.

The trial court also noted its belief that there is a temporal requirement in any good faith request to relocate, i.e., the reasons for the requested relocation must exist prior to the proposed or actual relocation. In finding the requirement was not met in this case, the court reasoned that “it appears that the only fact known about Tuscaloosa prior to the relocation was that Fred Deloach lived there.”

Mrs. McLain contends that the trial court’s finding on this issue was both legally and factually erroneous. Legally, she contends the trial court erred in focusing only on where as opposed to why she relocated. She contends that the relocation statute is not location-specific and that it is the move itself and not the place that should be the focus of the good faith analysis. She emphasizes that her |1fiinitial move from New Orleans was involuntary due to Hurricane Katrina and that in the aftermath of the hurricane her options in terms of employment, housing, and schooling for the children were limited. She further emphasizes the lack of evidence that her relocation to Tuscaloosa was malicious, fraudulent, or otherwise intended to gain an unjust advantage over Mr. McLain.

The jurisprudential requirement of good faith simply refers to a legitimate or valid reason for the move. In this case, Mrs. McLain’s primary reason for moving to Tuscaloosa was that her friend, Mr. Deloach, lived there. We cannot say that the trial court’s finding that this was not a good faith reason to relocate was manifestly erroneous. Ordinarily, this would require we affirm the trial court’s decision. However, we find it appropriate in deciding this case to review the factors enumerated in La. R.S. 9:355.12 because this ease differs from the ordinary relocation dispute in two significant respects.

Ordinarily, the relocation issue arises after the initial custody determination has been made. Cocus, 53 Loy. L.Rev. 79, 86. This case, however, is different in that an initial custody determination was never made. Rather, before Hurricane Katrina, the parties had a de facto custody agreement. As discussed above, given the lack of any court order regulating custody between the parties at the time of the relocation at issue, this case falls under La. R.S. 9:355.15, which requires the court to apply the relocation factors in La. R.S. 9:355.12 in making its initial custody determination.

The second aspect in which this case is different is that it involves an initial involuntary relocation from the New Orleans area as a result of the emergency presented by Hurricane Katrina. As a commentator has noted, “[a]n emergency evacuation does not itself constitute a relocation, but if the parent who evacuated |17with the child does not plan on returning, relocation will become an issue.” Steven J. Lane, Jurisdictional and Practical Problems in Family Law Following Hurricane Katrina, 69 Tex. B.J. 438, 441 (May 2006). As this commentator points out, the issue is at what point does the emergency evacuation transform into a relocation. Id.

Before addressing the factors enumerated in La. R.S. 9:355.12, we first address Mrs. McLain’s argument that the trial court erred in adopting Mr. McLain’s argument from his post-trial memorandum and failing to undertake its own independent analysis of the twelve relocation factors. We find, as Mr. McLain contends, that there was no error in the trial court’s adopting the analysis presented by Mr. McLain. In so finding, we note that the statute provides that the trial court “shall consider” the factors, not that the trial court must expressly analyze each factor. See H.S.C., 05-1490 at p. 2, 944 So.2d at 751-52 (Murray, J., concurring). We now turn to an analysis of the twelve relocation factors.

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.

This factor requires an assessment of the relationship between the children and each of the parents. This is a case involving two equally suited parents. Dr. Pelle-rin testified that the nature, quality, and duration of the children’s relationship with Mr. McLain were similar to that as exhibited with Mrs. McLain. She characterized all of these as positive factors as to Mr. McLain and described his relationship with the children as excellent. She also stated that he has been a very involved father who has been there since the children were born. She concluded that there was nothing negative relative to either parent as to this factor.

11sMr. McLain testified regarding the activities he previously engaged in with his children. He stated that he was an assistant coach for Christian’s basketball team and for Maddie’s soccer team, regularly attended the children’s sporting events, regularly took them to church and choir practice at St. Andrew’s, took them to the park to ride bikes, and cooked dinner for them. He further testified that his work schedule is from 8:00 a.m. to 5:00 or 6:00 p.m. on Monday to Friday, but he does not have set work hours. He explained that he has a great deal of flexibility in his work schedule and that he can bring the children to the office if he needs to do so.

Mrs. Neville attested in her affidavit that both Mr. and Mrs. McLain are equally excellent, loving, capable, and involved parents. She further attested that the children are equally bonded to both parents and that they enjoy a very close and loving relationship with both parents. She characterized Mr. McLain as a “hands-on” father who frequently takes his children to church and to sing in the choir. She likewise described Mrs. McLain as a loving and involved parent. Mrs. Neville also attested that she would trust either Mr. or Mrs. McLain with the care of her daughter, who is Maddie’s friend. Mrs. Neville described the activities that Mr. McLain planned for the children and in which he included her daughter. These activities included a well-planned birthday party that Mr. McLain hosted for Maddie in Audubon Park after Hurricane Katrina.

Reverend Gaumer attested that she has been the rector at St. Andrew’s Church for over seven years. In that capacity, she has become acquainted with the McLains, who have been parishioners there. She indicated that the children “seemed to be equally happy with both parents.” She further indicated that she has not had any contact with Mrs. McLain since the hurricane, but she has had contact |inwith Mr. McLain and the children. She characterized Mr. McLain, both before and after Hurricane Katrina, as an excellent parent who has a very strong bond with his children.

Ms. Marshall, a friend of the McLains, testified about her personal observations of the close and loving relationship the children have with their father. She testified that she sees the children with Mr. McLain at church and other activities and that the children have a lovely relationship with their father. She stated that “he does all kinds of things with them.”

The other significant influences in the children’s lives include their church and school communities. Mrs. McLain acknowledged that the children have a strong sentiment towards their church here in New Orleans and still love their church family. Several members of St. Andrew’s Church also testified regarding the children’s strong bond with their church. The youth group director, Mrs. Bryant, testified that the children joined the group after they relocated to Tuscaloosa and that the children have participated in the group activities as much as they could given the distance between New Orleans and Tuscaloosa. She testified that she communicates with Christian regarding group activities by e-mail. (Copies of the e-mails were introduced into evidence.)

Dr. Pellegrin’s response regarding the other significant persons in the children’s lives when they initially moved to Tuscaloosa was that “certainly their home was New Orleans. Their community was New Orleans. They didn’t know anyone in Tuscaloosa at the time they relocated so New Orleans by default would have to be— come out ahead there.”

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

LnAt the time of the trial court proceedings, Maddie was nine years old and Christian was almost eleven years old. Dr. Pellegrin testified that the children could do well in New Orleans as it is their home. However, she testified that some weight had to be given to the fact the children were “ensconced” — securely or comfortably settled — in the Tuscaloosa community and in school there. They had developed a social network there. She also stated her belief that the children had been moved around a lot and that developmentally and emotionally another move would be difficult, especially for Maddie. However, she acknowledged the need to balance the difficulty of another move with the distance from their father. She also acknowledged that the children have been moved a lot because of decisions made by Mrs. McLain. Dr. Pellegrin indicated that it is a difficult call to make.

The record reflects that Mr. McLain was active on a regular basis in the children’s extracurricular and church activities and that he could not participate regularly in those activities if the children remained in Tuscaloosa. Dr. Pellegrin stated that this inability of Mr. McLain to participate in a meaningful fashion in the children’s lives if they remain in Tuscaloosa would have an impact on their physical, educational, and emotional development to some extent.

The evidence indicates that the children have equally excellent educational, social, and spiritual opportunities in Tuscaloosa and in New Orleans. The record reflects that Lusher Charter School and the public school the children were attending in Tuscaloosa are on par. New Orleans is where they have lived their entire lives pre-Hur-ricane Katrina and many of their church and school friends are here. Moreover, Mr. McLain is here.

¡gi(S) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

Dr. Pellegrin testified that the quality of the father-child relationship if the children remain in Tuscaloosa cannot even approach what it would be if the children lived in the same city as their father. She testified that “it’s impossible.”

Mr. McLain testified that he has only visited the children two or three times since they relocated to Tuscaloosa for two reasons: (i) the time factor of traveling there, and (ii) the cost factor. He testified that it is approximately a five hour drive from New Orleans each way and that it is impossible to spend quality time with the children on a weekend without staying in Tuscaloosa. He further testified that he lacks the financial resources to spend time with the children in Tuscaloosa very often. Although he acknowledged that Mrs. McLain invited him to stay in her home when he visited, Mr. McLain testified that he was uncomfortable accepting the invitation.

(Jp) The child’s preference, taking into consideration the age and maturity of the child.

Although the children expressed a preference to remain in Tuscaloosa, Dr. Pelleg-rin testified that “[i]t’s very difficult to know at this age and given the circumstances how much of it is what they really want and how much of it is because of the reasons discussed that they should want.” She further testified that the children obviously are very aware of what each parent wants and that the desire to please each parent often triggers what they say to each parent. She was not surprised that the children made statements to their father that they wanted to return to New Orleans.

|a2In her report, Dr. Pellegrin noted that “both children reported that they feel ‘pressured’ by their father to return to New Orleans, which is making them uncomfortable.” Dr. Pellegrin also stated in her report that “both children are well aware of what each parent wants and this examiner believes that the children are citing their reasons for wanting to remain in Tuscaloosa by repeating what they have heard from their mother.” She had some concern about the children parroting what their mother said regarding their preference. Dr. Pellegrin stated that when she interviewed Christian regarding his reason for wanting to remain in Tuscaloosa, his answer was that “everything in New Orleans is so depressing; I don’t think I could take it. It’s less depressed in Tuscaloosa.” However, Christian could not explain to her what he meant by the term “depressed,” which he used several times.

Dr. Pellegrin acknowledged that it would be important to consider statements the children made to third parties outside the presence of their parents in determining their preference. She indicated that this would include statements made to a church youth director regarding the children’s desire to return to New Orleans and to remain a part of their church community here.

(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.

Dr. Pellegrin testified that she was not aware of any problem regarding this factor. Before Hurricane Katrina, the parties had agreed on a regular visitation schedule. Because the parties lived nearby each other, the children were able to see both parents on a regular basis. During that time, Mr. McLain was gradually increasing the visitation time he had with the children.

| gjDr. Pellegrin further testified that the evidence of Mrs. McLain’s consistent efforts to ensure the children have frequent contact with their father belies Mr. McLain’s belief that Mrs. McLain has attempted to thwart his relationship with the children. Although Mr. McLain testified that the children have only called him about four times during the time they have been in Tuscaloosa, there is no evidence to establish that Mrs. McLain has interfered with the communication, by telephone or otherwise, between the children and Mr. McLain. To the contrary, Mrs. McLain offered, at the suggestion of Dr. Pellegrin, to install a separate phone line in her house for the children. Mr. McLain, however, disapproved of the suggestion because he did not believe the children were old enough to have their own phone line. Mrs. McLain thus did not have the separate line installed.

Although Mrs. McLain has made efforts to facilitate Mr. McLain’s visitation and communication with the children and even offered to allow him to stay at her house in Tuscaloosa, she made the unilateral decision to relocate the children from O’Fallon to Tuscaloosa. She then failed to notify Mr. McLain of the new address and new school she selected for the children until after the fact.

(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.

Dr. Pellegrin testified that the children are able to have generally the same positive quality of life in Tuscaloosa and in New Orleans. Although Mrs. McLain testified that the children were afraid when they visited New Orleans after Hurricane Katrina, several witnesses corroborated Mr. McLain’s testimony to the contrary. Mrs. Neville attested that she observed the children in New Orleans after Hurricane Katrina and that she did not observe any anxiety or concern on their part 124over being back in New Orleans. Reverend Gaumer attested that on the occasions she has observed the children in New Orleans since Hurricane Katrina they seemed to really enjoy being back in New Orleans and being back in their church home. She stated that the children did not express or exhibit any fear or concern about being in New Orleans. Ms. Marshall testified that she did not observe anything in the children’s demeanor to indicate they felt uncomfortable in New Orleans post-Hurricane Katrina. Rather, she testified that they appeared to be happy to be back. Mrs. Bryan, the youth group director, also testified that the children were “absolutely not” in any fear about being back in New Orleans after Hurricane Katrina. She testified that they had a great time when they were in New Orleans.

(7) The reasons of each parent for seeking or opposing the relocation.

The reasons for Mrs. McLain’s relocation to Tuscaloosa are detailed in the discussion on good faith. Mr. McLain’s reason for opposing the relocation is that he wants to have regular contact with his children. He testified that he does not want to be a visiting father. To the contrary, he testified that he wants to be the domiciliary parent. In support of his ability to do so, he cited the stability in his home, work, and financial life.

(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.

As noted, Mr. McLain has been employed with the same company for nine years in the New Orleans area. Mrs. McLain, at the time of the hearing, had obtained a part time teaching job in Tuscaloosa, was operating a private music lessons business, and had done some other free-lance work in Tuscaloosa.

1 2r(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.

Although there is no existing child or spousal support order, Mr. McLain has been paying child support to Mrs. McLain on a regular basis since their separation in an amount supported by the Louisiana child support guidelines. Dr. Pellegrin testified that she had no concerns regarding Mr. McLain’s fulfilling his financial obligations. In this regard, she testified that he has paid regular child support, was not in arrears, and has participated financially in the major decisions.

(10) The feasibility of a relocation by the objecting parent.

The objecting parent is Mr. McLain. Dr. Pellegrin testified that Mr. McLain has longstanding work in New Orleans and that he certainly could not be expected to pick up and move unless he had alternative employment available. Mr. McLain testified that he attempted to locate comparable employment in the Tuscaloosa area, but was unsuccessful. He explained that he researched the food service providers that operate in the Tuscaloosa area. The home office of the company that services that area is in Atlanta, Georgia. He stated that he would have to live in Atlanta if he was going to be a salesman in Tuscaloosa.

(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

Dr. Pellegrin stated in her report that “[njeither party has any significant psychological or personality problems that would adversely affect their ability to parent adequately.” She testified that the parties had a volatile relationship when they were together, but she did not believe this was a domestic violence case. She 12fifurther testified that Mr. McLain was diagnosed several years earlier with Bipolar Disorder, but his condition is well managed and controlled. She stated she had no concerns about his condition at this point. She likewise testified that she had no serious concerns about Mrs. McLain’s alleged alcohol abuse.

(12) Any other factors affecting the best interest of the child.

The only other factor Dr. Pellegrin identified was Maddie’s relatively fragile emotional and psychological condition. As noted earlier, Dr. Pellegrin cited this factor as a concern regarding moving the children. She noted that Christian would have no problems adjusting, but another move could be difficult for Maddie. However, Dr. Pellegrin acknowledged that the potential adverse effects of moving Maddie again would have to be balanced against the potential adverse effects of having the distance between her and Mr. McLain. Counseling for Maddie was recommended. It was also noted that it would be important for Mr. McLain to be involved in the counseling program. Such involvement would be difficult if the counseling was in Tuscaloosa, and Mr. McLain was living in New Orleans.

In looking at the relocation factors, we find that the trial court’s determination that the relocation to Tuscaloosa was not in the best interest of the children was not manifestly erroneous. Mrs. McLain failed to meet her burden at trial to justify the relocation. Accordingly, we conclude that the trial court did not abuse its discretion in denying the relocation.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . According to Mrs. McLain's testimony, they resided for about a year in Austin, Texas before they were married. She grew up in Mississippi; Mr. McLain grew up in Texas.

      . Although Mr. and Mrs. McLain separated in 2001, they reunited shortly thereafter.

      . Following Hurricane Katrina, Mr. McLain apparently missed or paid a reduced support payment for a couple of months. However, there was never a support judgment.

      . The McLains and the Nevilles are close friends. Mr. Deloach, a longtime fan of Mr. Neville, often had backstage passes for Mr. Neville's performances. Mrs. Neville attested that "[t]o the best of my knowledge, based upon statements made to me by Emilie McLain prior to Hurricane Katrina, Emilie McLain and Fred Deloach did not have a serious relationship prior to Hurricane Katrina.”

      .Although he agreed to the move to O’Fallon, Mr. McLain voiced reservations about the move because of the "rocky relationship” between Mrs. McLain and her sister. He was also concerned regarding his inability to visit the children on a regular basis.

      . Although Mrs. McLain testified that she had other friends in Tuscaloosa, she was only able to identify two other people who she testified she knew through Mr. Deloach. Moreover, Dr. Pellegrin, the court-appointed custody evaluator, testified that she was unaware of anyone other than Mr. Deloach who Mrs. McLain knew in Tuscaloosa when she relocated there. Likewise, Mrs. Neville stated in her affidavit that the only person Mrs. McLain knew in Tuscaloosa when they evacuated there was Mr. Deloach.

      . The judgment also provided that the children may continue their present enrollment in Tuscaloosa, Alabama through the end of the first quarter provided that date allows for sufficient travel and preparation time to enroll timely in Lusher.

      . Although on November 2, 2006, the trial court granted Mrs. McLain’s Motion for Expedited Appeal of Issues of Custody and Relocation, which the trial court granted, no request was made by the parties to expedite this appeal in this court. Indeed, the appeal was not lodged with this court until June 20, 2007.

      . The Louisiana Legislature has enunciated the following dozen factors that courts are required to consider in deciding whether to allow a relocation:
      (1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
      (3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
      (4) The child's preference, taking into consideration the age and maturity of the child.
      (5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
      (6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
      (7) The reasons of each parent for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
      (9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
      (10) The feasibility of a relocation by the objecting parent.
      (11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.
      La. R.S. 9:355.12(A).

      . Mrs. McLain testified that the only time she had ever bfeen to Tuscaloosa before she evacuated there in August 2005 was about three years earlier when she passed through with Mr. McLain on a trip. On that occasion, she spent a few hours in Tuscaloosa.

      . Christian's birthday was three days after the hearing; thus, he was almost eleven at the time of the hearing.

      . The major community asset is the funds from the sale of the family home, which are currently being held in escrow.

      . According to Mr. McLain, he was diagnosed with Bipolar Disorder twelve years ago.


source: Caselaw Access Project

author:
ROLAND L. BELSOME, Judge.
      LOVE, J.,

license: Public Domain

text:
    Jania MARTIN and James Wesley. v. ILLINOIS CENTRAL RAILROAD COMPANY, National Railroad Passenger Corporation d/b/a Amtrak and Birmingham Steel Corporation.
    No. 2006-CA-1495.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.

      Todd R. Slack, James M. Williams, Gau-thier Houghtaling & Williams, Metairie, LA, for Plaintiffs/Appellants.
    Tobin J. Eason, Weiss & Eason, L.L.P., Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| iPlaintiffs-Appellants appeal the trial court’s grant of a motion for summary judgment in favor of Defendant-Appellee. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs-Appellants Jania Martin and James Wesley (“Appellants”), employees of National Railroad Passenger Corporation, d/b/a Amtrak (“Amtrak”), were injured in a collision between an Amtrak train and a truck driven by John Stokes on March 15, 1999 in Bourbannais, Illinois. Mr. Stokes drove his truck across a set of tracks in front of the train, causing the collision. The truck was loaded with steel that was sold by Defendant-Appellee Birmingham Steel Corporation (“Birmingham Steel”), who contracted with Melco Transfer, Incorporated (“Melco”) to retrieve and deliver the steel to Gem City Steel (“Gem City”). Melco contracted with Mr. Stokes to transport the steel from Birmingham Steel to Gem City Steel.

Appellants filed suit against Birmingham Steel and several other Defendants. Birmingham Steel thereafter filed a motion for summary judgment Lthat was ultimately granted by the trial court, dismissing Birmingham Steel and its insurers with prejudice. This appeal followed.

STANDARD OF REVIEW

Appellate courts review motions for summary judgment using the de novo standard. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. The reviewing court must examine the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” to find if genuine issues of material fact exist. La. C.C.P. art. 966(B). The “mover is entitled to judgment as a matter of law” if no genuine issues of material fact remain. Id. “A summary judgment may be rendered dis-positive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” La. C.C.P. art. 966(E). The movant bears the burden of proof unless he “will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment.” La. C.C.P. art. 966(C)(2). Next, the movant must establish “that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact.” Id.

APPLICABLE LAW

Regarding issues of conduct and safety, the rules of Louisiana Conflicts of Law state, in pertinent part-

issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state or in another state whose | slaw did not provide for a higher standard of conduct. In all other cases, those issues are governed by the law of the state in which the injury occurred, provided that the person whose conduct caused the injury should have foreseen the occurrence in that state.

La. C.C. art. 3543. In this case, the conduct and injury occurred in Illinois; thus, the substantive law of Illinois applies.

DISCUSSION

Appellants’ sole assignment of error asserts that the trial court erred in granting the motion for summary judgment because genuine issues of material fact exist. We disagree.

Appellants assert that the alleged evidence of Birmingham Steel’s direct negligence precluded summary judgment. Specifically, appellants argue that Birmingham Steel had a duty to investigate Mr. Stokes’ late arrival and to know that Mr. Stokes had not conformed to federal trucking regulations with respect to driving time limits. The Illinois Supreme Court has held that to properly state a cause of action for negligence under Illinois law, a claimant must establish the existence of a duty of care owed by the defendant, a breach of that duty, and an injury that was proximately caused by the breach. See, e.g., Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 421, 170 Ill.Dec. 418, 592 N.E.2d 1098, 1100 (1992). Whether a duty of care exists in an action for negligence is a question of law that may be determined on a motion for summary judgment. Id.

We find that Appellants did not present any evidence demonstrating the existence of a duty on the part of Birmingham Steel to refuse to load Mr. Stokes’ truck with steel on the night of the accident. Thus, at the outset, Appellants’ argument fails to establish even the first prong of the negligence cause of action. See Milz v. M.J. Meadows, Inc., 234 Ill.App.3d 281, 175 Ill.Dec. 276, 599 N.E.2d 1290 (1 Dist.1992)(holding that an absence of duty entirely negates a cause of action for negligence); see also Mt. Zion State Bank Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 116, 214 Ill.Dec. 156, 660 N.E.2d 863 (1995)(“[i]f no duty exists, it is axiomatic that no recovery can occur”).

In this case, Birmingham Steel entered into a Transportation Agreement with Melco Transfer; Melco Transfer contracted with Mr. Stokes to employ him as a driver and to lease him a truck. Mr. Stokes was thus an independent contractor over whom Birmingham Steel had no control or contractual relationship. Therefore, no legal duty was established by Appellants on the part of Birmingham Steel pursuant to a contractual or agency relationship with Mr. Stokes. See Milz, supra.

The precise issue on appeal, however, is Appellants’ failure to establish that a duty existed on the part of Birmingham Steel through either Charlene Cannon, Birmingham Steel’s dispatcher, or David Beaupre, Birmingham Steel’s general foreman of shipping. Appellants argue that the deposition testimony of Ms. Cannon and Mr. Beaupre that Birmingham Steel had previously refused to allow a truck to be loaded with steel because of a driver’s drunkenness and, on other occasions, because of improper truck conditions, thereby created a legal duty on the part of Birmingham Steel. Additionally, Appellants submit that Birmingham Steel, through its dispatcher/shipping clerk, Ms. Cannon, had a duty not only to ascertain whether Mr. Stokes had sufficiently rested pursuant to federal trucking laws and regulations, but also to refuse to load Mr. Stokes’ truck with steel. Appellants’ argument is flawed for several reasons.

First, Ms. Cannon testified that she was not trained with regard to federal regulations governing truck drivers, nor was she trained or instructed to question | ¡¿he drivers with regard to how many hours they had slept or worked in a given day. Second, Ms. Cannon testified that Mr. Stokes did not say at any point that he felt too tired to drive his truck. Ms. Cannon testified that Mr. Stokes told her that he was going to go home, get cleaned up and get on the road, because, according to Ms. Cannon’s testimony, Mr. Stokes said that “if I go to bed now I probably wouldn’t wake up in time to go, but if I get down the road a ways, I’ll be all right.” Third, Ms. Cannon also testified that Mr. Stokes told her that after he “g[o]t started down the road,” that if he thereafter felt tired, he would pull over. Finally, and most significantly, Ms. Cannon plainly testified that Mr. Stokes did not look tired:

Q: Did Mr. Stokes look tired to you?
A: No.
Q: Have you seen drivers that come
in that look tired?
A: Oh, yes.

Thus, we find it wholly illogical to conclude from Ms. Cannon’s testimony that she could have had knowledge that Mr. Stokes might have been impaired by lack of sleep, particularly when it was Ms. Cannon’s clear assessment that Mr. Stokes did not look tired.

Moreover, we do not agree that this is analogous to an instance where a truck driver arrives to pick up a load and is visibly intoxicated. To manipulate Birmingham Steel’s policy against loading a visibly intoxicated driver’s truck into a shipping clerk’s legal duty to be omniscient with regard to any conceivable impairment that a driver may have defies reason. Similarly, a policy against | (¡loading a defective truck, or even a policy to refuse to load a truck for any reason, simply cannot be analogized to the facts of the instant case, where Mr. Stokes never indicated to Ms. Cannon that he felt too tired to drive, and where Ms. Cannon herself testified that, although dirty and running late, Mr. Stokes did not look tired. Accordingly, on these facts, we do not find that a legal duty existed on the part of Birmingham Steel for which a negligence claim could be properly asserted,

^CONCLUSION

Because we find that no legal duty was established on the part of Birmingham Steel by Appellants, the judgment of the trial court is hereby affirmed.

AFFIRMED.

MURRAY, J., dissents for the reasons assigned by J. LOVE.

LOVE, J.,

dissents and assigns reasons.

|J respectfully disagree with the majority’s assertion that no question of material fact exists as to Birmingham Steel’s possible assumption of duty based on the facts and circumstances of the case sub judice.

Illinois law provides that “whether a duty of care exists is a question of law.” Shank v. H.C. Fields, 373 Ill.App.3d 290, 311 Ill.Dec. 587, 869 N.E.2d 261, 265 (2007). Illinois jurisprudence dictates that a “duty may arise under common law where a person voluntarily undertakes a duty of care.” Tedrick v. Cmty. Res. Ctr., Inc., 373 Ill.App.3d 761, 311 Ill.Dec. 747, 869 N.E.2d 421, 428 (2007). The Illinois Supreme Court referred to section 324A of the Restatement (Second) of Torts in order to examine and apply the theory of voluntarily undertaking a duty. Pippin v. Chicago Hous. Auth., 78 I11.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596, 600 (1979). The Court referenced:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if:
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

12⅞, quoting Restatement (Second) of Torts sec. 324A (1965). Further, Illinois jurisprudence states that the party undertaking a duty is “subject to liability for bodily harm caused to the other if he fails to exercise due care or to act with the competence and skill that he possesses while performing the undertaking.” Tedrick, 311 Ill.Dec. 747, 869 N.E.2d at 428. “[T]he scope of the duty is limited to the extent of the undertaking.” Id. Additionally,

[o]ne having notice of facts which would put a prudent man on inquiry is chargeable with knowledge of other facts which he might have discovered by diligent inquiry. Whatever is notice enough to excite attention and put the party on his guard is notice of everything to which such inquiry might have led and every unusual circumstance is a ground of suspicion and demands investigation.

Miller v. Bullington, 381 Ill. 238, 44 N.E.2d 850, 852 (1942).

Ms. Cannon testified, in her deposition, that Mr. Stokes arrived in the shipping clerk’s office approximately seven hours later than usual. When she asked why he was late, she testified that he told her he was getting in from Dayton and was ready to take his next load to Dayton. She stated that Mr. Stokes looked dirty. Ms. Cannon also testified that Mr. Stokes told her that he was going home, but not going to sleep because if he did he would not be able to wake up in time to arrive in Dayton on schedule. However, she stated that he did not look tired.

Ms. Cannon testified that she did not receive any training and was not taught to ask the drivers how many hours they had driven in order to make sure that the drivers did not exceed the maximum driving hours provided for by federal regulations. In regards to impaired drivers, Ms. Cannon stated that if she did not think a driver looked “straight,” then she would call the foreman to make a decision as to whether to load the driver’s truck. She stated that Birmingham Steel had the power to refuse to load a truck. Ms. Cannon remembered two occasions when a truck was not loaded because of the driver’s drunkenness. Lastly, she stated that she does not know of Birmingham Steel refusing to load a truck because |sthe driver appeared impaired by sleep.

David Beaupre (“Mr. Beaupre”), Birmingham Steel’s general foreman of shipping, testified that he remembers Birmingham Steel refusing to load a truck about three times due to impairment of the driver. Additionally, Mr. Beaupre cited the poor condition of a truck and the failure to follow Birmingham Steel’s rules and regulations as reasons for past refusals to load a truck. He stated that, as general foreman, he has the authority to tell his bay leader not to load a truck. Further, John Donald Wilson, Birmingham Steel’s director of transportation and logistics, testified that he remembered one truck not being loaded in Jackson, Mississippi because of the condition of the truck’s trailer floor. Finally, William Turner (“Mr. Turner”), traffic manager for Birmingham Steel, also testified that Birmingham Steel has the right to refuse to load a driver. Later in his deposition, Mr. Turner stated that Birmingham Steel has “the right refuse to load any driver.”

The testimony of the Birmingham Steel employees above reveals a question of fact, under the facts and circumstances of this case, as to whether Birmingham Steel voluntarily undertook a duty and violated that duty, providing for liability, due to its alleged ability to refuse to load a driver due to driver impairment, improper truck conditions, or the failure to follow Birmingham Steel’s rules and regulations.

      . Although it involves an employee who was not in the course and scope of her employment at the time of the accident, we find Behrens v. Harrah's Illinois Corp., 366 Ill.App.3d 1154, 304 Ill.Dec. 303, 852 N.E.2d 553 (2006) noteworthy. In Behrens, plaintiff Barbara Behrens was an employee of Har-rah’s who was involved in a single-car accident on October 19, 1998. Prior to October 19, 1998, Ms. Behrens had worked several overtime shifts in a row, including a twelve and a half hour shift on October 18, 1998. Ms. Behrens alleged in her complaint that Harrah’s was negligent for, inter alia, failing to assess the physical condition of its employees before the employees left work and that Harrah’s alleged negligence was the proximate cause of her injuries.
      Harrah’s filed a motion to dismiss on the grounds that there was no legal duty in Illinois for an employer to safeguard an employee during travel to or from the workplace when that employee is not in the course and scope of his or her employment. The trial court dismissed the complaint with prejudice. On appeal, the court affirmed the dismissal of the complaint, noting that ”[a]n employer should be able to presume that the person in the best position to avoid driving while excessively fatigued, the employee, will either ask for a ride from someone or pull off the roadway and rest if necessary.” Behrens, supra at 1157[, 304 Ill.Dec. 303, 852 N.E.2d 553], With respect to the onerous burden that would be placed on an employer had the court found that such a duty existed, the court stated:
      The burden plaintiffs request us to place on an employer would be enormous. Would this duty be violated if the employee started the shift tired due to no fault of the employer? Or, would this duty only be violated if it is a policy of the employer that causes the injured party to lose sleep? If the latter is the case, would the duty be violated if the employee were to lay awake at night considering job-related duties and became tired, or would it only apply if the employee was tired due to the employee’s presence at work for a certain amount of time? Undoubtedly, individual employees are in the best position to determine whether they are sufficiently rested to drive home safely. An employer is in a much inferior position when it comes to making this determination. Many people routinely work 12-hour "shifts,” including lawyers, police officers, construction workers, doctors, and nurses, to name a few. As a matter of law, there is nothing unreasonable, by itself, about scheduling 12-hour "shifts.” Even those working eight-hour "shifts” can become fatigued while at work, sometimes because of the nature of the work and other times because of reasons beyond the control of the employer, such as lack of adequate rest when not working, stress from family or social relationships, and the list goes on. Moreover, even if an employer did determine that an employee was too tired to drive home after the employee’s shift, we are aware of no authority that would allow an employer to stop the employee from leaving the work place and driving home. Once the employee’s workday has ended, the employer's ability to control physical conditions surrounding the employee is nonexistent. Faced with such a legal duty, would employers refuse to hire those with commutes of more than a few minutes, or even those not within walking distance of the place of employment? We believe that placing this burden on employers would be poor social policy that is likely to have an onerous impact, not only on employers, but also on the workforce.

        Behrens, supra, at 1157-1158, 304 Ill.Dec. 303, 852 N.E.2d 553.


author: EDWIN A. LOMBARD, Judge. GORBATY, J.,

text:
    Ronald MOORE v. DEPARTMENT OF POLICE.
    No. 2007-CA-0360.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.
    See also, 967 So.2d 606.
    Frank G. DeSalvo, DeSalvo DeSalvo & Blackburn, APLC, New Orleans, LA, for Plaintiff/Appellee.

      Penya Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, James B. Mullaly, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge, DAVID S. GORBATY, and Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| ^his is one of the cases consolidated with Reed v. Department of Police, 06-1498 (La. 4 Cir.App. 10/10/07) en banc, 967 So.2d 606, for determination of the issue of whether the Civil Service Commission erred in determining the termination of police officers without prior notice and an opportunity to be heard was illegal.

The plaintiff, Ronald Moore, a twenty year veteran of the Department of Police of the City of New Orleans (“the City”), reported to duty on August 28, 2005, and remained on duty until September 3, 2005, performing search and rescues in the aftermath of the hurricane and levee breaches. Because his pre-existing medical condition (hypertension) was exacerbated as a result, Officer Moore went to Houston, Texas, to seek medical treatment, advising his supervisor of his condition and location (including his cellular phone number and brother’s mailing address in Houston). He remains under medical care. Although advised by his supervisor that he would be contacted, Officer Moore received no notice of the charges against him before receiving the termination letter dated October 24, |⅞2005, which cited only Rule IX of the Rules of Civil Service as the sole basis for termination.

Although I remain strongly opposed to the court’s decision in Reed, supra, its precedential authority is binding. Accordingly, this matter is reversed and remanded in accordance with Reed, supra.

REVERSED AND REMANDED.

KIRBY, J., concurs in the result.

GORBATY, J., concurs.

GORBATY, J.,

concurring.

hi concur in the result reached by the majority.

      . In Knight v. Department of Police, 619 So.2d 1116, 1118 (La.App. 4th Cir.), writ denied, 625 So.2d 1058 (La.1993), the court clearly stated that Rule IX is directed to the appointing authorities and "simply cannot be construed as a rule setting forth prohibited conduct by classified employees.” Knight, 625 So.2d at 1120; see also Brumfield v. Department of Fire, 488 So.2d 1181 (La.App. 4th Cir.1986) (reversing Commission’s ruling that the Superintendent of the Fire Department acted within its boundaries of the regulations of the Department of Fire in invoking Rule IX of the Civil Service Commission to dismiss the plaintiff for inability or unwillingness to perform his duties basis for their termination)

      . See, Reed, supra (Lombard, J. dissenting); see also, Fuller, et al. v. Department of Fire, 07-0369 (La. 4 Cir.App. 9/19/07), 968 So.2d 731 (reversing suspension of firefighters who were absent from their posts after the hurricane and failed to return until well after September 22, 2005, deadline imposed by fire department, because application of across-the-board deadline for return was arbitrary and capricious when co-workers failed to convey cut-off date to them and firefighters "did the best they could under horrific conditions to return to work as quickly as possible.”).


author: MAX N. TOBIAS, JR., Judge.

text:
    BELLSOUTH TELECOMMUNICATIONS, INC. v. EUSTIS ENGINEERING CO., INC.
    No. 2007-CA-0865.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2007.
    James F. Perot, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Laurence R. DeBuys IV, Robert S. Reich, Reich, Album & Plunkett, L.L.C., Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   MAX N. TOBIAS, JR., Judge.

hThe defendant/appellant, Eustis Engineering Company, Inc. (“Eustis”), appeals from a partial summary judgment entered in favor of the plaintiff/appellee, BellSouth Telecommunications, Inc. (“BellSouth”). After reviewing the record and applicable law, we find that genuine issues of material fact exist and, therefore, reverse the judgment and remand the matter to the trial court for further proceedings.

BellSouth filed suit against Eustis and Burkeen Construction Company (“Bur-keen”), seeking to recover damages to its underground utility cables located along St. Claude Avenue between the intersections of Elysian Fields Avenue and Frenchmen Street in New Orleans. Bell-South moved for partial summary judgment on the issue of liability contending that because Eustis violated statutory law, it was negligent per se and solely liable for BellSouth’s damages. Eustis opposed the motion, arguing that causation was a contested issue of fact and, therefore, summary judgment was inappropriate. On 28 February 2007, the trial court granted the partial summary judgment. In its written reasons for judgment, |2the trial court stated: “Statutory black letter law was violated and damage ensued when Eustis failed to comply with the applicable statute.” The trial court designated the judgment as final pursuant to La. C.C.P.1915 and Eus-tis brought the instant appeal.

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts. Stanton v. Tulane University of Louisiana, 00-0403 (La.App. 4 Cir. 01/10/01), 777 So.2d 1242.

In 1988, the Louisiana Underground Utilities and Facilities Damage Prevention Law, La. R.S. 40:1749.11, et seq. (“Damage Prevention Law”) was enacted. In particular, La. R.S. 40:1749.13 provides, in pertinent part:

A. Except as provided in this Section, no person shall excavate or demolish in any street, highway, public place or servitude of any operator, or near the location of an underground facility or utility, or on the premises of a customer served by an underground facility or utility without having first ascertained in the manner prescribed in Subsection B of this Section, the specific location as provided in R.S. 40:1749.14(D) of all underground facilities or utilities in the area which would be affected by the proposed excavation or demolition.
B. (1) Except as provided in R.S. 40:1749.15, prior to any excavation or demolition, each excavator or demolisher, including cable television owners or operators, shall serve telephonic notice of the intent to excavate or demolish to the regional notification center or centers serving the area in which the proposed excavation or demolition is to take place. Such notice shall be given to the notification center at least forty-eight hours, but not more than one hundred twenty hours, excluding weekends and holidays, in advance of the commencement of any excavation or demolition activity.

According to this provision, excavators must ascertain the location of underground facilities by calling the notification center, known as “Louisiana One |sCall,” at least forty-eight but not more than 120 hours prior to excavation. Once the call is made to Louisiana One Call, the various utility operators are notified and given a “mark by” date by which the utilities must mark the locations of their underground cables, etc., so the excavator will not damage the underground utilities. The markings are “deemed good as long as visible but not longer than ten calendar days, including weekends and holidays, from the ‘mark by time.” See La. R. S. 40:1749.14 C(b)(iii).

In the instant case, Chad Held, a project engineer for Eustis, contacted Louisiana One Call on 25 May 2001 to provide notice that it intended to bore soil samples along St. Claude Avenue between the intersections of Elysian Fields Avenue and Frenchmen Street. Louisiana One Call issued a notice of intent to excavate, identified by ticket number 147832, and transmitted the ticket to various utility operators, including BellSouth. The assigned “mark by” date was 29 May 2001 at 3:15 p.m. BellSouth instructed Burkeen, a Bell-South contractor, to mark BellSouth’s underground utilities.

Burkeen employee, Charles Hughes, placed orange marks to designate the alleged locations of BellSouth’s utilities. According to his deposition testimony and the diagram he drew, Mr. Hughes marked only one telephone line; he allegedly failed to mark a set of copper telephone cables in the area where the soil borings were to be taken. Deposition testimony from Bell-South indicated that there were two sets of lines in the area: copper telephone cables, that were damaged, and fiber optic cables that were not. That testimony further established that Burkeen had access to BellSouth’s engineering drawings of utilities at the area where the damage occurred and it was expected to locate both the fiber optic and copper telephone cables.

|4Within ten days of those marks, Mr. Held placed white marks to indicate safe bore sites along St. Claude Avenue in the areas where no orange utility markings were found. Mr. Held testified in deposition that he did not see any orange marks in the area of the later-damaged cables; however, he did see utility marks in other areas while performing the soil boring project. Eustis personnel returned to the site on 3 July 2001, at which time the excavation that damaged BellSouth’s cables and conduit took place.

BellSouth contends that Eustis violated the Damage Prevention Law by failing to begin excavation within 120 hours of notice. In other words, because Mr. Held provided notice to Louisiana One Call on 25 May 2001, actual excavation was required to commence no sooner that 29 May 2001, but no later than 1 June 2001. Actual excavation did not commence until 3 July 2001, more than one month beyond the legal window. In addition, BellSouth argues that Eustis should have provided a second notice to Louisiana One Call because orange markings were not visible to Mr. Held when he visited the site on either 6 June 2001 or 3 July 2001. Because Eustis failed to provide additional notice, BellSouth contends that Eustis is guilty of a second violation of the Damage Prevention Law.

In South Cent., Bell Tel. Co. v. Sewerage and Water Board of New Orleans, 94-1648 (La.App. 4 Cir. 3/16/95), 652 So.2d 1090, this court addressed the Damage Prevention Law when work performed by the defendant damaged the plaintiffs underground cables. In that case, we stated:

In Roberts v. Benoit, 605 So.2d 1032 (La.1991), the Louisiana Supreme Court held that in order to prevail on a negligence claim under La. C.C. articles 2315 and 2316 a plaintiff must prove 5 separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the | ¡¡breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s' substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element.) To meet the cause-in-fact element, a plaintiff must prove only that the conduct was a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred. The critical test in Louisiana is phrased in terms of the- “ease of association” which melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant? The essence of the legal cause inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the duty.
The scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. The scope of pro-teetion inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner.... In determining the limitation to be placed on liability for defendant’s substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 293-294 (La.1993).

Id. at pp. 3-4, 652 So.2d at 1093-94.

Louisiana has no negligence per se doctrine. Galloway v. State Through Dept. of Transp. and Development, 94-2747 (La.5/22/95), 654 So.2d 1345; Boyer v. Johnson, 360 So.2d 1164 (La.1978); Weber v. Phoenix Assur. Co. of New York, 273 So.2d 30 (La.1973). Therefore, a statutory violation must be determined as a legal cause of the accident. Id. at 33. The jurisprudence is clear that an excavator has a legal duty to inform himself of the location of underground cables. South | Cent. Bell Tel. Co. v. Louisiana Power & Light Co., 501 So.2d 869 (La.App. 5 Cir.1987); South Cent. Bell Tel. Co. v. Southern Excavation, Inc., 401 So.2d 468 (La.App. 2 Cir.1981); Southern Bell Tel. & Tel. Co. v. Roy Cook & Sons, Inc., 218 So.2d 404 (La.App. 2 Cir.1969). However, the finding of a violation of a statute is only the beginning of a duty-risk analysis.

Eustis insists that it did not violate the Damage Prevention Law. In particular, it contends that it began the excavation when Mr. Held marked the bore sites using white paint. When he did so, Bur-keen’s orange markings were still visible. Furthermore, Mr. Held’s markings were made within the ten day “mark by” date, during which Burkeen’s markings were deemed valid by statute. Eustis argues that it made its own markings outside of Burkeen’s markings and Eustis’ markings were still visible during the ongoing excavation. Thus, additional notice was not necessary. In any event, Eustis maintains that the trial court erred by failing to consider the comparative fault of Burkeen in the marking of the utilities for Bell-South.

After reviewing the record, we find that genuine issues of material fact preclude the entry of summary judgment in favor of BellSouth. First, we find genuine issues of material fact regarding causation and Eustis’ violation of the Damage Prevention Law. In addition, a genuine issue of material fact exists regarding Burkeen’s involvement in the damaging of BellSouth’s cables and conduit. If, as Eustis contends, Burkeen marked only one line when they should have marked two, Eustis may be only partially at fault. A finding that Eus-tis violated the Damage Prevention Law cannot, in and of itself, impose liability on Eustis.

17Based on the foregoing, we reverse the partial summary judgment and remand the matter to the trial court for further proceedings.

REVERSED: REMANDED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Jayne Stiebing wife of/and Bruce STIEBING v. Donald ROMERO, Carmen Romero, and State Farm Fire and Casualty Company.
    No. 07-CA-723.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      Richard J. Garrett, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Thomas G. Buck, John C. Henry, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2This personal injury litigation arose from an accident on October 5, 2005, when plaintiff Jayne Stiebing fell off a nightstand at defendants’ home. Plaintiffs Jayne and Bruce Steibing appeal from a summary judgment dismissing their petition. We affirm.

Plaintiffs commenced suit against defendants Donald Romero, Carmen Romero, and State Farm Fire and Casualty Company for injuries Jayne sustained while cleaning the Romeros’ house. Jayne’s deposition testimony, upon which the parties relied in the proceeding below, revealed the following.

Hurricane Katrina’s effect on the community prompted Jayne and her friend Dolores Wiltz to provide cleaning services to people who were gutting their houses. Mrs. Romero responded to their advertised flyer. Jayne and Dolores agreed to discard the Romeros’ ruined items and to pack the items that were salvageable. In turn, the Romeros agreed to provide the packing supplies and ^equipment needed for the job. Jayne and Dolores had never undertaken hurricane cleanup before this job. Upon the advice of others, Jayne took precautionary measures for mold and mildew.

When Jayne and Dolores arrived to clean the house, Mr. Romero pressured them to work quickly because the tear-down crew was there. Jayne had been told, however, that she and Dolores would be working alone.

Mrs. Romero was not home that day. Mr. Romero, who was intermittently present, did not have the needed supplies. Jayne and Dolores left the house to purchase boxes, tape, and bubble wrap. Later, Mr. Romero obtained additional supplies.

Jayne and Dolores worked four to five hours before the accident occurred. Mr. Romero was only present three or four times during the time they worked. He would leave for half-hour to two-hour periods.

Before the accident occurred, Jayne stood on a stable chair that was in the kitchen in order to gain access to unreachable cabinets. Mr. Romero told her to use whatever she needed to get the job done. He did not know if there was a ladder available. Jayne and Dolores, however, looked through the house for ladders and stepstools. There were no ladders. They even asked the contractors. But the contractors did not speak English. .

Afterwards, Jayne and Dolores were working in the master bedroom when the accident happened. Mr. Romero was not present. Dolores had asked Mr. Romero about the condition of the bedroom and he responded that he was giving the bedroom away — it was in good condition. Jayne assumed the furniture was in good condition. In order to take down the curtains, she decided to stand on the nightstand, which was directly under a curtain. She did not consider the chair she previously used. The nightstand was more convenient and they were rushing. 14Before climbing on the nightstand, Jayne tested it for stability. She “kind of just shook it, ... and it seemed to be stable to me.” She was only on the nightstand a minute or two “when it wobbled and [she] lost [her] balance, [her] knee turned in and [she] fell and hit the ground.” Jayne fell backwards. She hit the back of her shoulder trying to brace herself against the armoire. Her knee twisted when she fell and she could hear it “like snap.” She lay on the wet carpet. Later, she had knee surgery.

At first she testified that the nightstand did not break. Then when asked if anything cracked, or broke, she said: “Not that I’m aware of.” She said she did not know if the nightstand broke.

Although Jayne has climbed on furniture to work at her house, she usually does not do this in a customer’s house. People generally supplied her with the proper tools and equipment.

In essence, plaintiffs’ petition alleged that the nightstand was a dangerous and defective condition, which caused the accident. The thrust of their claim is that the homeowners had a duty to notify Jayne of the defect.

Defendants filed an exception of no cause of action and/or motion for summary judgment. The crux of their argument is the same as that presented below. Defendants argue that there was no defect in the nightstand; the homeowners owed no duty to Jayne; and, that even if a duty was owed, Jayne failed to show her fall was caused by a breach of a duty. Jayne did not fall because of anything that the homeowners did or failed to do. She fell because she knowingly and voluntarily climbed up on a nightstand that was not meant to be a ladder, wearing wet shoes, and fell solely because of her own carelessness. In short, there was no hidden or unreasonably dangerous condition which could not be as easily discovered by the plaintiff as by anyone else.

|BOn appeal plaintiffs argue that the trial judge erred in several respects.

Plaintiffs assert that the homeowner had a duty to discover and warn plaintiff of any and all unreasonably dangerous conditions; and, she proved all of the elements necessary for the homeowners’ negligence. In particular, she showed the property which caused the damage was in the custody of the defendants; the nightstand was defective because it had a condition that created an unreasonable risk of harm to persons on the premises (it buckled because it was water-logged); and, the defect in the property was a eause-in-fact of the injury. Mr. Romero expected her to use the nightstand because he provided her with no other means to remove the curtains and he insisted she use whatever she needed to get the job done. As such, Mr. Romero breached his duty in not protecting her from the dangerous condition and in failing to take reasonable measures to protect against the unreasonable risk of harm or danger to her.

Summary judgment is a procedural device that is used when there is no genuine issue of material fact. Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544, 546; La.C.C.P. art. 966. Appellate courts review summary judgments de novo under the same criteria used by the district court. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991).

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to a judgment as a matter of law. Article 966(B). A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006 (citation omitted).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. Id. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id. (citations omitted). A “fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id. (citation omitted).

Two theories of liability are available to plaintiff, who is claiming injury caused by a thing’s condition. The first theory is negligence, under La. C.C. Art. 2315, and the second theory is strict liability under La. C.C. Art. 2317. Wallace v. Treasure Chest Casino, L.L.C., 05-484 (La.App. 5 Cir. 12/27/05), 920 So.2d 251, 255. Under both theories, the plaintiff has the burden of proving that the thing’s condition presented an unreasonable risk of harm, or was defective, and that this condition was a cause-in-fact of the plaintiffs injuries. Both theories employ the duty-risk analysis on a case-by-case basis. The plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, that the defendant owed a duty of care to the plaintiff, that the requisite duty was breached by the defendant, and that the risk of the harm was within the scope of the protection afforded by the duty breached. Id. (citations omitted).

A homeowner has a duty to discover, and either correct or warn a guest of any unreasonably dangerous conditions on his premises. However, this duty does Jjnot make the owner an insurer of his guests, against all possibility of accident. Dunn on Behalf of Dunn v. Foster, 422 So.2d 518, 519 (La.App. 5 Cir.1982) (citations omitted). Neither is this duty-breached by failure to repair or warn a guest, unless there is some inherently dangerous condition on the premises, which could foreseeably cause an unreasonable risk of harm, under the circumstances. Id. (citation omitted).

It is the court’s obligation to decide which risks are unreasonable, based upon the facts and circumstances of each case. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, 590, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996) (citation omitted). The obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered under the duty-risk analysis. Pitre, supra, 673 So.2d at 591 (citation omitted). If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangérous and the defendant may owe no duty to the plaintiff. Id.

A duty inherent with Jayne’s work as a post-Katrina worker included packing items that were ruined as a result of the hurricane. The exact danger she complains of is one which she should have been aware. By the very nature of her work, Jayne was expected to anticipate situations of this kind — that the furniture in a hurricane-damaged house that was being gutted was potentially unstable to be used in place of a ladder or stepstool. Therefore, because the alleged water-logged defect in the nightstand was intimately connected with the work for which Jayne was hired, the Romeros had no duty to warn her of the fact that the nightstand was unsuitable for standing upon while balanced to remove curtains. The Romeros should not be held liable for Jayne’s decision to use a nightstand for an unintended purpose — a substituted ladder or stepstool.

|sThe Romeros did not breach a duty of care by failing to warn plaintiff that she might lose her balance and fall from a nightstand because the danger was self evident. Plaintiff was aware of the possibility that the nightstand was unstable. This is made evident by the fact that Jayne tested it. Jayne’s testimony established that the use of the nightstand was entirely up to her. She had previously used a stable chair in the kitchen to reach cabinets. In addition, she had the opportunity to purchase any supplies she needed to do the job. It was not necessary for her to use a nightstand at all. Under these circumstances, where plaintiff knew of the potential danger of standing on the nightstand and chose to proceed anyway, any further warning would be superfluous.

Although her injury is unfortunate, we hold that the obvious, potential danger of standing on the nightstand to remove curtains obviated any duty to warn plaintiff not to stand on the nightstand for that purpose.

Accordingly, we affirm the judgment granting the motion for summary judgment and dismissing plaintiffs’ petition.

AFFIRMED.

      . In part, plaintiffs rely on Banks v. State Farm Ins. Co., 30,868 (La.App. 2 Cir. 8/19/98), 717 So.2d 687, to argue that since the nightstand is not available, a trial is needed to determine whether it is defective. We find that Banks is inapplicable. There, the court found several issues of material fact.

      . La.C.C. art. 2317.1, added in 1996, 1996 La. Acts, 1st Ex.Sess., No. 1, § 1, effective April 16, 1996, eliminated the distinction between the strict liability and negligence of the owner or custodian of property, by requiring a showing of knowledge or constructive knowledge in order to impose liability. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, 1007, n. 5.