author: PEATROSS, J.

text:
    Josh HUNTER and Sheila Hunter, Plaintiffs-Appellants v. CITY OF SHREVEPORT, et al., Defendants-Appellees. Mark Crenshaw, as Curator for Mary Lorene Crenshaw, Plaintiffs-Appellants v. City of Shreveport, et al., Defendants-Appellees.
    Nos. 41,192-CA, 41,193-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Loomis & Dement by: Jeffrey L. Dement, Fewell-Kitchens by: Richard L. Fe-well, Jr., for Appellant, Sheila Hunter, as Curator for Josh Hunter.
    Seabaugh, Benson & Keene by: J. Todd Benson, Shreveport, for Appellants, Mark & Mary Crenshaw.
    The Malone Law Firm by: Dannye W. Malone, Shreveport, Mary E. Winchell, for Appellees, City of Shreveport and Theo Jenkins.
    Before BROWN, PEATROSS & DREW, JJ.
   PEATROSS, J.

_]jThis case arises from an automobile accident that occurred on December 13, 2003, when a vehicle driven by Josh Hunter stalled on the 1-220 West bridge over Cross Lake in Shreveport, Louisiana, and was hit by a vehicle driven by Mary Cren-shaw. As a result of the accident, Mr. Hunter sustained numerous and severe injuries. He sued Mrs. Crenshaw, the City of Shreveport (“the City”) and Officer Theo Jenkins of the Shreveport Police Department (“SPD”) for his injuries. Similarly, Mrs. Crenshaw, through her curator, Mark Crenshaw, sued the City and Officer Jenkins. The suits were consolidated.

After a trial on the merits, the trial judge found that Mr. Hunter had failed to prove his case against the City and Officer Jenkins under a gross negligence standard of review. Accordingly, the trial court held that Mr. Hunter was not entitled to damages. From this ruling, both Mrs. Crenshaw and Mr. Hunter appeal, urging several assignments of error. For the reasons set forth herein, we affirm.

FACTS

On December 13, 2003, Mr. Hunter’s 1979 Ford truck stalled in the right lane of travel as he was crossing the Cross Lake Bridge in Shreveport. He was unable to push, pull or otherwise move it from the lane of traffic. Upon noticing the stalled vehicle, Ryan Nebus, an unrelated motorist, stopped his ear on the side of the road (out of the lane of travel) to assist Mr. Hunter. Despite their efforts, the pair was still unable to move the truck [ 2from the lane of traffic. Officer Jenkins was dispatched to the scene under a “priority two” call.

When Officer Jenkins arrived on the scene, he parked his patrol car on the shoulder of the highway behind Mr. Ne-bus’ vehicle rather than directly behind the stalled truck. The officer did not place any road cones, flares or similar warning devices behind the truck, on the road or around the stalled vehicle. After he was assured that the truck could not be manually moved, Officer Jenkins granted Mr. Hunter permission to retrieve something from the truck and began to walk back towards his patrol car. Officer Jenkins made no effort to monitor, warn or control traffic at this time. Soon after he had gone back to his truck, the 1997 Chevrolet truck driven by Mrs. Crenshaw crashed into the back of Mr. Hunter’s stalled truck. Immediately following the crash, Officer Jenkins maneuvered his vehicle behind the trucks to block traffic. Mr. Hunter was injured after being trapped underneath the truck and dragged a “considerable distance” down the highway. The vehicle had to be mechanically lifted off of him and he was air-lifted to the hospital.

After a trial on the merits, the trial court found Mr. Hunter failed to prove his case against the City of Shreveport and Officer Jenkins under a gross negligence standard. The trial court held that he was not entitled to damages due to his failure to satisfy the aforementioned standard. From this ruling, both Mrs. Cren-shaw and Mr. Hunter appeal, urging several assignments of error.

DISCUSSION

The trial court committed legal error in applying a gross negligence standard in this case thus entitling appellants to de novo review.

The trial court committed prejudicial error in applying an improper legal standard to the conduct of Officer Jenkins. The trial court applied a reckless disregard/gross negligence standard, when the proper standard was simple negligence.

Mr. Hunter first argues that the trial court failed to properly apply La. R.S. 32:24, which states:

A.The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for [¿the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

Mr. Hunter points out that, for La. R.S. 32:24 to apply, all three subsections must be met. He cites Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175, which stated that, if an emergency vehicle driver’s conduct does not fit within subsections A, B or C of the aforementioned statute, that driver’s actions will be gauged by an ordinary negligence standard.

Accordingly, Mr. Hunter argues that subsection A, supra, was not met because Officer Jenkins’ actions suggest that he was not responding to an “emergency” within the meaning of this statute. He asserts that, on his arrival at the scene, Officer Jenkins did not follow typical police protocol for an emergency, such as controlling traffic, exceeding posted speed limits, illuminating his lights or blocking off the stalled vehicle with his patrol car.

Similarly, Mr. Hunter argues that subsection B of the statute, supra, was not met in this case. He contends that Officer Jenkins was negligent by failing to park his patrol car behind Mr. Hunter’s stalled vehicle, setting out road cones, illuminating his cruiser’s lights or the like, and states that “none of these omissions are enumerated or protected by La. R.S. 32:24.”

In summation, Mr. Hunter contends that La. R.S. 32:24 does not apply in this case and that Officer Jenkins’ actions should be analyzed under an ordinary negligence standard.

The City responds by citing Orea v. Scallan, 32,622 (La.App. 2d Cir.1/26/00), 750 So.2d 483, which provides the applicable standard of review for this case on appeal, stating:

A district court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly | fiwrong or manifestly erroneous. Under the manifest error standard, the linchpin is whether the trial court’s findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court’s findings cannot be reversed if they are in fact reasonable. In other words, the appellate court may not reverse simply because it is convinced that had it been sitting as a trier of fact it would have ruled differently. A finding of fact by a trial court should be upheld unless it is clearly wrong.
When findings of fact are based upon evaluations of witness credibility, the manifest error/clearly wrong standard demands great deference to the trial court. Only the fact finder can be aware if the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. (Citations omitted.)

The City further contends that Mr. Hunter had the responsibility to remove his vehicle from the lane of travel and failed to do so. See, La. R.S. 32:141. To this end, the City asserts that the trial court was correct in ruling that Mr. Hunter took no steps to satisfy his legal burden by moving his stalled truck.

The City notes that Mrs. Crenshaw testified to having seen the red and blue lights of Officer Jenkins’ patrol car prior to hitting Mr. Hunter’s stalled truck. It cites La. R.S. 32:125(B)(1), which calls upon a driver who is approaching an authorized emergency vehicle with its lights illuminated to slow their speed to 25 m.p.h. and move to the lane farthest from the emergency, until it is safe to proceed at a higher rate. The City further notes that, in this case, Mrs. Crenshaw was traveling at or near 60 m.p.h. when she hit Mr. Hunter’s truck. In this respect, it argues that Mrs. Crenshaw, not Officer Jenkins, bears the brunt of the responsibility in this matter.

The City cites La. R.S. 32:24, supra, and states that the supreme court has ruled that an officer is only considered negligent under this statute if 1 (¡his/her actions constitute reckless disregard for the safety of others. See also, Lenard, supra. It points out that “gross negligence” is defined as “the want of even slight care and diligence.” Similarly, the City further notes that “the scope of an officer’s duty to act reasonably under the circumstances does not extend so far as to require that the officer always choose the ‘best’ or even the ‘better’ method of approach.” See, Dorty v. City of Pineville, 01-1470 (La.App. 3d Cir.4/3/02), 815 So.2d 393, writ denied, 02-1271 (La.8/30/02), 823 So.2d 950. It points out that only 70 seconds elapsed between Officer Jenkins’ arrival at the scene and the actual crash. Accordingly, it argues that there was insufficient time for him to take further steps at the scene, as prescribed by the SPD Field Training Manual. In summation, the City argues that Officer Jenkins’ conduct in the case sub judice did not rise to the level of gross negligence. We agree.

We first conclude that Officer Jenkins was responding to an emergency in this situation and that the gross negligence standard of review is applicable to this case. As discussed, supra, all three sections of La. R.S. 32:24 must be met for the statute to apply. A stalled truck on an interstate bridge at night constitutes such an occasion as to require emergency response. Here, the officer was dispatched under a “priority two” or “emergency” call as prescribed by the SPD, and such a response is covered by section A of La. R.S. 32:24. It is undisputed in the record that the officer employed his overhead lights prior to arriving on the scene in compliance with section C of the statute. Finally, the record reflects that, when Officer Jenkins arrived at the scene, he parked his patrol cruiser behind the Good Samaritan’s vehicle in compliance with section B of the statute. Once Officer Jenkins got a grasp on what had occurred and neededJjjto be done — which covered a very small window of time — he returned to his cruiser and this accident occurred. After seeing the accident, he placed his cruiser behind the vehicles involved and reacted appropriately. Accordingly, all three sections of La. R.S. 32:24 are met in this case; and, thus, the gross negligence standard of review applies.

We next rule that Officer Jenkins’ actions (or inactions) did not rise to the level of gross negligence in the case sub judice. As discussed, supra, he arrived at the scene, parked behind the first car on the side of the road (which he came to that is, Mr. Nebus’ vehicle) and surveyed the situation. From these facts, we cannot say that Officer Jenkins’ actions rose to the level of “reckless disregard” for the safety of Mr. Hunter and Mr. Nebus, nor that his actions showed “the want of even slight care and diligence,” per Lenard, supra. For these reasons, we agree with and affirm the trial court’s ruling on this issue. The trial court erred in allowing and relying upon the expert opinion testimony of Officer Gayle McFarland.

The trial court committed prejudicial error in allowing improper, inadmissible, unfairly prejudicial expert testimony.

Mr. Hunter next argues that the trial court erred by accepting the expert testimony of Officer Gayle McFarland, of the SPD’s Accident Investigation Unit. He contends that Officer McFarland was unqualified to give expert testimony as he has never been certified as an expert before, possesses no scientific or mathematical expertise and has no training in accident reconstruction. Mr. Hunter also points out that, in spite of numerous objections to the contrary, Officer McFarland was allowed to [^testify as to the legal cause of this accident when he stated that Mr. Hunter and Mrs. Crenshaw had violated several Louisiana statutes.

Mr. Hunter cites Whetstone v. Dixon, 616 So.2d 764 (La.App. 1st Cir.1993), writ denied, 623 So.2d 1333 (La.1993), which held that, if a police officer is not qualified as an accident reconstruction expert, his testimony in the form of opinions is limited to those opinions based upon his rational perception of the facts and recollections pertaining to the scene of the accident. He cites Maricle v. Liberty Mutual Ins. Co., 04-1149 (La.App. 3d Cir.3/2/05), 898 So.2d 565, which held it to be prejudicial error to allow an investigating officer who is not an expert in accident reconstruction to give opinions on crucial fact determinations concerning liability when the officer did not witness the accident. In Maricle, supra, the court of appeal, on similar facts, ruled that it was error for a police trooper to give his opinion on matters like these and granted the plaintiff a de novo review of the trial court’s factual findings. From this line of jurisprudence, Mr. Hunter argues that the trial court’s willingness to accept Officer McFarland’s testimony regarding crucial facts of the case at trial, above several objections, is reversible error.

The City responds that the trial court properly allowed Officer McFarland to testify as an expert. It points out that the officer has 19 years of experience in the SPD and that he was well qualified to testify regarding the accident and applicable statutes. The City asserts that expert witness testimony is governed by Louisiana Code of Evidence Article 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by 13knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The City cites State v. Langely, 95-1489 (La.4/14/98), 711 So.2d 651, for the proposition that a trial court is vested with broad discretion in ruling on the scope of expert testimony.

The City further asserts that Mr. Hunter’s reliance on Maricle, supra, is “wholly misplaced.” It states that the court of appeal found prejudicial error in that case because the responding officer was very inexperienced and, thus, did not meet the requirements for testifying as an expert at trial. We agree.

Our review of the record reflects no error by the trial judge in allowing Officer McFarland to testify as he did at trial. We first note that, as stated in Langley, supra, the trial judge is afforded broad discretion in allowing a witness to testify. Similarly, Louisiana Code of Evidence article 702, supra, states that the purpose of expert witness testimony is to assist the trier of fact in understanding the facts and/or evidence at issue in a case. Officer McFarland had 19 years of experience with the SPD, including certification in vehicle investigation and supervisory experience with the Accident Investigation Unit. Included in his experience has been 130 traffic fatalities, 6,000 “hit and runs” and 80 non-fatal accidents. In our view, when taken as a whole, his experience and education qualified Officer McFarland to testify as an expert in this case.

Mr. Hunter argues that Maricle, supra, a third circuit case, is instructive on, and similar to, the case sub judice. We disagree. The court in Maride found prejudicial error by the trial court because the | inresponding/testifying officer was very inexperienced at the time of the accident. The court in Maricle, supra, stated, in pertinent part:

Trooper Mire was a rather inexperienced officer at the time of the accident. He had graduated from the Louisiana State Police Academy just six months earlier and was still in the supervisory or probationa'i'y period of his career. Although he testified that he was not an expert in accident reconstruction, the trial court allowed him, by reference to his accident report, to testify that Ms. Maride was inattentive and distracted at the time of the accident and that had she not been so, she would have seen the eighteen-wheeler as it approached. The trial court based the admissibility of this opinion on the trooper’s “experience as a police officer and his training.”
With regard to the cause of the accident, Trooper Mire testified that he noted on his accident report that the “harmful event” in the accident was the movement of Ms. Maricle’s vehicle. Additionally, Trooper Mire was allowed to testify, not that he gave Ms. Maride a traffic citation for an unsafe left turn, but that she committed an unsafe left turn. (Emphasis removed and emphasis ours.)

Unlike Maricle, supra, and as discussed at length above, Officer McFarland had ample experience as an investigative officer with the SPD, including more than 6,000 total investigations. Accordingly, we find Mr. Hunter’s reliance on Maricle, supra, is misplaced.

In summation, we conclude that Officer McFarland’s knowledge of vehicle accidents and lengthy experience with the SPD qualified him to testify in the case as an expert. Similarly, it is clear that, per Louisiana Code of Evidence Article 702, supra, his testimony was instructive and helpful to the trier of fact in this case. We, therefore, find no error here and reject this assignment of error.

The trial court erred in finding Officer Theo Jenkins to be completely free from fault in causing or contributing to the accident.

\nThe trial court committed legal error in finding no negligence on the part of Officer Jenkins and the City.

Alternatively, the trial court erred in failing to find gross negligence on the part of Officer Jenkins.

Alternatively, the trial court’s factual findings were manifestly erroneous and not supported by the evidence.

In his next assignments of error, Mr. Hunter argues that the trial court erred by finding Officer Jenkins free of fault or not grossly negligent in this case. He reasserts his position that the proper legal standard in this case is ordinary negligence. He cites Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119, in which the court stated that, when a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that motorists are not subjected to unreasonable risks of harm. Mr. Hunter further contends that, even assuming, ar-guendo, that Officer Jenkins’ conduct was properly governed by a gross negligence standard, the trial court’s ruling that his actions were not grossly negligent was still manifestly erroneous.

Mr. Hunter contends that Officer Jenkins took no precautions to control traffic at the scene. He notes that, upon receiving the dispatch, the officer was told what to look for and that the video tape (which was introduced at trial) reflects that he had an appreciation for what had occurred. Mr. Hunter further asserts that, according to the SPD Field Training Manual, a responding officer should “reposition [his/ her] patrol unit as needed” prior to attempting to remove vehicles from the lane of 11 ¿traffic. He also points to the following colloquy between his attorney and Officer Jenkins at trial:

Q: Isn’t it true that the field training manual says that you’re supposed to reposition your vehicle if needed prior to attempting to clear vehicles out of the roadway?
A: Yes, sir, that’s what the manual says.

From this, Mr. Hunter reasserts that Officer Jenkins was negligent in handling the stalled vehicle and argues that, had the officer positioned his car (or provided other safety precautions) as provided for in the SPD manual, the accident would have been avoided.

The City next responds that Mr. Hunter’s assertion that this accident would have been avoided had Officer Jenkins positioned his car behind the stalled truck is misplaced. It argues that, had Mrs. Cren-shaw slowed from her 60 m.p.h. rate of speed on the Cross Lake Bridge, she might have had more time to react to the stalled truck and avoid this accident altogether. It notes that some “five (5) or more” motorists passed the stalled truck without consequence or accident.

In summation, the City reasserts that Officer Jenkins’ actions did not rise to the level of gross negligence, and, accordingly, that this assignment of error is without merit. We agree.

• Our review of the record reflects that it was the negligence of Mrs. Crenshaw, not that of Officer Jenkins, that was the cause of this accident. Moreover, as seen, supra, nothing in this record convinces us that the officer’s actions, or inactions, were grossly negligent or reflected the “want of slight care or regard” for the safety of Mr. Hunter, Mr. Nebus or any passing motorists.

| 1 .¡Officer Jenkins arrived at the scene and placed his patrol vehicle behind the first car he saw on the Cross Lake Bridge that of Mr. Nebus. After surveying the situation, he returned to his cruiser to undertake further action and, before any such action could be taken, Mrs. Crenshaw hit Mr. Hunter’s truck. Although he should have seen the Hunter vehicle immediately, nothing the officer did (or did not do) constituted gross negligence in the case sub judice. Given this, and considering that numerous other motorists were able to pass the truck and patrol car without incident, we find this assignment of error to be without merit.

The trial court erred in finding Officer Theo Jenkins to be completely free from fault in allowing Josh Hunter to return to his vehicle without first insuring that it was safe to do so

Mr. Hunter next argues that Officer Jenkins had a duty to protect him from harm once he arrived on the scene. See, Davis, supra. He notes that the officer admitted to recognizing the situation as a dangerous one and that he had a responsibility for the safety of Mr. Hunter at the scene. He reasserts his opinion that Officer Jenkins was not free of fault in this case and that the trial court was mistaken in so ruling.

The City responds that this argument is misplaced and that the trial court was correct in ruling as it did. It points out that the trial court noted this to be a “highly unusual situation” where the officer’s primary objective was to remove the stalled truck from the lane of traffic.

Further, the City states that the case sub judice is, as the trial court stated, “strikingly similar” to that of Freeman v. Tate, 02-1361 (La.App. 3d Cir.6/4/03), 847 So.2d 800, in which a pedestrian was hit while in the road at the direction of an investigating officer. In that case, the trial court granted a motion for summary judgment in favor of the officer and the court 114of appeals affirmed, and noted that the applicable standard of review was gross negligence, stating:

The position of the police car did not constitute gross negligence or reckless disregard for the safety of others, as an approaching vehicle could have seen the lights of the patrol car and could have proceeded with appropriate caution. Even [the offending driver] admitted that he saw the lights on the patrol car as he approached.

The City points out that the appellate court in Freeman, supra, ruled that the officer’s actions did not constitute gross negligence. In summation, the City asserts that Officer Jenkins’ actions did not rise to the level of gross negligence and, accordingly, that this assignment of error is without merit. We agree.

We have already ruled that Officer Jenkins’ actions were not grossly negligent. The officer responded to the scene, parked his cruiser behind the Nebus vehicle, evaluated the scene and returned to his patrol ear. Before any further action could be taken, the truck driven by Mrs. Crenshaw struck the Hunter vehicle and caused this accident. We find Freeman, supra, is instructive to the case sub judice. We agree with the trial court that its facts are notably similar and do not see cause to disagree in this case. Accordingly, we reject this assignment of error.

The trial court erred in failing to award damages to Josh and Sheila Hunter.

The trial court erred in not awarding Mrs. Crenshaw damages.

Since we have ruled that Officer Jenkins was not grossly negligent in the case sub judice, we do not reach the issue of damages or quantum. Accordingly, we preter-mit these issues.

| ^CONCLUSION

For the reasons set forth herein, the judgment of the trial court finding Officer Theo Jenkins and the City of Shreveport without fault is affirmed. Costs of this appeal are assessed to Mary Crenshaw and Josh and Sheila Hunter, respectfully.

AFFIRMED.

      . For the purposes of this opinion, the SPD and the City will be collectively referred to as “the City.”

      . Just prior to the filing of this suit, Mrs. Crenshaw was interdicted as a result of paranoid schizophrenia. She died in December 2005. For the purposes of this opinion, “Mrs. Crenshaw” will refer to her and Appellant, Mark Crenshaw, collectively.

      .“Priority Two” is police vernacular meaning “immediate” response required. Notably, this entire accident was recorded on Officer Jenkins' patrol camera and admitted into evidence.

      . Mr. Hunter settled with Mrs. Crenshaw and her insurer.

      . We note that Mr. Hunter and Mrs. Cren-shaw urge virtually identical assignments of error (and supporting jurisprudence) on appeal. Accordingly, as their cases have been consolidated, we have elected to combine the assignments of error and will list each party's respective assignment of error, verbatim, throughout this opinion. Mrs. Crenshaw's assignments are denoted with a footnote, respectively.

      .This is Mrs. Crenshaw’s assignment of error. The accompanying jurisprudence cited is similar or the same.

      . This is Mrs. Crenshaw's assignment of error. The accompanying jurisprudence cited by Mrs. Crenshaw is similar or the same.

      . The bottom three are Mrs. Crenshaw's assignments of error. She combines them in her brief and we have elected to address them collectively here. The accompanying jurisprudence cited by Mrs. Crenshaw is similar or the same.

      . This is Mrs. Crenshaw's assignments of error. The accompanying jurisprudence cited by Mrs. Crenshaw is similar or the same.


source: Caselaw Access Project

author: GASKINS, J. BROWN, Chief Judge,

license: Public Domain

text:
    Horace Wayne BRANTLEY, Plaintiff-Appellant v. DELTA RIDGE IMPLEMENT, INC., Defendant-Appellee.
    No. 41,190-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Street & Street by: Curtis Daniel Street, Monroe, for Appellant.
    Hurlburt, Privat & Monrose by: Shannon Seiler Dartez, Lafayette, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   GASKINS, J.

| Horace Brantley, the claimant in this workers’ compensation case, appeals from a judgment rejecting his claim for indemnity benefits, as well as some of his claims for penalties and attorney fees. We affirm.

FACTS

The claimant was employed as a farm tractor and large implement mechanic at Delta Ridge Implement, Inc. (“Delta”) for approximately 15 years. His job duties included heavy manual labor; he sometimes had to manually lift tractor parts that weighed as much as 100 pounds or use a torque wrench to hand-tighten fasteners requiring 580 ft.-lbs of torque. He also had to climb atop tractors or other equipment on occasion.

On July 21, 2003, the 61-year-old claimant was reassembling a tractor at work. As he pulled some of the machinery together, he strained too hard and injured his back. The claimant felt a burning in his back and a numbness in his left leg. After informing his supervisor of the accident, he left work and went to see his family doctor, Joe Najjar. Dr. Najjar gave the claimant a shot for pain, prescribed painkillers, and restricted him from working for two weeks. Delta voluntarily commenced paying him temporary total disability benefits from the date of his injury.

The claimant continued to have back pain and leg numbness, and on July 23, 2003, he began seeing a chiropractor, R.B. Hawthorne, D.C. Dr. Hawthorne diagnosed the claimant with a bilateral lumbro-sacral strain and treated the claimant’s pain with electrical muscle stimulation and mechanical traction. The claimant remained off work and continued these treatments for approximately three months. He also saw Dr. Najjar in July, bin August, and in October. An MRI done on October 10, 2003, found several “minimal” posterior disc bulges and no disc herniation or nerve root impingement. The final report from Dr. Hawthorne’s office stated that the claimant last saw Dr. Hawthorne on October 30, 2003, and on that visit he self-rated his pain as a one (least severe) on a one-to-ten scale. He had rated his pain as a ten at the first visit. The claimant testified that the chiropractic treatments gave him some temporary relief but provided no permanent results. He did not return to work.

On November 3, 2003, the claimant saw Dr. Najjar again with complaints of severe lower back pain, so Dr. Najjar referred the claimant to Dr. Timothy Spires, an orthopedic surgeon. On November 11, 2003, the claimant saw Dr. Spires, who diagnosed him with a lumbrosacral strain and recommended physical therapy. He underwent physical therapy but returned to Dr. Spires on January 8, 2004, with continued complaints of pain and numbness in his leg. Dr. Spires ordered an EMG study of his leg. For treatment, he recommended a home exercise program for the claimant. The EMG study was negative for pathology, and Dr. Spires’ notes from January 27, 2004, recommended that the claimant undergo a functional capacity-evaluation (“FCE”).

The claimant underwent the FCE on February 10, 2004, at the Orthopedic Clinic of Northeast Louisiana. The report from the FCE showed that he gave a reliable effort on the test, and the examiner concluded that he could return to work doing heavy work. The report noted his complaints ofjjback and leg pain at a “4/10 pain level” during the testing and indicated that he might need to be “accommodated” while working at the level tested.

On February 17, 2004, the claimant returned to see Dr. Spires and maintained that he continued to have back and leg pain. Dr. Spires’ report from that day reflects, in part:

HISTORY: He has completed his Functional Capacity Evaluation which was reviewed and it appears that he can return to work at a heavy work level. He still has some problems riding.
ASSESSMENT: I discussed at length with patient that I' feel he has reached MMI on this date and that I feel he can work a heavy schedule and will be okay. I see no permanent impairment and he will follow-up on a p.r.n. basis.

On February 21, 2004, after receiving Dr. Spires’ report, Delta’s compensation insurer terminated the claimant’s indemnity benefits. The claimant also testified that Delta thereafter refused to allow him to see Dr. Hawthorne.

On March 16, 2004, the claimant — at his own expense — saw Dr. Guy Vise, an orthopedic surgeon in Mississippi. The claimant complained of moderate to severe back pain that commenced with his 2003 accident and that had continued since that time. Dr. Vise observed that the claimant had some degenerative disc disease in three lumbar discs. The doctor recommended against surgery but recommended 12 weeks of physical therapy and a spinal orthosis-a special back brace for decompressing a patient’s spine. The doctor opined that he was not at maximum medical improvement. Dr. Vise’s report stated in part:

I explained to [Mr. Brantley] that at the end of 12 weeks [of therapy] should he feel capable of returning to work my advice 1¿would be to return to work with this orthosis on, wearing it two hours at the beginning of the shift then off for four hours and then on for two hours at the end of his work shift and then two additional hours in the evening at home.

The claimant could not afford the recommended back brace and so never obtained the device; likewise, he did not undergo the recommended therapy. He remained off work.

In April 2004, Dr. Najjar wrote a letter “to whom it may concern” stating his agreement with Dr. Vise’s recommendations. Dr. Najjar stated:

I am deeply concerned that an inadequate treatment of Mr. Brantley’s condition, coupled with a hasty return to work, may aggravate the problem substantially and lead to disc herniation, which in turn would lead to surgical intervention with all the potential complications associated with such a procedure.

In June 2004, Dr. Spires wrote Delta’s attorney a letter in response to an inquiry about the claimant’s condition; Dr. Spires referred to Dr. Najjar’s letter and said that the recommended brace “would be fine by me.”

In October 2004, in a letter between counsel, the claimant asked to see a neurosurgeon, Dr. Bernie McHugh. Delta responded with a letter on November 16, 2004, asking the claimant for “any evidence that treatment with Dr. McHugh is medically necessary and warranted at this time.” In November 2004, the claimant filed a disputed claim for compensation in the Office of Workers’ Compensation (“OWC”). In February 2005, he asked the OWC to order Delta to pay for treatment by Dr. McHugh. The motion was set for a hearing in March 2005, but in February, Delta agreed to pay for an evaluation — but not treatment — of the claimant by Dr. McHugh. Thereafter, the claimant again sought an order from the OWC directing Delta to pay for the treatment recommended by Dr. McHugh.

Un March 2005, Dr. McHugh examined the claimant. Dr. McHugh reviewed his MRI and found no correlation between what he saw there and his complaints of pain; he then ordered a CT myelogram study of the claimant’s lumbar spine. The scan revealed, among other things, disc bulging at L3-4. Delta apparently agreed thereafter to pay for the treatment recommended by Dr. McHugh, so the claimant withdrew his renewed formal demand for treatment. After the CT scan was performed, the claimant returned to see Dr. McHugh on May 24, 2005, where the doctor discussed performing surgical decompression at the L3-4 level; the doctor’s note indicates that he was then awaiting approval for the surgery through workers’ compensation.

In May 2005, the claimant was evaluated by Delta’s choice of neurosurgeons, Dr. Donald Smith. Dr. Smith’s recommendations state:

I believe that the patient does have significant degenerative disc changes at the L3-L4 level as indicated above. The degree of defect would be considered significant and in many cases, may provide some indications in favor of surgical therapy. I feel that the likelihood of the patient being significantly improved by surgical treatment is very low. I feel that the likelihood of returning this patient to any significant level of work activity by surgery is also very low. The degenerative changes have radio-graphic appearance of chronic changes, which may have evolved secondary to so-called “wear and tear” over time. I feel that it is more probable than not that these changes are longstanding, chronic, and related to degenerative changes. I cannot be more specific with regards to their relationship to the injury in question.

In June 2005, the claimant filed a motion to compel Delta to pay for the surgery recommended by Dr. McHugh.

The matter went to trial in July 2005. The claimant testified that his back and leg pain commenced with the accident and continued to trouble |fihim. Specifically, he testified that the pain limits his ability to perform various physical tasks and prevents him from working. The claimant’s supervisor at Delta, Johnnie Burroughs, also testified. Burroughs testified that he called the claimant in April 2004 to offer him his job back at the same rate of pay and told him that Delta “would try to put him on some kind of a light duty and, you know, get him some help.” The claimant declined to attempt to return to work.

On September 22, 2005, the workers’ compensation judge (“WCJ”) gave verbal reasons for judgment. After a detailed consideration of the claimant’s medical treatment, the WCJ observed that the claimant was a credible witness. The WCJ found that Delta was arbitrary and capricious in refusing to pay for the back brace recommended by Dr. Vise and stated that an award of penalties and attorney fees was appropriate. Likewise, the WCJ found that the claimant needed further chiropractic treatment and the surgery recommended by Dr. McHugh and so ordered Delta to pay for those items. The WCJ decided that Delta was reasonable to ask for proof of medical necessity prior to authorizing the examination and treatment of the claimant by Dr. McHugh; no penalty or attorney fees were awarded due to that incident. The WCJ found that Dr. Smith’s opinion reasonably controverted that of Dr. McHugh and thus refused to award penalties or attorney fees for Delta’s refusal to pay for the surgery recommended by Dr. McHugh. Further, the WCJ reviewed the medical records, including the report from Dr. Vise, and concluded that the evidence failed to establish the 17claimant’s inability to return to some type of work. Because the claimant did not attempt to return to any type of employment after his injury, including the modified position actually offered to him by the employer at the same rate of pay, the OWC denied his claim for indemnity benefits.

In its judgment, the OWC ordered Delta to pay for the back brace recommended by Dr. Vise and awarded the claimant $2,000.00 in penalties and $3,000.00 in attorney fees for Delta’s refusal to approve this device. Further, the OWC ordered Delta to pay for the spinal surgery recommended by Dr. McHugh, and ordered Delta to pay for further chiropractic treatment by Dr. Hawthorne. As indicated in its reasons for judgment, the OWC denied his claim for indemnity benefits and also denied any other claim for penalties and attorney fees. The claimant now appeals.

LAW

Standard of review

The manifest error standard of appellate review applicable to factual findings of district courts is also applicable to the factual findings of a workers’ compensation judge. Dean v. Southmark Construction, 2003-1051 (La.7/6/04), 879 So.2d 112; Young v. Physicians & Surgeons Hospital, 39,348 (La.App. 2d Cir.3/2/05), 895 So.2d 723; Johnson v. Johnson Controls Inc., 38,495 (La.App. 2d Cir.5/12/04), 873 So.2d 923. Under the manifest error standard, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Young, supra.

|sWhen legal error interdicts the fact-finding process in a workers’ compensation proceeding, the manifest error standard of review no longer applies. Rather, the appellate court must, when possible, review the facts de novo and render a judgment on the merits. Kelley v. Stone Container Corporation, 31,790 (La.App.2d Cir.5/5/99), 734 So.2d 848, writ denied, 1999-1969 (La.10/15/99), 748 So.2d 1150.

Indemnity benefits claims

The claimant argues that the WCJ erred in failing to award him temporary total disability (“TTD”) benefits or supplemental earning benefits (“SEB’s”).

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, and the WCJ’s ruling on the issue cannot be reversed in the absence of manifest error. Thomas v. Casino Magic, 39,725 (La.App. 2d Cir.5/11/05), 902 So.2d 1283, writ denied, 2005-1970 (La.2/3/06), 922 So.2d 1183. The claimant argues that the OWC committed legal error in its denial of his claim for benefits and that this court should review the record de novo.

In Collins v. Patterson Drilling, 39,668 (La.App. 2d Cir.5/11/05), 902 So.2d 1264, this court explained how a claimant may obtain an award of TTD benefits:

To obtain an award of TTD’s, a claimant must prove by clear and convincing evidence, unaided by any presumption of | ndisability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c). This is the standard of proof which a claimant must satisfy when he files a disputed claim form seeking an award of TTD benefits after the employer or insurer terminates voluntary payments of TTD’s. [Citations omitted.]

To prove a matter by clear and convincing evidence, as required to establish entitlement to TTD benefits, means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Hammock v. Weyerhaeuser, 40,464 (La.App. 2d Cir.12/14/05), 917 So.2d 733.

The WCJ noted that Dr. Spires had released the claimant to work without restrictions in February 2004 based on the FCE. The WCJ then discussed Dr. Vise’s report and its reference to the claimant returning to work after 12 weeks of therapy. However, Dr. Vise’s report does not indicate that the claimant could not return to work immediately in some capacity at some lighter level of duty. Dr. Najjar’s caution against “a hasty return to work” likewise does not distinguish between the claimant’s former employment doing heavy labor and the light duty position made available to him. As the WCJ found, the medical evidence does not clearly and convincingly show that the claimant could not return to some type of employment. Although the claimant testified that he was not physically able to work, the WCJ had the opportunity to observe him at trial and consider his condition firsthand. We perceive no error in the WCJ’s decision to reject the claimant’s request for TTD benefits.

| min Mosley v. Pennzoil Quaker State, 39,981 (La.App. 2d Cir.9/8/05), 911 So.2d 327, this court explained the proof required for an award of SEB’s:

To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related injury resulted in the inability to earn 90% or more of his average pre-injury wage. LSA-R.S. 23:1221(3)(a). Once the claimant makes this showing, the burden shifts to the employer, who must prove by a preponderance of evidence that the claimant is physically able to perform a certain job and that the job was offered to the claimant or was available in his or the employer’s community or reasonable geographic region. LSA-R.S. 23:1221(3)(c)(1). An employer can discharge its burden by establishing (1) the existence of a suitable job within claimant’s physical capabilities, (2) the amount of wages an employee with claimant’s experience and training can expect to earn in that job, and (3) an actual position available for that particular job at the time the claimant received notification of the job’s existence. [Citations omitted.]

The employee is deemed incapable of performing the employment offered if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform the employment offered. La. R.S. 23:1221(3)(c)(ii).

The evidence did not show that the claimant was unable to work and earn wages equal to 90 percent or more of his wages at the time of his injury so as to entitle him to SEB’s. Apart from the FCE that showed that he could return to heavy work without restrictions, there was little other evidence apart from the claimant’s testimony to demonstrate his ability or inability to work. Further, the testimony showed that his employer offered him a modified light duty position earning the same pay as he had previously earned doing heavy mechanical work, but the claimant did not attempt to | ^return to work even in the modified job. There was thus no evidence that the claimant could not have performed the employment offered. Hence, the WCJ correctly found that he failed to prove that he was entitled to SEB’s.

The claimant argues that the OWC should have applied La. R.S. 23:1121(D) but failed to do so.

La. R.S. 23:1121 provides, in part:

D. After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. Such report shall be considered in addition to all other medical reports in determining the injured employee’s fitness to return to work. Should disagreement exist, after such consultation and examination, as to the fitness of the employee to return to work, the provisions of R.S. 23:1123 shall be followed.

La. R.S. 23:1123 provides:

If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter. [Emphasis added.]

The claimant argues that the OWC erred as a matter of law in failing to apply these statutes in deciding his entitlement to benefits. The record shows that the claimant did indeed seek an additional medical opinion from Dr. Vise at his own expense after Dr. Spires released him to work, but we observe that the report issued by Dr. Vise was not squarely intended to address the claimant’s return to work; rather, it provided a more general assessment of his condition and recommendations for treatment. Dr. Vise’s report did indirectly address the claimant’s ability to work with his | ^recommendation that the claimant— after completing therapy — wear the or-thotic brace for a portion of his work day. However, Dr. Vise’s report did not provide the doctor’s opinion about the claimant’s ability to return to some type of employment without further therapy or equipment. We further note that the record does not show that either party made an application to the OWC for the examination of the claimant by a medical practitioner selected and appointed by the director as contemplated in La. R.S. 23:1123. In the absence of such a request, it was not error for the OWC to decide the case without the benefit of an independent examiner’s report. See Jacquet v. Southern Structures, Inc., 1997-1696 (La.App. 3d Cir.5/20/98), 713 So.2d 723.

Penalties and attorney fees for improper termination of benefits

The claimant contends that the OWC erred in failing to award him penalties and attorney fees for Delta’s improper termination of his indemnity benefits and its wrongful refusal to reinstate those benefits.

Since the date of the claimant’s accident the law has changed as to the imposition of penalties and attorney fees for the termination of benefits. The penalty and attorney fee provisions for the termination of benefits were revised by Acts 2003, No. 1204, effective August 15, 2003, almost one month after the claimant’s accident. By contrast to the usual rule in workers’ compensation eases, the law regarding penalties and attorney fees in effect at the time of the withholding of benefits is controlling. McGuyer v. Fidelity & Casualty Company of N.Y., 39,450 (La.App. 2d Cir.3/2/05), 895 So.2d 701. Accordingly, the posh-2003 version of the statute applies.

Statutory provisions allowing penalties and attorney fees are penal in nature and must be strictly construed. Tron v. Little Italiano, Inc., 38,556, 38,557, 38,558 (La.App. 2d Cir.6/25/04), 877 So.2d 1055. La. R.S. 23:1201(1) provides:

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to eases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:658(c) shall be applicable to claims arising under this Chapter.

Whether or not a refusal to pay is arbitrary, capricious or without probable cause depends primarily on the facts known to the employer or insurer at the time of its action. Freeman v. Triad Builders, 39,657 (La.App. 2d Cir.5/11/05), 902 So.2d 1220, writ denied, 2005-1562 (La.12/16/05), 917 So.2d 1118. If there is conflicting evidence, an employer is not arbitrary or capricious in reaching its decision to deny or terminate benefits. Freeman, supra. The determination of whether an employer should be cast with penalties is a question of fact for the WCJ, whose findings shall not be disturbed on appeal absent manifest error. Moore v. ConAgra Poultry Company, 39,283 (La.App. 2d Cir.1/26/05), 893 So.2d 137. Delta 1 uterminated the claimant’s indemnity benefits in February 2004 only after the finding by Dr. Spires, based upon the results of the FCE, that the claimant could return to work without restriction. Thereafter, no physician unequivocally stated that the claimant could not return to work in any capacity, and the FCE indicated that he could return to doing heavy work, perhaps with accommodation. Delta was reasonable to terminate indemnity benefits upon receipt of the FCE and Dr. Spires’ report; based upon the totality of the evidence, we detect no error in the WCJ’s rulings on these questions.

Penalties and attorney fees for failure to authorize treatment by Dr. McHugh

The claimant argues that the WCJ should have awarded him penalties and attorney fees under La. R.S. 23:1201(F) for Delta’s failure to authorize treatment by Dr. McHugh. La. R.S. 23:1121 provides, in part:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

The claimant argues that Dr. McHugh is a neurosurgeon and that his other physician of choice, Dr. Najjar, was a general practitioner. Accordingly, he argues that Delta should have approved payment for him to see Dr. McHugh rather than delay the process for several months.

lisThe record shows that Delta responded to the claimant’s request to see Dr. McHugh with a request of its own for “any evidence” that this treatment was medically necessary. In her reasons for judgment, the WCJ stated that Delta had the right to seek proof of medical necessity for this visit under La. R.S. 23:1203, which provides, in part:

A. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services....

At the time of the request for treatment by Dr. McHugh, the claimant had seen three doctors, two of whom were orthopedic surgeons, and none of these physicians had recommended surgery for him. The most recent medical opinion, from Dr. Vise, recommended conservative treatment.

La. R.S. 23:1201 provides, in part:

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

Given that the claimant had already been evaluated by three physicians, none of whom recommended surgical intervention, and that an FCE reported that he could return to doing heavy work, Delta was reasonable to request further proof that a visit to a fourth doctor was necessary. The record does not show manifest error in the WCJ’s finding that the claimant did not prove his entitlement to penalties and attorney fees arising from Delta’s handling of his request to see Dr. McHugh.

Penalties and Attorney Fees for Failure To Authorize Surgery by Dr. McHugh

The claimant argues that there was no dispute between Dr. McHugh and Dr. Smith regarding his condition and that once the employer had Dr. Smith’s opinion, it was obligated to pay for the surgery for the claimant. The claimant urges that if Delta believed there was a dispute between the opinions of Dr. McHugh and Dr. Smith, it should have provoked an independent medical examination. Accordingly, the claimant argues that he is entitled to penalties and attorney fees under La. R.S. 23:1201(F).

As noted, Dr. Smith evaluated the patient after Dr. McHugh recommended surgery for the claimant, and Dr. Smith stated in part:

I feel that the likelihood of the patient being significantly improved by surgical treatment is very low.

Based on this information, the claimant’s request for surgery was clearly reasonably controverted by Delta. Although his physical condition may have been well-understood by the physicians, the doctors disagreed about |17the appropriate course of treatment. The WCJ did not err in finding that this claim was reasonably controverted and that no penalties or attorney fees were due.

Penalties and Attorney Fees for Termination of Medical Benefits

Finally, the claimant contends that Delta should be penalized for refusing to allow him to see his chiropractor, Dr. Hawthorne, and for terminating his medical benefits entirely after the FCE result. At trial, the claimant testified that he was not allowed to see Dr. Hawthorne after the February 2004 FCE result. As pointed out by Delta in brief, there was scant evidence that he actually attempted to see Dr. Hawthorne or any of the doctors who had previously treated him once the FCE result was released. On this record, there is no showing of manifest error in the OWC’s refusal to award penalties and attorney fees for this alleged wrongdoing.

CONCLUSION

The judgment of the OWC is affirmed. Costs are assessed against the appellant.

AFFIRMED.

BROWN, Chief Judge, concurs and dissents in part with written reasons.

BROWN, Chief Judge,

concurs and dissents in part.

LThe WCJ ordered the surgery recommended by Dr. McHugh. Obviously, claimant would not be able to work during the surgery and recovery period. When he could return to work and what work he could do thereafter would be determined by the medical experts. (As footnoted in the majority opinion, claimant states in brief that he has undergone the surgery.) I respectfully dissent from the decision not to award TTD benefits. I concur in all other respects.

      . According to the claimant's brief, he has undergone surgery and is recuperating.

      . Corrtra-see, e.g., Roberts v. Thibodaux Healthcare Center, 2005-0774 (La.App. 1st Cir.3/24/06), 934 So.2d 84, fn. 6; Angelle v. Taylor Oilfield, 2005-560 (La.App. 3d Cir. 12/30/05), 918 So.2d 616.


author: MOORE, J.

text:
    STATE of Louisiana, Plaintiff-Appellant, v. Jared JACKSON, Defendant-Appellee.
    No. 41,179-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Department of Public Safety and Corrections, Office of State Police by Harriet-ta J. Bridges, for Appellant.
    Gordon 0. Bartage, Shreveport, for Ap-pellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

|, The issue in this appeal is whether the State of Louisiana, Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information (the “Bureau”) has standing to bring a civil nullity action challenging a criminal court judgment both vacating a guilty plea to contributing to the delinquency of a juvenile and accepting a guilty plea to misdemeanor carnal knowledge of a juvenile. For the reasons set forth below, we hold that the Bureau lacks standing and affirm the trial court’s decision.

FACTS

In March 2001, Jared Jackson pled guilty to contributing to the delinquency of a juvenile, a violation of La. R.S. 14:92(7). At the time of the guilty plea, the court indicated that Jackson did not have to comply with the provisions of La. R.S. 15:542.1, under which any person convicted of a sex offense as defined by law has the duty to register under Louisiana’s statutory scheme for registration of sex offenders, sexually violent predators, and child predators. Under the provisions of La. R.S. 15:541(14.1), contributing to the delinquency of a juvenile is a “sex offense” triggering the registration requirements. Due to the conflict between the trial court’s statement indicating that Jackson did not have to comply with registration, and the statutory language indicating that Jackson did have to comply, a disagreement developed between Jackson and the Bureau.

In April 2004, Jackson was allowed to withdraw his guilty plea to the charge of contributing to the delinquency of a juvenile, and to enter a plea Rof guilty to misdemeanor carnal knowledge of a juvenile. The latter offense does not require registration. Approximately one-and-a-half years later, the Bureau filed a petition in civil court to annul the criminal court judgment. The Bureau asserted that the criminal court judgment was an absolute nullity because the court lacked jurisdiction to accept Jackson’s guilty plea to misdemeanor carnal knowledge of a juvenile when that offense was not in existence at the time of the offense committed by Jackson. Jackson responded with peremptory exceptions of no right of action and no cause of action; the trial court subsequently sustained both exceptions, concluding that the Bureau lacked standing in the civil case to contest the validity of Jackson’s guilty plea to misdemeanor carnal knowledge of a juvenile.

DISCUSSION

An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The lack of such an interest may be challenged through the peremptory exception of no right of action, or no interest in the plaintiff to institute the suit. La. C.C.P. art. 927(A)(5). The function of an exception of no right of action is to determine whether the plaintiff belongs to the particular class of persons to whom the law grants a remedy for the particular grievance, or whether the plaintiff has a legal interest in the subject matter of the litigation. Caldwell Parish Police Jury v. Town of Columbia, 40,865 (La.App. 2 Cir. 3/15/06).

Subject to the supervision of the attorney general, the district attorney has “entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall ^prosecute.” Thus in State v. Gilmore, 332 So.2d 789 (La.1976), the Louisiana Supreme Court held that the district attorney was inherently empowered to amend an indictment charging first-degree murder to a charge of second-degree murder, even though there was no specific codal authorization for the procedure. Likewise, in State v. Matteson, 36,628 (La.App. 2 Cir. 12/11/02), 833 So.2d 1199, we held that a bondsman had no right to compel the district attorney to file a specific charge because the power to charge is solely within the discretion of the district attorney.

In the instant case, to allow the Bureau to challenge the criminal court judgment would be to usurp the district attorney’s power to control every criminal prosecution instituted or pending in his district. The district attorney’s power to determine whom, when, and how he shall prosecute includes the power to oppose or not oppose the withdrawal of one guilty plea and the implementation of another.

The Bureau points out that under the provisions of La. R.S. 15:578, the Bureau is to establish and maintain a central repository of criminal history record information and a central registry of sex offenders, and the Bureau argues that, as a result, it has the duty to preserve the public records as created and to insure that no one alters or destroys the records. Thus, the Bureau argues that even though it was not one of the prosecuting parties, it can question not only the legality of the criminal court’s order, but also the legality of the procedural steps taken to achieve an outcome in criminal proceedings that “adversely impinges on its obligation to ... maintain the State’s sex offender registry.”

|4In support of this argument, the Bureau cites State v. Daniel, 39,633 (La.App. 2 Cir. 5/25/05), 903 So.2d 644, in which we held that the Department of Public Safety had standing to annul a judgment ordering that a defendant’s criminal record be destroyed. However, the significant distinguishing factor between Daniel and this case is that Daniel had nothing to do with the district attorney’s power to control criminal prosecutions, but concerned the trial court’s lack of power to order destruction of public records in a manner outside the scheme established in Title 44 of the Louisiana Revised Statutes.

This case does not concern either destruction of public records or expungement of criminal records. Thus, the judgment herein does not impinge upon the Bureau’s duty to establish and maintain a central repository of criminal history record information and a central registry of sex offenders. As a consequence, the Bureau, as custodian of the these public records, has no more standing to bring a civil action demanding nullity of the criminal court judgment herein than a district court clerk, as custodian of the mortgage and conveyance records, has standing to bring a civil action demanding nullity of a civil judgment holding a mortgage or conveyance to be invalid. The duty of a custodian of public records to preserve the records and insure that no one alters or destroys them does not give the custodian a real and actual interest in judicial proceedings not addressing the custodian’s record-keeping duties, but instead addressing legal issues that have the effect of creating, changing, or invalidating items that fall under the definition of public records.

| ^Finally, we also observe that in McCoy v. City of Monroe, 32,521 (La.App. 2 Cir. 12/8/99), 747 So.2d 1234, in which the plaintiff attempted to argue in a civil action that his criminal conviction was an absolute nullity under La. C.C.P. arts.2001-2006, we held that the procedural articles dealing with the nullity of a civil judgment had no application to the plaintiffs attack on his criminal conviction and sentence. In the case at bar, the Bureau also is seeking to rely on nullity articles in the Louisiana Code of Civil Procedure to attack a criminal conviction and sentence.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment sustaining the exception of no right of action. The Bureau lacks standing to attack Jackson’s guilty plea and conviction because that judgment does not concern the Bureau’s record-keeping duties, but concerns the district attorney’s exclusive power to control criminal prosecutions instituted or pending in his district.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Carl P. JONES, Appellant.
    No. 41,018-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Peggy Sullivan, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, R. Nicholas Anderson, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

hThe defendant was charged by bill of information with distribution of cocaine in violation of La. R.S. 40:967. The defendant pled guilty and was sentenced to 15 years at hard labor without the benefit of parole, probation or suspension of sentence. We affirm.

FACTS

On March 2, 2005, a “buy/bust” operation was executed by the Metro Narcotics Unit in the Monroe area by Lieutenant Rowlan. Rowlan equipped a reliable confidential informant with an audio recording device and photocopied the Metro Narcotics Unit buy money. The defendant flagged down the informant, as he arrived at the intersection of North 22nd and Flynn Street. The defendant sold $100 worth of cocaine to the informant as Row-lan watched and recorded the conversation from a block away. The defendant was immediately arrested.

EXCESSIVE SENTENCE

When, as here, a defendant fails to timely file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, the appellate court’s review is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. La. C. Cr. P. art. 881.1 precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Therefore, the defendant’s constitutional review turns upon whether the sentence is illegal or grossly disproportionate to the severity of the offense. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

A sentence is considered grossly disproportionate, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A trial court has broad discretion to sentence within the statutory limits. That sentence should not be set aside absent a showing of manifest abuse of that discretion. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Prior to imposing a sentence, the trial court stated that the presentence investigation report indicates that the defendant is a fourth felony offender, who has been convicted of two counts of grand larceny, burglary of a dwelling, middle grade theft and possession of drug paraphernalia.

Responding to the sentencing guidelines, the court stated the defendant is likely to commit another crime. The court also noted that, based on the defendant’s testimony about his cocaine addiction at the sentencing hearing, he is a prime candidate for the Blue Walters Treatment program. As a mitigating factor, the court also recognized the defendant’s drug addiction.

The sentencing range for distribution of cocaine is imprisonment at hard labor for not less than two years nor more than 30 years, with the first two years to be served without the benefit of probation, parole, or | asuspension of sentence. The trial court may also impose an additional fine not more than $50,000. La. R.S. 40:967 B(4)(b).

The trial court imposed a sentence of 15 years at hard labor without the benefit of parole, probation or suspension of sentence. Considering the totality of the record, this 15-year sentence is not constitutionally excessive. The sentence is one-half of the sentence that the trial court could have imposed. The defendant is a fourth felony offender who has been convicted of two counts of grand larceny, burglary of a dwelling, middle grade theft and possession of drug paraphernalia. We do not find that the sentence imposed is grossly disproportionate to the severity of the offense nor is it shocking to the sense of justice. This assignment is therefore without merit.

ERROR PATENT REVIEW

Our review of the record reveals that, before accepting the defendant’s guilty plea, the trial court failed to advise the defendant of his privilege against self-incrimination and right to confrontation. The defense counsel and the defendant, however, have requested that the invalidity of the plea be waived and that the sentence be reviewed only for excessiveness.

In order for a guilty plea to be valid, it is necessary for the accused to make a knowing and intelligent waiver of three constitutionally guaranteed fundamental rights. Those rights are the privilege against compulsory selfjincrimination,4 the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Nuccio, 454 So.2d 93 (La.1984); State v. Feaster, 33,-879 (La.App.2d Cir.11/1/00), 779 So.2d 761; State v. Jones, 28,929 (La.App.2d Cir.4/2/97), 691 So.2d 858. A guilty plea will not be considered free and voluntary unless, at the very least, the court advises the defendant of the triad of rights as enunciated in Boykin, supra, and Louisiana jurisprudence. Indeed, an express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992). Furthermore, the trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980); State v. Morrison, supra.

While the Louisiana Supreme Court held in State v. Guzman, 99-1753, 99-1528 (La.5/16/00), 769 So.2d 1158, that deficiencies in a guilty plea in violation of La. C. Cr. P. art. 556.1 are not subject to error patent review, the failure of a court to advise the defendant of his right to confrontation and privilege against self incrimination is also in violation of Boykin, supra. An appellate court’s review of the constitutional validity of a guilty plea should be determined by the totality of circumstances in each individual case. State v. Jackson, 2004-2863 (La.11/29/05), 916 So.2d 1015. It should not invalidate the plea automatically, as in this case, over the strong objections of the defendant. State v. Jackson, supra.

|fiHere, appellate defense counsel asserts that the defendant has not attacked the validity of the plea. Furthermore, the defendant has submitted an affidavit in which he waived the claim of invalidity of his guilty plea. Appellate counsel further asserts that it is clear from the transcript that the trial court provided an adequate explanation of the defendant’s rights and the desire of the defendant to waive those rights.

The trial judge conducted an extensive plea colloquy with the defendant. The judge asked the defendant whether he understood what he was waiving by pleading guilty and the defendant responded affirmatively. The defendant was made aware of the nature of the offense. The state explained the factual basis of the offense and the defendant stated that the facts were accurate. Although the trial judge did not expressly advise the defendant that he was waiving his right to confrontation, the court specifically stated that the state would not have to call “witnesses to establish [his] guilt” if he pled guilty. This in-depth plea examination, along with the defense attorney’s and the defendant’s requests to uphold the plea, show that the defendant understands and waives his Boykin rights. Based on the totality of the circumstances, the defendant knowingly and intelligently waived his rights. Therefore, the plea will not be set aside.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La. R.S. 40:967(B)(4)(b) states that there is a minimum sentence of two years and that these two years shall be imposed without benefit of parole, probation or suspension of sentence. The trial judge may allow probation or suspension of sentence for a sentence that is in excess of the minimum two year sentence. The trial judge is not given the authority to deny parole for sentences in excess of two years under this statute. By operation of the laws regarding parole, specifically La. R.S. 15:574.4(A)(1), a person who is convicted of a third or subsequent felony offense, as is this defendant, is not eligible for parole.


text:
    Tasha McBRIDE, Individually & on Behalf of her Minor Child, Desiree McBride, Plaintiff-Appellee. v. XYZ INSURANCE and Earline L. Hill, Defendant-Appellants.
    No. 41,129-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Lemle & Kelleher, L.L.P., by Dale G. Cox, Shreveport, for Appellants.
    Norman R. Gordon & Assoc., by W. Brett Cain, Shreveport, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

hBoth the plaintiff, Tasha McBride, and the defendants, Allstate Insurance Company and its insured, Earline Hill, appeal a judgment awarding Ms. McBride’s daughter damages of $20,043.93 as the result of a dog bite. For the reasons expressed, we affirm in part, reverse in part and render.

Factual and Procedural Background

The defendant, Mrs. Hill, lives on O’Keefe Drive in the Swan Lake area of Bossier City. She owns a large-to-medium Chow named Smokey, who weighs 50-65 lbs. According to Mrs. Hill and her daughter, Tierra West, Smokey was always kept in the back yard, which was completely enclosed by a chain-link fence, and tied to a tree. In addition, three “Beware of the Dog” signs were posted: one on the fence gate, one on the rear fence, and one on the tree. On the afternoon of April 24, 2003, Mrs. Hill was at work but 20-year-old Ms. West, a full-time student and resident of NSU in Natchi-toches, had stopped by the house.

The plaintiff, Tasha McBride, was a friend of Ms. West’s. Driving down O’Keefe Drive with her two children, Ocea-na and Desiree (ages 5 and 3⅜, respectively), Ms. McBride stopped to talk with Ms. West. After chatting on the street and then in the driveway for a few minutes, Ms. West invited them into the back yard. Both women testified they came through the house to reach the back porch. Ocea-na and Desiree, along with Ms. West’s two-year-old brother, ran out to the swing set in the back yard. Ms. West admitted she did not warn them to keep away from the dog, but both she and Mrs. Hill insisted that Smokey had never shown any aggressive | ^behavior. The swing set was, at any rate, beyond the reach of the dog’s tether. Ms. West then ducked into the house to get a rag to wipe off the patio chairs.

When Ms. West returned, she saw that Desiree had walked from the swing set over to Smokey. She testified that the child was petting, hugging, rubbing the dog and holding its head, ie., nothing to provoke it. Ms. McBride testified that both her girls had gone over to pet the dog and were not provoking it, but when they turned to go back to the swing set, Smokey suddenly bit Desiree’s right arm just above the elbow. Both women ran out to pull the dog off the child.

Ms. West testified that Ms. McBride got there first and was swatting at Smokey’s face with one of her slippers or flip-flops. Ms. West grabbed the dog and pulled it away. Ms. McBride testified that she “blacked out” and did not recall exactly what happened, but admitted she may have struck the dog with her shoe. Smokey then bit Ms. McBride on the left forearm as she was pulling the child away. Ms. West phoned 911; an ambulance carried Desiree and Ms. McBride to Willis Knighton Bossier, where they were treated and released.

Tasha filed this suit in January 2004, individually and on behalf of Desiree. She alleged that Mrs. Hill and her homeowners’ insurer, Allstate Insurance, were strictly liable under La. C.C. art. 2321 and negligent for their injuries. Allstate answered that Ms. McBride was comparatively or contributorily negligent for allowing her 3já-year-old daughter to play with lathe dog unsupervised. By pretrial memorandum, Allstate also alleged that Smokey posed no unreasonable risk of harm and that Mrs. Hill took every reasonable precaution to protect the public from dog bites.

At trial in August 2005, the witnesses testified as outlined above. Ms. McBride did not recall seeing any of the “Beware of the Dog” signs posted in the yard. She offered hospital records showing that she and Desiree had incurred medical expenses of $1,371.86 and $2,243.93 respectively, as well as a letter from Dr. John Valiulis, a plastic surgeon. The letter advised that Desiree’s scars “can be revised,” and if performed today the surgery would cost $5,300. However, he did not recommend it until the child was 10 or 11 years old, and even then he could not guarantee a complete revision of the scar.

By written reasons for judgment, the district court made various findings of fact. Noting the conflicting testimony, the court found that Smokey had released Desiree and Ms. West had restrained the dog before Ms. McBride started hitting him with her shoe. After discussing a dog owner’s liability under Art. 2321 and the minor child’s freedom from fault under Dufrene v. Duncan, 93-0403 (La.App. 1 Cir. 3/11/94), 634 So.2d 19, the court awarded Desiree special damages of $2,243.93, future medical expenses of $5,300, and general damages of $12,500, for a total of $20,043.93. The court denied Ms. McBride’s claims for her own injuries as she should have noticed the warning signs around the yard and she in fact provoked the dog. The court assessed costs⅜ to Mrs. Hill and Allstate, andíé to Ms. McBride.

1 ¿Allstate and Mrs. Hill appealed suspen-sively, urging by five assignments of error that the district court erred in finding them liable for Smokey’s behavior. Ms. McBride answered the appeal, urging by three assignments of error that the court erred in denying her own claim for damages.

Applicable Law

The liability of animal owners is regulated by La. C.C. art. 2321, with italicized text marking the special provision for dog owners:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In the recent case of Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181, the court performed a textual analysis of art. 2321, beginning with Holland v. Buckley, 305 So.2d 113 (La.1974), the seminal case which abrogated the “first bite free” negligence analysis and adopted a strict liability theory. Holland had held that when a domesticated animal harms a person, the master of the animal is presumed to be at fault; in the “crowded society of today, the burden of harms caused by an animal should be borne by its master who keeps him for his own pleasure or use rather than by an innocent victim injured by the animal.” However, the Pepper court did not ^precisely adopt this bright-line approach.

Instead, the Pepper court drew heavily on the strict liability theory as applied to inanimate objects in Loescher v. Parr, 324 So.2d 441 (La.1975). Loescher had held that the guardian of a thing which damages a person is liable to that person when the plaintiff proves the thing which caused his damage was in the garde of the defendant, there was a defect or vice in the thing, i.e., an unreasonable risk of harm was created by it, and the damage oc-eurred because of this defect or vice, unless the guardian can prove the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Moreover, the strict liability theory of Loescher applies to animals. Boyer v. Seal, 553 So.2d 827 (La.1989).

On the crucial issue of whether an animal poses an unreasonable risk of harm, the Pepper court quoted approvingly from Boyer:

As Loescher observes, the person who has the guardianship' and usually the enjoyment of the person or thing should bear the cost of damage caused by risks they create rather than the innocent victim. Further, it is thought that the guardian is in a better position to anticipate, detect, guard against, and insure against these risks, making him a better risk spreader and more efficient conductor of the deterrent effects of civil liability. A competing policy, however, is that the guardian should not be responsible for protecting against all risks; some risks are relatively too small to require him to protect others therefrom.

Pepper v. Triplet, 864 So.2d at 190 (quoting Boyer v. Seal, 558 So.2d at 834).

Finally, the Pepper court studied the effect of the 1996 amendment to art. 2321, which appeared to confer an ordinary negligence standard on the owners of all animals except dogs, for whose owners the strict liability ^standard was retained. 1996 La. Acts, 1st Ex.Sess., No. 1, § 1; Joseph F. Piacun, The Abolition of Strict Liability in Louisiana: A Return to a Fairer Standard or an Impossible Burden on Plaintiffs?, 34 Loy. L.Rev. 215 (1997). The court found that despite the legislature’s omission of terms such as “strict liability” or “unreasonable risk of harm,” nonetheless the amendment effected no “practical change in how the courts should apply article 2321 to dog claims.” The court found that the “could have prevented” provision of the 1996 amendment showed adequate legislative intent to retain the pre-amendment concepts of strict liability and unreasonable risk of harm, with respect to dog owners only.

The court summarized its analysis as follows:

[T]o establish a claim in strict liability against a dog owner under La. C.C. art. 2321 as amended in 1996, the plaintiff must prove that his person or property was damaged by the owner’s dog, that the injuries could have been prevented by the owner, and that the injuries did not result from the injured person’s provocation of the dog. We hold that, to establish that the owner could have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.

Pepper v. Triplet, 864 So.2d at 184; see also Terral v. Louisiana Farm Bureau Cas. Ins. Co., 39,360 (La.App. 2 Cir. 1/26/05), 892 So.2d 732.

The owner’s liability arises solely from the legal relationship between the owner and the animal; the owner’s duty is nondelegable. Rozell v. Louisiana Animal Breeders Coop. Inc., 434 So.2d 404 (La.1983); Dotson v. Matthews, 480 So.2d 860 (La.App. 2 Cir.1985), writ denied, 481 So.2d 1336 (La.1986).

|7Appeals are taken from the judgment, not from the reasons for judgment. Greater New Orleans Expressway Com’n v. Olivier, 2002-2795 (La.11/18/03), 860 So.2d 22; Williams v. Enriquez, 40,305 (La.App. 2 Cir. 11/17/05), 915 So.2d 434.

Discussion: Liability of Mrs. Hill

By its first four assignments of error, Allstate urges the district court erred in finding Mrs. Hill liable for Desiree’s injuries arising from Smokey’s dog bite. By three assignments of error, Ms. McBride contends the court erred in failing to find Mrs. Hill liable for her own (Ms. McBride’s) injuries arising from Smokey’s dog bite. Because these issues are governed by the same legal principles, we will discuss them together.

Allstate’s first assignment shows> that the district court made two factual findings in its reasons for judgment: (1) “Smokey did not create such an unreasonable risk of harm as to constitute a case of strict liability against the dog owner pursuant to [art.] 2321,” and (2) Mrs. Hill “acted reasonably in securing the dog in such a position as to prevent it from being able to be on the patio and/or play area in the yard and did provide notice to persons of suitable age of discretion of the presence of the dog[.]” Allstate contends that with these findings clearing Mrs. Hill of strict liability and negligence, it was incongruous and legally wrong to hold her liable for any of Smokey’s conduct. By, its second and third assignments, Allstate urges the court erred in finding that Ms. West was negligent in inviting Ms. McBride and her children into the yard, and even if she was negligent, there was no basis to charge the adult daughter’s negligence to Mrs. Hill. In |ssupport, they cite Corley v. Delaney, 92-899 (La.App. 3 Cir. 12/15/93), 629 So.2d 1255, writs denied, 94-0481, 94-0636 (La.4/22/94), 637 So.2d 156; Verstichele v. Marriner, 2004-354 (La.App. 3 Cir. 9/29/04), 882 So.2d 1265; and Mahlum v. Baker, 25,876 (La.App. 2 Cir. 6/24/94), 639 So.2d 820.

By her three assignments, Ms. McBride counters that the two factual findings quoted above were plainly wrong, that Smokey did indeed pose an unreasonable risk of harm, and that Mrs. Hill is liable for the dog bites to both Desiree and Ms. McBride.

The court ultimately held Mrs. Hill liable for Desiree’s damages, and the appeal is from the judgment, not the reasons for judgment. Greater New Orleans Expressway Com’n v. Olivier, supra; Williams v. Enriquez, supra. Nonetheless, because the district court stated that Smokey posed no unreasonable risk of harm and that Mrs. Hill was not negligent, we are constrained to declare these findings plainly wrong under the rationale of Pepper v. Triplet.

Mrs. Hill, the owner and guardian of Smokey, had the enjoyment and security of keeping a fairly large Chow in her yard; thus she, and not the, innocent victims, should normally bear the cost of damages arising from his dog bites. As owner and guardian, Mrs. Hill was in the superior position tq anticipate, detect, guard against and insure against precisely this type of harm. It is true that she took some precautions by fencing and tethering the dog, and by posting warning signs. However, the record clearly shows that her daughter invited Ms. McBride and her children into the yard, thus | flnegating the protection of the fence and tether. It also shows that Ms. McBride and her children entered the back yard through the house, not through the gate, and thus would not necessarily have seen the signs. In any event it is uncertain that 3/£-year-old Desiree would have understood a sign, had she seen it. Most of all, Mrs. Hill failed to take the obvious precaution of instructing her daughter not to allow children near the dog. There is some testimony that Ms. West even told Ms. McBride that the dog would not bite.

Moreover, on this record, we cannot say that the risk of harm to Desiree and Ms. McBride was “relatively too small” to invoke the guardian’s responsibility. These were invited guests, as distinguished from the virtual trespasser in Pepper v. Triplet who unlocked a gate and entered a yard where he had never been invited. The owner in Pepper took reasonable steps to reduce the risk; Mrs. West simply did not. On this record, Ms. McBride proved that Smokey posed an unreasonable risk of harm.

Finally, to make her case under art. 2321 Ms. McBride had to prove that her injuries did not result from her own provocation of the dog. All witnesses agreed that the children were merely playing with Smokey, and doing nothing to provoke him; this satisfied the burden of proof.

In sum, Ms. McBride proved a case of strict liability under art. 2321 and Pepper v. Triplet, supra. For other reasons, the court awarded her damages for Desiree’s injuries, and this result is not plainly wrong.

inWith the finding of strict liability, we are constrained to hold that the district court erred in failing to find Mrs. Hill liable for Ms. McBride’s injuries. The district court reasoned that Ms. McBride failed to use reasonable caution in reading the warning signs and provoked the dog by striking him after he had already released Desiree. As noted, however, Ms. McBride and her children entered the yard through the house, and she did not notice the signs. Moreover, both witnesses testified that events unfolded very fast; the record persuades us that Ms. McBride’s conduct in swatting Smokey with a shoe was not an intentional provocation but a natural and inevitable reaction to seeing her child’s arm in the dog’s jaws. On this record, Ms. McBride’s conduct was not provocation and her injury was a foreseeable consequence of the dog’s unreasonably dangerous propensity. This portion of the judgment will be reversed and judgment rendered accordingly.

In light of these conclusions, we would discuss Allstate’s other assignments of error very briefly. By its second and third assignments, Allstate contends the fault actually lay with Ms. West, whose negligence cannot be imputed to Mrs. Hill; by its fourth assignment, it urges the fault actually lay with Ms. McBride for failing to supervise her child. The strict liability of the dog owner, however, arises from her relationship with the dog and cannot be delegated to other persons. Rozell v. Louisiana Animal Breeders Cooperative Inc., supra; Dotson v. Matthews, supra. Moreover, in the circumstances presented, Ms. McBride’s conduct was not unreasonable. These assignments of error lack merit.

InThe judgment will be affirmed insofar as it held Mrs. Hill liable for Desiree’s injuries. It will be reversed insofar as it absolved her of liability for Ms. McBride’s injuries, and judgment will be rendered in accordance with this opinion.

Damages

By its fifth assignment of error, Allstate urges the district court erred in awarding future medical expenses in the absence of proof that the procedure was necessary and that Desiree would actually undergo it. Allstate contends that Dr. Valiulis was not called to testify, but only wrote a letter suggesting that Desiree might opt to forgo plastic surgery because of her Latin American heritage. Ms. McBride responds that the court did not abuse its discretion in making this award.

Future medical expenses must be established with some degree of certainty and will not be awarded in the absence of medical testimony showing that they are indicated and setting out their probable cost. Hanks v. Seale, 2004-1485 (La.6/17/05), 904 So.2d 662. The plaintiff must show that, more probably than not, the expenses will be incurred. Kennedy v. Thomas, 34,530 (La.App. 2 Cir. 4/4/01), 784 So.2d 692. While the evidence could have been stronger, we are persuaded by our viewing of the photograph of Desiree’s arm, Exhibit P-2, that she will indeed wish to undergo corrective surgery. We attach no special significance to Dr. Valiulis’s gratuitous remark that the child may elect not to have surgery because of her Mexican and American Indian heritage. We perceive no abuse of the district court’s discretion.

|12By her third assignment of error, Ms. McBride urges the district court erred in failing to award general and special damages for her own dog bite injuries. For the reasons already discussed, she proved her case of strict liability. Statements submitted as part of Exhibit P-4 show that she incurred medical expenses of $1,371.86 for the dog bite; these will be awarded. A letter from Dr. Valiul-is recommended plastic surgery at a cost of $3,800; as with Desiree, the evidence could be stronger, but this strikes us as a necessary revision of a serious bite, and will be awarded. The duration and intensity of her pain and fright from the incident appear to be significantly less than those suffered by Desiree. On this record, general damages of $5,000 are warranted. Judgment will be rendered accordingly.

Conclusion

For the reasons expressed, the judgment is affirmed insofar as it found Allstate and its insured, Mrs. Hill, liable for injuries to Desiree McBride resulting from the dog bite in the total amount of $20,043.93. The judgment is reversed insofar as it found Allstate and Mrs. Hill not liable for injuries to Tasha McBride resulting from the dog bite; judgment is hereby rendered in her favor in the total amount of $10,171.86. All costs are to be paid by the defendants, Allstate and Mrs. Hill.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . In’ the original petition, Ms. McBride referred to the insurer as "XYZ Insurance Company.”