author: WHIPPLE, J.

text:
    Randy THERIOT and Faye Theriot v. Alger Adam BERGERON, Jr., Gulf Fish, Inc. and Dakota Specialty Insurance Company.
    No. 2005 CA 1225.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Hilary G. Gaudin, Gretna, Leopold Ba-bin, Houma, Counsel for Plaintiffs/Appellants, Randy and Faye Theriot.
    Frederic Fondren, Houma, Counsel for Defendants/Appellees, Alger Bergeron, Jr., Gulf Fish, Inc. and Dakota Specialty Ins. Co.
    Gary Beauchamp, Baton Rouge, William Culver, Jr., Assistant Attorney General, New Orleans, Counsel for Defendants, State of Louisiana, Department of Public Safety, and State Trooper Karla Billiot.
    Before: WHIPPLE, McCLENDON and WELCH, JJ.
   WHIPPLE, J.

Lin this appeal, plaintiffs challenge the trial court’s judgment, dismissing plaintiffs’ suit for damages for personal injury. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 7, 2002, Louisiana Department of Transportation and Development (DOTD) employees were repairing light signals at the intersection of Louisiana Highway 61 (Airline Highway) and North Lester Avenue in Jefferson Parish. Two DOTD trucks with extendable buckets were parked back end to back end in the right lane of westbound traffic on Airline Highway. Plaintiff, Randy Theriot, an electrical specialist leaderman for DOTD, was suspended above the intersection in a bucket attached to one of the DOTD work trucks, repairing the traffic signals.

As depicted in photographs of the scene, the traffic signal post was located on the side of Airline Highway, with an arm that extended over both westbound lanes of travel. The traffic signals were connected to the arm, with the signal furthest to the left being suspended above the left-hand lane of westbound traffic. Plaintiff was working on the amber or yellow section of the traffic signal furthest to the left, suspended above the left lane of westbound traffic on Airline Highway. Thus, as plaintiff worked on the signal, traffic was passing beneath him. Plaintiff was facing the traffic signal as he was working on it, with his back to the traffic below.

Louisiana State Trooper Karla Billiot was directing traffic at the ^intersection while the traffic signals were being repaired. Billiot parked her police unit, with its blue lights flashing, in the right-hand lane of the westbound lanes of Airline Highway and was directing traffic into the left-hand westbound lane. As she was directing traffic, Billiot was facing the oncoming traffic with her back to plaintiff. Traffic on Airline Highway headed west was backed up about one-half mile to one mile from the intersection.

One to two minutes before the accident at issue, Billiot directed a large eighteen-wheeler through the intersection. According to Billiot, she guided..the. eighteen wheeler through the intersection while maintaining eye contact with the driver to ensure that there was enough clearance for the truck to pass. . After the eighteen wheeler was able to safely pass under the intersection, Billiot concluded that “anything out there” could pass under the DOTD bucket safely.

Bergeron, who was employed as a commercial truck driver by defendant, Gulf Fish, Inc., was driving a six-wheel, single-axle truck owned by Gulf Fish in a westerly.-, direction on Airline Highway as he approached the intersection in question. Because of the traffic delays preceding the intersection, Bergeron had seen the DOTD truck and plaintiff working in the bucket about five to ten minutes before he passed through the intersection and under the bucket. As Bergeron approached the intersection, .Trooper Billiot simply waved him through,, given that the eighteen wheeler that had traveled through the intersection one to two minutes before Ber-geron had traveled through with sufficient clearance. Because he was. directed to proceed by the trooper and because it appeared to Bergeron that he had sufficient clearance to pass under the DOTD bucket, he proceeded through the intersection. However, as he approached the bucket, the top of the truck |4he was driving struck the bucket in which plaintiff was working. The bucket then skidded across the top of Bergeron’s truck until the truck cleared the intersection. Due to the force of the impact, plaintiffs hardhat was knocked off his head and fell to the ground below and plaintiffs body was thrown forward. However, plaintiff was not ejected from the bucket because he was wearing a safety harness.

Following the accident, plaintiff sought medical treatment for complaints of low back pain and left leg and thigh pain, and he was ultimately referred to a pain management specialist for treatment of lumbar facet pain.

Plaintiff instituted this suit against Ber-geron; Gulf Fish, Bergeron’s employer; Dakota Specialty Insurance Company, Gulf Fish’s insurer; Billiot; and the State of Louisiana, through the Department of Public Safety and Corrections (DPSC), Bil-liot’s employer. Plaintiff contended that Billiot was at fault in causing the accident for directing traffic through the intersection in a careless and inattentive manner, including the Gulf Fish truck driven by Bergeron. Plaintiff further averred that Bergeron was at fault in causing the accident for, among other things, failure to maintain control of his vehicle, failure to maintain a proper lookout and driving in a careless and reckless manner. Thereafter, the State of Louisiana, Division of Administration, Office of Risk Management, intervened in this matter, seeking reimbursement of workers’ compensation benefits paid to plaintiff following the accident.

Plaintiffs claims against Billiot and DPSC were later dismissed with prejudice on exceptions of no right of action and no cause of action on the Lbasis that plaintiff, as a state employee, was specifically barred from bringing an action in tort against his employer, the State, through another state agency. Thus, the matter proceeded to trial on plaintiffs claims against Bergeron, Gulf Fish, and Dakota Specialty Insurance Company and on the State’s intervention.

Following a bench trial, the trial court found in written reasons for judgment that plaintiff had not borne his burden of proving that Bergeron had been negligent. Accordingly, the trial court rendered judgment dismissing plaintiffs claims and the State’s intervention with prejudice.

From this judgment, plaintiff appeals, assigning the following as error: (1) The trial court erred as a matter of law or, alternatively, committed manifest error in finding defendants free from fault; and (2) the trial court erred in failing to award reasonable damages to plaintiff. The State has not appealed the dismissal of its intervention. Thus, the judgment is final in that respect.

FAULT OF BERGERON

(Assignment of Error No. 1)

In this assignment of error, plaintiff contends that the trial court erred in finding that Bergeron was not negligent in causing the accident and, thus, in finding defendants free from liability. He avers that, as a commercial truck driver, Bergeron should have been held to a high standard of care and, additionally, that as a motorist traveling in the vicinity of a highway worker, | (¡Bergeron should have also been held to a higher duty of care than the highway worker. Plaintiff further avers that a motorist is not relieved of his duty of reasonable care simply because a police officer directs him to move through an intersection.

All motorists have a never-ceasing duty to maintain a sharp lookout and to see that which in the exercise of ordinary care should be seen. Duzon v. Stallworth, 2001-1187 (La.App. 1st Cir.12/11/02), 866 So.2d 837, 859, writs denied, 2003-0589, 2003-0605 (La.5/2/03), 842 So.2d 1101, 1110. Moreover, our courts have recognized that a professional truck driver is a superior actor in the eyes of the law and, as such, is held to a high standard of care. Davis v. Witt, 2002-3102 (La.7/2/03), 851 So.2d 1119, 1128-1129. The duty owed by a truck driver includes the duty to know the machine he is operat ing and the size of the trailer and, thus, to ascertain whether he has enough clearance to pass under an obstruction. See New Orleans Shrimp Co., Inc. v. Duplantis Truck Lines, Inc., 283 So.2d 521, 527 (La.App. 1st Cir.1973), and Clark v. City Con Oil Corporation, 150 So.2d 784, 787 (La.App. 3rd Cir.), writ refused, 244 La. 395, 152 So.2d 62 (1963).

Additionally, when a highway worker is busy in the street or highway, under circumstances indicating that he is not watchful and is depending on the protection of signs, barricades or flagmen, the driver of a motor vehicle owes a higher duty of care than the worker. Brooks v. Allred, 573 So.2d 1301, 1303 (La.App. 2nd Cir.1991); Payne v. Fimiano, 489 So.2d 332, 334 (La.App. 4th Cir.1986).

However, in finding no liability on the part of defendants, the trial court relied in part on LSA-R.S. 32:231 and 32:56, which provide in part as follows:

|7The driver of any vehicle shall obey the instructions of any official traffic-control device applicable thereto placed in accordance with the provisions of this Chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this Chapter.

LSA-R.S. 32:231(A).

No person shall fail or refuse to comply with any lawful order or direction of any police officer or weights and standards police officer invested by law with authority to direct, control, or regulate traffic.

LSA-R.S. 32:56(A).

These statutes impose a duty upon a motor vehicle operator to comply with any lawful order or directive of any police officer invested by law with the authority to direct, control or regulate traffic, irrespective of the instructions or signals of a traffic control device. Landry v. State Farm, Insurance Company, 529 So.2d 417, 421 (La.App. 1st Cir.1988); Goff v. Sarradet, 394 So.2d 655, 656 (La.App. 1st Cir. 1980), writ denied, 399 So.2d 600 (La.1981).

Under certain circumstances, a motorist will be relieved of liability for causing an accident if he acted in accordance with directions of a traffic control officer. Blair v. Tynes, 621 So.2d 591, 596 (La.1993). While directions of a traffic officer do not completely relieve a motorist of all obligations, where the testimony shows clearly that the defendant motorist moved forward in compliance with the directions of the traffic officer at a slow speed and in a careful and prudent manner, he cannot be charged with negligence. Sutter v. Travelers Insurance Company, 167 So.2d 517, 518 (La.App. 4th Cir.), writ refused, 246 La. 916, 168 So.2d 823 (1964).

In the instant case, no one actually witnessed the moment of impact between the top of Bergeron’s truck and the DOTD bucket in which plaintiff was working. Bergeron acknowledged that he had seen and was aware of | ^plaintiff working in the bucket on the traffic light above the left-hand lane of westbound traffic for five to ten minutes prior to entering the intersection. He further testified that he did not see plaintiff lower the bucket at any time prior to the impact. With regard to how the accident occurred, Bergeron testified that as he approached the intersection, it appeared to him that he had enough room to pass under the bucket. Thus, he proceeded through the intersection at a speed of less than ten miles per hour when the trooper waved him through.

Trooper Billiot testified that prior to directing traffic at the intersection in question, she met with DOTD personnel to discuss exactly what needed to be done. She further stated that she instructed DOTD personnel at that meeting to notify her if they needed to make any movements that would require her to stop traffic. Trooper Billiot testified that one to two minutes before she waved Bergeron through the intersection, she had assisted an eighteen wheeler that was much larger than Bergeron’s truck through the intersection. Thus, when Bergeron approached the intersection, she waved him through, assuming that he also could safely pass under the bucket.

Because Billiot had her back to plaintiff as she directed traffic, she did not witness whether plaintiff had lowered the bucket prior to the impact. However, she stated that during the time that she was assisting the eighteen wheeler, the bucket was located in relation to the traffic light in the “yellowish red area” and plaintiff was working on the very top of the traffic | alight. She further stated that when she turned to view the bucket after she heard the impact, the bucket was below the green light and plaintiff appeared to have been working on the yellow or green light.

Additionally, Trooper Billiot testified that when she talked to plaintiff after the accident, he told her that he had been trying to tighten down the last nuts and bolts and that he had lowered himself. According to Billiot, despite her instruction to DOTD workers to warn her if she needed to stop traffic, neither plaintiff nor any other DOTD worker told her that plaintiff was going to lower the bucket.

According to plaintiff, although he spoke with Trooper Billiot before starting work at the intersection, she did not have a meeting with all of the DOTD workers and she did not tell him to notify her before he moved the boom. Nonetheless, plaintiff denied that he had moved the bucket prior to the impact, although he did acknowledge that he alone controlled the movement of the bucket. Plaintiff further claimed that he had never worked on the top section of the signal because it was already mounted by another DOTD worker before plaintiff went up in the bucket. Rather, he explained, in the five to ten minutes prior to the accident, he had been working on the amber or yellow section of the traffic light. Plaintiff further denied that he had ever tightened or adjusted any nuts or bolts or that he had ever told anyone that he had done so.

In concluding that plaintiff had failed to prove that Bergeron was negligent in causing the accident in question, the trial court made a specific credibility determination, finding the testimony of Trooper Billiot and Bergeron to be more credible. When factual findings are based on the h0credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Guarantee Systems Construction & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1st Cir.9/25/98), 728 So.2d 398, 400, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. Thus, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Succession of Brantley, 99-2422 (La.App. 1st Cir.11/3/00), 789 So.2d 1, 7, writ denied, 2001-0295 (La.3/30/01), 788 So.2d 1192.

Based on its acceptance of Trooper Billi-ot’s and Bergeron’s version of events, the trial court found that Bergeron “was operating a safe vehicle in a safe method when he approached the intersection,” that he had followed the direction of Trooper Billiot to proceed through the intersection in compliance with LSA-R.S. 32:56 and 32:231, that he proceeded in “a careful and safe manner,” and that he “took reasonable steps to insure that he safely traversed the intersection which included obeying the instruction of Trooper Billiot who motioned [Bergeron] to proceed through the intersection.”

While the trial court did not make a specific finding that plaintiff had lowered the bucket immediately prior to the accident, given that a larger and higher truck had proceeded through the intersection only one to two minutes before the accident without incident and given Trooper Billiot’s testimony regarding the location of the bucket minutes before the accident and immediately after the impact, the record supports the trial court’s apparent conclusion that plaintiff had in fact lowered the bucket shortly before impact. Berger-on proceeded through the intersection at the direction of Trooper Billiot at a slow rate of speed, and the record supports an inference of fact that plaintiff lowered the bucket shortly before impact and after InBergeron could no longer see the bucket, leading to the accident in question. Thus, considering the evidence as a whole, the trial court could have reasonably concluded there was no negligence on the part of Bergeron that caused the accident, but rather that it was the sole negligence of plaintiff, in lowering the bucket immediately prior to impact without first warning anyone or ascertaining if it was safe to do so, that caused the accident. Accordingly, we cannot conclude that the trial court was manifestly erroneous in its finding that Bergeron was not negligent herein. Because we find no merit to this assignment of error, we pretermit discussion of assignment of error number two regarding damages.

CONCLUSION

For the above and foregoing reasons, the October 17, 2005 judgment dismissing plaintiffs claims with prejudice is affirmed. Costs of this appeal are assessed against plaintiff, Randy Theriot.

AFFIRMED.

McCLENDON, J., concurs with the result reached by the majority.

      . According to Louisiana State Trooper Karla Billiot, while the lanes of Airline Highway are marked as "north” and "south,” the flow of traffic is actually west and east. Thus, for ease of discussion, we will refer to the lanes of travel, at issue herein as the westbound lanes of travél.

      . Plaintiff had also averred that Bergeron was negligent in operating a vehicle that exceeded the maximum height requirement for operation on Louisiana roads. However, on appeal, plaintiff has abandoned this argument.

      . On July 1, 2005, this court, ex proprio motu, issued a show cause order, ordering the parties to show cause why the appeal should not be dismissed on the basis that the trial court’s judgment did not appear to contain language actually disposing of or dismissing plaintiffs' claims. Thereafter, this court issued an interim order on September 19, 2005, remanding the appeal to the trial court for the limited purpose of having the trial court sign a valid written judgment in accordance with LSA-C.C.P. art. 1918 and ordering supplementation of the record with the new judgment within 30 days. The trial court then rendered an "Amended Judgment” on October 17, 2005, dismissing plaintiffs' suit with prejudice, and that judgment was made a part of the appellate record. Thus, on December 5, 2005, this court recalled the rule to show cause and maintained the appeal.

      . Billiot acknowledged that she did not measure the height of the eighteen wheeler that she had assisted through the intersection. However, she testified that she specifically recalled that the rear of the trailer had a measurement of 110 inches (or 9 feet, 8 inches) on it, indicating to her the height of the trailer. The truck driven by Bergeron measured 12 feet, 6 inches. It is unclear from the record whether the 110-inch measurement on the trailer of the eighteen wheeler was a measurement from the ground to the top of the trailer or was a measurement strictly of the trailer itself.

      . Trooper Billiot acknowledged that she had not mentioned in her accident report plaintiff’s statement about lowering himself. When questioned as to why she did not include this statement, she testified that she did not think it was significant.


source: Caselaw Access Project

author: McCLENDON, J. WHIPPLE, J.,

license: Public Domain

text:
    John ANDERSON v. ECKERD CORPORATION.
    No. 2005 CA 1381.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Michael B. Miller, Crowley, Counsel for Plaintifi/Appellant John Anderson.
    Jeffery C. Napolitano, Metairie, Counsel for Defendant/Appellee Eckerd Corporation.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

12Claimant, John Anderson, appeals a decision of the Office of Workers’ Compensation reducing his weekly compensation benefits by fifty percent for refusing to undergo vocational rehabilitation services. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 19, 1999, Mr. Anderson sustained a back injury while in the course and scope of his employment with Eckerd Corporation. As a result, Mr. Anderson underwent surgery for a herniated disc. Thereafter, Eckerd retained the services of a licensed vocational counselor, Jamie Primeaux, to render vocational rehabilitation services to Mr. Anderson.

A disputed claim for compensation was filed by Mr. Anderson on August 28, 2001, in which he alleged the “[fjailure to pay worker’s compensation benefits, and/or failure to provide medical treatment properly, and/or failure to provide worker’s compensation properly, and/or penalties and attorney’s fees.” On September 22, 2004, Eckerd filed a Motion to Compel Rehabilitation Conference, asserting that claimant’s counsel demanded that Ms. Pri-meaux sign a contract dictating the terms of the rehabilitation, that, after reviewing the contract, Ms. Primeaux advised claimant’s counsel that she did not agree to all of its terms as they were not specified under the rehabilitation statute, LSA-R.S. 23:1226, that claimant had been released to return to work, and that despite an effort to compromise, the vocational process had come to a “screeching halt” because of claimant’s refusal to meet with the vocational counselor for evaluation. In response, on October 5, 2004, Mr. Anderson filed a Motion to Quash Rehabilitation Conference, in which he contended that Ms. Primeaux was selected by Eckerd to provide vocational services to Eckerd and not to Mr. [¡¡Anderson, and that Ms. Pri-meaux did not have the consent or authority from Mr. Anderson to provide vocational rehabilitation services on his behalf. On October 12, 2004, Eckerd filed a Motion to Reduce Weekly Compensation Benefits for Failure to Cooperate with Vocational Rehabilitation, asserting that it had attempted to provide vocational rehabilitation services to Mr. Anderson pursuant to LSA-R.S. 23:1226, but that all efforts had been thwarted by claimant’s counsel. Eckerd requested an order reducing Mr. Anderson’s weekly benefits by fifty percent until Mr. Anderson agreed to accept the vocational rehabilitation services.

On December 10, 2004, following a hearing on the pending motions, and for reasons orally assigned, the workers’ compensation judge ordered: 1) that the motion to compel the rehabilitation conference and the motion to reduce weekly benefits be granted; 2) that Mr. Anderson be compelled to cooperate with vocational rehabilitation and appear for evaluation by Ms. Primeaux within fifteen days; 3) that the vocational counselor’s activities be governed by the Louisiana Workers’ Compensation Act and the ethics code of her profession, but that the vocational counselor would not be required to be bound by any additional contract or terms dictated by plaintiff; 4) that indemnity benefits to Mr. Anderson were to be reduced by fifty percent retroactive to September 22, 2004, and would continue until Mr. Anderson submitted himself for vocational rehabilitation evaluation; and 5) that plaintiffs motion to quash the rehabilitation conference be denied. Plaintiff appealed, assigning as error the fifty percent reduction in his weekly benefits.

| STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Banks, 96-2840 at pp. 7-8, 696 So.2d at 556; Freeman, 93-1530 at p. 5, 630 So.2d at 737; Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Banks, 96-2840 at p. 8, 696 So.2d at 556; Stobart, 617 So.2d at 883. Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 96-2840 at p. 8, 696 So.2d at 556; Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

DISCUSSION

On appeal, Mr. Anderson contends that the workers’ compensation judge erred in reducing his weekly compensation by fifty percent under LSA-R.S. 23:1226. He first asserts that at no time did he refuse to cooperate with vocational rehabilitation. Secondly, he contends that, as a matter of law, the fifty-percent reduction cannot be assessed because there was no ^previous order by the workers’ compensation judge to comply with rehabilitation efforts. We disagree with Mr. Anderson in both respects.

Eckerd attached to its motion to reduce compensation benefits the affidavit of Ms. Primeaux in which she attested that she is a licensed Louisiana vocational rehabilitation counselor; that she was retained to perform vocational rehabilitation services for Mr. Anderson; that she scheduled a rehabilitation conference with Dr. Jorge Isaza for November 2, 2004, to discuss medical information regarding Mr. Anderson’s work injury and related surgery, specifically, his MMI status, future treatment needs, and return to work status for the purposes of providing rehabilitation services; that she invited Mr. Anderson, through his attorney, Michael Miller, to attend the rehabilitation conference; that she was advised by Dr. Isaza’s office that Mr. Miller had ex parte and unilaterally communicated to Dr. Isaza that Ms. Primeaux did not have the authority to provide services on behalf of Mr. Anderson, and that Dr. Isaza should disregard any correspondence from Ms. Pri-meaux; and that as a result, Dr. Isaza cancelled the scheduled rehabilitation conference with Ms. Primeaux. Also submitted with the motion were copies of the correspondence to Dr. Isaza and to Mr. Miller from Ms. Primeaux scheduling the rehabilitation conference, as well as the letter, dated September 22, 2004, to Dr. Isaza from Mr. Miller telling Dr. Isaza to disregard any correspondence from Ms. Primeaux.

Mr. Anderson asserts that at no time did he refuse to cooperate with vocational rehabilitation. He argues that in fact it was the vocational |ficounselor who refused to provide vocational rehabilitation because she refused to comply with the conditions of rehabilitation as set forth by Mr. Anderson’s attorney, and which had been found to be reasonable in Crain Brothers, Inc. v. Richard, 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523. The workers’ compensation judge found otherwise and determined that Mr. Anderson, based on the actions of his counsel, unreasonably refused rehabilitation services. The trial stated in its oral reasons:

[T]he court finds that the September 22nd letter to Dr. Isaza placed a complete roadblock in the way of voeational rehabilitation services and was unreasonable. Based upon that action taken by claimant’s counsel to completely block the road of vocational rehabilitation services, the court finds a 50 percent reduction is reasonable and necessary in this case, retroactive to September 22, 2004 and that reduction will remain in place until vocational rehabilitation services are started with Ms. Prim[eaux]. And I’m ordering that those services be implemented as soon as possible. I’m ordering that the claimant appear and fully cooperate in good faith with all vocational rehabilitation services provided in this case.

After a thorough review of the record, we conclude that the workers’ compensation judge’s findings, that vocational rehabilitation services were necessary and that Mr. Anderson refused said services, are reasonable. Accordingly, we cannot say these factual findings are manifestly erroneous or clearly wrong.

Mr. Anderson argues, however, that even if his actions are found to be unreasonable in that he refused rehabilitation services, his benefits cannot be reduced, as there was no previous order that vocational rehabilitation was necessary. We disagree.

^Louisiana Revised Statute 23:1226 currently provides, in pertinent part:

A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
B. (1) The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs.
(3)(a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The procedure for hearing such claims shall be expedited as provided in R.S. 23:1124.
(c) The expedited procedure shall also be made available to the employer to require the employee’s cooperation in the rehabilitation process. Refusal to accept rehabilitation as deemed necessary by the worker’s compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), for each week of the period of refusal. (Emphasis added.)

Mr. Anderson suggests that in order for the fifty percent reduction to be assessed retroactively, he would have had to refuse to accept rehabilitation as deemed necessary by an earlier order of the workers’ compensation judge. In support of his position, he again cites the Crain case. Initially, we note that Crain is distinguishable on its facts as the workers’ compensation judge in that matter did not find a refusal on the part |sof the claimant to accept rehabilitation, and the third circuit found no manifest error in that factual finding.

Further, in Banks, 96-2840 at pp. 15-16, 696 So.2d at 559-60, the supreme court, in accordance with LSA-R.S. 23:1226, reduced benefits retroactively by fifty percent for each week that the claimant refused rehabilitation services until the claimant agreed to accept such services. The supreme court determined that the claimant refused all rehabilitation services, based on the ill-founded advice of his counsel, and stated that “[t]his arbitrary refusal of rehabilitation services cannot inure to the benefit of the employee, who has sought, in the courts below and, now, in this Court, the very rehabilitation services that he has steadfastly refused from the employer.” Banks, 96-2840 at pp. 15-16, 696 So.2d at 559-60.

Similarly, in Ramogasse v. Lafitte Welding Works, 93-682, pp. 10-11 (La.App. 5 Cir. 12/13/95), 666 So.2d 1176, 1180, the fifth circuit upheld the decision of the workers’ compensation judge to reduce claimant’s benefits retroactively by fifty percent. The court of appeal found that the evidence presented supported the finding that the claimant rejected necessary rehabilitation services and, therefore, there was no error in reducing the claimant’s benefits by fifty percent from the date of his refusal to undergo rehabilitation training. See also First Baptist Church of Lake Arthur v. Fontenot, 98-1158, p. 12 (La.App. 3 Cir. 2/3/99), 736 So.2d 230, 238.

Also, in City of Jennings v. Clay, 98-225, pp. 7-8 (La.App. 3 Cir. 10/14/98), 719 So.2d 1164, 1167-8, the workers’ compensation judge, after finding a refusal to accept rehabilitation, ordered rehabilitative services, but did not reduce benefits. The third circuit reversed as to the denial of the reduction in benefits. The court stated that it found nothing to disallow the | nmandatory reduction of benefits required by LSA-R.S. 23:1226 and, accordingly, found error in the workers’ compensation judge’s failure to impose the reduction in benefits retroactive to the date claimant refused services.

After a thorough review of the record, we find the workers’ compensation judge did not err in ordering that Mr. Anderson’s benefits should be reduced by fifty percent from September 22, 2004 (the date of Mr. Miller’s letter to Dr. Isaza telling him to disregard any correspondence from Ms. Primeaux), until he cooperates with vocational rehabilitation services. The workers’ compensation judge deemed vocational services necessary and ordered same. Nothing in the statute prevents a reduction in benefits as presented under the facts of this case and, in fact, said reduction helps to accomplish the stated goal of rehabilitation services to return a disabled worker to work as soon as possible. LSA-R.S. 23:1226.

CONCLUSION

For the above reasons, the December 20, 2004 judgment of the Office Workers’ Compensation, reducing Mr. Anderson’s workers’ compensation benefits from September 22, 2004, until Mr. Anderson submits himself for a vocational rehabilitation evaluation, is affirmed. Costs of this appeal are assessed against John Anderson.

AFFIRMED.

WHIPPLE, J., dissents with reasons.

WHIPPLE, J.,

dissenting.

h Due to the inadequacies of this record, including the key evidentiary exhibits apparently relied upon by the worker’s compensation judge, I would vacate and remand for supplementation of the record. Moreover, I disagree with the majority’s seeming conclusion that an employee who seeks to avail himself of the rights and conditions cited with approval in Crain Brothers, Inc. v. Richard, 2002-1342 (La.App. 3rd Cir.4/9/03), 842 So.2d 523, automatically renders himself subject to a fifty-percent reduction in benefits for failure to cooperate. Instead, in my view, every case must be decided on its particular facts. Moreover, I find most of the conditions at issue in Crain to be reasonable and straightforward. Thus, given the inadequacies of the record, I respectfully dissent.

      . September 22, 2004 is the date of the letter written by claimant’s counsel to the doctor with whom the vocational rehabilitation counselor was trying to schedule a rehabilitation conference, in which counsel advised the doctor to disregard any correspondence from the rehabilitation counselor.

      . The letter by Mr. Miller to Ms. Primeaux, requesting that she comply with certain conditions, was apparently part of a group of letters admitted into evidence at the hearing on the motions, but which are not part of the record on appeal. Also, a copy of the code of professional ethics for vocational rehabilitation counselors was admitted into evidence at the hearing, but is not in the record. However, we need not address the omission in the record as the evidence is not necessary for our decision herein.

      . While Mr. Anderson seems to argue on appeal that Crain mandates the vocational rehabilitation counselor in this matter to comply with the same conditions, we note that the third circuit's decision in Crain did not require the vocational rehabilitation counselor to agree to certain terms before the performance of rehabilitation services. The court in Crain simply found no manifest error in the workers’ compensation judge’s finding that the conditions set forth by claimant's counsel were reasonable. See Crain, 02-1342 at p. 3, 842 So.2d at 525-26. See also Interiano v. Fernando Pastrana Const., 04-430, p. 4 (La.App. 5 Cir. 10/26/04), 887 So.2d 547, 549.


author:
WHIPPLE, J.
      WELCH, J., McCLENDON, J.,

text:
    The ESTATE OF Kevin Anthony NICKS, Shawnell Wallace Nicks, Pierre Maurice Warner, Windel Warner, and Kevin Warner v. The PATIENT’S COMPENSATION FUND OVERSIGHT BOARD and the Patient’s Compensation Fund.
    No. 2005 CA 1624.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Paul Rumage, New Orleans, Counsel for Plaintiff/Appellee, Shawnell Wallace Nicks.
    David Woolridge, Jr., Baton Rouge, Counsel for Defendant/Appellant, The Patient’s Compensation Fund Oversight Board and the Louisiana Patient’s Compensation Fund.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WHIPPLE, J.

12In this mandamus proceeding, the Patient’s Compensation Fund Oversight Board (“the Board”) and the Louisiana Patient’s Compensation Fund (“the PCF”) appeal from a judgment of the trial court granting the issuance of a writ of mandamus directing the Board to reinstate the request for the formation of the medical review panel by the Estate of Kevin Anthony Nicks. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On October 17, 2003, plaintiffs, Shawnell Wallace Nicks, Pierre Maurice Warner, Windel Warner, and Kevin M. Warner, individually and as executors and representatives of the estate of their decedent, Kevin Anthony Nicks, requested the formation of a medical review panel to review a claim against St. Claude Medical Center, L.L.C., Harvey Malone, M.D., Caring Partners, L.L.C., and the Medical Center of Louisiana at New Orleans for alleged acts of malpractice commencing on or about October 19, 2002.

By letter dated November 7, 2003, the Board, through Cheryl Jackson, Malpractice Insurance Director, advised plaintiffs that the claim had been received, that certain named providers were qualified providers, and that the claim was assigned file number 2003-01862. The Board further cautioned that pursuant to the amendments to LSA-R.S. 40:1299.47 A(2)(c), as set forth in Acts 2003, No. 1263, “an attorney chairman must be appointed within one year of filing of the request for review” of the claim.

|3By letter to the Board and the Clerk of the Louisiana Supreme Court dated February 23, 2004, plaintiffs requested that “you select five names for candidates for attorney chairman in accordance with LSA-R.S. 40:1299.47 C(1)(a) so that we may begin the strike process.” The Board then sent a letter to the Clerk of the Louisiana Supreme Court on March 11, 2004, advising that the parties “have not been able to agree on the selection of a chairman for the panel” and requesting that the Clerk furnish the Board with a list of attorneys from Orleans Parish. On March 18, 2004, the Clerk of the Louisiana Supreme Court sent a letter to the Board identifying five attorneys, drawn randomly, who resided or practiced in Orleans Parish.

Thereafter, by letter dated March 29, 2004, the Board furnished the list of these attorneys, and other information regarding the strike process to counsel for plaintiffs and counsel for the qualified healthcare providers. Receipt of the Board’s letter was acknowledged by Susan E. Henning, counsel for one of the named healthcare providers, by letter dated April 13, 2004, and copied to counsel for plaintiffs and counsel for another healthcare provider.

The Board sent another letter to counsel for plaintiffs, dated July 20, 2004, informing plaintiffs that the Board had not received notice that an attorney chairman had been selected, and that pursuant to LSA-R.S. 40:1299.47 A(2)(c), as amended, “the attorney chairman must still be chosen and appointed prior to the one year allowed by Act 1263” or “the claim will be dismissed.” (Emphasis in original.) Counsel for plaintiffs responded by letter dated July 23, 2004, contending that the Board had failed to respond to his February 23, 2004 request to initiate the strike process and requesting that |4“the strike process be initiated immediately.” However, in a subsequent memorandum in support of his motion to strike, he acknowledged that the Supreme Court had provided a list of five attorney candidates by letter dated March 18, 2004. Also attached to the memorandum was a copy of an envelope from the Board, addressed to him and postmarked April 1, 2004.

On October 1, 2004, Alexandra L. Kelly, counsel for another healthcare provider, sent a letter to plaintiffs’ counsel advising that she and Henning were in agreement that Jack Wellman serve as attorney chairman for the panel. On October 27, 2004, Kelly sent a letter to counsel for plaintiffs advising that since “we are all in agreement as to choosing Jack Wellman as an attorney chairman in the Nicks matter, we will notify the PCF of our selection.” Kelly then sent a second letter dated October 27, 2004, on behalf of all parties, notifying the Board that they “would like to select John R. Wellman as attorney chairman of the Medical Review Panel.”

However, by certified mail letter, also dated October 27, 2004, the Board informed counsel for plaintiffs that the Board had “closed the above referenced matter due to the failure to appoint an attorney chairman within the allotted time” as provided in LSA-R.S. 40:1299.47 A(2)(c), as amended. On November 17, 2004, the Board, through its Executive Director, Lorraine LeBlanc, sent plaintiffs’ counsel a letter, apparently in response to a phone call from him, explaining that “this office appropriately dismiss[ed] the panel when no attorney chairman was appointed by October 17, 2004, one year from the date the request was filed. The notice to this office was dated October 27, | s2004.” The letter further stated, “Act 1263 of the 2003 Regular Session, states that this office ‘shall dismiss’ the panel if there is no attorney chairman appointed within one year from the date a panel request is filed.”

On November 19, 2004, plaintiffs filed a “Petition for Writ of Mandamus and Appeal” against the Board and the PCF requesting that the trial court maintain the malpractice complaint filed in this matter. On March 7, 2005, the matter was heard by the trial court and at the conclusion of the hearing, the trial court granted the writ of mandamus and ordered that the Board and the PCF reinstate this matter.

On May 13, 2005, the trial court signed a written judgment in conformity with its ruling and ordered that a writ of mandamus issue directing the Board and the PCF to reinstate the request for the formation of a medical review panel in file number 2003-01862. The judgment further stated that “[t]he issue of whether PCF case no. 2003-01862 should be consolidated with Division of Administration No. 03-MR-146 is pretermitted.”

IfiThe Board and the PCF filed the instant suspensive appeal from the judgment of the district court, assigning error to the court’s issuance of the writ of mandamus directing the Board and the PCF to reinstate the claim.

DISCUSSION

The Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq., governs private health care providers. It constitutes a special legislative provision in derogation of the general rights available to tort victims and, therefore, must be strictly construed. In re: Medical Review Panel of Pierson, 2002-1598 (La.App. 1st Cir.5/09/03), 845 So.2d 1275, 1276, writ denied, 2003-1559 (La.10/10/03), 855 So.2d 324.

Louisiana Revised Statute 40:1299.47 A(2)(c) sets forth the provisions for the appointment of an attorney chairman for the medical review panel and provides for the dismissal of a claim if the Board has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed. The functions performed under this statute are considered “ministerial.” In re: Medical Review Panel of Pierson, 845 So.2d at 1276.

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. art. 3863. However, a writ of mandamus may only be issued in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. art. 3862. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to ^perform. Plaisance v. Davis, 2003-0767 (La.App. 1st Cir.11/07/03), 868 So.2d 711, 718, writ denied, 2003-3362 (La.2/13/04), 867 So.2d 699.

The Board and the PCF appeal, contending that the trial court erred in granting mandamus where LSA-R.S. 40:1299.47 A(2)(c) requires the Board to dismiss a claim if an attorney chairman is not appointed, and the Board is not notified of such appointment within one year of the filing of the claim.

Louisiana Revised Statute 40:1299.47 A(2)(c) provides:

An attorney chairman for the medical review panel shall be appointed within one year from the date the request for review of the claim was filed. Upon appointment of the attorney chairman, the parties shall notify the board of the name and address of the attorney chairman. If the board has not received notice of the appointment of an attorney chairman within nine months from the date the request for review of the claim was filed, then the board shall send notice to the parties by certified or registered mail that the claim will be dismissed in ninety days unless an attorney chairman is appointed within one year from the date the request for review of the claim was filed. If the board has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed, then the board shall promptly send notice to the parties by certified or registered mail that the claim has been dismissed for failure to appoint an attorney chairman and the parties shall be deemed to have waived the use of the medical review panel. The filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section. (Emphasis added.)

The Board and the PCF contend that plaintiffs failed to introduce any evidence to show that an attorney chairman was appointed within one year from October 17, 2003, the date the claim was filed or that the Board was notified of their selection of an attorney chairman within one year from the date the claim was filed.

Specifically, the Board and the PCF contend the notice received by the Board stated that the parties had agreed to the appointment of John R. Wellman as attorney chairman, yet does not disclose when the parties |sagreed upon Mr. Wellman. They further contend that the claim was properly rejected by the Board, noting that the letter was dated October 27, 2004 and was not received by the Board until November 1, 2004, approximately fourteen days after the one-year time limitation. Finally, the Board and the PCF contend that the Board acted properly considering the mandatory language in the statute, ie., “shall,” which, in this case required the Board to dismiss the untimely claim before it.

Contrariwise, plaintiffs, citing the former version of LSA-R.S. 40:1299.47 A(2)(c), argue that their request to utilize the “strike process,” as provided in LSA-R.S. 40:1299.47 C, constituted an “action” sufficient to interrupt the tolling of the time limitations even considering the present statute. However, section two of Acts 2003, No. 1263 provides that the provisions of the Act shall apply to claims filed on or after the effective date of the Act, ie., July 7, 2003. Because this claim was filed on October 17, 2003, it is governed by the currently enacted version of LSA-R.S. 40:1299.47 A(2)(c). While conceding in brief that the statute, as currently written, requires the dismissal of a claim if the Board has not received notice of the appointment of an attorney chairman within a year from the date of filing of the request for review, plaintiffs argue that “there is nothing in the statute to suggest that the amendment in any way abrogates the rights of the parties to proceed through the strike process.” Therefore, | splaintiffs contend, “the initiation of the strike process is sufficient to interrupt the one year requirement for the selection of the attorney chairman.”

Louisiana Revised Statute 40:1299.47 C, as applicable herein, sets forth the procedures and time delays for the strike process and provides, in pertinent part, as follows with regard to the selection of the attorney chairman:

C. The medical review panel shall consist of three health care providers who hold unlimited licenses to practice their profession in Louisiana and one attorney. The parties may agree on the attorney member of the medical review panel. If no attorney for or representative of any health care provider named in the complaint has made an appearance in the proceedings or made written contact with the attorney for the plaintiff within forty-five days of the date of receipt of the notification to the health care provider and the insurer that the required filing fee has been received by the patient’s compensation board as required by R.S. 40:1299.47(A)(l)(e), the attorney for the plaintiff may appoint the attorney member of the medical review panel for the purpose of convening the panel. Such notice to the health care provider and the insurer shall be sent by registered or certified mail, return receipt requested. If no agreement can be reached, then the attorney member of the medical review panel shall be selected in the following manner:
(1)(a) The office of the clerk of the Louisiana Supreme Court, upon receipt of notification from the board, shall draw five names at random from the list of attorneys who reside or maintain an office in the parish which would be proper venue for the action in a court of law. The names of judges, magistrates, district attorneys and assistant district attorneys shall be excluded if drawn and new names drawn in their place. After selection of the attorney names, the office of the clerk of the supreme court shall notify the board of the names so selected. It shall be the duty of the board to notify the parties of the attorney names from which the parties may choose the attorney member of the panel within five days. If no agreement can be reached within five days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two names alternately, with the claimant striking first and so advising the health care provider of the name of the attorney so stricken; thereafter, the health care provider and the claimant shall alternately strike until both sides have stricken two names and the remaining name shall be the attorney member of the panel. If either the plaintiff or defendant fails to strike, the |1flclerk of the Louisiana Supreme Court shall strike for that party within five additional days.
(b) After the striking, the office of the board shall notify the attorney and all other parties of the name of the selected attorney.

Louisiana Revised Statute 40:1299.47 C clearly states that after the Board provides the parties with the five attorney names from which they may chose, if no agreement can be reached within five days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two names alternately, with the claimant striking first and so advising the health care provider of the name of the attorneys so stricken.

In the instant case, the Board sent notice to the parties on March 29, 2004 of the five attorney names drawn by the Supreme Court. As stated above, receipt of the notice containing the names was acknowledged by Henning, counsel for one of the named healthcare providers, in a letter dated April 13, 2004, to the Board with copies sent to counsel for plaintiffs and counsel for another named healthcare provider. In the letter, counsel specifically stated, “[I]f [counsel for plaintiffs] is willing to do so, we will be pleased to consider his recommendation regarding the appointment of an experienced attorney to serve as Medical Review Panel chairman in this matter.” There is no evidence in the record to show that the parties reached an agreement within five days, nor is there any evidence to document that plaintiffs or any other party “immediately” initiated the strike process as required by LSA-R.S. 40:1299.47 C.

Instead, the next correspondence found in the record is the letter dated July 20, 2004, from the Board to counsel for plaintiffs notifying counsel that pursuant to LSA-R.S. 40:1299.47 A(2)(c), the Board must receive notice of an attorney chairman selection within one year of the filing of the complaint, and In reminding counsel that the Board has not received notice that an attorney chairman has been selected. The Board further advised in the letter that:

If continued pursuit of this complaint is desired, an attorney chairperson shall be appointed by agreement of all parties or through the striking process.... [I]f the strike process is used, the attorney chairman must still be chosen and appointed prior to the one year allowed by Act 1263.

Even assuming arguendo that the parties reached an agreement at some earlier (but undocumented) date, the record un-disputedly shows that no action was taken to notify the Board that the parties had agreed to the appointment of an attorney chairman until October 27, 2004, or ten days after the one-year time limitation expired.

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. LSA-R.S. 1:3. “It is a well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language.” Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162 (La.4/03/02), 813 So.2d 351, 354. In interpreting a statute, a court must give the words of a law their generally prevailing meaning. Louisiana Power and Light Company v. Slaughter, 2004-2361 (La.App. 1st Cir.11/04/05), 917 So.2d 532, 542. Further, the meaning of a word in a statute must be determined in the light of the statute as a whole. Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 894 (La.1993).

After a thorough reading of LSA-R.S. 40:1299.47 C and A, we find no support for plaintiffs’ argument that initiation of the strike process interrupted the one-year limitation for the selection of an attorney chairman. The plain language of this statute, as written, specifies the time limitation. Moreover, | ^although plaintiffs had the right to initiate the strike process, there is nothing to show the strikes ever occurred.

Further, we reject plaintiffs’ contentions that their initial demand for the strike process to be initiated somehow relieved them of their duty to notify the Board of the eventual appointment of an attorney chairman, whether agreed upon or reached by the strike process, within the time constraints set forth in LSA-R.S. 40:1299.47 A(2)(c). As such, we find the Board properly dismissed the claim for review as required by LSA-R.S. 40:1299.47 A(2)(c) and that the trial court erred in granting plaintiffs’ writ of mandamus. In doing so, we note that in its November 17, 2004 letter, the Board states “There is nothing in the Act that allows this office to reopen a panel that has been dismissed in accordance with the Act. Nor is there anything in the Act that gives this office the authority to extend the time allowed to appoint an attorney chairman.” By our ruling this date, we express no opinion as to the propriety of this seeming dismissal with prejudice, as the issue of plaintiffs’ entitlement to re-file a second, identical claim is not before us. See In re: Medical Review Panel of Pierson, 845 So.2d at 1276.

Moreover, we express no opinion as to whether the plaintiffs and health care providers, by their failure to timely name and give notice of the attorney chairman, are deemed to have waived the use of a medical review panel. See LSA-R.S. 40:1299.47 A(2)(c).

MOTION TO SUPPLEMENT

While this appeal was pending, the plaintiffs filed a “Motion to Supplement Record,” seeking to supplement the record with a letter dated August 25, 2005, from the PCF to counsel for plaintiffs. According to plaintiffs, the letter renders any ruling on the instant appeal moot. In the letter, the Board advises that although it believes that it correctly dismissed plaintiffs liadaim for review, because of the trial court’s decision to reinstate the panel and at the request of the parties involved, the Board will send a notice to the selected attorney chairman, John Wellman. The Board further advises in the letter that it intends to continue with the appeal and that it “reserves all rights to prosecute the appeal of the trial court’s opinion, despite the issuance of a notice appointing an attorney chairman.”

In their motion to supplement, plaintiffs contend that “the consent of the Patient’s Compensation Fund to the reinstatement of the medical review panel as expressed in the correspondence may moot the need for any review by this Honorable Court” and contend that by this letter the PCF “agreed to reinstate the medical review panel.”

Pretermitting whether plaintiffs have correctly characterized the terms of the letter, we find this correspondence is not admissible on appeal by supplementation and has no effect upon the appealability of the judgment before us. We agree that under LSA-C.C.P. art. 2085, “[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” However, in Coleman Oldsmobile, Inc. v. Johnson, 474 So.2d 20, 22 (La.App. 1st Cir.1985), this court held that defendant, for whom judgment was entered on his motion for damages, had not acquiesced in the judgment so as to forfeit his right to appeal, where he stated in his letters that he intended to file an appeal and explicitly reserved his right to appeal, while signing a document acknowledging satisfaction of judgment and authorizing cancellation of the mortgage inscription. Thus, even if we were to deem the 114letter properly before us, which we do not, the PCF and the Board clearly stated that they intended to pursue their appeal and reserved their rights to appeal, such that they did not acquiesce in the judgment. Moreover, even if we treated the letter not as an evidentiary exhibit, but as a motion for dismissal based upon a mooted appeal, it is clear from the document, however captioned, that the plaintiffs did not acquiesce or settle. Accordingly, we deny plaintiffs’ motion to supplement.

CONCLUSION

For the above and foregoing reasons, the May 18, 2005 judgment of the trial court is reversed. The motion to supplement the record on appeal is denied. Costs of this appeal are assessed against the Plaintiffs/Appellees, Shawnell Wallace Nicks, Pierre Maurice Warner, Windel Warner, and Kevin M. Warner, in their individual capacities and as executors and representatives of the Estate of Kevin Anthony Nicks.

JUDGMENT REVERSED; MOTION TO SUPPLEMENT RECORD DENIED.

MCCLENDON, J., concurs and assigns reasons.

WELCH, J., concurs and assigns reasons.

WELCH, J.,

concurring.

11 While I agree with the conclusion reached by the majority that the trial court erred in granting the writ of mandamus and ordering the PCF to reinstate the plaintiffs claim, I believe that this conclusion should be based solely on the fact that the record contains no evidence that all of the parties had agreed to Jack Wellman being appointed as the attorney chairman of the medical review panel within one year of October 17, 2003. Absent such evidence, the claim for review before the panel should be dismissed for the failure to appoint an attorney chairman in accordance with La. R.S. 40:1299.47(A)(2)(c).

Additionally, I write separately to point out that the only effect of the dismissal of the claim for the failure to appoint an attorney chairman within one year from the date the request for review was filed is that the parties — both the plaintiff and the defendants — are deemed to have waived the use of the medical review panel. See La. R.S. 40:1299.47(A)(2)(c), 40:1299.47(B)(1)(a)(i), and 40:1299.47(B)(1)(c).

For these reasons, I respectfully concur with the majority.

McCLENDON, J.,

concurs in the result.

hi respectfully concur in the result, and agree with Judge Welch’s finding that the only effect of the dismissal of the claim is that the parties are deemed to have waived the use of the medical review panel.

      . Acts 2003, No. 1263, § 2 provides, "[t]he provisions of this Act shall apply only to a claim filed on or after the effective date of this Act.”
      Acts 2003, No. 1263, § 3 provides:
      This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided in Article III, Section 18 of the Constitution of Louisiana. If vetoed by the governor and subsequently approved by the legislature, this Act shall become effective on the day following such approval.
      Although the general effective date of laws enacted at the 2003 Regular Session is August 15, 2003, this Act was approved July 7, 2003.

      . Although the letter was addressed to Jackson as Malpractice Insurance Director for the PCF, and does not specifically reference the Board, the letter states that court intervention will be sought by plaintiffs if the PCF delays the matter further. Throughout these proceedings, the parties refer to the Board and the PCF interchangeably, although the Board is the entity statutorily charged with the duties and responsibilities of management, administration, operation and defense of the PCF. See LSA-R.S. 40:1299.44 D(2)(a).

      . The transcript states that argument by counsel was held before the district court at the hearing. However, the arguments are not transcribed, and therefore are not contained in the record for review.

      . While the judgment speaks only to the grant of mandamus and is silent with regard to plaintiffs' "appeal,” the transcript indicates that the Petition for Writ of Mandamus and Appeal were before the trial court. While the record contains no written or oral reasons for the judgment of the trial court and we are without the benefit of the transcript of the argument by counsel before the trial court, implicit in the trial court's finding granting mandamus relief is the grant of plaintiffs' "appeal.”

      . In plaintiffs' memorandum in support of their Petition for Writ of Mandamus and Appeal, plaintiffs alleged that they had also filed with the Division of Administration for the State of Louisiana a request for the formation of a medical review panel to review a medical malpractice claim against Charity Hospital and the State of Louisiana, New Orleans, and that their "state action” against the public health care provider was assigned file number 03-MR-146 by the Division of Administration. Plaintiffs noted that the parties to that action had selected an attorney chairman, had notified the appropriate authorities in a timely manner, and that the medical review panel proceeding therein was pending.
      In plaintiffs’ brief on appeal, plaintiffs argue that their "state action” and "private action” should be consolidated pursuant to LSA-R.S. 40:1299.49, which was enacted by Acts 2004, No. 183, § 1, and effective June 10, 2004. The instant record contains no documentation regarding the "state claim.” Moreover, the Board contends in its reply brief that it also is not aware of any evidence to show that two claims were filed by plaintiffs. However, as plaintiffs did not answer this appeal challenging the trial court's decision to pretermit the issue of consolidation of these actions, we likewise pretermit discussion of same as this issue is not properly before us on review.

      . Prior to amendment, LSA-R.S. 40:1299.47 A(2)(c) provided, as follows:
      The board shall dismiss a claim ninety days after giving notice by certified mail to the claimant or the claimant’s attorney if no action has been taken by the claimant or the claimant’s attorney to secure the appointment of an attorney chairman for the medical review panel within two years from the date the request for review of the claim was filed.

      . Although plaintiffs are correct in their assertion that LSA-R.S. 40:1299.47 C “was not amended” by Acts 2003, No. 1263, this portion of the statute was subsequently amended. See Acts 2004, No. 309, § 1 and Acts 2004, No. 311, § 1.

      . In Greenfield v. Lykes Brothers Steamship Company, 2002-1377 (La.App. 1st Cir.5/09/03), 848 So.2d 30, and Williams Law Firm v. Board of Supervisors of Louisiana State University, 2003-0079 (La.App. 1st Cir.4/02/04), 878 So.2d 557, this court held that it lacks jurisdiction to order evidence filed into the appellate record where it was never filed into the district court record. As noted in Greenfield, neither the trial court nor the appellate courts can consider documents that are never properly offered, introduced, or admitted into evidence, as until such evidence is introduced, the opposing party has no opportunity to legally confront possibly determinative evidence. Greenfield, 848 So.2d at 33.

      . The evidence in the record establishes that all parties had agreed to the appointment of Jack Wellman as the attorney chairman on October 27, 2004.


author: GUIDRY, J. KUHN, J.,

text:
    Rowena A. LEONARD v. RYAN’S FAMILY STEAK HOUSES, INC.
    No. 2005 CA 0775.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Jason G. Ourso, Baton Rouge, Counsel for Plaintiff/Appellee Rowena A. Leonard.
    Matthew J. Ungarino, David I. Borde-lon, Metairie, Counsel for Defendant/Appellant Ryan’s Family Steak Houses, Inc.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.

      . Louisiana Revised Statute 9:2800.6 B(2) provides in pertinent part:
      In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, ... [t]he merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

   GUIDRY, J.

12A local restaurant appeals a trial court’s judgment awarding damages to a patron for injuries she sustained when she stepped on a tire stop and fell in the restaurant’s parking lot. We amend the percentage of fault assessed by the trial court and, as amended, affirm the judgment.

FACTS AND PROCEDURAL HISTORY

After having dined at Ryan’s Family Steak House Restaurant located on Florida Boulevard in Baton Rouge, Louisiana, seventy-five-year-old Rowena A. Leonard exited the restaurant and proceeded to her car, which was parked in the handicapped area of the restaurant’s parking lot. When she reached her car, she stepped off the sidewalk onto a blue-painted tire stop protruding from under the front end of her car on the driver’s side. Unfortunately, after stepping on the tire stop, the object moved and she fell, sustaining multiple injuries, including: a broken small finger, thumb, and nose; a gash to her forehead, which required stitches; the dislodging of a dental bridge in her mouth; the loss of some teeth; and a cut to her lip, which also required stitches. Ms. Leonard also complained of neck pain and migraine headaches following her fall at the restaurant on February 20,1999.

In February 2000, Ms. Leonard filed suit against Ryan’s Family Steak Houses, Inc. (Ryan’s), seeking damages as a result of the fall. At the trial on the merits, the trial court found Ryan’s liable to Ms. Leonard and awarded her $20,000 in general damages plus past medical expenses in a judgment signed on December 30, 2004, from which Ryan’s appeals.

ASSIGNMENTS OF ERROR

In this appeal, Ryan’s challenges the trial court’s judgment in the following respects:

A.The trial court erred in finding Ryan’s owed a duty of care to this plaintiff to protect her from harm when she intentionally uses a 13tire stop for a stepping stone, a purpose for which it was not designed or intended.
B. The trial court erred in finding Ryan’s was negligent where plaintiff caused or contributed to her own injury by unnecessarily using the tire stop as a stepping stone.
C. The trial court erred in finding that plaintiff proved notice under [La. R.S.] 9:2800.6.

DUTY/UNREASONABLY DANGEROUS DEFECT

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. It must discover any unreasonably dangerous condition on its premises and either correct the condition or warn potential victims of its existence. Bozeman v. Scott Range Twelve Ltd. Partnership, 03-0903, p. 5 (La.App. 1st Cir.4/2/04), 878 So.2d 615, 619. The basis for such delictual liability is established in La. C.C. arts. 2315, 2316, 2317 and 2317.1. Granda v. State Farm Mutual Insurance Company, 04-1722, p. 5 (La.App. 1st Cir.2/10/06), 935 So.2d 703, 707-08, writ denied, 06-0589 (La.5/5/06), 927 So.2d 326. In particular, La. C.C. art. 2317.1 provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, in order to establish liability based on ownership or custody of a thing, the plaintiff must show that (1) the defendant was the owner or custodian of a thing which caused the damage, (2) the thing had a ruin, vice, or defect that created an unreasonable risk of harm, (3) the ruin, vice, or defect of the thing caused the damage, (4) the defendant knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect, (5) the damage could have been prevented by the exercise of reasonable care, and (6) the defendant failed to exercise such reasonable care. Granda, 04-1722 at p. 6, 935 So.2d 703, 708.

|4In this appeal, Ryan’s admits that it had custody of the parking lot and the tire stop; however, it contends that an unreasonably dangerous condition did not exist for which it owed a duty of care to Ms. Leonard under the facts of this case. The existence or absence of a duty is a question of law. Vinccinelli v. Musso, 01-0557, p. 3 n. 5 (La.App. 1st Cir.2/27/02), 818 So.2d 163, 165 n. 5, writ denied, 02-0961 (La.6/7/02), 818 So.2d 767. Yet, the absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant. Oster v. Department of Transportation and Development, 582 So.2d 1285, 1288 (La.1991). Whether a thing contains an unreasonably dangerous condition is a mixed question of fact and law or policy that is subject to the manifest error standard of review on appeal. Reed v. Wal-Mart Stores, Inc., 97-1174, pp. 3-4 (La.3/4/98), 708 So.2d 362, 364.

To reverse the factual findings of the trier of fact, an appellate court must find (1) a reasonable factual basis does not exist in the record for the finding and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the fact finder’s conclusion is right or wrong, but whether the conclusion is a reasonable one. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). It is generally improper to characterize a risk as unreasonable without considering the surrounding circumstances. Vinccinelli, 01-0557 at p. 5, 818 So.2d at 166.

Whether a condition is unreasonably dangerous requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its IfiSocial utility or whether it is dangerous by nature. Bozeman, 03-0903 at p. 6, 878 So.2d at 619.

The degree to which a potential victim may observe a danger is also a factor in the determination of whether the condition is unreasonably dangerous. Williams v. Leonard Chabert Medical Center, 98-1029, p. 8 (La.App. 1st Cir.9/26/99), 744 So.2d 206, 211, writ denied, 00-0011 (La.2/18/00), 754 So.2d 974. The owner or the person who has custody of the property may have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 11 (La.5/10/96), 673 So.2d 585, 591, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).

The trial court, in this matter, specifically found that “the parking lot stop was uneven and did, in fact, cause the pedestrian, or the plaintiff in this matter to fall.” Moreover, implicit in the trial court’s ultimate determination of liability is the conclusion that the tire stop presented an unreasonably dangerous condition. Having reviewed the evidence in the record before us, we cannot say that the trial court was manifestly erroneous in concluding that the tire stop presented an unreasonably dangerous condition.

According to Russell Gardner, plaintiffs expert in the field of civil engineering addressing safety issues, industry guidelines require the anchoring of tire stops. He testified that the minimum standard for a tire stop is eight inches wide, six inches tall, and approximately six feet in length. Tire stops should be set two and one-half feet from the curb and centered in the parking lane. Mr. Gardner opined that to properly anchor tire stops, qualified and trained personnel should use | fithree-fourths-inch-diameter iron pipe or rebar embedded at least eighteen inches below the parking lot surface.

Ryan’s expert in the field of civil engineering with an emphasis on structural safety, Allison J.P. Launey, testified that the purpose of a tire stop is to ensure that cars do not intrude into a passageway, which in this case was the sidewalk adjacent to the handicapped area of the parking lot. Mr. Launey stated the tire stop acted as a guide to parking motorists. In noting the purpose, the civil engineer did not distinguish between anchored and un-anchored tire stops. He stated that under the Americans with Disabilities Act (ADA), which is applicable to the handicapped area of Ryan’s parking lot, tire stops were required to be anchored and located in the center of the parking slot.

Michael J. Baumann, an insurance claims adjuster for the City of Baton Rouge/Parish of East Baton Rouge, testified that he was processing a neighbor’s claim on March 9, 1999, when he learned about Ms. Leonard’s fall. He went by her house and, after talking to her, drove to the parking lot of the Florida Boulevard Ryan’s where he took pictures of the handicapped area. Mr. Baumann stated that on March 9th, he encountered Daryl Trammell, a manager at the restaurant, who advised him that the handicapped area of the parking lot was in the same condition it had been in when Ms. Leonard fell on February 20th. Mr. Baumann’s photographs of the parking lot were admitted into evidence.

The pictures show the handicapped area clearly designated with blue paint. A five-foot, diagonally blue-striped area for handicap access adjoins each of the four parking lanes in the pictures. The fourth parking slot of the handicapped area appears the furthest from the front door of the restaurant. A blue-painted tire stop ^misaligned, broken and exposing deteriorated concrete and a metal rod also appear in the fourth parking slot in the pictures. Concrete debris was visibly evident adjacent to the tire stop, and concrete chips were present between the sidewalk and the tire stop. In the third parking slot appears a blue-painted tire stop, visibly smaller than the tire stops in the other parking slots of the handicapped area.

Ms. Leonard testified by deposition. She stated that after she left the restaurant, she proceeded to her car. She insisted that she had parked her 1981 Chevrolet Monte Carlo in the third parking slot from the front door. Ms. Leonard recalled that all the handicapped parking slots, i.e., two on the side closest to the restaurant’s front door and one on the other side of her car, had vehicles parked in them. After she exited the restaurant, she thought that her car was tilting to one side. Ms. Leonard walked on the sidewalk adjacent to the parking lot in front the driver’s side of her car and, looked at the passenger’s side front tire to determine whether it was flat. Content that it was not, Ms. Leonard said that she turned and proceeded back along the sidewalk in front of her car toward the driver’s side door in a direction back toward the entrance of the restaurant.

As she reached that point on the sidewalk parallel to the driver’s door, Ms. Leonard attempted to step down from the curb toward her car. There, she encountered the blue-painted, concrete tire stop protruding from under the front of the driver’s side of her car. She was unsure whether it was the entire tire stop or a portion of it, but she was certain it was the tire stop for the parking slot into which she had parked her car and not for some other parking slot. Ms. Leonard stated that the tire stop was jammed toward the sidewalk so close that she could not place her foot between the sidewalk curb and the blue-painted tire stop to step onto the ground. Therefore, Ms. Leonard stepped onto the tire stop to proceed toward her | scar. According to Ms. Leonard, when she stepped onto the concrete tire stop, it moved and she fell face first to the ground.

Daryl Trammell, the manager on duty at Ryan’s on the date of the accident, was no longer employed by Ryan’s at the time he was deposed. His deposition testimony was introduced into evidence at trial. He remembered that he was inside the restaurant when he learned that Ms. Leonard fell. He went to the parking lot and found Ms. Leonard standing on the sidewalk in front of her car, visibly injured and bleeding. Mr. Trammell remained with Ms. Leonard until an ambulance arrived to take her to the hospital and attempted to attend to her immediate medical needs.

Mr. Trammell stated that Ms. Leonard’s full-sized car was parked in the parking slot located furthest away from the Ryan’s front door. He recalled that the car covered most of the tire stop and, therefore, he could not ascertain the condition of the tire stop. He did not see any gravel, rocks, or debris around Ms. Leonard’s car, but he acknowledged that he did not conduct an inspection of the area. Mr. Tram-mell thought that a small portion of the tire stop might have protruded from the driver’s side of Ms. Leonard’s car. He said that no corrective action was taken to the tire stop after Ms. Leonard’s fall because Ryan’s did not see any breaks in the tire stop at that time. He was unaware of any prior problems or accidents involving tire stops in the Florida Boulevard Ryan’s parking lot.

According to the testimony of Anthony Jerrell Bacon, an employee who performed utility and dishwashing duties for Ryan’s, he was required to clean up the parking lot daily. Mr. Bacon arrived at the restaurant at 9 a.m., before there were |9any cars in the parking lot and picked up paper and bottles and swept up the rocks that regularly accumulated around the tire stops. He stated that when a tire stop was “busted up real bad,” he reported it to a supervisor. He recalled that he and another employee had moved broken tire stops once or twice, taking them to the back of the restaurant. After a tire stop was removed, it was subsequently replaced, but Mr. Bacon did not know who replaced it or from where the replacement tire stops were obtained. Mr. Bacon said that during his morning parking lot cleanup, when he encountered a tire stop out of position in a parking slot, he would push it back into place, noting that proper alignment was designated by painted lines. When he properly positioned a tire stop, he did not secure it in any manner and indicated that it would likely move again when a vehicle hit it.

General manager, Robert Stack, testified that he worked the early shift on February 20, 1999, and that he had completed Ryan’s 10:30 a.m. checklist, which indicated that the parking lot was “satisfactory.” To Mr. Stack, this meant that the parking lot was clean and free from debris. Mr. Stack explained his standard procedure on workdays was to drive through the parking lot upon arrival in the morning, looking for trash and for security concerns. When completing the daily checklist that was to be done at 10:30 a.m. and 3:30 p.m., Mr. Stack walked to the front of the store where he visibly inspected the parking lot. He acknowledged that he did not conduct up-close inspections of any of the tire stops, including those in the handicapped area, and that his view of the handicapped area was limited when all four of the parking slots had vehicles in them. Mr. Stack did not know who completed the 3:30 p.m. checklist on February 20, 1999, which indicated that the parking lot was “satisfactory” and was the one closest in time to Ms. Leonard’s fall.

Mr. Stack conceded that Ryan’s did not have any specific safety inspection or maintenance policies or programs related to the tire stops. He said that his | ^replacement policy at the Florida Boulevard Ryan’s was to take tire stops from that portion of the parking lot behind the restaurant where no cars parked and, using a dolly, move them to the front. He stated that he would set the replacement tire stop on the spikes that remained in the ground after the broken one had been moved. He indicated that he would select a replacement tire stop with holes that would align with the spikes that were already in the ground.

Ms. Leonard’s explanation of her fall, the March 9, 1999 photographs taken by Mr. Baumann that Mr. Trammell verbally acknowledged were accurate depictions of the accident site, and Mr. Bacon’s testimony indicating that he would physically adjust the tire stops when they were out of place, all support a finding that the tire stop at issue was unanchored. Obviously, a tire stop’s purpose of providing a buffer zone to a passageway may nevertheless be served when a tire stop is unanchored. Depending on its exact placement, an un-anehored tire stop may be able to provide as much as its width — a minimum of eight inches — as additional distance between the passageway and a vehicle’s front wheels. But clearly an unanchored tire stop cannot act as a guide to a parking motorist when improperly positioned. And simply the force of a parking vehicle may readily reposition it. Thus, the utility of an unan-chored tire stop is minimal when compared with one that is anchored.

Conversely, the likelihood and magnitude of harm created by an unanchored is potentially great. A person who does not observe an out-of-place tire stop can readily fall. Although the more foreseeable risk posed by an unanchored tire stop is that of an unobserved and unexpected tripping hazard, the risk posed by the tire stop in this instance was no less actionable because the plaintiff observed the unan-chored, misaligned tire stop. Cf. Barnhill v. Louisiana Power & Light Company, 28,903, p. 4 (La.App. 2nd Cir.2/26/97), 690 So.2d 890, 893 (wherein the |n court held “[t]he fact that the parking block itself was visible does not necessarily mean that the risk of hazard was so apparent as to be easily observed.”)

In this case, we have an elderly lady, who having already approached her car to observe whether the passenger-side tire was flat, reasonably sought to access her vehicle by the nearest path. Finding her path obstructed, albeit not completely, by the protruding tire stop, she chose to step on tire stop as opposed to stepping over it. As Ms. Leonard explained, the reason she did not simply step over the tire stop was because she was up on the sidewalk, “and if I would have jumped— well, my legs wasn’t that long, I couldn’t reach from here all the way over here. I tried that, but it wouldn’t work.” Moreover, it would not have been apparent, even to the most reasonably prudent person, that the concrete tire stop of considerable weight — an estimated 135 pounds — would move upon being stepped on by the plaintiff.

Nevertheless, as plaintiffs expert opined, the force with which the 165-pound Ms. Leonard stepped on the smaller-sized, unanchored tire stop in the third slot would be sufficient to cause it to move, if she fell in the third parking slot. If the fall occurred in the fourth parking slot, both parties’ civil engineering experts agreed that Ms. Leonard could have caused it to move by stepping on the broken, unanchored tire stop.

As a pedestrian who encounters an un-anchored tire stop may, with sufficient force, cause it to move, increasing the likelihood of a loss of balance, an unanchored tire stop heightens the potential of a fall by an ordinary pedestrian traversing a parking lot to return to his or her car, and particularly to patrons eager to enter a restaurant to eat or who are in a more relaxed state after having consumed a meal. Based on these considerations, we believe a restaurant owes a duty to an inattentive pedestrian as well as an attentive one and, therefore, find that the unan-chored tire stop in Ryan’s parking lot on February 20, 1999, was not an open and obvious | ^hazard but rather that it presented an unreasonable risk of harm to patrons of the restaurant. Hence, we find no error in the trial court’s conclusion that Ryan’s had a duty to discover the risk posed by the unanchored tire stop and to anchor or otherwise correct it.

NOTICE/KNOWLEDGE

In its only challenge to the trial court’s implicit determination that the restaurant had knowledge of the defect, Ryan’s asserts that it is not liable to Ms. Leonard because she failed to prove the notice required under La. R.S. 9:2800.6 B(2), which sets forth a plaintiffs burden of proof against a merchant. Assuming that La. R.S. 9:2800.6 is applicable under the facts of this case, because we have found no manifest error in the trial court’s factual finding that the tire stop upon which Ms. Leonard fell was unanchored, a reasonable factual basis exists to support a finding that Ryan’s created the defect and, therefore, notice was not required under La. R.S. 9:2800.6 B(2).

Mr. Stack testified that he replaced broken tire stops with those in the portion of the parking lot located behind the restaurant where cars did not park. The photographs taken by Mr. Baumann showed that the tire stops in both the third and fourth parking slots of the handicapped area were replacements because the one in the third slot was obviously smaller than the others in the handicapped area and the one in the fourth slot was visibly out of position. And the photographs clearly showed in the fourth parking slot an absence of any spikes upon which a tire stop 113could have been placed. Thus, a fair inference of the evidence supports a finding that Ryan’s created the condition as required to find a merchant liable under La. R.S. 9:2800.6 B(2). Moreover, based on Mr. Baumann’s photographs, the testimonial evidence — -particularly that of Mr. Bacon and Mr. Stack — and the reasonable inferences of fact, the trial court’s implicit finding that Ryan’s had knowledge of the defect is not manifestly erroneous. And the trial court correctly determined that Ryan’s is liable under La. C.C. arts. 2315, 2317 and 2317.1, a conclusion the restaurant has not challenged in this appeal.

COMPARATIVE FAULT

Like all factual findings, the standard of review of comparative fault allocations is that of manifest error. Laborde v. St. James Place Apartments, 05-0007, p. 5 (La.App. 1st Cir.2/15/06), 928 So.2d 643, 647. In determining fault, the trier of fact should consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In the assessment of the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Insurance Company, 469 So.2d 967, 974 (La.1985).

In making its assessment of fault, the trial court stated that it “finds no duty of the plaintiff not to step on the [tire] stop in question, and therefore, finds no comparative fault on the part of the plaintiff.” Based on the record before us, we find this determination by the trial court to be manifestly erroneous. Ms. Leonard |14was 75 years old at the time she was injured in Ryan’s parking lot. As a result of her age and diminished abilities, she was issued a handicapped-parking decal, which allowed her to park in the handicapped parking area at the restaurant. Further, at the time of the accident, Ms. Leonard suffered from Parkinson’s disease, which condition she was diagnosed with in 1994.

According to Ms. Leonard’s testimony, she turned on the sidewalk and proceeded toward the driver’s side of her car, after having determined that she did not have a flat tire. She went to step down and:

when I went to step down, it was one of these blue markers here, but it had been moved or something and it was closer to the sidewalk. And it .. .was a piece sticking out further on the driver’s side. So what I did, I tried to put my foot in between the blue and the sidewalk. And the space was too small, so I took my foot and I put it on top of the tire stop and thought I would get down that way to get to my driver’s side. And when I did that, the thing moved, and I went forward on my face.

Several times, Ms. Leonard stated that the tire stop was close to the sidewalk, indicating that it was not in the place she ordinarily would have expected it to be. It is clear from her testimony that Ms. Leonard saw the tire stop and was aware that it was out of place. Nothing in the record establishes a reason why, upon seeing the out-of-place tire stop, Ms. Leonard did not continue a few steps down the side walk and utilize the five-foot, diagonally painted, blue-striped handicap access area to the left of the both the third and fourth handicapped parking slots. Instead, a woman of her age and diminished abilities chose to precariously balance her 165-pound frame on the narrow tire stop, which, even in absence of the movement or shifting of the tire stop, more than likely contributed to her lack of balance.

Ms. Leonard’s testimony that she was going to church services a short distance away, which did not start for an hour and a half, demonstrates that she was not in any particular hurry. Although clearly foreseeable, there were no exigent circumstances hastening or justifying Ms. Leonard’s decision to take the shortest 11sroute to the driver’s side door of her car in view of the obstruction presented by displaced tire stop. While it is clear that Ryan’s created the risk of harm by placing an unanchored tire stop in the handicapped area of its parking lot, Ms. Leonard was in a position to avoid the accident simply by walking around the out-of-place, unan-chored tire stop that she clearly saw before she stepped on it. Under these circumstances, we assess' 10 percent of the fault to Ms. Leonard and 90 percent to Ryan’s and amend the trial court’s judgment accordingly.

CONCLUSION

For these reasons, the trial court’s judgment is amended to assess Ms. Leonard with 10 percent of the fault, and to correspondingly reduce the percentage of fault attributable to Ryan’s. ■ In all other respects, the judgment is affirmed. Appeal costs are apportioned ten percent to Rowena A. Leonard, and ninety percent to Ryan’s Family Steak Houses, Inc.

AMENDED AND, AS AMENDED, AFFIRMED.

KUHN, J., dissents and assigns reasons.

KUHN, J.,

dissenting.

hi disagree with the majority’s conclusion that Ryan’s Family Steak House, Inc. (Ryan’s) had a duty to anchor or otherwise correct the unanchored tire stop located in the' handicapped section of its restaurant parking lot so as to ensure that plaintiff, Rowena Leonard, could utilize the tire stop to step on as she proceeded to her car.

In general, the owner or the person who has custody of the property may have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech Univ., 95-1466, 95-1487, p. 11 (La.5/10/96), 673 So.2d 585, 591, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). The degree to which a potential victim may observe a danger is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury that results from a condition that should have been observed by the individual in the exercise of reasonable care or was as obvious to a visitor as it was to the landowner. Williams v. Leonard Chabert Medical Ctr., 98-1029, p. 8 (La.App. 1st Cir.9/26/99), 744 So.2d 206, 211, writ denied, 2000-0011 (La.2/18/00), 754 So.2d 974.

In this case, Rowena Leonard testified that she saw that the blue-painted tire stop was jammed so close to the sidewalk that she could not place her foot 12between the curb and tire stop. Thus, her testimony establishes that she saw the tire stop was unanchored and, despite her observation and her knowledge of her handicapped condition, nevertheless stepped on it. Clearly, the unanchored tire stop was an open and obvious hazard as readily observed by Ms. Leonard as it was by Ryan’s.

As the majority correctly notes, an un-anehored tire stop is not devoid of all utility. Even unanchored, a tire stop’s purpose of providing a buffer zone to a passageway is fulfilled. In this case, the passageway for which the tire stop provided protection was the sidewalk in front of the restaurant that was used by handicapped customers. Thus, even unan-chored, the Ryan’s tire stop served a laudable purpose. The real issue in this case is whether any duty Ryan’s may have to anchor a tire stop extends to the use to which Ms. Leonard put it, i.e., utilizing the tire stop as a step. Obviously, the cost of imposing such a duty exceeds any limited benefit that those who may choose to use the tire stop to walk on may derive. Simply stated, the tire stop is not designed to be utilized as a step. When a tire stop is lodged up against the sidewalk curb, it is evident that it is unanchored and unsecured, and a restaurant patron — even one who is handicapped — -cannot proceed to use the tire stop to step on without regard to the possibility that it may move. Even more so where, as here, it is undisputed that available for Ms. Leonard’s use was a five-foot handicapped area adjacent to the parking spot from which she could have been easily accessed her car. Any duty Ryan’s may owe to the public to anchor a tire stop does not extend to this plaintiff who clearly observed the open and obvious condition and proceeded to use the unan-chored tire stop in a manner for which it was not designed. And the trial court erred as a matter of law in concluding that it did.

Moreover, assuming arguendo that such a duty existed, in comparing fault, undoubtedly Ms. Leonard bore the greatest percentage. A pedestrian has |3a duty to see that which should be seen and is bound to observe her course to see if her pathway is clear. Carr v. City of Covington, 477 So.2d 1202, 1204 (La.App. 1st Cir.1985), writ denied, 481 So.2d 631 (La.1986). Because the trial court found there was “no duty of the plaintiff not to step on the [tire] stop,” it concluded there was no comparative fault on Ms. Leonard’s part.

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541, p. 6 (La.2/6/98), 708 So.2d 731, 735. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 at pp. 6-7, 708 So.2d at 735.

The trial court’s failure to compare Ms. Leonard’s duty to see that which should be seen and to observe her course to see if her pathway was clear with Ryan’s duty to anchor the tire stop was legal error. On a de novo assessment of the comparative fault, I would find that no less than 75% of the fault is attributable to Ms. Leonard. For these reasons, I dissent.

      . See generally 42 U.S.C. §§ 12201-12213.

      . In his deposition, Mr. Trammell testified that Ms. Leonard had parked in the fourth parking slot. In a recorded statement he had given to the insurance company on June 25, 1999, Mr. Trammell indicated that Ms. Leonard had parked in the third parking slot. But in that interview, he recalled only three parking slots in the handicapped area. Thus, in both his deposition and the recorded statement, Mr. Trammell consistently testified that Ms. Leonard had parked in the parking slot located furthest from Ryan’s front door.