author: MARVIN, Judge.

text:
    James A. COFFEY, et ux, Plaintiffs-Appellees, v. PEOPLES MORTGAGE & LOAN OF SHREVEPORT, INC., Defendant-Appellant, Pioneer Bank & Trust, Third Party Defendant-Appellee.
    No. 14718.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Touchstone & Wilson, Ltd. by David M. Touchstone, Shreveport, for defendant-appellant.
    Booth, Lockard, Politz & LeSage by John R. D’Anna, Shreveport, for plaintiffs-appel-lees.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for third party defendant-appellee, Pioneer Bank & Trust.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Defendant appeals a summary judgment applying LRS 9:3501 and ordering a forfeiture of $20,317 in interest paid by plaintiffs under the terms of a $121,491 secured note and mortgage executed by plaintiffs in connection with their purchase of a residence in December 1978. We affirm. Bamburg v. Lavigne, 403 So.2d 827 (La.App.2d Cir. 1981).

This note, similar to the Bamburg note, provided for interest at three percent above the prime interest rate charged by a New York bank on the date of any payment on the note. This note, payable in 12 monthly installments, was paid in full in this manner.

In Bamburg, the note that was given in partial consideration for the credit sale of an immovable was found to be a contract subject to the limitation of LRS 9:3503 and to the forfeiture of LRS 9:3501.

Because defendant is a finance company, a licensed lender under the Louisiana Consumer Credit Law (LRS 9:3510 et seq.), defendant contends that the transaction should be governed by that law which allows a higher rate of interest than does LRS 9:3503.

During the term of this note, and before amendments were enacted in 1980, the Consumer Credit Law defined consumer loan as being a loan not exceeding $25,000 in principal and not a loan on immovable property if the loan finance charge did not exceed 10 percent simple interest per an-num. LRS 9:3516(13). Subsection (10) defined consumer credit sale as being a sale of a thing, other than immovable property, for a deferred price not exceeding $25,000. Whether we construe this transaction as a loan on an immovable, as it appears on its face, or as a credit sale of an immovable, as defendant contends we should, the transaction is not per se a consumer credit transaction by the express exclusionary definitions of that law and is a contract subject to LRS 9:3501, 3503.

Notwithstanding the express exclusions of that law, LRS 9:3514 allows the parties to any excluded transaction to contract with one another that the transaction shall be governed by the Consumer Credit Law. On this premise, defendant argues that because plaintiffs knew they were borrowing from a finance company governed by the Consumer Credit Law, plaintiffs should have had every expectation that they would be charged finance company rates permitted by that law. Defendant urges that equity of CC Arts. 1964-1965 should apply the higher rate of interest allowed by the Consumer Credit Law and that this transaction should be upheld as non-usurious. We do not agree and we decline counsel’s invitation to speculate about the public’s understanding of “finance-company rates”. Other laws, attempting to balance the interests of the debtor and creditor, foreshadowed the Louisiana Consumer Credit Law.

“Perhaps recognizing the difference in risks, administrative costs, and security between productive and consumptive loans, and intending to make money available to necessitous borrowers from regulated lenders, Louisiana lawmakers, in 1942, first exempted small consumptive loans from control under the usury laws by enacting the Small Loan Law. The law permitted interest rates up to 42% on loans under $300. Legislation in 1968 established special interest rates for revolving loan plans. In 1970, usury exemptions for consumer sales were added that allowed issuers of credit cards to charge lx/2% per month on revolving accounts. All of these provisions were repealed and replaced by the more comprehensive LCCL [Louisiana Consumer Credit Law].” 53 Tul.L.R. 1454 (1979)

Our courts unanimously construed the Louisiana Small Loan Law strictly against lenders who were licensed under the law, engaging in no presumption or assumption, and stating that it was mandatory that the licensee -bring his case well within the strict requirements of that law. Lyons v. Wheless, 2 So.2d 719 (La.App.2d Cir. 1941); Home Finance Co. v. Padgett, 54 So.2d 813 (La.App.2d Cir. 1951). The cited Tulane Law Review Comment, “Usury and Consumer Credit Law in Louisiana”, observes in passing that an individual may “specifically agree” that his loan or credit sale is to be governed by the Consumer Credit Law, 53 Tul.L.R. at p. 1470. Emphasis supplied. Applying the principle of reasonably strict construction, we hold that an otherwise excluded debtor and creditor may avail themselves of the Consumer Credit Law by contract under § 3514, but this “contract” must be specifically and expressly written into the transaction they desire to have governed by that law and that the burden of proving this contract is on him who claims benefit of that law. Defendant has not met that burden in this case.

ATTORNEY FEES

In answer to the appeal, plaintiffs assert that the trial court erred in not awarding reasonable attorney fees under the Unfair Trade Practices Law (LRS 51:1405, 1409) and that we should award damages for frivolous appeal. We find no error.

LRS 51:1409 states that any person who suffers an ascertainable loss of money or movable property as a result of an unfair act or practice declared unlawful by § 1405 may bring an action to recover actual damages and attorney fees. The determination of whether an act or practice is unfair is left to the courts. Moore v. Goodyear Tire and Rubber Co., 364 So.2d 630 (La.App.2d Cir. 1978), stated that a practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. While the exacting of usurious interest is against established public policy and oppresses and substantially injures the consumer, we must observe the § 1409 is penal in nature and is subject to reasonably strict construction. We also observe the many exceptions made by the legislature to the usury law. See LRS 9:3504, 3505, CC Art. 2924. See also Bamburg, supra, and Meadow Brook Nat’l Bank v. Recile, 302 F.Supp. 62, 76 (E.D.La.1969).

Additionally, we have not been referred to a case from any other jurisdiction wherein damages and attorney fees under an Unfair Trade Practices Law were allowed solely because usurious interest was charged, knowingly or unknowingly. The rate of interest charged here (maximum 18%) did not ascend to the rate of uneon-scionability. Under these circumstances we will not impose LRS 51:1409 penalties and attorney fees.

While we have found appellant’s contentions without merit, these contentions are not wholly without some legal basis. Under these circumstances, we deny damages for frivolous appeal. CCP 2164.

At appellant’s cost, judgment is AFFIRMED.

      . $120,000 was borrowed to pay a portion of the $140,000 sales price of the property. $1,491 was borrowed to pay a credit life insurance premium.

      . Before Act 205 of. 1979, § 3503 stated that "... the amount of simple conventional interest on obligations bearing interest from date and secured ... by a mortgage on immovable property shall not exceed ten percent per an-num.”
      § 3501 states:
      “Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

      . The several sections of the law as they existed before the 1980 amendments were summarized in 53 Tul.L.R. 1463-1464 (1979):
      “The [Louisiana Consumer Credit Law] ceilings, like those of the [Uniform Commercial Credit Code], are established according to whether the credit extended is open-end or closed-end. A lender may make a loan finance charge equal to a total of 36% per year on that portion of unpaid principal up to $800; 27% on that portion of unpaid principal up to $2,000; 21% on that portion of unpaid principal up to $3,500; 15% on that portion of unpaid principal over $3,500; or, in the alternative, a flat 18% per year on the unpaid balance of the amount borrowed. A credit service charge for sales may equal a total of 24% per year on the portion of unpaid balance of the amount deferred up to $1,750; 18% on that portion of the unpaid balance up to $5,000; or, in the alternative, a flat 18% per year on the unpaid balance of the amount deferred.” Footnotes omitted.

      . CC Art. 1965 reads:
      “The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”

      . Recile criticized the legally permissible loan discounting and capitalizing interest illustrated by many Louisiana cases which considered several statutes and CC Art. 2924.
      “This provision is also embodied in Article 2924 of the Louisiana Civil Code in practically identical language. It has been consistently interpreted as authorizing the capitalization of interest (“discount”) in a note.... It effectively eliminates any limitation to the amount of interest which a lender may charge as long as the interest is capitalized. Thus, a lender may legally charge 1000% interest. For example, a lender may loan $100 and exact a $1000 note payable in one year. Although the interest on such a note would be 1000%, the usury laws of Louisiana would not be applicable!
      “This situation is shocking and is a disgrace to the laws of the State of Louisiana. It is utterly indefensible. It makes a mockery of the Louisiana laws on usury which are applicable only to the careless and sloppy lender. We can fathom no legitimate reason for the legislature’s failure to abrogate this horror. No excuse whatsoever exists for the retention of this provision as much as one day longer.
      “We are not alone in our criticism of this totally unconscionable law. Other courts have invoked the legislature to remedy this deplorable situation. . .. The law review commentators, without exceptions, have been consistently adamant in demanding legislative reform.... Yet the legislature still refuses to erase this abhorrent law from the books. And it is our unpleasant duty to apply this law, however pungent.
      “The Louisiana law does have one redeeming feature, a truly small concession, in the form of a proviso. Loan discounting is exempt from the law of usury provided the note does not bear more than eight percent interest after maturity." 302 F.Supp. at p. 76. Citations and footnotes omitted.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    STUYVESANT LIFE INSURANCE COMPANY v. Walter LOYACANO.
    No. 12202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 1981.
    Eugene R. Preaus and Virginia N. Roddy of Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Stuyvesant Life Ins. Co. plaintiff-appellee.
    Robert H. Fray, Gretna, for Walter Loya-cano defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

The defendant appeals a decision granting a motion for summary judgment in favor of the plaintiff, Stuyvesant Life Insurance Company. The defendant, Walter Loyacano, argues that there are questions of fact that are yet to be determined and therefore the granting of the motion for summary judgment is improper. We disagree and affirm the trial judge’s decision.

The question involved in this situation does not concern the facts but rather the interpretation of an insurance policy. On April 21, 1975, Loyacano sustained an injury while working for Avondale Shipyards, Inc., which left him permanently disabled. As the insurer of Avondale, Stuyvesant began making disability payments in accordance with the disability provision contained in its insurance policy. This disability provision provides as follows:

“Accident and Sickness Indemnity: 60% of Regular Earnings subject to a maximum monthly benefit of $1500.00, less any benefit paid or payable under any other Group Insurance Plan, Total Social Security, Workman’s Compensation or occupational disease law and the Longshoreman’s Harbor Worker’s Act.” (Jones Act.)

At the time of the accident, Loyacano had a regular monthly income of $1,612.00. The accident left him permanently disabled entitling him to receive disability benefits of 60% of his monthly income which amounted to $967.20 per month. These benefits were paid each month by Stuyvesant to Loyacano in accordance with the policy provision. However, in August of 1975, Loyacano began receiving Social Security benefits of $341.70. Stuyvesant, pursuant to the disability provision, lowered the amount of its payments keeping the level of monthly benefits at $967.20 per month. In effect, Loyacano received $341.70 from Social Security and $625.50 from Stuyvesant totalling $967.20 per month. During the next four years, Loya-cano periodically received cost of living increases from Social Security; accordingly, Stuyvesant lowered the amount of its payments keeping the total figure constant. Loyacano also had his Social Security reduced during this time period as a result of a change in marital status. Stuyvesant promptly increased its payments reflecting that decrease in Social Security benefits keeping the total benefits received by Loya-cano at the $967.20 figure.

Loyaeano questioned the right of Stuyvesant to offset Social Security benefits against the disability benefits paid to him causing Stuyvesant to file a petition for a declaratory judgment seeking to have this right recognized. After discovery, Stuyvesant moved for a summary judgment on grounds that there was no genuine issue as to material fact and it was therefore entitled to a judgment as a matter of law. In connection with this motion for a summary judgment, the plaintiff furnished an affidavit together with a copy of the insurance policy in question. The respondent also gave an affidavit and attached to it the schedule of benefits as outlined by Avon-dale Shipyards, Inc. These two affidavits show no true conflict of any relevant facts. The affidavit of the respondent consists mainly of irrelevant facts and conclusions of those facts based upon the documents attached thereto.

The only material issue concerns the interpretation of the provision quoted above. We have examined the policy and have found it to support the position and conclusions of Stuyvesant. The benefits schedule offered in evidence by the respondent is consistent with the facts and conclusions of the plaintiff. Accordingly, we affirm the judgment granting the motion of summary judgment in favor of the plaintiff. Costs of this appeal are to be paid by the appellant.

AFFIRMED.


text:
    SOUTHBEND CONTRACTORS, INC. v. PARISH OF JEFFERSON, Jefferson Parish Council and East Jefferson Water District No. 1.
    No. 12187.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 1981.
    Rehearing Denied Feb. 19, 1982.

      Walter B. Stuart, IV and Gerald J. Slat-tery, Jr., Singer, Hutner, Levine, Seeman & Stuart, New Orleans, for Southbend Contractors, Inc. plaintiff-appellant.
    Joseph A. Conino, Asst. Parish Atty., Gretna, for Parish of Jefferson, Jefferson Parish Council and East Jefferson Water Dist. No. 1 defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

A contractor sues for extra work allegedly done pursuant to a construction contract and the owner reconvenes for liquidated damages for delay in completion of the contract. From a judgment granting only a portion of the main demand and awarding liquidated damages on the reconventional demand, the contractor has appealed. We affirm.

Southbend Contractors, Inc., entered into a contract with the Parish of Jefferson to repair, replace and modify certain subsurface water lines within the area of East Jefferson Water District No. 1 at a price of $493,208.73. The contract provided that the contractor shall commence work within ten days from the date of the written order to proceed issued by the Parish and shall complete all work under the contract within two hundred and forty calendar days from the date of the order to proceed. The contract further provided for damages for a delay in completion of the contract at the rate of $100.00 per calendar day. The contract was not completed by the contractor in accordance with its terms and a series of discussions and negotiations were had by the Parish and the contractor in order to bring about the completion of the contract and settlement of the disputes between the parties. Finally, a partial agreement was reached between the parties and the contract was finally completed, leaving the issues not agreed upon to be settled by court action. Accordingly, Southbend brought this suit for the cost of extra work done beyond the terms of the contract, and the Parish reconvened for its contractual liquidated damages for delay.

Southbend sued for slightly more than $50,000.00 contending that it incurred additional labor, equipment and material costs plus overhead as a result of differing site conditions at certain specified locations. The defense of the Parish to this claim is that much of the extra work was a result of the mistakes and errors of the contractor, that some of the work was included in the contract and the contract price payable on a unit cost basis, and that some of the work was due to the delay of the contractor itself in not diligently proceeding under the contract. The Parish conceded that there was due for extra exploratory work not covered under the contract forty six hours at $87.79 per hour equalling a total of $4,038.34. The trial judge awarded Southbend only that amount on the main demand. We agree.

The issue of whether or not the items claimed constituted extra work beyond the contract depends upon the testimony of the witnesses produced by the litigants in this case. Southbend produced the testimony of James B. Graham, Jr., President of South-bend Contractors, Inc., and Gerard J. Black, Secretary-Treasurer of Mollere-Black Services, Inc. Both of these witnesses testified in conformity with the plaintiff’s position. Opposed to this, the Parish produced the testimony of Robert E. Rice, the chief field engineer for Jefferson Parish, who was the general supervisor on the job, and Geoffrey Nordgren, who was the resident engineer with Burks and Associates, employed by the Parish for this particular project. There is a direct conflict in the testimony of these two sets of witnesses which can only be resolved by an evaluation of the credibility of the witnesses. Although the trial judge did not give reasons for judgment, it is apparent that he gave greater credibility to the witnesses produced by the Parish. During the course of the trial, he noted that there was an issue of credibility and was particularly concerned with the relationship of witness Black to the plaintiff and his participation in any amount that may be recovered by Southbend. The evidence shows that Black was an officer of the company which subcontracted the labor furnished on the job, despite the contract’s requirement that labor could not be subcontracted unless approved by the Parish, and that that company was the major participant in whatever judgment might be obtained. It is apparent that the trial judge found the credibility of the Parish’s witnesses to be stronger than the credibility of plaintiff’s witnesses and resolved the issues in favor of the Parish. Thus, there is presented to us the classic issue of “evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding” established as a standard of appellate review in the case of Canter v. Koehring Co., 283 So.2d 716 (La.1973) and further explained in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We have examined the record and we agree with the conclusion of the trial judge. Accordingly, we affirm the judgment on the main demand.

The other matter before us is the judgment on the reconventional demand in favor of the Parish awarding it liquidated damages in the amount of $36,500.00, computed at the rate of $100.00 per day for 365 days.

The appellant has assigned two specifications of error: 1) the trial court erred in holding that Southbend was liable for liquidated damages for delay in view of the fact that the Parish had made full payment under the original contract and had accepted the work as complete; 2) additionally, the trial court erred in finding that Southbend completed the work one year after the original completion date of the contract. The calendar of events shows that the completion date of the contract would have been October 24, 1977, and that the Parish, through its engineers, granted a thirty-five day extension because of rain, etc., to November 28,’ 1977. On May 18, 1978, the Parish wrote a letter to Southbend notifying it that it was in default and that the liquidated damages would be imposed. This was followed on July 19, 1978, with another default letter to the same effect. On November 27, 1978, an escrow agreement was entered into between the contractor and the Parish in which the Parish agreed that the work called for in the contract had been substantially completed with the exception of installation of seven fire hydrant extensions to be installed later and that the Parish would accept the work as substantially complete, file a notice of acceptance in the mortgage records, and forty-five days later, after the clear lien and privilege certificate had been secured, the Parish would pay $41,305.35, calculated to be the balance due under the contract price minus $7,000.00 held in escrow for the completion of the fire hydrants.

Superimposed upon this calendar of events is the testimony of Southbend’s witnesses who testified that the job was substantially completed prior to April 21, 1978, when Southbend wrote a letter requesting recognition of that fact, and testimony from the Parish witnesses that some parts of the water lines were being used, and that final inspections were being made. However, the evidence is clear that the contract work was not completed at that time and that a considerable amount of installation of new items and repair of a number of old items still remained. We note for example that even as far as August 11, 1978, the contractor was involved in installing three fire hydrants and fourteen extensions, and on October 7, 1978, installed another fire hydrant and did other miscellaneous work. There still remained the seven fire hydrant extensions to be done on November 27, 1978, at the time of the escrow agreement. Indeed, the evidence shows that there can be no serious dispute to the fact that the contract was not finished prior to April of 1978, nearly five months post extended completion date and that it took two default letters and much negotiation by the Parish to finally cause the later work to be done in August and October prior to the November 27, 1978, escrow agreement. The trial judge found that the date of the agreement was the cut off date for completion of the contract (in fact, the remaining work was done in January of 1979, and approved in February of 1979), and we agree. The history of the work record of Southbend beyond the proposed completion day shows only sporadic work efforts and occasional return to work to make repairs or complete certain specific job items after urging by the Parish.

Nevertheless, Southbend contends to us that the effect of the acceptance of the work by the Parish in the November, 1978, agreement is such as to preclude any claim for delayed damages. Appellant’s argument here is threefold: that the contract provisions require the delayed damages to be deducted from the contract price, and since the price was paid, the Parish is es-topped from later claiming delayed damages; that as a matter of law acceptance of the work and payment of the contract price operates as a waiver of liquidated damages; and that the agreement of November, 1978, constitutes in fact and law a waiver or forgiveness of the claim for damages.

We perceive no basis why estoppel should apply in this case. There is no contention by Southbend that it was mislead to its detriment or that it suffered any damages because of any act of commission or omission of the Parish. The contract certainly does give the Parish a right to deduct its liquidated damages from the contract price but there is no showing that the contractor relied upon any statement of the Parish that it would forgive the delay payments. Under the facts of this ease where there was an ongoing dispute between the contractor and the owner for a number of months concerning incompletion of the work and considering the Parish’s default letters notifying the contractor of the liquidated damages provisions, it is obvious that whatever actions the contractor took were simply in furtherance of its quest for payment for completion of the contract. If the Parish should decide to pursue payment of its damages in another fashion than that provided for its benefit in the contract, we see no prohibition. In speculation, we remark that considering the escrow agreement that was finally entered into, it would appear that how assiduously the Parish would seek to enforce its liquidated damages would have perhaps depended in part on what additional claims beyond the contract price were to be made by the contractor.

Similarly, we cannot consider that the action of the Parish in entering that escrow agreement constituted a waiver either in fact or in law. There is no evidence which indicates any waiver of claim during the contract period, during the ongoing dispute between the parties as to completion of the contract, or during the negotiations which were the basis for signing the agreement. The agreement itself does not contain any waiver of the Parish’s claim. That agreement is simply what it was apparently intended to be, i.e., a device by which the contractor could collect the price for work admittedly done, create a cutoff period for filing of any liens or privileges, etc., and leave those questions that were in dispute to further negotiation or court solution. The defense of waiver is a special one and the burden of proof is on the defendants (here defendants in reconvention) to show that the other party had knowledge of the defects and intentionally waived the same. Waiver can result only from the intentional relinquishment of a known right. See Michel v. Efferson, 223 La. 136, 65 So.2d 115 (La.1952), Hemenway Co., Inc. v. Bartex, Inc., of Texas, 373 So.2d 1356 (La.App. 1st Cir. 1979). Not only is there no evidence in this case to show intentional waiver, but the mere acceptance that the work was completed does not as a matter of law create a waiver of a claim not based upon the quality of the work but upon the delay in performing. Appellant’s reliance upon the cases of Florida Ice Machine Corporation v. Branton Insulation, Inc., 290 So.2d 415 (La.App. 4th Cir. 1974) and Charles Cloy General Contractors, Inc. v. DiVicenti Brothers, Inc., 308 So.2d 495 (La.App. 1st Cir. 1975) is misplaced. Additionally, we point out that his citation of the Hemenway case, supra, is incorrect and misleading, and that case actually supports the owner’s claim for defects.

For the reasons assigned, the judgment is affirmed. Appellant to pay all costs of «these proceedings.

AFFIRMED.


text:
    Calvin PREYAN v. UNITED STATES FIDELITY & GUARANTY COMPANY, et al.
    No. 12235.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 1981.

      Robert L. Manard, Manard, Schoenberger & Ryan, New Orleans, for Calvin Preyan plaintiff-appellant.
    S. Frazer Rankin, Montgomery, Barnett, Brown & Read, New Orleans, for United States Fidelity & Guaranty Co. defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This is a suit for damages against a third person contractor filed by a worker who sustained an injury while performing his job for another contractor. The trial judge determined that the plaintiff did not demonstrate any negligence on behalf of the defendant and that plaintiff was contribu-torily negligent, and accordingly he granted defendant’s motion for a directed verdict dismissing plaintiff’s suit. We affirm.

Calvin Preyan was installing some corrugated metal onto a boiler for Gulf Engineering at the Louisiana Power and Light facility at Taft, Louisiana, when some dust-like insulation material lodged into his eyes causing injuries. At issue on this appeal is the causation of the accident and the standard of proof applicable to rendition of a directed verdict.

Preyan’s account of the accident is that he was working with a co-worker, Clifford Watkins, installing some “laggets” (sheets of corrugated metal) on boiler number two of the Louisiana Power and Light facility, when they noticed that some workers for Cajun Insulation Company were unloading insulation material on the grating of the deck above them. He contends that some of the material was loose and spilled down into his eyes causing the injuries complained of. Preyan testified that he was unable to move to avoid the insulation because he was holding the sheet of metal in his hand and that the material fell too rapidly for him to shut his eyes to keep the material out. In addition to his own testimony, Preyan called as witnesses co-worker Clifford Watkins and a foreman for Cajun Insulation, Mike DeLotte. At the conclusion of the presentation of plaintiff’s evidence, the court rendered a directed verdict against him, giving an analysis of the testimony and other evidence in his reasons for judgment.

It is apparent from the judge’s remarks that the trial judge placed little credibility on the testimony of plaintiff and his coworker. Despite the fact that Preyan and his co-worker both testified that Preyan was lying on his back holding the piece of metal while the insulation was pouring into his face, Preyan on cross-examination admitted that he was not lying on his back but that he was down in a stooping position on his knees. Additionally, we note that although Preyan testified that he was wearing safety glasses, his co-worker testified that he was not. We further note that the co-worker was confronted with a prior contradictory statement made to an investigator in a telephone interview in which he stated that the insulation that got into Preyan’s eyes was as a result of their being engaged in removing some of the insulation where they were working. The witness did not deny having made such a statement, but could only say that he did not remember making such a statement. Our examination of the record supports the placing of little credibility on the testimony of plaintiff and his witness.

The worker of Cajun Insulation who was supposed to have unloaded the insulation material above plaintiff’s head was not called as a witness and only Cajun’s foreman, Mike DeLotte, was called. His testimony indicates that he was not present at all times in this area during that day, but he did testify that some insulation was being unloaded above. However he did not see, nor did any of his men tell him that plaintiff and his co-worker were working below, and there was no notice of any accident given him. Of equal importance he testified that when repairs were being made to a boiler such as this, that there was always considerable insulation dust in the air due to the disturbance of the old insulation by the various contractors and due to the deterioration of the insulation because of water leaks and weather elements. Although he admitted that unloading new insulation may probably cause dropage of some dust, he noted that it was more likely and more common that such dust was caused by removal or deterioration of old insulation.

The trial court concluded that there was insufficient evidence to show that Cajun’s employees caused the insulation fibers to get into plaintiff’s eyes, and based upon his disbelief of plaintiff’s testimony, we agree. Similarly, we agree with his finding that plaintiff could have at least shut his eyes and avoided the fibers and was negligent in not doing so. The scope of appellate review has been defined by the Supreme Court in the cases of Canter v. Koehring Co., 288 So.2d 716 (La.1973) and Arceneaux v. Dominque, 365 So.2d 1330 (1978). The record supports the conclusions of the trial judge.

The other issue on this appeal is the standard to be applied in considering the evidence on a directed verdict. We note that this case is a trial before the judge alone. We refer to the case of Sevin v. Shape Spa for Health and Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980). That case stands for the principle that when considering a motion for a directed verdict in a judge trial, the preponderance of the evidence standard applies under the provisions of LSA-C.C.P. Art. 1810(B). For the reasons expressed above, we conclude that the plaintiff has not carried the burden of proving his case by a preponderance of the evidence and the trial judge properly granted the motion for a directed verdict dismissing his suit.

The judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Randall S. DEWITT v. The WALDINGER CORPORATION.
    No. 12766.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 1981.
    Rehearing Denied Feb. 19, 1982.

      Esmond Phelps, II, New Orleans, for relator.
    Dennis P. Couvillion, Robert H. Belknap, Paul B. Deal, New Orleans, for respondent.
    Before GULOTTA, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

We granted certiorari in order to examine a judgment of the trial court ovrruling an exception of prescription filed by relator Scaffolding Rental and Erection Services, Inc. to a tort suit filed by respondent Randall S. Dewitt.

The accident sued on occurred on October 12, 1978. On October 12, 1979, respondent filed a combination workers’ compensation suit against his employers, The Waldinger Corporation and Ebasco Services Incorporated, and their insurer, and a tort suit against XYZ Corporation (a fictitious name) and its insurer ABC Insurance Company (also a fictitious name). On the last page of the petition an indication was given to the clerk of court to withhold service on all defendants. In August, 1980, relator, Scaffolding, was served with a copy of a petition identical to the one filed by respondent except that “Scaffolding, Inc.” was substituted for “XYZ Corporation” everywhere it was mentioned in the five-page petition, i.e., on pages 2, 4 and 5.

Relator’s exception of prescription was based on the allegation that it was not sued in the original petition filed on the last day before prescription ran. It based this allegation on the fact that the microfilm record of the petition is a copy of the original as filed against XYZ and not Scaffolding.

At trial relator established that the usual procedure each morning in the clerk’s office was to microfilm all documents filed the previous day. Thus, the clear inference arose that the Scaffolding pages were substituted in the original petition after prescription ran.

Relator also produced the testimony of Mr. Paul B. Deal, the attorney representing respondent’s employer in the workers’ compensation aspect of the ease. He testified that he first became involved when the suit papers filed in federal court, identical to those involved here, were sent him by his clients. These also named XYZ for Scaffolding. In February, 1980, he began dealing with respondent’s then attorney, Mr. Dennis P. Couvillion, who gave him a copy of the state court suit against XYZ; and Deal had discussions with Couvillion over the prescription problem created when the defendant in the tort suit was sued in a fictitious name. Not until August did Cou-villion tell him there was no problem because the suit had been “amended.” In the meantime the federal court suit had been dismissed with the understanding that respondent would go forward with the state court suit.

Mr. Robert H. Balknap was the attorney who filed respondent’s suits in federal and state courts. He testified that he filed the suit in state court at Hahnville the morning of October 12 with XYZ Corporation as the named defendant and filed the same suit in federal court at about 2:30 PM. Because of some technical defect in the title of the federal court suit he returned to his office to correct the complaint and then realized he had made the mistake of naming XYZ instead of Scaffolding in the state suit. He made corrected pages for the state suit and returned to Hahnville in time to speak to someone in the clerk’s office who agreed to substitute the changed pages.

In overruling relator’s exception of prescription the trial judge gave the following reasons:

“Basically, if the petition as it is in microfilm controls, then the petitioner in the rule wins; if the petition as it is in the original file controls, then the respondent in rule wins.
The story goes that someone sneaked into the Clerk’s Office and substituted the necessary pages. The supposition is that the suit was filed incorrectly and when the mistake noticed, someone went into the Clerk’s Office, removed the file, removed the fastner, and replaced the sheet in the applicable position. Testimony from the attorney indicates he filed the petition and came back later when some clerk allowed him to place another page in lieu of the one filed inasmuch that the petition had not been answered and leave of court was not necessary. The clerk who did this, if done, could not be produced. Actually, the hearing takes on the flavor of an indictment against the attorney, but it should be noted that there are no positive facts to overcome circumstantial evidence, and applying the latter as to the circumstantial evidence rule, assuming every fact to be proven it must rule out every other reasonable hypothesis, or if this is not correct, it must preponderate in that favor this the evidence fails to do. Thus we reach a blank wall. Having reached that position, what must be done? It is to be noted that in the administration of civil justice, substantial justice is being sought. If this is a combination workman’s compensation and/or tort and if the purview of the law is to do justice between the parties, then in the civilian tradition, presumptive periods should be liberally interpreted. If there are two possible approaches with both being plausible, it seems unfair to penalize the injured party.
While this Court does not feel that the proper way to handle a suit was what was done herein, I just do not feel that ruling in favor of prescription would do substantial justice between the parties, inasmuch as a Federal action had been filed, the proof does not preponderate indicating lawyer irresponsibility, the proof does not preponderate in favor of a mistake on the part of the Clerk’s Office, —In fact, we are left with the fact that the microfilm says one thing, and the original record indicates another.”

The trial judge correctly pointed out that real issue in this case is whether respondent’s claim had prescribed and not whether his original attorney had improperly substituted the pages after the claim prescribed. The importance of this distinction is in the assignment of the burden of proof in the case. Since that burden is squarely on the one who pleads prescription the trial judge’s decision that the evidence did not preponderate either way resulted in a draw, and the exceptor rightfully lost. Thus, the question became whether the trial judge was clearly wrong in his factual conclusion.

The parties have devoted much of their attention to the question of whether the original record naming Scaffolding or the microfilm copy naming XYZ should prevail. We do not subscribe to this simplistic approach but, instead, see the case turning on the fact question of whether the pages were substituted on October 12 or a later date.

The clear inference that the petition could not have been altered on October 12 because the microfilm copy taken the next day did not show the alterations, depends for its validity on the assumption that this transaction or incident was handled in the usual, routine manner. There was no testimony from any of the personnel of the clerk’s office that anyone recalled this incident. Thus, the possibility remained that the substitute pages were left in the clerk’s office on October 12 but were not substituted until after the petition was microfilmed.

Belknap’s testimony was not implausible and it was not contradicted by anyone or clearly demonstrated as untrue. The long period of time elapsing before Couvillion became aware of the amendment from the time he began negotiating with Deal was explained by Couvillion and Belknap. The former had joined the latter’s law firm in January and took over fifty or sixty active files. Between Couvillion’s being busy with other cases and Belknap’s being busy with political and other matters they simply did not discuss this case and its apparent prescription until July. When they did Belk-nap immediately informed Couvillion that there was no prescription problem because he (Belknap) had changed the petition on time.

For this court to reverse the trial court we would have to substitute our own evaluation of Belknap’s credibility for the trial judge’s. This is not a proper function of an appellate court reviewing the cold record as compared to the trial court’s observation of the witnesses in person. For this reason, we cannot conclude that the trial court erred in accepting Belknap’s testimony as true to the effect that he left the substitute pages with someone on the staff of the clerk of court on October 12 with the understanding that they would be properly filed.

We are not unmindful of C.C.P. Art. 253’s requirement that the clerk shall endorse on all documents filed the fact of filing and the date which was not done in this case. But this was not Belknap’s responsibility. His ended when he delivered the copies to the clerk’s employee with the understanding that she would properly handle the papers. See C.C.P. Art. 255 conferring the clerk’s powers and authority on his deputies.

Accordingly, our writ of certiorari is recalled and we decline to exercise further supervisory jurisdiction over this case at this time.

WEIT RECALLED.

JUDGMENT AFFIRMED.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Valencia A. SCOTT v. John GLENN, Northern County Mutual Insurance Company and Allstate Insurance Company.
    No. 12723.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 1981.

      Jacob Kansas, New Orleans, for plaintiff-appellant.
    Christopher E. Lawler, Robert Stern, Donovan & Lawler, Metairie, for defendant-appellee Allstate Ins. Co.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff was injured in an accident on February 2,1978, while she was a passenger in an automobile driven by John Glenn. She brought suit against Allstate Insurance Company, the liability insurer of her father under the uninsured motorist provisions of the policy. Allstate filed a motion for summary judgment to contest coverage on the ground that plaintiff was not a resident of the household of their insured, plaintiff’s father, at the time of the accident. The court granted the motion and plaintiff has appealed. The issue is whether the deposition of plaintiff, her answer to interrogatories and an affidavit show that there is no genuine issue as to material fact with respect to plaintiff’s residence so that Allstate was entitled to summary judgment as a matter of law pursuant to LSA C.C.P. Art. 966.

According to plaintiff’s deposition taken on April 4, 1979, she was then permanently domiciled in Venice, Italy, and had applied for Italian citizenship. She had married an Italian in December, 1978. She had traveled around Italy during the summer of 1977, when she met her husband to be and went back to stay with him in September, 1977. She gave the following testimony with respect to her residence at the time of the accident:

“Q Did you live with your parents at that time?
A No, I wasn’t. I was visiting my parents.
Q Where did you live at that time?
A In Italy.
Q You were living in Italy at the time of the accident?
A Yes.
Q What was your address in Italy at that time?
A The same.
Q Same as 314 Dorsoduro?
A Yes.
Q How long had you been living at that address prior to the time of the accident?
A I had been living there since September of ’77.
Q So you had lived in Italy approximately six months before the accident occurred?
A Yes. That’s correct.
Q Was it your intention to remain in Italy?
A Yes.
Q Had you lived with your parents prior to moving to Italy, or did you have your own place?
A I lived with my parents.”

During the time of her visit to New Orleans she took a job selling shoes and clothes at a French Quarter shop and intended to return to Italy in mid-February, 1978. Because of the accident she did not return until May.

Plaintiff relies on her answer to interrogatories propounded by Allstate in which she stated that her employment between January, 1978 and the date of the accident was full time. She also presented her Louisiana driver’s license, issued on May 11, 1978, showing her address as that of her father’s in New Orleans. She also produced an affidavit from a friend who stated that on the date of the accident she was living in New Orleans with her parents, was unmarried, was working at the French Quarter shop, and had lived with her parents in New Orleans for some time prior to the accident.

The granting of a motion for summary judgment is warranted only if the material in the record shows no genuine issue as to material fact. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment, and any doubt is resolved against the granting of summary judgment and in favor of trial on the merits to resolve disputed facts. Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La.1978).

We see no dispute in these facts. This plaintiff, a mature adult, moved away from New Orleans six months before this accident and made it quite clear in her own sworn testimony that she was simply visiting her parents when this accident occurred. Her intention was to return to her home in Italy only a few days after the accident occurred, and only because of the accident did she remain until May. The fact that she took a job while she was visiting her parents with a company that she had worked for prior to her establishing her home in Italy does not alter the purpose of her visit to New Orleans when the accident occurred. Her obtaining a driver’s license with her former residence address was not a declaration or indication that this was now her residence for any other purpose other than the convenience of applying for a license.

This case is not unlike Hamilton v. State Farm Mut. Auto. Ins. Co., 364 So.2d 215 (La.App. 3rd Cir. 1978) writ refused, and is distinguishable from Hobbs v. Firemen’s Fund Am. Ins. Companies, 339 So.2d 28 (La.App. 3rd Cir. 1976) writs refused, 341 So.2d 896. In the latter case the court found that plaintiff was a resident of the same household with her estranged husband on facts that that home was jointly owned by her and she was free to come and go to that home at her pleasure, and many of her valuable personal belongings remained there. Although plaintiff had filed a claim for separate maintenance that suit had never come to trial and no proceedings were filed by either party to seek a judicial separation or divorce. This relationship is quite different from that between a grown daughter who has moved away from her parents’ home and established her own domicile and was simply visiting with her parents at the time of the accident.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting.

When we come to the word “household” in automobile policies, we encounter the problem discussed earlier — namely, the clauses which give protection and those which take it away. It almost resembles Amos and Andy’s definition of an insurance policy as a paper where “the big print gives it to you, and the little print takes it away.” .. .
Frequently, a combination of terms is used, such as a relative residing within the insured’s household. In that event, it may be necessary to examine into the living arrangements of the parties. The construction of the term is not absolute nor inflexible, and the courts generally will favor an interpretation which will provide coverage.

Appleman, Insurance Law and Practice, § 5080.35.

The insurance policy’s definition of an insured includes any blood relative of the named insured “who is a resident of the same household.” Since this term has no absolute or precise meaning, see Cal-Farm Ins. Co. v. Boisserane, 151 Cal.App.2d 775, 312 P.2d 401 (1957), any doubt as to the extent or fact of coverage under it will be understood in its most inclusive sense, in accordance with the settled principle that ambiguity in an instrument is resolved against the draftsman. La.C.C. arts. 1957, 1958 (1870). See, e.g., Insurance Co. of North America v. Solari Parking, Inc., 370 So.2d 503 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979); Heiman v. Pan American Life Ins. Co., 183 La. 1045, 165 So. 195 (1936); Parker v. Provident Life & Acc. Ins. Co., 178 La. 977, 152 So. 583 (1934); Note, Insurance-Resident of the Same Household, 26 La.L.R. 724 (1966). Whether a person is or is not a resident of a particular place is a question of law as well as fact, and is to be determined from all of the facts of each particular case. Taylor v. State Farm Mutual Auto Ins. Co., 248 La. 246, 178 So.2d 238 (La.1965); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3d Cir. 1976). Mere isolated facts cannot be relied on wholly to determine the issue. Ladner v. Andrews, 216 So.2d 365 (La.App.3d Cir. 1968); Vinet v. Hano, 281 So.2d 183 (La.App. 4th Cir. 1973). Bond v. Commercial Union Ins. Co., 407 So.2d 401, 407-408 (La.1981).

See also Fidelity General Ins. Co. v. Ripley, 228 So.2d 238 (La.App. 3 Cir. 1969), writ refused, 255 La. 248, 230 So.2d 94; Manuel v. American Employers Ins. Co., 228 So.2d 321 (La.App. 3 Cir. 1969).

The policy before us does not describe an insured relative as one whose “permanent” or “principal” residence (or, simply, whose “domicile”) is that of the named insured. Instead, just like the policy in Bond, it defines an insured relative as “a relative of the named insured who is a resident of the same household.”

The ambiguous and half-legal question of when one is no longer a resident of one’s parents’ house should not be decided by plaintiff’s untutored view that she did not “live” (the questioner’s, not the policy’s, word) with her parents at the time of the accident: “I was visiting my parents”; she “lived” in Italy. That does not amount to a judicial confession of the mixed conclusion that she was not a “resident” for insurance purposes of her father’s house — the only residence she had ever known before her return to Italy — when she “visited” him from January 2, 1978 until the accident of February 6, intending to stay until mid-February. Was she not at least a temporary resident? Was she not also such a resident when again she “lived” with her parents from November 1978 until April 1979 (the time of her deposition)? The word “lived” is hers for the November to April period: if she (and her husband, after December 15) “lived” with her parents then, what did she mean by responding to defense counsel’s question that she did not “live” with them at the time of the accident?

Insofar as shown, plaintiff had known no other residence than that of her parents during her 22 years of life, even through three years of college in New Orleans and thereafter while working full time. She “traveled” to Italy in the summer of 1977, and then returned home to her parents. In September 1977 she returned to Italy to “stay with” a man whom she had met, and whom, after her return to her parents’ house from January to May 1978 and again in November 1978, she married in December 1978, “living” still at her parents’ home even after her marriage and until April 1979.

That is not a case for summary judgment for the insurance company on the theory that no other reasonable inference can be drawn than that plaintiff was not a resident (temporary or otherwise) of her parents’ house.

The summary judgment should be set aside.


author: REDMANN, Judge.

text:
    Succession of Edna LACROIX, Widow of Walter F. Poynot.
    No. 12415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 4, 1982.

      William F. Wessel, New Orleans, Harry A. Burglass, Metairie, for Gerald F. Pfister et al.
    Harry R. Cabral, Jr., Metairie, for Henry J. Guidry.
    Arthur C. Reuter, New Orleans, for William M. Duett.
    Before REDMANN, BARRY and KLEES, JJ.
   REDMANN, Judge.

On certiorari, we earlier amended (so as to allow amendment of a motion we erroneously labeled a petition) the trial court’s judgment of February 6, 1981, purporting to dismiss on exception of no cause of action a motion to remove the provisional administrators of this succession. 400 So.2d 338 (La.App. 4 Cir. 1981). On application of the provisional administrators, the supreme court granted certiorari and “reversed; case remanded to the court of appeal for determination on the merits.” 407 So.2d 1130 (La.1981). On the merits, we conclude that the provisional administrators must be removed as disqualified, La.C.C.P. 3182, because of their abuse of their trust.

Justice Lemmon’s concurrence in the reversal of our judgment explains that the trial court’s judgment, “couched in terms of maintaining an exception .. ., really decided the merits of the action.”

The provisional administrators had taken the position in this court that they did not “comprehend why the Court of Appeals would examine the record [as movers had asked] when as we perceive it the only thing before the court is whether an excep tion of no cause of action was properly maintained.” (Emphasis added.)

The provisional administrators then took the position in their writ application to the supreme court that the question was “Should the Court of Appeal have . . . grant[ed] leave to amend . . . when the trial court had already, in effect, conducted an evidentiary hearing on the motion to remove, heard all of mover’s evidence, and then dismissed the motion?” (Emphasis added.)

The provisional administrators now take the position that the supreme court’s reversal and remand for determination on the merits “means the merits of the exception of no cause of action . . . . ” (Emphasis added.) “We must emphasize that this matter has never been tried ‘on the merits.’ ” They oppose our letting the transcripts be filed.

The provisional administrators err. We were earlier induced into the error of believing that the trial court’s ruling was only the maintaining of an exception of no cause of action. The supreme court has disabused us of that error. Its ruling is that we are to decide not whether the motion to remove states a cause of action but whether the judgment after the trial of that motion is correct on the merits. The provisional administrators’ argument is that, as the newly-filed correct transcripts show, after movers’ evidence the administrators moved for a “directed verdict,” i.e., dismissal, C.C.P. 1810 B (adding “If it’s not granted, I propose three or four days of testimony”).

The provisional administrators argue they “have not been called upon nor permitted to argue ‘the merits’ .. . and we persist in our position that we will not respond in kind to the brief filed by Relators and argue ‘the merits’ .. . unless and until we have had opportunity to present evidence.”

The newly-filed transcripts contain, except for four pages of testimony by Pfis-ter’s ex-wife, Marlene Pfister, nothing but testimony by the provisional administrators and their relatives. The January 30 transcript is 48 pages of cross-examination of Duett; the February 6 transcript is 45 pages of Duett and 39 of Guidry, plus six of Duett’s mother-in-law, Meline Poynot; nine of Duett’s wife, Marilyn Poynot Duett; and nine of Oscar F. Poynot. That testimony contains judicial admissions by the provisional administrators (further corroborated by their relatives) of the fáctual matters upon which we base our action. The provisional administrators could not be heard to deny the actions that they have admitted, and they offer no hint that they would attempt to do so. This is simply not a case of their not having been heard in respect to the matters on which we act, notwithstanding that they might have wished to enter evidence on other matters.

The newly-filed transcripts leave no doubt that the provisional administrators have used their trust to appropriate to their relatives (who are also relatives of decedent) and to others, by unadvertised private sale, the corporeal movables of the succession, albeit at prices estimated by an established auction exchange, all without notice to the presumptive (though questioned) testamentary heirs and legal heir.

One can understand the suspicion of the relatives of the 87-year-old decedent who on the day of her husband’s death in 1974 executed a will before notary and witnesses naming a non-relative her sole heir; who 16 days later executed a notarial act (not recorded until 15 weeks later) adopting that non-relative; who was interdicted before the recordation of that act of adoption; and who three years thereafter executed another will, naming that same non-relative and his children as her heirs. (That non-relative and his children, the Pfisters, are the movers for removal of the provisional administrators now before us. The adoption has been under apparently unpursued attack for over six years since June 1975 and the wills naming the Pfisters have been under apparently unpursued attack since three weeks after the testatrix’s death on April 20, 1980.)

But one must also understand that it is up to the court and not to the provisional administrators to decide who are the heirs of a decedent, to decide whether a will or an adoption is valid. Our earlier opinion, 400 So.2d 338, sets forth the extremely limited authority of provisional administrators for “preserving, safeguarding, and operating the property and business of the succession,” C.C.P. 3112. The provisional administrators of this succession appear instead to have decided, in their exercise of their authority, that the adoption of Pfister and the wills favoring the Pfisters were all invalid, and that the purported last dictates of the testatrix should therefore be thwarted. They have, in any case, set out to do so, by preferring their relatives (and others) by the device of obtaining an order to sell without advertisement all the decedent’s movables, including furniture, silver and the like, as “perishable goods,” C.C.P. 3264, and selling to the relatives whatever they wanted. The attitude of administrators and other relatives seems best indicated by one of the relatives (not an administrator): “but you see, after all, there were some things I wanted for my children and grandchildren. After all, I married into that family for 58 years, so after all, you don’t want strangers to take certain things in a family.”

The law is that if the decedent wants strangers to take all of the things that belong to her (as our decedent’s last will provides, notwithstanding that her relatives contest that will), her relatives must abide her legally declared wishes. They cannot defeat them by initiating a contest of her last will, getting their nominees appointed provisional administrators to “preserve, safeguard, and operate the property,” C.C.P. 3111, until the will contest’s outcome, and then having the provisional administrators turn over all the desired movables to them (and also sell the decedent’s house to further defeat her will). That that has been the effort of these provisional administrators is the only reasonable conclusion from the fact of the provisional administrators’ unadvertised sale of silver and furniture as “perishables” by passing lists of items to family members without affording a similar opportunity or even any knowledge to the presumptive testamentary heirs and the presumptive legal heir, the adopted child of decedent. Instead of awaiting and risking the outcome of the will and adoption contests, these provisional administrators have prejudged those contests and elected to distribute the personal effects of decedent among her and their family by private sales.

The record contains other doubtful circumstances of this much-litigated situation, but on the sole ground of the sales as “perishables” described above, we reverse the trial court and we remove from office both those administrators and (as also moved) their court-confirmed attorneys who counseled and arranged the defeat of the testatrix’s last will rather than let the court decide its validity.

It is therefore ordered that, effective immediately as an indispensable necessity to “preserve [and] safeguard” this succession, C.C.P. 3111, the provisional administrators Henry J. Guidry and William M. Duett and their attorneys be and they are removed from office, and that the trial judge appoint forthwith a successor provisional administrator neither connected with nor suggested by either the Pfister side or the decedent’s family side of this dispute. Movers’ costs are to be borne by the succession.

      . This court before its June 2, 1981 decision had a reporter-certified “transcript of the proceedings held ... on the 6th day of February,” and that two-page transcript contained only the trial judge’s reasons for “maintain[ing] the exception of no cause of action,” and no testimony whatsoever. We concluded, as the provisional administrators’ language quoted above suggests, that this was a simple matter of maintaining an exception of no cause of action. After the supreme court’s reversal of September 18, 1981, however, movers on September 20 presented to this court a 134-page “transcript of the proceedings ... on the 6th day of February” plus a 52-page transcript of proceedings of January 30.


author: FORET, Judge. SWIFT, Judge,

text:
    Frances M. HEAD, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 8563.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 11, 1982.
    Writ Denied March 12, 1982.

      Gachassin & Capretz, Carey Tom Jones and Nicholas Gachassin, Lafayette, for defendants-appellees.
    Before CULPEPPER, FORET, CUTRER, SWIFT and LABORDE, JJ.
   FORET, Judge.

Frances Head (Plaintiff) brought this tort action to recover damages for personal injuries sustained by her in a fall on the premises of a hospital while exiting therefrom. Hospital Service District # 1 of St. Landry Parish, Louisiana d/b/a Moosa Memorial Hospital (the Hospital), and its general liability insurer, St. Paul Fire & Marine Insurance Company (St. Paul), were named defendants.

The trial of plaintiffs action resulted in a judgment by the trial court in favor of defendants and against plaintiff dismissing her action. Plaintiff brings this devolutive appeal from that judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff had failed to prove that her injuries were caused by any negligent conduct of the defendant-Hospital;
(2) Whether the trial court committed manifest error in finding that plaintiff failed to prove the existence of any defect in the entranceway to the Hospital, where she fell;
(3) If so, did the trial court commit manifest error in finding that plaintiff had failed to prove that her injuries were caused by any such alleged defect;
(4) Whether the trial court erred in allowing an expert in the fields of architecture and civil engineering to render an opinion as to the safeness of the entranceway to the Hospital;
(5) Whether evidence of safety standards existing at the time of construction of a building or thing is admissible in a case based on strict liability under LSA-C.C. Articles 2317 and 2322 and,
(6) What is the amount of damages that plaintiff should recover from defendants if this Court finds that they are liable to her?

Because of our decision herein finding defendants liable to plaintiff on the basis of negligence, we pretermit any discussion of issues 2-5. We will make a determination as to quantum.

FACTS

Plaintiff was 71 years old at the time that the accident occurred on December 11, 1978. She was a resident of West Monroe and had come to Basile to care for her daughter, Montez Estes, (who had undergone surgery) and the daughter’s family. Plaintiff’s daughter was hospitalized in the Moosa Memorial Hospital in Eunice, where the surgery had been performed.

Plaintiff went to the Hospital early on the day of the accident to stay with her daughter. She left somewhere between 5:30 P.M. and 6:00 P.M. and was accompanied by Orena Estes, her daughter’s mother-in-law, and Mrs. Estes’ grandson, Mark Estes. Plaintiff and her two companions exited from the Hospital via the front en-tranceway. That entranceway slopes downward toward a “roll over” curb. Plaintiff fell when she stepped onto the curb, which separates the entranceway from a circular driveway in front of the Hospital’s building.

Plaintiff sustained a fracture of her left hip and was immediately taken to the emergency room of the Hospital. She received initial treatment there and was then admitted. Dr. R. E. Landreneau performed an open reduction on plaintiff’s left hip the next day and she remained in the Hospital until she was discharged on January 5, 1979. She was then taken to the Basile Care Center, a nursing home.

Plaintiff returned to the Hospital on January 16, 1979, complaining of pain in her left hip. Dr. Landreneau referred plaintiff to Dr. R. Luke Bordelon in Opelousas, and she was admitted to Opelousas General Hospital on January 17, 1979. X-rays showed that the fracture of plaintiff’s left hip was displaced. A second operation was performed on plaintiff in which a metal prosthesis was used to replace the ball of her hip joint. Plaintiff remained in Opelou-sas General Hospital until her discharge on February 16, 1979.

Plaintiff then went to her daughter’s home in Basile. She fell once more on February 23, 1979, and suffered an impacted or compression fracture of her left wrist. She was taken to the emergency room of the Moosa Memorial Hospital, where a cast was placed on her wrist, and released.

Plaintiff instituted this action on December 7, 1979, alleging that as she walked out of the Hospital via the front entranceway a car approached with its headlights on, temporarily blinding her. She then lost her balance on the sloping walkway and fell on the concrete surface causing her to suffer the injuries complained of. She further alleged that her injuries were caused solely by certain negligent acts and/or omissions of the Hospital. Defendants denied plaintiff’s allegations of negligent conduct on the part of the Hospital or that such conduct was the sole, proximate cause of her injuries. Defendants also plead the affirmative defense of contributory negligence on the part of plaintiff.

HOSPITAL’S ALLEGED NEGLIGENCE

Plaintiff contends that the sole, proximate causes of her injuries were the following alleged negligent acts and/or omissions of the Hospital: constructing and maintaining an unsafe entrance-exit to be used by the public; failing to place warning signs informing the public of the uneven walking area in the area of the entrance-exit ramp; providing a driveway for motor vehicles in an area where their headlights may blind persons exiting through the front main entrance, or else will create a dangerous hazard by passing too close to one using the entrance; failing to provide some sort of supportive device for handicapped, elderly, or other persons requiring such supports, such as handrails or a doorman to assist those individuals requiring such help; and, failing to properly inspect, maintain, and supervise the front entrance-exit. Plaintiff’s claim is based on the provisions of LSA-C.C. Articles 2315 and 2316.

The first inquiry in making a determination of liability under these articles is whether any causal relationship exists between the harm suffered by plaintiff and the Hospital’s alleged negligent conduct. Thus, if plaintiff can show that she probably would not have suffered the injuries complained of but for the Hospital’s conduct, she has carried her burden of proof relative to cause-in-fact. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 216 (La.1977); Stewart v. Gibson Products of Natchitoches Parish, Louisiana, Inc., 300 So.2d 870 (La.App. 3 Cir. 1974).

The trial court found that plaintiff failed to prove that her fall was caused by “any negligence of the defendant, Moosa Memorial Hospital”. Plaintiff argues that the trial court committed manifest error in making this finding.

In resolving the question of whether an act or acts of a defendant were a eause-in-fact of the harm suffered by a plaintiff, we make no inquiry as to whether the act or acts were unlawful or negligent. We determine only whether they were a substantial factor without which the accident would not have occurred, i.e., whether they had some direct relationship to the accident. Laird v. Travelers Insurance Co., 263 La. 199, 267 So.2d 714 (1972); Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1 Cir. 1981).

The evidence shows that the entranceway where plaintiff fell consisted of a sloping concrete walkway that ended at a curb. Both the walkway and the curb were covered by a dark-colored mat that was approximately six feet wide. The walkway sloped downward at an angle of 2.07 degrees from horizontal for a distance of 1.1 feet beginning at the doors to the Hospital’s building. The slope then increased to an angle of 6.7 degrees from horizontal for a distance of 3.4 feet ending at the curb. The curb itself sloped downward at angles of 19.95 degrees from horizontal for a distance of .6 feet and 22.8 degrees from horizontal for a distance of .35 feet. The curb ended at the circular driveway.

Plaintiff contends that she fell because the Hospital failed to place signs warning of the uneven walking surface and concealed the presence of the curb with the mat. Plaintiff testified that she and her two companions walked out of the double doors in front of the Hospital’s building and “just as I got at the end of the slope or whatever you call it, it slopes down, I started to step down and it seems like I just— there wasn’t a step there and I just went down”. Plaintiff, at the request of counsel, marked a photograph of the entranceway to show where she fell. She indicated that she fell at the end of the walkway where the curb is located. Mrs. Estes also testified that plaintiff fell at that spot. The photographs, together with the testimony of a number of the witnesses, indicate that there were no handrails in this area. Plaintiff argues that all of the above were substantial factors without which the accident would not have occurred.

Defendants, on the other hand, contend that the mat was placed over the walkway and curb for safety. They note that the curb was painted a bright yellow and could be clearly seen on each side of the mat. Douglas Longman, the Administrator of the Hospital, testified that he had no personal knowledge of anyone having fallen on the entranceway in the 18 years that he has been affiliated with the Hospital. However, he did admit that someone could have fallen without injuring himself and, as a result, he may have received no notification of the accident.

We find that plaintiff has proven, by a preponderance of the evidence, that she probably would not have suffered the injuries complained of but for the Hospital’s conduct and that the trial court’s finding to the contrary constitutes manifest error.

A finding that the Hospital’s conduct was a cause-in-fact of plaintiff’s injuries, however, does not, of itself, establish liability. In addition, we are required to ascertain whether the Hospital breached a legal duty to protect against the particular risk involved. Shelton v. Aetna Casualty & Surety Co., supra; Smolinski v. Taulli, 276 So.2d 286 (La.1973); Hill v. Lundin & Associates, Inc., supra. In making this determination, the following inquiries must be made:

(1) What, if any, duty was owed by the Hospital to the plaintiff?
(2) Was there a breach of this duty?
(3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Shelton v. Aetna Casualty & Surety Co., supra; Thomas v. Hanover Insurance Company, 321 So.2d 30 (La.App. 3 Cir. 1975).

I. DUTY OWED

The first inquiry is what, if any, duty was owed by the Hospital to plaintiff. Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979), stated at page 1047 that:

“The owner and operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. In determining a particular defendant’s duty consideration should be given to the nature of the facility and the dangers presented by it. In considering a defendant’s duty to a particular person, consideration should be given to the person’s age, maturity, experience, familiarity with the premises and its dangers, and other such factors which might increase or decrease the risk of harm to that person. The duty would be greater to a person of young age and immature judgment. It would be lesser to a person with experience, knowledge and familiarity with the premises.”

The facility that we are concerned with is a hospital which, by its very nature, will be used frequently by the infirm, the feeble, and the elderly. Because of their age and/or infirmities, it is particularly difficult for these persons to safely move about. We believe that a hospital owes a duty to such persons to warn them of the existence of any obstacles or dangers, which may present a hazard to them, as they move about the hospital, or in and out of it. Defendant-Hospital owed this duty to plaintiff.

II. BREACH OF DUTY

The next inquiry is whether there was a breach of this duty. A. J. Scardino, Jr., who was accepted by the court as an expert in the field of health and safety engineering, testified on behalf of plaintiff. He made a physical examination of the en-tranceway and photographed it. He also reviewed certain drawings made by a civil engineer which showed the dimensions of the entranceway and the angles noted above. He then compared the physical characteristics of the entranceway with the guidelines set forth in a number of safety codes or manuals dealing with buildings and the entrances and exits to them. He opined that the entranceway “did not meet the minimum safety standards and was inherently unsafe”.

Scardino testified that his opinion was based on a number of different factors. First, whenever a door opens outward, as do the double doors at the entrance to the Hospital’s building, there should be a level surface or landing which extends a minimum of three feet past the end of the door. Second, any ramp or slope to an entrance that is to be used by the elderly or the handicapped should not exceed 2.85 degrees from horizontal. Third, the angle of the slope or ramp should be constant or uniform along its entire length. Scardino stated that the purpose of these guidelines was “to prevent individuals from falling and not encountering a sudden surprise or rapid stepdown”. He also noted that the guidelines provide that curbs should be brightly colored to aid those with poor vision. Here, the curb was colored a bright yellow, but it was covered by the dark-colored mat for the width of the entranceway.

Clifton Lasseigne, who was accepted by the court as an expert in the fields of architecture and civil engineering, testified on behalf of defendants. He stated that prior to 1962, the entranceway in question was much longer than it presently is. In that year, he and his firm did the architectural work for the construction of an addition to the Hospital’s building. That addition enclosed all but six feet of the area formerly occupied by the entranceway and this became the Hospital’s present day lobby. Lasseigne testified that the primary guidelines for designing hospitals today are found in the Life Safety Code, which has been adopted by the State Fire Marshal’s Office.

Lasseigne admitted that he had never taken any courses in safety engineering nor had he done any accident reconstruction work as a professional. He testified that, at any entrance to a building consisting of a flat walkway, the walkway should be slightly inclined so that water would not accumulate and run under the door. He opined that the sloping walkway at the entrance to the Hospital’s building is' not a ramp and that the guidelines of the Life Safety Code dealing with ramps are inapplicable. However, he did admit that the closer an entranceway is to horizontal, the safer it is for pedestrians to walk in and out. He also admitted that he would not put a curb at the end of a ramp with the qualification that he did not consider the entranceway to the Hospital to be a ramp.

Lasseigne testified that it was “good practice” to paint curbs to increase their visibility to people attempting to cross them. He acknowledged that the curb at the end of the entranceway was covered by the mat and that it would be better if no part of it were covered. He did not think that the entraneeway to the Hospital would cause some persons to lose their balance because of the fact that there was a relatively slight difference in the angle of slope of different portions of the walkway. However, he did state that a person, who did not know of the presence of the curb, could lose his balance when attempting to cross it. He testified that there were no handrails along the entranceway because it was felt they were not needed. The evidence indicates that there were no signs warning the general public of the existence of the curb.

We find that the defendant-Hospital, by failing to warn of the existence of the curb and concealing its presence with a dark mat, breached its duty of exercising reasonable care for the safety of the elderly (plaintiff) on its premises, and exposed them (her) to unreasonable risks of injury or harm. As was noted in Morgan v. Hartford Accident & Indemnity Co., 402 So.2d 640 (La.1981), a case with facts and circumstances similar to those in the action before us , on pages 642 and 643:

“[2] The owner of a building, although he does not have a duty to insure against the possibility of all accidents on his premises, does have a duty to act reasonably in view of the probability of injury to others. Shelton v. Aetna, 334 So.2d 406 (La.1976). In the instant case the eight inch drop between the two rooms presented an unexpected condition and, because of the identical texture and color of the floors in both rooms, a condition that was difficult to discern for the unwary patron. Thus it could easily be concluded that one might trip and fall because of this unexpected drop. The precautionary measure of either warning of the drop or highlighting the area would have been virtually costless and would not have interfered with the use of the passageway. Therefore, failure to take such a precautionary measure was unreasonable when balanced against the possibility of accidents resulting from the drop off, and it was a breach of the defendant’s duty to its invited guests.”

III. SCOPE OF PROTECTION

The last inquiry is whether the risk encountered by plaintiff and the harm caused her were within the scope of protection afforded by the duty breached. We conclude that they were. Certainly, the defendant-Hospital’s duty of exercising reasonable care for the safety of the elderly (plaintiff) on its premises afforded protection to plaintiff against the risk of encountering hidden obstacles and of falling as a consequence thereof. Thus, we find that defendants are liable to plaintiff for damages resulting from the personal injuries she suffered.

Defendants contend that if this Court should find them liable to plaintiff on the basis of negligence, recovery should be denied because plaintiff was guilty of contributory negligence. Defendants base their contention solely on evidence which indicated plaintiff may have been talking to Mrs. Estes as they were leaving the Hospital.

The burden of proving contributory negligence is on the defendants and the test is the same as that for proof of negligence, i.e., did the person’s conduct fall below the standard to which a person should conform for his own safety and protection; the standard of a reasonable man in like circumstances. Morgan v. Hartford Accident & Indemnity Co., supra. We fail to see how the mere fact that a person is talking to another while walking can constitute contributory negligence on the part of the person doing the talking. Certainly, this isn’t conduct which falls below the standard to which a reasonable person should conform for his own safety and protection. We find that defendants failed to prove that plaintiff was guilty of contributory negligence.

We note that an alternative, or perhaps concomitant, basis of finding defendants liable to plaintiff is strict liability under LSA-C.C. Article 2317. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981) explained at pages 728 and 729 that:

“An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.”

It is obvious that the entranceway was in the care or custody of the defendant-Hospital. Further, we have found that its condition at the time of the accident was such that it presented an unreasonable risk of injury to others (a vice or defect) and that plaintiff’s injury resulted from this condition. There was no evidence adduced by defendants to show that plaintiff’s injuries were caused by her own fault, by the fault of a third person, or by an irresistible force.

QUANTUM

The evidence shows that plaintiff suffered severe physical pain for a period of a few weeks after being admitted to the hospital for treatment of her injuries. In addition, she also suffered severe physical pain for a few weeks after undergoing surgery for a second time at Opelousas General Hospital when the fracture in her hip became displaced. The notes of the physicians and nurses tending to her at these times, together with her medical records which show the frequent administration of narcotics for pain, attest to the severity of plaintiff’s physical pain and suffering while hospitalized.

Plaintiff moved to Ruston in April, 1979, approximately four months after the accident, to live with her daughter, Janice Sawyer. Plaintiff then returned to see Dr. Albert Donald, her personal physician before the accident, for her medical complaints. She saw Dr. Donald after the accident in June, 1979 and approximately four to five times after that, but prior to trial. He testified that plaintiff never complained to him of suffering from any pain at any of these visits. There was no testimony from plaintiff or Mrs. Sawyer to the effect that plaintiff was continuing to suffer from physical pain related to her injuries.

Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Buckley v. Exxon Corporation, 399 So.2d 1225 (La.App. 3 Cir. 1981); Walker v. St. Paul Insurance Companies, 339 So.2d 441 (La.App. 1 Cir. 1976), on remand, 343 So.2d 251 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 61 (La. 1977).

As for the mental anguish suffered by plaintiff, the evidence does indicate that she was a very active woman prior to the accident. However, as a result of her injuries, she has now become almost totally dependent on her daughter, Mrs. Sawyer, to care for her. Plaintiff testified more than once that in the period following her accident, while she was hospitalized, she had doubts about whether she would survive. She also testified as to the emotional strain which she has experienced because of the fact that she can no longer care for herself and must depend on others to do so. Her daughters also testified as to the tremendous change plaintiff has experienced in her lifestyle because of the accident.

In light of the above, we award plaintiff $50,000.00 for general damages.

Plaintiff seeks an award of $30,000.00 for past and future medical expenses associated with the treatment of her injuries. A stipulation was entered into by the parties whereby they agreed that plaintiff had incurred $18,077.63 in medical expenses prior to the trial of this action. Plaintiff contends that she will continue to incur medical expenses in the future for treatment. Two of the medical experts testified that a prosthesis, such as that placed in plaintiff’s hip, has a limited lifetime of usefulness and must be replaced periodically. However, they also testified that because of plaintiff’s advanced age, one could only speculate as to plaintiff’s need in the future for such a replacement. There was medical testimony which indicated that the stress from the accident and resulting surgeries had weakened plaintiff’s heart to the point where she is now required to take certain medication regularly for that condition. However, plaintiff failed to adduce any evidence to show what the expenses for such medication were likely to be in the future.

Awards will not be made for future medical expenses which may or may not occur in the absence of medical testimony that they are indicated and setting out their probable cost. Ainsworth v. State Farm Automobile Insurance Co., 399 So.2d 1242 (La.App. 3 Cir. 1981); Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3 Cir. 1980); Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3 Cir. 1978). As was noted above, there was medical testimony that certain drugs, to be taken by plaintiff on a continuing basis, were indicated for the treatment of plaintiff’s heart condition. However, there was no evidence presented to show what the probable cost of the drugs would be. We award plaintiff $18,077.63 for past medical expenses.

Finally, plaintiff contends that she should be awarded $7,995.51 for past and future loss of Supplemental Security Income (S.S.I.) benefits. She argues that she would have received a certain amount of these benefits if she had continued to live by herself. However, they have been drastically reduced because of the fact that plaintiff has moved into her daughter’s home. Plaintiff has cited us no authority, either statutory or in the jurisprudence, allowing the recovery of such benefits, and we can find none. We conclude that the plaintiff may not recover from defendants for the loss of such benefits.

For the above and foregoing reasons, the judgment of the trial court is reversed. Judgment is hereby rendered in favor of plaintiff and against defendants, awarding plaintiff $50,000.00 for general damages and $18,077.63 in special damages for a total award of $68,077.63.

All costs of this appeal and in the trial court are assessed against defendants-ap-pellees.

REVERSED AND RENDERED.

SWIFT, J., dissents and assigns reasons.

CULPEPPER, J., dissents for the reasons assigned by SWIFT, J.

SWIFT, Judge,

dissenting.

In reversing the judgment of the district court the majority has concluded principally that the trial judge’s factual determination, that the walkway and rollover curb involved in this case were not defective or did not present an unreasonable risk of harm to persons using same, was clearly wrong. I cannot agree.

Unlike Morgan v. Hartford Acc. & Indemn. Co., 402 So.2d 640 (La.1981), where the plaintiff walked for the first time through an interior door separating a hallway and another room and tripped and fell because of an abrupt eight inch step down in the floor level at the door which was difficult to see, Mrs. Head walked at least four and one-half feet out of the building and down the gently sloping walkway before she fell at the rollover curb, apparently because she was not looking where she was going. This was at least the sixth time the plaintiff had used this entrance.

The rollover curb was painted yellow. There was a dark mat about six feet in width extending down the walkway and over the curb. However, the painted curb was plainly visible on either side of the mat and I am not convinced from the pictures that its presence was concealed by the mat to any extent. There is no indication that this location was not well lighted. Nor did Mrs. Head testify that she was unaware of and did not see the curbing because of the mat.

The plaintiff did not know whether an approaching car had anything to do with her fall and she did not remember whether or not she and the other woman behind her were talking.

The hospital administrator testified that to his knowledge no one had ever fallen at this entranceway in the 18 years he had been at the hospital. The lady accompanying Mrs. Head said she had used the entrance many times before and had never fallen there.

The testimony of two experts in regard to dangerous characteristics of the entrance was in conflict. Obviously, the trial judge was more impressed by the defendants’ witness.

Although the plaintiff was 71 years of age at the time of the accident, she was not incapacitated in any way. Mrs. Head testified that she took care of her home and yard, went in and out of her house and up and down the steps of her church without assistance and did her own shopping in grocery stores and supermarkets. She wore glasses but said she had no problem seeing.

Although persons exiting the building were not required to keep their eyes glued to the pathway, the hospital could expect that they would proceed with their eyes open and observe what was ahead. Siau v. Rapides Parish School Board, 264 So.2d 372 (La.App. 3 Cir. 1972), writ denied 262 La. 1148, 266 So.2d 440 (La.1972).

The mere fact that an accident occurred does not create any inference that the en-tranceway was defective or created an unreasonable risk of harm to plaintiff or others. To the contrary, the fact that there were no previous falls in 18 years indicates that the entranceway and curbing presented no greater risk of injury than any other. Broussard v. Pennsylvania Miller’s Mutual Insurance Company, 406 So.2d 574 (La.1981).

I am convinced that the trial judge’s findings that the hospital was not negligent and that the doctrine of strict liability was inapplicable because the entranceway was not an unreasonable risk of harm were indeed supported by the record. Certainly they were not clearly wrong. Therefore, I respectfully dissent.

      . A “roll over” curb is designed to allow motor vehicles to pass over it without damaging their tires.

      . The prosthesis consists of a metal ball with a spike on it. The spike is driven into the marrow cavity of the thigh bone and is bonded to the bone by a special glue. The metal ball is then placed in the hip socket and allows normal movement of the leg.

      . These manuals or codes relied on by Scardino were: The Life Safety Code, published by the National Fire Protection Association; Accident Prevention Manual for Industrial Operations, published by the National Safety Council; Building Engineering and Systems Design; Time Saver Standards for Building Types; Best’s Loss Control Engineering Manual; and, The Fire Protection Handbook, 13th Ed., published by the National Fire Protection Association.

      . Morgan was a wrongful death and survival action brought by four of the decedent’s children. Decedent was injured and later died from complications associated with her injuries, when she failed to notice an 8-inch step-down between the hallway and one of the rooms of a church building. The stepdown was hard to notice because the floors in both the hallway and room were the same color. Morgan found defendant liable to plaintiffs both on the basis of negligence and strict liability. Defendant in Morgan was held to be strictly liable to plaintiffs under LSA-C.C. Art. 2317 because the court found that the 8-inch stepdown presented an unreasonable risk of injury to others, i.e., it was defective. Morgan also found that defendant was guilty of negligence, which resulted in injury and death to decedent, because it had failed to warn her of the presence of the stepdown.

      . See Title XVI, § 1612(a)(2) of the Social Security Act.