author: SCHOTT, Judge.

text:
    Dr. N. T. ASPRODITES v. DENTAL MEDICAL PLAZA a Partnership and John H. Hickham, DDS, Individually, Charles Sicard, DDS, Individually, Marcel Remson, DDS, Individually, and W. E. Edwards.
    No. 11857.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied Aug. 17, 1981.

      Michael H. Ellis, Murray, Murray, Ellis, Braden & Landry, New Orleans, for defendants-appellants.
    Ernest N. Souhlas, Sciambra & Souhlas, Metairie, for plaintiff-appellee.
    Before GULOTTA and SCHOTT, JJ., and MELVYN J. PEREZ, Assigned Judge.
   SCHOTT, Judge.

Plaintiff who leased his dental offices from defendants brought this action for a declaratory judgment recognizing that his lease was valid. Defendants reconvened for a declaratory judgment declaring that the lease expired on April 1, 1978. Defendants have appealed from a judgment in plaintiff’s favor. The issue is whether the plaintiff made a timely exercise of his option to renew the lease, considering the terms of the lease and the fact that his occupancy of the premises under the original lease was delayed because the lessors’ construction of the leased premises was not completed by the original inception date of the lease.

Plaintiff and defendants entered into a written lease agreement on May 21, 1968. It provided for a nine-year term commencing April 1, 1969, and ending on April 1, 1978, and gave plaintiff an option to renew the lease for an additional nine-year term subject to the requirement:

“. ... Notice of renewal must be served in writing by registered mail upon Landlord’s rental agent or upon Landlord at least 90 days prior to the expiration of the primary term.”

On January 2, 1978, plaintiff sent the following letter to defendants:

“I wish to take up the option and privilege of renewing my lease for one additional term of 9 (nine) years at a rental of $5.50/sq. ft./anum per under all other terms provided in my lease dated May 21, 1968. My new lease commencing April 1, 1978.
Hoping the above meets with your approval.”

Defendants’ agent testified that this letter was not received until January 17 and the envelope containing the letter was postmarked January 12. Thus, if the expiration date of the primary term of the lease was April 1, 1978, plaintiff exercised his option too late.

However, plaintiff contends that the inception of .the primary term was extended to October 1, 1969, and the trial judge held that the primary term did not begin until January, 1970. Under either theory the notice sent by plaintiff would have been timely.

When the lease was signed the building was to be constructed with the projected date of completion before April 1, 1969. However, construction was delayed, and on December 23, 1968, defendants addressed a letter to plaintiff advising him of this fact and that a September 30, 1969, completion date was then projected. The letter continued:

“It therefore has been requested by the Mortgage Company and the owners that I contact each of the tenants to obtain their signatures on a copy of this letter indicating their acquiescence in an amendment to their lease which in effect will change the date of commencement of the lease to October 1, 1969. The contractor, as well as the dentist owners, are certainly interested in getting the building completed sooner and having it filled to capacity before then and every effort will be made to have you in the building well before the October 1st date.
I would be pleased to discuss this matter with you further if necessary. However, if you are in agreement to the adjusted commencement of the lease being October 1, 1969, I would suggest that you indicate your acquescence by signing your name to the carbon copy attached and returning same to me immediately so that it might be forwarded to the interim and permanent lenders for inclusion in their files. A self-addressed stamped envelope is enclosed for your convenience.”

According to plaintiff he signed the acquiescence to the amendment on the letter and returned it to defendants. Defendants’ attorney who was handling this correspondence testified that he did not recall getting a response from plaintiff. He did recall sending similar letters to four other tenants of the building, getting responses from them and preparing and having executed formal amendments to their leases. In any event, plaintiff’s testimony on this point was vague and was not the basis on which the trial judge decided the case in his favor. We find as a fact that plaintiff did not return defendants’ letter signifying his willingness to amend the inception date of his original lease.

In his reasons for judgment the trial court considered the commencement of the lease as the date when plaintiff made his first monthly rental payment making the following observation:

“. .. The Court considers when a building is ready for occupancy as to when the lease commences and therefore the Court finds as a matter of fact that the rental and occupancy of the building was in January, 1970, and that the Doctor being the plaintiff in this matter had ninety (90) days prior to January 197 , let’s see something. Had ninety (90) days prior to January, the month of January, 1979, in which to exercise his option to renew.”

The lease between the parties contains the following provisions under the caption “POSSESSION”:

“Unless otherwise provided herein, Lessee shall be entitled to possession of the lease premises on the commencement day of this lease. Should Landlord be unable to deliver possession of the lease premises on that date because of delays of prior tenants, or if the requirements of the Tenant requires building alterations or additions, and said alterations and additions have not been completed to a condition permitting occupancy, or should there be any other delay in granting possession not caused by the fault or neglect of Landlord, this lease shall not be affected thereby, and Tenant shall not be entitled to any damages beyond the remission of the rent for such term during which Tenant is deprived of possession.”

This provision demonstrates that the parties recognized the possibility that the premises would not be ready for occupancy on the inception date and agreed that the lease would not be affected thereby except for a remission of the rent for the period of time when the lessee was deprived of occupancy. Since the lease agreement had the effect of law between these parties, C.C. Art. 1901, the judgment of the trial court is inconsistent with that law. The inception date of the lease was not changed and remained April 1, 1969.

It is significant that plaintiff himself was apparently under the impression that the termination date of the lease was unchanged as he admits in his letter of January 2, 1978, in which he attempted to exercise his option that the new lease would commence April 1, 1978. Had he believed his lease had commenced on October 1, 1969, he would have regarded the new lease as commencing on October 1, 1978.

Because of the conclusion we have reached it is unnecessary to consider defendants’ other argument that the lease was subject to termination because of repeated violations of the terms of the lease by plaintiff.

Accordingly, the judgment appealed from is reversed and set aside and plaintiff’s main demand is dismissed. The reconven-tional demand of defendants is granted and there is judgment in their favor and against plaintiff, recognizing that the lease between the parties expired on April 1, 1978. Plaintiff is to pay all costs in both courts.

REVERSED AND RENDERED.


source: Caselaw Access Project

license: Public Domain

text:
    Johnnie Charles, wife of/and Edward CHARLES v. Robert N. WIEGAND and Land Plans, Inc.
    No. 11861.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied Aug. 17, 1981.
    Calvin J. Laiche, Westwego, for defendants-appellants.
    Gregory W. Roniger, Dalton, Gillen & Roniger, Jefferson, for plaintiffs-appellees.
    Before GULOTTA and SCHOTT, JJ., and MELVYN J. PEREZ, Assigned Judge.
   SCHOTT, Judge.

Defendants have appealed from a judgment in favor of plaintiffs for $7,000. In this court their principal contention is that the trial court prevented them from putting on evidence to support their reconventional demand, and they ask that the case be remanded to the trial court in order to accomplish that purpose. However, we see the issue as whether defendants were entitled, as a matter of law, to recover on their reconventional demand conceding that their allegations of fact were proved at the trial.

Plaintiff’s suit stems from an agreement to purchase from defendants Lots 6 and 7 on Sister Court in Glendella Subdivision of Jefferson Parish. The agreement signed on June 11, 1978, provided that the property was to be sold for $29,000 on terms of all cash to the sellers with the purchasers agreeing to deposit with seller’s relator $300 each month until the act of the sale was to be passed on or before April 21, 1979. The agreement also provided that upon acceptance of the offer purchaser would deposit with seller’s agent $5800, which was paid on June 25, 1978.

The agreement described the lots as being located “in the proposed commercial development of Glendella Subd.” and the testimony establishes that defendants were to undertake a re-subdivision of the property in order to create the lots which were the subject of this agreement. An ordinance authorizing the subdivision was passed by the Jefferson Parish Council on September 13, 1978, but the effectiveness of this ordinance was conditioned upon defendant’s posting a bond with the Parish within 30 days after the ordinance was passed. This was never done and the subdivision with the attendant creation of Lots 6 and 7 was never accomplished by the time the agreement expired on April 21, 1979. In the meantime plaintiffs made the $300 payments in July, August, September and October upon being reassured by defendants that the subdivision of the lots would come about. Plaintiffs were asked by defendants to grant extensions but none were ever given and plaintiffs made no further payments after October 23, 1978. Under these facts there is no question that plaintiffs were entitled to recover on their main demand for the $7,000 paid to defendants. The agreement provides that sellers shall deliver a merchantable title to purchasers, and their inability to do so by April 21, 1979, would render the contract null and void, reserving to purchasers the right to the return of their deposit.

However, defendants filed on July 27, 1979, a reconventional demand on the basis of a second agreement signed by the parties on November 12, 1978, under which plaintiffs were to purchase Lots 58, 59, 60 and 38 of Glendella Subdivision. This agreement provided for a sale price of $25,800 cash to the sellers, the purchasers to deposit $300 on December 21, 1978, and $300 on each succeeding 21st of each month “until 30% equity is accumulated.” The act of sale was to be passed on or before May 21, 1980, and purchasers were to deposit with seller’s agent upon acceptance of the offer $300 in cash and a $4860 note payable on May 21, 1980.

In the reconventional demand defendants sought as an offset against plaintiffs’ main demand the sum of the $300 monthly installments allegedly due them by plaintiffs on the second agreement to purchase and sell. Plaintiff Edward Charles admitted at the trial on May 8, 1980, that he had not made the $300 payments on the second real estate contract, and when asked why he had not done so he testified as follows:

“A. First of all, when I purchased this property and I already had failures on the part of Mr. Weigand to perform rightfully in purchasing property with him before, say like, 6 and 7,.it seems to be a default or a breach of contract, where it was so much money that was put down, say five thousand eight hundred dollars with no questions asked whatsoever on his promises and on his contract, with his plans of the development, and I don’t see why I should have paid, say, three hundred dollars down and pay up to, say, four thousand eight hundred dollars and then Mr. Wei-gand could also say, well, I have five thousand eight hundred dollars plus three hundred dollars a month on 6 and 7 which came up to seven thousand and then pay up to four thousand eight hundred dollars and in asking him for that money, he refused me and then paying that amount of money, say four thousand eight hundred dollars, and then he tells me the same thing. In other words, that type of money could be used elsewhere. Why should he hold it when it’s not drawing any interest? Why should he have that amount of money paid to him when he don’t really know where 7 my first seven thousand dollars is?”

Because the trial court limited defendants’ presentation of evidence they now seek a remand. The trial judge reasoned that it was premature for defendants to assert rights under the second contract which provides for an act of sale to be passed after the date of the trial. Regardless of whether this view was correct or not defendants were not prejudiced because they established by plaintiff’s own admission that the payments on the second contract were not made and that contract was placed in evidence. The legal effects of that second contract are ascertainable from the terms of the contract itself and require no further evidence.

Defendants’ reconventional demand was a plea in compensation under C.C.P. Art. 1062, the substantive law concerning which is found in C.C. Arts. 2207 through 2216. It takes place only between two debts which are equally liquidated and demandable, Art. 2209. That plaintiff’s claim against defendants was liquidated and demandable when the suit was filed is beyond question. Even in their answer to plaintiff’s suit defendants admitted that the contract on Lots 6 and 7 spoke for itself, that the contract would be considered null and void in the event defendants could not deliver merchantable title, and that the deposit made by plaintiffs was to be returned by defendants. On the other hand, defendants’ claim for compensation was far from liquidated considering the testimony of plaintiffs concerning past dealings between the parties and the failure of defendants to contradict this testimony. From the time the first contract was signed until plaintiffs made their last payment on the first contract on October 23, 1978, their inquiries concerning defendants’ progress on the development of the subdivision were met with excuses and requests for further extensions. The record does not show exactly when plaintiff finally lost faith in defendants, but it was established that defendants’ last attempt to subdivide was made when the ordinance was passed on September 13. Defendants’ failure to post the required bond by October 13 eliminated any hope for the subdivision to be accomplished unless defendants started the process over. Apparently, plaintiffs still clung to the hope that defendants might perform when they made their payment on October 23 and still had faith in them when they signed the second contract on November 12. By December 12 when the first payment would have been due on the second contract plaintiffs had finally realized that defendants were not going to perform on the first contract under which they had already collected $7,000 from plaintiffs. There was good reason for plaintiffs to withhold payments on the second contract under all of these circumstances. Furthermore, there is a fair inference from the record that title could not be delivered under the second contract. There is no evidence or even a proffer of proof that defendants would be in a position to convey merchantable title under the second contract scheduled to expire some two weeks after the date of the trial. It seem clear that there were equities and facts on plaintiffs’ side which indicated that defendants’ reconventional demand was not equally liquidated and demandable with respect to plaintiffs’ main demand. Thus, the re-conventional demand was properly dismissed.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: ELLIS, Judge:

text:
    James RALEY v. James CARTER, et al.
    No. 14118.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.

      James J. Zito, Baton Rouge, for plaintiff and appellee.
    Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for defendants and appellants.
    A. Shelby Easterly, III, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants and appellees.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

The issues raised by defendant-appellant James Carter as to liability, contributory negligence and quantum are adequately disposed of by the reasons for judgment assigned by the trial judge, which we attach hereto as an appendix and adopt as our own.

The final assignment of error relates to the failure of the trial judge to reduce the judgment rendered herein by 75 per cent because three of the four defendants settled with plaintiff on the morning of the trial, and were released by him.

The record shows that on the morning of the trial, the suit was dismissed, with prejudice, as to F. D. Foster, Leonard W. White and George C. Anderson, all of whom were alleged by plaintiff to have failed in various duties owed him, and consequently to have been solidarily liable with defendant James Carter for plaintiff’s injuries. The suit was then tried as to Mr. Carter and his insurer, without objection from either party. No evidence was adduced by either party tending to prove or negate liability on the part of Messrs. Foster, White or Anderson.

It is settled law that, when there are four joint tortfeasors, and three of them are released by the plaintiff, plaintiff can only claim one fourth of the total award made in a suit against the remaining tortfeasor. Article 2100, Civil Code; Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). The negligence of those parties released from the suit may remain an issue in the trial, since the remaining tortfeasor is entitled to a reduction of the award only if the parties released are proved to be joint tortfeasors. If they are found not to be liable, the remaining tortfeasor is not entitled to a reduction. Harvey v. Travelers Insurance Company, supra. Wall v. American Emp. Ins. Co., 386 So.2d 79 (La.1980).

In cases in which the point of the liability of the released parties has been raised by supplemental pleadings, or in which the pleadings have been enlarged by the receipt of evidence on the point without objection, courts have placed the burden of proving the negligence of the released tortfeasors on the remaining defendant, despite plaintiff’s allegations of their negligence. See Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973); Wall v. American Emp. Ins. Co., supra.

Under certain circumstances, however, the plaintiff’s allegations of negligence and liability on the part of those released from the suit may become binding on plaintiff. In the case of Danks v. Maher, 177 So.2d 412 (La.App. 4th Cir. 1965), there was a settlement with one defendant, during the course of the trial, and the trial was continued as to the other two defendants. When considering the question of whether the released defendant was a joint tortfeasor, the court said:

“Ordinarily, on this question the burden of proof would rest upon the hospital and its insurer for they are the parties who now make that assertion. See Harvey v. Travelers Insurance Co., infra, 922. But here the case was tried practically to its completion before the settlement agreement was entered into and before the motion to dismiss was made. Until then the burden we are discussing was upon the plaintiff and appellants had no forewarning at all that they would be forced to carry such a burden. Under these circumstances it would be manifestly unfair to hold that the burden of such proof rests upon the appellants. However, we believe it unnecessary to make any determination relative to that burden.
“Plaintiff’s petition pleads the doctrine of res ipsa loquitur, alternatively alleges joint and concurrent negligence on the part of the doctor and the hospital, and prays only for a judgment in solido against all of the defendants. And in solido judgment could be rendered against all defendants only if the doctor and the hospital are joint tort-feasors. We are of the opinion that plaintiff is bound by her pleadings. Wilson v. Scurlock Oil Company, La.App., 126 So.2d 429. Accordingly, insofar as the present question is concerned, we hold that the doctor and the hospital are joint tort-feasors.”

In this case, there is no evidence in the record from which we might determine the negligence or non-negligence of the parties released. The point must necessarily be decided against the party having the burden of proof. As in the Danks case, supra, we are of the opinion that it would be inequitable to place the burden of proving the negligence of the released parties on the remaining defendant, when the settlement and release took place on the morning of the trial. At that trial, plaintiff must have been prepared to make proof of their negligence, whereas the remaining defendant was only prepared to go forward with his own case. Under the circumstances, we find plaintiff to be bound by his pleadings, and that the released defendants are joint tortfeasors.

The trial judge made a total award of $140,878.98 for plaintiff’s damages, which we have found to be well within the bounds of his discretion. However, the judgment must be reduced by 75 per cent in the light of our finding above.

The judgment appealed from is therefore amended so as to reduce the amount thereof to $35,219.74, and, as amended, it is affirmed. Costs of this appeal shall be equally shared by the parties hereto. All other costs shall be borne by defendants.

AMENDED AND AFFIRMED.

APPENDIX

This case involves a suit by an employee against a supervisor of his employer, commonly referred to as an “executive officer” liability suit. The plaintiff, James C. Raley, alleges in his petition that on February 4, 1976, he was involved in an accident at the Shell Chemical Plant in Geismar in this Parish. At the time of the alleged accident, the plaintiff claims that he was employed as a millwright by Continental Fremont Company, which was under contract for the construction of a large water purification tank at the Shell Plant site. The plaintiff alleges that at the time of the accident, he was directing a crane operator in lifting and placing certain materials from the outside of, to the inside of the partially constructed tank. While performing his duties, the plaintiff claims that he was required to walk along a catwalk surrounding the tank, and that in doing so, he stepped into an open hole in the catwalk, thereby incurring injuries. In his petition, the plaintiff named the following individuals as defendants, whose negligence he claims caused the said accident which resulted in his alleged injuries and damages: James Carter, job superintendent of Continental Fremont Company; Wes White, safety officer of Shell Chemical Company; and, F. D. Foster, plant manager of Shell Chemical Company. Also named as a defendant was Nationwide Insurance Company, alleged by the plaintiff to be the liability insurer of Continental Fremont Company.

The plaintiff further alleges in his petition that as a result of the said accident, he has sustained serious injuries, including a herniated lumbar disc for which surgery was required. He claims that the said accident has caused him substantial physical and mental pain and suffering and has resulted in his being rendered permanently disabled. He also alleges that the said accident has caused him to lose wages and to incur medical expenses in the past, and that, in the future, he will lose additional wages and incur additional medical expenses.

All of the defendants answered the plaintiff’s petition by denying generally that they are liable for the plaintiff’s alleged injuries and damages, and alleged that the plaintiff’s alleged injuries and damages were caused by his sole negligence, or alternatively, by his contributory negligence.

The plaintiff later amended his petition twice: first to increase the amounts of damages he allegedly suffered in the accident; and second, to name George C. Anderson, project manager of Shell Chemical Company, as an additional defendant to the lawsuit, alleging that Anderson was also liable, along with the other named defendants, for the alleged injuries and damages suffered by the plaintiff as a result of the alleged accident. All defendants denied the allegations of the amended petitions.

Defendant Nationwide Insurance Company, as workmen’s compensation insurance carrier for Continental Fremont Company, thereafter filed a petition of intervention, seeking recovery of the workmen’s compensation and medical benefits paid to the plaintiff following the alleged accident.

The case was set for trial on its merits on November 8, 1979. On the morning of the trial, the plaintiff and defendants F. D. Foster, Wes White and George C. Anderson, the three employees of Shell who were made defendant, entered into a settlement agreement. Because of said settlement, the plaintiff’s suit and the intervention suit of Nationwide Insurance Company were dismissed insofar as the said three individual defendants were concerned.

Also prior to trial, all defendants entered into a stipulation concerning the intervention claim of Nationwide Insurance Company. The written stipulation provided in part that if a judgment was rendered in favor of the plaintiff and against defendants James Carter and/or Nationwide Insurance Company, then the judgment would be reduced by the amount of workmen’s compensation and medical benefits previously paid to the plaintiff as set forth in the stipulation. The stipulation further provided that if a judgment was rendered in favor of the plaintiff and against any defendant, then said judgment would provide that Nationwide Insurance Company, as intervener would be excused from all future workmen’s compensation and medical expense benefits up to the amount of the judgment in the plaintiff’s favor, after reduction for workmen’s compensation and medical expense benefits already paid.

Testifying at the trial were the plaintiff; defendant James Carter; Sam Ashley, one of the plaintiff’s co-workers; Joe W. Bennett, plaintiff’s union’s business representative; and Jan W. Duggar, an economist called by the defendant. Introduced into evidence at the trial were the depositions of Dr. James A. Poche, one of the physicians who treated the plaintiff; G. Randolph Rice, an economist called by the plaintiff; and Mr. Bennett, although he did, as noted above, make a limited appearance at the trial. It was stipulated at trial that no adverse presumption would be drawn from the plaintiff’s failure to call Dr. Ricard Caro and Dr. Charles R. Strange, physicians who also treated the plaintiff. The parties further stipulated during the trial that the testimony of Sam Allen and John Raley, also co-workers of plaintiff, if called to testify, would be substantially the same as that of Sam Ashley as to the facts of the case, and that Gayle Raley, if called to testify, would corroborate the testimony of her husband, the plaintiff, as to complaints of the injury to his back.

Many of the facts of this case are not in dispute. On February 4, 1976, the plaintiff was employed as a millwright foreman by Continental Fremont Company which was under contract with the Shell Chemical Company to construct a large water purification tank at the Shell plant site in Geis-mar in this Parish. Continental Fremont’s supervisor at the construction site was defendant James Carter. On the day of the accident, a four man union crew was on the job. The crew had been hired by Continental Fremont through defendant Carter and included the plaintiff and his brother, John Raley, also a millwright, and the two iron-workers, Sam Allen and Sam Ashley. These four workers had been on the job for about four weeks prior to the accident. Prior to the accident several unnamed boilermakers had also been involved in the construction of the tank.

The tank being constructed was circular in design. On the day of the accident, the twenty foot high walls of the tank were in place but the roof of the tank had not yet been constructed. All along the outside top of the tank was a catwalk or launder which was approximately two (2') feet wide with walls measuring four (4') to five (5') feet high on each side. Although after completion of the tank the launder is used as part of the tank’s drainage system, during the construction of the tank, the launder was used as a catwalk or passageway by the workers. Two drainage holes, in different areas, were cut into the launder. These holes covered the entire width of the launder and measured approximately two (2') feet square. Sometime prior to the accident, the drainage holes were covered by four (4) pieces of two (2") inch by four (4") inch lumber. The pieces of lumber were laid side by side and almost completely covered the drainage holes.

On the day of the accident, the construction workers were involved in installing materials and equipment on the inside bottom of the tank. A small crane was used to transport the materials and equipment from the outside to the inside of the tank. When such work is required to be done, one of the workers gets inside the launder and positions himself in such a way so that he could see what was going on in the inside and outside of the tank. This worker would act as a “flagman”, giving instructions by hand signals to the operator of the crane so that the equipment and materials could be safely set down inside the tank. The flagman could not assume a stationary position inside the launder, but rather was required to move along the inside of the launder so as to always be able to see the crane operator and the other workers inside the tank at the same time.

On February 4, 1976, the plaintiff was required to be such a flagman. He claims that while flagging the crane, he stepped on the boards which covered one of the drainage holes, whereupon the boards buckled apart causing him to fall into the drainage hole resulting in the injuries and damages complained of. Following the accident, the plaintiff received first aid on the jobsite, later consulted several doctors and ultimately had surgery to remove a herniated disc in his lower back.

The issues to be decided by the Court in this case are as follows:

1. Was the accident in question caused by the negligence of James Carter?
2. If so, did the plaintiff commit any acts of negligence which contributed to the cause of the accident?
3. If the accident was caused by the negligence of James Carter and the plaintiff was not contributorily negligent, then what amount of damages is the plaintiff entitled to recover from James Carter and its insurer, Nationwide Insurance Company?
4. Finally, if judgment is rendered against James Carter and Nationwide Insurance Company, are they entitled to a reduction of the judgment because of the settlement reached between the plaintiff and defendants F. D. Foster, Wes White and George C. Anderson?

The attorneys for both the plaintiff and the defendants submitted excellent briefs to the Court following the trial of this matter.

Was the accident in question caused by the negligence of James Carter? Canter v. Koehringh Company, 283 So.2d 716 (La.S.Ct., 1973) clearly sets forth the criteria necessary for someone to be considered an “executive officer” and the tests for finding liability on such executive officer. The guidelines set forth by Canter are as follows:

“1. The principal or employer owes a duty of care to the third person, breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent or employee has breached this duty through personal fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal fault, personal liability cannot be imposed upon the officer, agent or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.” 283 So.2d at 721.

Accordingly, for someone to be considered an “executive officer” within the scope of the cause of action asserted herein by the plaintiff that person must have some personal contact with the responsibility towards the injured employee. The evidence introduced showed that James Carter was Continental Fremont’s supervisor on the job and totally in charge of the construction of the tank. He had been employed by Continental Fremont for quite some time and had constructed and supervised construction of several similar tanks prior to the construction of the Shell tank. In his sole and uncontrolled discretion, he hired and fired the construction workers. He assigned duties to them and inspected the work being done several times a day. He was the plaintiff’s immediate supervisor at the time of the accident. The Court therefore holds that James Carter was such an “executive officer” and personally owed the duty to the plaintiff and his fellow workers to look out for their safety and to avoid any unreasonable risks of harm to them.

Has James Carter breached the duties he owed to the plaintiff? Evidence introduced showed that prior to the plaintiff’s fall, Sam Allen, one of the ironwork-ers had also fallen into the same drainage hole in the launder, although not having received serious injuries. The plaintiff also introduced evidence to show that one of the boilermakers had also previously fallen into the same drainage hole. Carter admitted that he was aware of the prior fall of Sam Allen, but denied any knowledge that one of the boilermakers had fallen into the same drainage hole. Conflicting evidence was introduced as to how long prior to the plaintiff’s fall the boards had been placed over the drainage hole and who had actually set the boards in place. Carter testified that he had covered the drainage hole on the same day it was cut out of the launder. The plaintiff and his witnesses, however, testified that the boards were placed by them over the drainage hole after Sam Allen fell into the hole because Carter refused to take care of the problem.

The evidence preponderates in favor of the plaintiff and against Carter on the issue of Carter’s negligence. Carter had full knowledge that at least one person had fallen into the hole prior to the plaintiff’s fall. Regardless of who placed the boards over the drainage hole and when they were so placed, it is obvious that the boards insufficiently covered the drainage hole. It was Carter’s duty and obligation to remedy a condition known by him to be dangerous. Yet with such knowledge, Carter failed to take the reasonable and necessary steps to remedy the situation. The evidence showed that the boards used to cover the twenty-four (24) inch hole were only about twenty-eight (28) inches long, thereby leaving only about two (2) inches of board extending out from the drainage hole. The Court is not convinced that the situation could not have been made safer by Carter prior to the accident. The boards could have been made more secure or a larger solid piece of material could have been found or purchased. The Court therefor holds that a proximate cause of the accident complained of by the plaintiff was the negligence of James Carter.

Was there any negligence on the part of the plaintiff which contributed to the cause of the accident in question? In determining whether an employee is contributorily negligent, the Court must look to the rules set forth in several cases. The Court in Billedeaux vs. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978) concluded that:

“For an employee to be held contribu-torily negligent and/or to have assumed the risk of the harm which ultimately resulted in his injury, the defendant must prove, by a preponderance of the evidence, that the plaintiff voluntarily and knowingly exposed himself to the danger which resulted in his injury. That determination requires a dual finding of (1) a known and obvious danger and (2) a readily available reasonable alternative.” 355 So.2d at 1348.

Likewise, in Miller v. Employers Mutual Liability Insurance Company of Wisconsin, 349 So.2d 1353 (La.App.2d Cir. 1977), a similar rule was announced:

“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.” 349 So.2d at 1362.

Hence, for an employee to be con-tributorily negligent, the Court must therefore find that (1) the danger and risk involved were obvious to the employee, and (2) even with such knowledge, an alternative course of action was readily available to the employee. The law is clear that the burden of proving contributory negligence is on the party asserting such defense.

Several times during the trial, the plaintiff stated that he knew that Sam Allen had previously fallen into the same drainage hole. The plaintiff also indicated that one of the boilermakers, whose identity was not known, had also previously fallen into the same drainage hole. It cannot be said, therefore, that the plaintiff did not have knowledge of the dangerous condition within which he was required to work.

Were alternative courses of action available to the plaintiff which would allow him to avoid the known danger? At the trial, the plaintiff introduced evidence in an attempt to show that at the time he fell into the drainage hole as he was flagging the crane. The defendants introduced evidence in an attempt to prove that the plaintiff fell into the drainage hole after he had finished flagging the crane. Although it was not disputed that to properly and safely direct the crane operator the flagman was required to move along the inside of the launder a distance of fifteen (15) to twenty (20) feet, conflicting evidence was introduced as to whether the drainage hole in question was encompassed within that fifteen (15) to twenty (20) foot area. The plaintiff’s witnesses indicated affirmatively, while the defendants’ witnesses asserted otherwise. Although some of the evidence was contradictory, the Court finds that the evidence preponderates in favor of the plaintiff on the issue of whether or not the plaintiff was flagging the crane at the time he fell into the drainage hole. The Court is convinced that the plaintiff could not have flagged the crane from any position other than the position where he actually undertook such operation. The defendants have failed to prove that any other reasonable alternatives were available to the plaintiff. The Court, therefore, holds that the accident was not caused by any negligence on the part of the plaintiff.

The Court must now decide what amount of damages, if any, the plaintiff is entitled to recover from the defendants because of his alleged injuries. The plaintiff’s major complaint concerning his injuries is that the fall in question herniated the left side of his lumbar disc at the L5 — SI level. A short time after the accident, Dr. James A. Poche, Jr. surgically removed the herniated disc. According to Dr. Poche, whose deposition was introduced into evidence, although such an operation does involve some risk to the health and life of the patient, the plaintiff’s operation and recovery were successful and without any major complications. The plaintiff recovered well from his operation and was discharged from Dr. Poche’s care in May of 1976. The plaintiff returned to work, as a teacher-coach, some six months after the accident.

According to Dr. Poche, the only medical expert whose testimony was introduced into evidence, as a result of the accident in question and surgery, the plaintiff has about a five (5%) per cent anatomical disability, and, functionally, will be restricted from lifting objects weighing more than twenty-five (25) to thirty-five (35) pounds.

Much evidence was introduced to illustrate how much lifting of objects weighing more than twenty-five (25) to thirty-five (35) pounds is required in the millwright profession. The plaintiff attempted to show that millwrights are regularly required to lift objects weighing more than thirty-five (35) pounds. The defendants attempted to show otherwise. The Court believes that although a millwright may not be required to lift objects weighing more than thirty-five (35) pounds every day, some such heavy lifting is required to be done.

It should be noted that the plaintiff is trained as a teacher-coach and prior to the accident in question had been so employed and is presently so employed. Although Dr. Poche did indicate that it would be wise for the plaintiff not to return to construction work, he did specifically testify that the plaintiff could do all of the duties required of a teacher-coach with the exception of heavy lifting. The Court believes that very little, if any, heavy lifting is required as a teacher-coach.

The plaintiff is entitled to an award of general damages from the defendants for the pain and suffering, both mental and physical and the disability he has and will incur as a result of the accident in question. Considering the excellent recovery of the plaintiff from his injuries and the fact that the plaintiff should have no problems continuing to work as a teacher-coach, the plaintiff is entitled to recover from the defendants, in solido, the sum of thirty-five thousand and no/100 ($35,000.00) dollars as general damages for his mental and physical pain and suffering and disability, both past and future.

The plaintiff’s final item of damages concerns his alleged loss of wages prior to trial and his future loss of wages or earning capacity as a result of the said accident and injuries received. The plaintiff will not be able to return to work as a millwright, but has returned to work as a teacher-coach. The plaintiff alleges that he has earned and will be earning less as a teacher-coach than he would have earned as a millwright, and that he is entitled to recover from the defendants the difference in earnings between the two professions. The defendants allege that the plaintiff has earned more and will be earning more as a teacher-coach than he would have earned as a millwright and therefore has and will not loose any wages as a result of the accident.

Both parties presented the testimony of expert economists in an attempt to prove their respective allegations. The plaintiff offered the testimony of George Randolph Rice, an economies professor at Louisiana State University. Testifying at the trial for the defendant was Jan W. Duggar, also a professor of economics at Louisiana State University. The conclusions reached by these experts were quite different. Dr. Rice felt that the plaintiff’s past and future lost wages totaled $283,016.00 if the plaintiff does not receive any income during the summer months he does not teach, or $180,-508.00 if the plaintiff receive an average of $2,500.00 during the summer months. Dr. Duggar concluded however, that prior to trial the plaintiff had lost a total of $5,665.00 in wages and will lose no wages in the future and will not have any decrease in his earning capacity as a result of the accident in question.

It seems that both experts used similar formulas to arrive at their conclusions. Basically, both began by determining the average yearly earnings for a millwright in the year 1975 and then proceeded to calculate what amounts the plaintiff could have been able to earn as a millwright prior to trial and what amounts the plaintiff could have earned subsequent to the trial during his work-life expectancy, determined to be 23.3 years from the date of the trial.

In order to determine the amount of income the plaintiff could have earned prior to trial, the experts increased the 1975 base salary by actual wage increases given to millwrights in the plaintiff’s union prior to the trial. The total possible pretrial income of a millwright was then compared to the total actual income received by the plaintiff as a teacher-coach between the date of the accident and the date of the trial.

In order to determine the extent of the income to be lost by the plaintiff in the future, the experts first determined what a millwright could have earned during the plaintiff’s 23.3 year work-life expectancy by increasing the amount they had determined a millwright could be earning at the time of trial by a two (2%) per cent per year of productivity and also by six and one-half (6V2) per cent per year for inflation. In other words, the plaintiff could have expected a yearly increase in income in the amount of eight and one-half (8V2) per cent.

In order to determine the present value of the expected future earnings a discount rate of eight (8%) per cent must be deducted from each year’s projected earnings. The discounted figure is arrived at by dividing the first year’s earnings by 1.08; the second year’s earnings by 1.08; the third year’s earnings by 1.08; etc. through 23.3 years.

The present value of the total projected earnings of a millwright was then compared to the present value of the total projected earnings of a teacher-coach, which was calculated using the same formula as was used in determining the present value of possible future earnings of a millwright. It was determined that the earnings of a millwright and that of teacher-coach would increase each year at the same rate.

The parties do not dispute that between the date of the accident and the date of the trial the plaintiff earned a total of $44,-932.00 and that at the time of trial, the plaintiff had a yearly salary of $16,215.00 as a teacher-coach. There is however, much dispute between the parties concerning what amounts the plaintiff could have earned as a millwright both prior to trial and during the plaintiff’s work-life expectancy.

It is obvious that the reasons for such a difference of opinion between the experts is that they had different opinions as to the extent of earnings of a millwright on or at about the time of the accident. Dr. Rice concluded that a millwright’s yearly earnings at that time was approximately $20,-000.00. Although it is not totally clear, Dr. Rice seems to have arrived at this figure from two sources. First, Dr. Rice indicated that Mr. Joe Bennett, the plaintiff’s union’s business representative, suggested to him that in 1975, a millwright in the plaintiff’s union could have earned $20,000.00. The Court feels that Mr. Bennett’s statement was not corroborated with other evidence and is therefore unacceptable. Second, Dr. Rice testified that nationally in 1975, construction workers worked an average of thirty-seven (37) hours per week for fifty (50) weeks a year. By multiplying the total number of hours worked per year (1850) by the hourly salary of the plaintiff at the time of the accident ($10,555), Dr. Rice concluded that the plaintiff could have been earning more than $20,000.00 for the year of 1975. The Court cannot accept Dr. Rice’s conclusions that between the date of the accident and the time of trial the plaintiff could have worked thirty-seven (37) hours a week for fifty (50) weeks per year. Dr. Rice specifically stated that said average number of yearly working hours applied to construction workers generally and not specifically to millwrights. Furthermore, the estimated number of working hours were a national average and it is obvious that Dr. Rice did not consider or attempt to consider the average yearly number of working hours for millwrights in the plaintiff’s union and other unions in the general area. The Court cannot therefore accept Dr. Rice’s conclusion that at or about the time of trial the plaintiff could have earned $20,-000.00 per year as a millwright.

Dr. Duggar, on the other hand, determined that the average yearly salary the plaintiff earned as a millwright in the two and one-half (2Vfe) years immediately preceding the accident was $10,766.00. The Court cannot consider this amount as the average salary of a millwright at or about the time of the accident because, from the evidence introduced, it is clear that the plaintiff had personal problems prior to the accident and was not able to work full time and could have earned more prior to the accident. Dr. Duggar also testified that, in his opinion, the average yearly salary for a millwright in the plaintiff’s union at or about the date of the accident was $13,-981.00. He arrived at this figure by averaging out the 1975 salaries of fifty millwrights in the plaintiff’s union. From a list of union members supplied to him, he basically chose the fifth, tenth, fifteenth, etc. person on the list and computed the average salary of the fifty individuals chosen.

The Court cannot however accept Dr. Duggar’s conclusion that the plaintiff could have earned $13,981.00 as a millwright at or about the time of the accident. Dr. Duggar failed to consider the earnings of millwrights in other unions in this general area. More importantly though, Dr. Duggar did not lay the proper foundation to show that his conclusion was reasonable. The Court is not convinced that merely choosing fifty individuals off of a list was the proper way to determine the average yearly salary for the entire millwright membership in the union. Dr. Duggar failed to produce enough evidence to show that the average computed by him was a true average.

Although the formula used by the experts to determine past and future lost wages is reasonable and acceptable, the ultimate conclusions reached by the experts must be disregarded because the figures they used as their starting point are unacceptable, as discussed above. The Court must therefore determine for itself, in the most equitable manner in light of all of the evidence introduced, what was the average yearly salary the plaintiff could have earned as a millwright at or about the time of trial. Since much of the evidence introduced on this particular issue was uncorroborated, the Court has determined that the parties would be best served and equity done by the Court’s averaging out the conclusions of the experts as to the earnings of a millwright at or about the time of trial. It is therefore the ruling of the Court that at or about the time of the accident, the plaintiff could have been earning a yearly salary of $16,990.50 as a millwright.

In order to determine wages lost prior to trial, the Court must increase the plaintiff’s said wages by eight and one-half (8V2%) per cent per year. In doing so, the Court has determined, as shown on Exhibit “A” attached to this judgment, that the plaintiff could have earned $71,703.17 as a millwright between the date of the accident and the date of trial. Since the plaintiff actually earned only $44,932.00 as a teacher-coach during that period, the plaintiff is entitled to recover from the defendants, in solido, the difference thereto, being the sum of Twenty-Six Thousand Seven Hundred Seventy-One and 17/100 ($26,771.17) Dollars.

As also shown on the attached Exhibit “A”, at the time of the trial, the plaintiff could have been earning a yearly salary of $21,701.78 as a millwright. By utilizing the formula adopted by the experts to determine the present value of future wages that could have been earned by the plaintiff as a millwright during his work expectancy of 23.3 years (i. e., yearly increases for productivity and inflation and discounting the total to arrive at the present value of the future wages), the Court has determined, as shown on Exhibit “B” attached to this judgment, that the present value of the possible earnings of the plaintiff as a millwright during his work-life expectancy is $492,819.58.

In determining the possible future earnings as a teacher-coach, the Court has determined that as of the time of trial, the plaintiff could be earning an additional Two Thousand and No/100 ($2,000.00) per year during the summer months when he is not employed as a teacher-coach. Just as the plaintiff’s salary as a teacher-coach should increase by eight and one-half (8V2) per cent per year, his earnings during the summer months should also increase by that same percentage. Therefore, considering his summer earning potential, as of the time of trial, the plaintiff could have been earning $18,215.00 as a teacher-coach. As shown on the attached Exhibit “C”, the present value of the possible earnings of the plaintiff as a teacher-coach with his summer earning potential during his work-life expectancy is determined by the Court to be $413,711.77. The plaintiff is entitled to recover from the defendants, in solido, the difference between the present value of the projected future earnings of a millwright and the present value of the projected future earnings of a teacher-coach, namely the sum of Seventy-Nine Thousand One Hundred Seven and 81/ioo (79,107.81) Dollars.


author: COVINGTON, Judge.

text:
    DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE v. Robert J. RIGBY.
    No. 14158.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied July 27, 1981.
    James C. Dixon, Staff Atty., Dept, of Public Safety, Baton Rouge, for appellant.
    J. Michael Small, Alexandria, for appel-lee.

      Laura Denson Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director of the Dept, of State Civil Service, Baton Rouge.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Robert J. Rigby was a permanent classified employee of the Department of Public Safety, Office of the State Police, State of Louisiana, and employed as a State Police Sergeant at the time of his termination. Rigby had worked with the Department for about 12 years when he received a letter dated October 18, 1978, over the signature of Colonel Grover W. Garrison, Deputy Secretary, stating that he was being removed from his position effective October 19,1978. As cause for removal, Rigby was charged with operating a State Police motor vehicle contrary to written restrictions, removing a vehicle involved in an accident from the scene prior to investigation, leaving a damaged commercial building unsecured, and operating a departmental vehicle under the influence of intoxicating beverages. He was also charged with having a personal social relationship with Camille T. “Sonny” Giordano, a four-time convicted felon, currently on federal probation, and going to Las Vegas, Nevada, with Giordano during the dates of June 10, 1977 through June 13, 1977. The letter of removal also refers to previous disciplinary actions taken against Rigby.

The employee appealed to the Louisiana Civil Service Commission, complaining of his removal. As the bases for appeal, Rigby alleged that the conduct charged in the letter of removal did not occur as alleged by the appointing authority, that various non-merit factors were considered in the authority’s decision to terminate him, that the conduct described in the letter did not constitute legal cause for dismissal, that his termination was arbitrary and in violation of Civil Service Rules, and that he had been discriminated against.

After consideration by the Commission on appeal, it rendered its opinion reinstating Robert J. Rigby to his former position effective October 19,1978, awarding him back pay less certain deductions, and ordering that the details concerning Rigby’s dismissal be removed from his personnel record.

The Office of State Police, Department of Public Safety, has perfected this appeal from the adverse ruling of the State Civil Service Commission. We affirm.

The standards of appellate review of findings of fact in Civil Service Commission cases necessarily must be the same as those which exist with regard to cases arising in the trial courts. The reviewing court should not disturb the factual findings of the trier of fact in the absence of manifest error. Arnold v. New Orleans Police Department, 383 So.2d 810 (La.App. 4 Cir. 1980), writ denied, 385 So.2d 274 (La. 1980); Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4 Cir. 1978).

While a person who has gained permanent status in the classified state service may be subjected to disciplinary action, such as dismissal, if the conduct complained of by the appointing authority impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged, Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962), the burden of proving that the action taken against the disciplined employee was proper and warranted falls on the appointing authority. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1 Cir. 1978), writ denied, 364 So.2d 122 (La. 1978); Stiles v. Department of Public Safety, Drivers' License Division, 361 So.2d 267 (La.App. 1 Cir. 1978); see also La.Const. 1974, Art. 10, § 8. We find, as did the Commission, that the appointing authority did not carry this burden.

The evidence on the question of use of the departmental vehicle in connection with the single car property damage accident on November 30, 1977, shows only a simple fault accident for which Rigby received a letter of reprimand from Colonel Garrison dated March 3, 1978, shown as Appendix I.

In discussing this accident, the Commission made the following finding of fact:

“On November 29, 1977, appellant [Rig-by] worked the day shift. He arrived at work at approximately 6:00 a. m. and left at approximately 3:00 p. m. After work, appellant rode with Sergeant Louviere in Louviere’s assigned State Police vehicle. Appellant and Louviere picked up supplies and equipment and at approximately 6:30 p. m. arrived at Louviere’s apartment, where appellant proceeded to cook for a combined Troop E and Louisiana State Troopers Association function that was going to be held the following day. Appellant finished cooking between 2:00 a. m. and 3:00 a. m. on November 30, 1977. Rather than have Louviere drive him home, appellant drove the State Police vehicle assigned to Louviere. After leaving Louviere’s apartment, appellant drove the vehicle to Knox Inn for hamburgers. Thereafter, at approximately 3:00 a. m., appellant had a single car accident on Lee Street in Alexandria. “According to witnesses, the vehicle hit the left curb of Lee Street, swerved, jumped the right curb and shattered the plate glass window of J. N. Wholesale Company. Appellant got out of the car, looked at the damage to the building and to the State Police vehicle, and then drove the vehicle to his house, four blocks away from the scene of the accident. Appellant returned to the scene of the accident in his personal car. Appellant testified that he was gone from the scene approximately 3 to 4 minutes.
“The window at J. N. Wholesale Company had been completely broken and the contents of the building were accessible to anyone who wanted to enter the building. The room directly behind the window served as an office and contained a desk, an adding machine and a telephone. From this room, there was a door leading to another part of the building which was used as a florist wholesale business.
“When appellant returned to the scene, the Alexandria City Police Department was in the process of investigating the accident. Appellant asked the city policeman if Troop E had been notified and was advised that it had been. Later, Sergeant White of the State Police arrived to investigate. After talking to several of the officers, appellant led him to his residence so the State Police vehicle could be inspected. The damage to the vehicle was minor. Thereafter, appellant went to Troop E headquarters. Appellant personally paid for the damage to the building and the State Police vehicle. The accident reports submitted all indicated that appellant had apparently fallen asleep at the wheel.
“Prior to the date of the accident, appellant had been prohibited from certain off-duty use of his assigned State Police vehicle because he was overweight. Exceptions could be made to the vehicle restriction by the Troop Commander. Captain Stephens, the Troop Commander at the time in question, had given appellant permission to use his vehicle in connection with Louisiana State Troopers Association functions. The testimony was conflicting concerning whether appellant was prohibited from driving the vehicle to and from work at the time of the accident. However, the Commission does not find it necessary to resolve this conflict. The Commission finds that after leaving Louviere’s apartment, appellant drove to Knox Inn for hamburgers. Immediately prior to the accident, appellant was driving west on Lee Street. Appellant admitted that had he been on his way home from Knox Inn, he would have been traveling east on Lee Street. The Commission concludes that appellant was in violation of the vehicle restriction because at the time of the accident, he was not on duty, nor was he driving directly to or from work nor was he driving directly home after having cooked for the Louisiana State Troopers Association function.
“The only evidence introduced concerning the allegation of operating a State Police vehicle after having consumed intoxicants was the testimony of George Dur-ling, a witness to the accident. Durling testified that after the accident, appellant got out of the vehicle, leaned toward the hood to steady himself, staggered up the street and staggered back to the vehicle. Durling was approximately 75 feet away from appellant at this time. Several witnesses testified that they talked to appellant shortly after the accident and observed appellant from a distance of three feet and that appellant had no odor of alcohol nor was his speech either slurred or incoherent. Appellant testified that he did not drink anything except water the evening before the accident. Sergeant Louviere, who had been with appellant since 3:00 p. m. on November 29, 1978 [1977], testified that he did not recall seeing appellant drink anything that afternoon or evening. Considering all of the testimony, the Commission concludes that appellant was not intoxicated at the time of the accident, nor had he consumed any intoxicants the evening before the accident. . . .
“Appellant was disciplined for previous accidents in State Police vehicles in 1967, 1968 and 1972. He was disciplined for violations of the State Police Manual in 1967, 1968 and 1971, and for violation of Operational Memorandum No. 5 in 1972. He was reprimanded by Major Hollings-worth for violating the vehicle restriction less than two months before the accident. Three of these disciplinary actions were reprimands, four were three day suspensions and one was a one day suspension. On March 3, 1978, appellant was reprimanded for the November 30, 1977 accident, after having appeared before the Fleet Safety Board. The letter of reprimand only recites that appellant apparently fell asleep and had an accident.”

The Commission continued as follows:

“In this appeal, the appointing authority has borne its burden of proof concerning three of the six allegations of misconduct contained in the letter of removal: driving contrary to vehicle restrictions, removing the vehicle from the scene of the accident, and leaving the building unsecured. However, the appointing authority was aware of this misconduct prior to the issuance of the March 3, 1978 reprimand. For whatever reasons, the appointing authority elected only to reprimand appellant. In the letter of dismissal, the appointing authority alleges additional misconduct which, if proved, would have justified the imposition of the more severe penalty. However, none of these additional charges were proved. The Commission concludes that appellant has already been disciplined for the actions surrounding the November 30, 1978 [1977] accident.”

We find this opinion of the Commission to be fully supported by the evidence as to its factual determination on this question. Bryan v. Department of Corrections, 374 So.2d 155 (La.App. 1 Cir. 1979). As stated by the Commission opinion, the only allegations of misconduct proved by the appointing authority were that Robert Rigby drove a departmental vehicle contrary to vehicle restrictions, removed the vehicle from the scene of the accident, and left the damaged commercial building unsecured. As a result of the single car accident of November 30, 1977, Sgt. Rigby received a letter of reprimand. At the time of the sending of the letter, the appointing authority had full knowledge of the incident, yet saw fit to only reprimand the employee. Having disciplined the employee for this infraction, the appointing authority is now estopped from seeking at a later date to revive this incident as ground for further disciplinary measures. Hamlett v. Division of Mental Health, Louisiana Health and Human Resources Administration, 325 So.2d 696 (La.App. 1 Cir. 1976); see also Messer v. Department of Corrections, Louisiana State Penitentiary, 358 So.2d 975 (La.App. 1 Cir. 1978).

Further, the employee was charged with consorting with a known criminal at a particular gambling resort on a particular occasion. The Commission declined to consider this charge because of a lack of specificity, remarking:

“Further, appellant is charged with socializing with ‘Sonny’ Giordano. This allegation reads as follows: ‘Investigation has established that you have a personal social relationship with one Camille T. “Sonny” Giordano. In fact, during the dates of June 10, 1977 through June 13, 1977 you went to Las Vegas, Nevada with Mr. Giordano on a “gambling junket”. You have admitted your friendship and socializing with him on numerous occasions.’ The allegation concerning the trip to Las Vegas is sufficiently specific. However, no dates, times or places of any other socializing is specified, nor does the letter specify when appellant admitted socializing with Mr. Giordano.”

Civil Service Rule 12.3 states that in case of removal or other disciplinary action of a classified employee, the appointing authority must furnish the employee detailed written reasons for the action taken. The purpose of this rule is to apprise the employee in detail of the charges and to limit any subsequent proceedings to the stated reasons. Lemoine v. Department of Police, 348 So.2d 1281 (La.App. 4 Cir. 1977); Paulin v. Department of Safety and Permits, 308 So.2d 817 (La.App. 4 Cir. 1975).

As stated by the Court in Michel v. Department of Public Safety, Alcoholic Beverages Control Board, 341 So.2d 1161, 1163 (La.App. 1 Cir. 1976), writ denied, 343 So.2d 1078 (La. 1977):

“The detailed reasons required by this rule plainly comprehend a fair and clear statement of the misconduct of the employee, including whenever pertinent, times, dates, places, amounts and names. Hays v. Louisiana Wild Life and Fisheries Commission, 243 La. 278, 143 So.2d 71 (1962); Parrino v. Louisiana State University Sch. of Med., 207 So.2d 800 (La. App., 1st Cir. 1968); Robbins v. New Orleans Public Library, 208 So.2d 25 (La. App., 4th Cir. 1968). The reason for this rule is that to prepare his defense, the charged employee must know with reasonable particularity the facts and circumstances he may be called upon to rebut in the event his employer makes a prima facie case against him. Major v. Louisiana Department of Highways, La. App., 333 So.2d 316 (1st Cir. 1976).”

Thus, it is clear that a classified employee is entitled to reasonable notice of the charges against him. Depending on the circumstances of each case, such an employee must be informed of the time, place and nature of the offense in such detail as will enable him to adequately prepare his defense. Shelfo v. LHHRA, Pinecrest State School, supra; Major v. Louisiana Department of Highways, 333 So.2d 316 (La.App. 1 Cir. 1976). The record reflects that the appointing authority charged Sgt. Rigby with going on a “gambling junket” to Las Vegas, Nevada with Camille T. “Sonny” Giordano, a known convicted felon, during the dates of June 10, 1977 through June 13, 1977. No serious attempt was made to substantiate the charge of a Las Vegas trip with Giordano on the specified dates, but an effort was made to question Rigby about a trip to Las Vegas in July of 1977. The employee’s objection to such questioning was sustained by the Referee in the appeal, Ms. Laura D. Holmes, and an offer of proof was made.

We hold that evidence of a Las Vegas trip other than on the dates specified in the charges was inadmissible. Moreover, the charges fail to specify dates, times or places of any other socializing with Giorda-no.

For the reasons assigned, we affirm the decision of the Commission. Costs in the amount of $25.00 are to be paid by the Office of State Police, Department of Public Safety.

AFFIRMED.

APPENDIX I
March 3, 1978
HQ-2-1395
Sgt. Robert J. Rigby
Troop E
P.O. Box 7326
Alexandria, LA 71301
Dear Sgt. Rigby:
Relative to your accident of November 30, 1977, it is noted on the report and investigation that you were at fault when you apparently fell asleep while traveling west on Lee Street, swerved to the left, struck the curb, swerved to the right, crossed the roadway, jumped the right curb, crossed the sidewalk, and struck a plate glass window of a building (J. N. Wholesale).
In view of the above, I am writing you this letter of reprimand and informing you that appropriate disciplinary action will be given you if such recurs.
It is recommended that you take all precaution and have any such State Police Unit that you operate under control to avoid such accidents.
Sincerely,
/s/ G. W. Garrison G. W. Garrison, Lt. Colonel Deputy Secretary
GWG/slw
cc: Major Tommy Hollingsworth Captain Ronald Stephens Fleet Accident Review Files Internal Affairs Legal Section Personnel File
DEPARTMENTAL MEMORANDUM
DATE: 10-17-77
TO: Sergeant Robert Rigby
FROM: Captain R. R. Stephens
SUBJECT: Off Duty Use of Unit — E-9 Recently Lieutenant Jeansonne and I discussed Major Hollingsworth’s letter of September 27, 1977 with you. It has been reported that your unit, E-9, was used off duty September 14th thru September 20th. I recall that I authorized your use of the vehicle on two (2) of the days listed but not the remainder of the days.
The order of April 1st, 1977, restricting off duty use of your vehicle is still in effect. Further violation of this order could result in severe administrative action.
/s/ Ronald R. Stephens Captain R. R. Stephens cc: Sergeant R. Rigby
Lieutenant G. J. Jeansonne Major Tommy Hollingsworth Captain R. R. Stephens


author: BOUTALL, Judge.

text:
    Dawn Kelner ANDERSEN, wife of/and Hampton Aubrey Andersen v. Robert CRAIG, et al.
    No. 11965.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied Aug. 17, 1981.

      Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for City of Kenner, defendant-appellee.
    James C. Dixon, Dept, of Public Safety, Baton Rouge, for Dept, of Public Safety, Office of State Police, defendant, appellee.
    Carl 0. Brown, Jr., New Orleans, for Dawn Kelner Andersen, w/o and Hampton Aubrey Andersen, et al., plaintiffs-appellants.
    Crawford, Goldsmith & Holdridge by Gordon R. Crawford, Guy Holdridge, Gonzales, for Robert Craig, appellant.
    Before BOUTALL, BARRY and KLEES, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding damages to the plaintiffs for the personal injuries they received in a rear-end automobile collision.

On or about July 3, 1970 at approximately 5:30 P.M. Dawn Andersen was driving her automobile, accompanied by her husband and their two minor children, in a westerly direction on U. S. Highway 61 (better known as Airline Highway) in the far right lane. After passing the crest of the overpass on the highway near New Orleans International Airport, Mrs. Andersen was forced to stop her automobile approximately one-half of the way down the overpass due to a traffic buildup. This tie-up was allegedly caused by an investigation being conducted by the State Police and the Kenner Police of an accident involving an automobile and a pedestrian which had occurred in the eastbound lane of the highway approximately Vioth of a mile ahead. Thereafter, within a matter of seconds, the automobile being driven by Andersen was struck from the rear by an automobile being driven by Robert Craig thereby causing Mrs. Andersen and her family to sustain personal injuries. Subsequently, Mrs. Andersen and her husband individually and on. behalf of their two minor children filed suit to recover damages for their personal injuries sustained in the accident. Named as defendants were Craig, as the driver of the auto causing the collision, R. J. Dupont (a police officer for the City of Kenner), the City of Kenner and the State of Louisiana through the Department of Public Safety, Office of State Police for their alleged negligence in causing the traffic build-up which allegedly caused and/or contributed to the accident. Craig answered and alleged that Mrs. Andersen was contributorily negligent. Dupont and the City of Kenner answered denying owing any liability as they were not at the scene of the first accident and therefore, not responsible for the traffic build-up.

Upon trial of the matter the lower court entered judgment awarding damages to the plaintiffs and against the defendant Craig finding that the gross negligence of the latter was the cause of the accident. The remaining defendants were dismissed. The damage awards were as follows: $2394 to Hampton Andersen; $750 to Dawn Andersen; $250 to Tiffany Andersen and $100 to Cynthia Andersen. From this judgment both the plaintiffs and Craig have appealed devolutively.

On appeal the only issue presented for consideration is whether the defendants Craig, the City of Kenner and the State of Louisiana are liable for their alleged negligence in causing and/or contributing to the accident which resulted in personal injuries to the plaintiffs.

The plaintiffs contend that the City of Kenner and the State of Louisiana were at fault in two ways: 1.) the policeman on behalf of the state and the City of Kenner respectively, created a hazardous condition by permitting traffic to build up on the overpass on Airline Highway in the course of their accident investigation which either caused or contributed to the rear-end collision suffered by the plaintiffs; 2.) Also, these two defendants were negligent in failing to warn motorists of the traffic build-up on the Baton Rouge side of the overpass which could not be seen by a west bound motorist.

Regarding the liability of the City of Kenner the evidence indicates that there is a dispute as to whether the Kenner policeman was even present at the investigation of the first accident which allegedly created the traffic tie-up. If there were no Kenner policemen present then the City could not be liable under the contentions made by the plaintiffs. Officer Ray Dupont of the Ken-ner Police Department who investigated the accident involving the plaintiffs testified that none of his brother officers were present at either the investigation or traffic control of the first accident. He further indicated that he was the first Kenner unit to arrive on the scene. The only police representatives present at the scene of the first accident were from the State. Conversely, Mr. Andersen, who was a passenger in one of the autos involved in the second accident, testified that both the State and Kenner police were present at the scene of the first accident and were participating in traffic control. His statements were corroborated by the testimony of his wife Dawn Andersen who was the driver of the car in which he was a passenger.

Following the conclusion of the trial in this matter the trial court determined that the City of Kenner was not liable for the damages sustained by the plaintiffs. The court apparently resolved the dispute as to the presence of the Kenner Policeman at the scene of the accident in favor of the City. Upon a review of the record in this matter we find that the determination made by the trial court was not manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Our finding is supported by our belief that the credibility of the testimony given by the Andersens is in doubt. In the course of the testimony given by Mr. Andersen at trial he was asked on two different occasions whether the Kenner police were present at the scene of the first accident. At first he indicated that the Kenner police were present at that time but he later said that he wasn’t sure. With respect to Mrs. Andersen, she testified that she didn’t know the difference between a Kenner or State policeman and further that she didn’t care about the first accident but was more interested in the one in which she was involved.

With respect to the liability of the State of Louisiana as to the contentions raised by the plaintiffs, the trial court determined that there was no actionable negligence on the part of the State. Therefore, the State was not held liable for the damages sustained by the plaintiffs. Upon consideration of the evidence in this matter we find that this determination contains no manifest error and furthermore there is no indication of an abuse of discretion by the trial court. Canter v. Koehring Company, supra; Arceneaux v. Domingue, supra; we further find that there was not enough evidence presented by the plaintiffs to establish any fault on the part of the State police. The record indicates that the first accident in the east bound lane of Airline Highway occurred at approximately 5:10 P.M. and that the second accident happened at approximately 5:23 P.M. In view of the proximity in time of the two accidents it appears to us that there was no time for the State police to post a warning signal to west bound motorists at the top of the overpass on Airline Highway. Considering the time and place of the accident, it appears reasonable to conclude that the police were fully occupied trying to contend with the circumstances surrounding the first accident. The primary focus of their attention must be on the safety of those involved in the first accident. There is no showing that there were enough State troopers present to post such a warning and handle their primary duty also. We believe that a police agency cannot be expected to cover all possible dangers that may result in the course of an accident investigation. To place such a burden on the State would not only be physically impossible but also financially impossible, and if it could be achieved, it would require a police force many times larger than the one presently in operation. Finally, we believe that the State troopers acted in a reasonable manner under the circumstances.

Our final consideration in this matter is the liability of Craig. He contends that he was not negligent in causing the accident with the plaintiffs because he was operating his vehicle in a legal manner when he was confronted with an unexpected stopped vehicle in his lane.

The Louisiana Highway Regulatory Act contained in Title 32 of the revised statutes provides various rules of law regulating both the speed of motor vehicles and the following of vehicles. LSA-R.S. 32:64(A) indicates that:

“A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.”

With respect to following vehicles LSA-R.S. 32:81(A) states:

“A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

Both of these statutes place a burden upon the driver of a motor vehicle to use reasonable and prudent care in operating his vehicle. The jurisprudence interpreting the second of the two statutes indicates that it was “designed to require the motorist to make an assessment of the conditions and circumstances and to maintain a distance behind the vehicle which is reasonable”. Leftwich v. Molony, 322 So.2d 438 (La.App. 4th Cir. 1975). Moreover, it is well settled that a presumption of negligence is imposed upon a motorist who strikes the rear of a preceding vehicle and he bears the burden of overcoming this presumption. Jones v. Meinke, 357 So.2d 838 (La.App. 4th Cir. 1978); Tidwell v. Ocean Systems, Inc., 356 So.2d 466 (La.App. 1st Cir. 1977).

The evidence before us indicates that the plaintiffs were stopped on the overpass on Airline Highway approximately 100 to 200 feet from the crest when they were struck almost immediately from the rear by the car being driven by Craig. Both Mr. and Mrs. Andersen testified that the collision occurred within 10 to 15 seconds after they had stopped on the overpass. The police report indicates that there were 71 feet of skid marks left by the vehicle being operated by Craig. The testimony reveals that the impact of the collision propelled the plaintiff’s vehicle into two other vehicles which were immediately in front of them thereby indicating that Craig, despite his attempts to stop was still traveling at a high speed. The testimony further reveals that all of the other vehicles on the overpass and below this area were able to stop without causing a collision. Following the conclusion of the trial in this matter the lower court determined that the accident was caused by the gross negligence of Craig.

Upon a review of the record in this matter we find that there was no manifest error in the trial court’s determination of liability as to Craig. The evidence before the trial court furnished a reasonable factual basis for its finding. Canter v. Koehring Company, supra; Arceneaux v. Domingue, supra. We believe that the defendant has failed to overcome the presumption of negligence that is applied in an accident of this type. It appears to us that Craig was not using the .statutorily required degree of reasonableness and prudence for following vehicles when the collision occurred with the plaintiffs. Although the trial judge did not specify the reasons for his conclusion of gross negligence, the evidence would support a finding of following too closely, keeping an improper lookout ahead, speeding, or any combination of the three.

Finding defendant Craig negligent and the other defendants not negligent, we affirm the judgment as to both appeals.

AFFIRMED.