author: CURRAULT, Judge.

text:
    STATE of Louisiana v. Whaland M. SHEPHERD.
    No. 83-KA-785.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      John M. Mamoulides, Dist. Atty., David C. Loeb, Asst. Dist. Atty., Twenty-Fourth Judicial Dist. Court, Gretna, for plaintiff-appellee.
    Joseph L. Montgomery, Staff Appeals Counsel, Twenty-Fourth Judicial Dist. Court, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before BOWES, CURRAULT and DU-FRESNE, JJ.
   CURRAULT, Judge.

Whaland M. Shepherd was charged by bill of information with two counts of simple burglary (LSA-R.S. 14:62). A plea of not guilty was entered at arraignment. Pre-trial motions, including a motion to suppress confession, were heard on February 23,1983. Trial before a six-person jury commenced on May 16, 1983, and on the following day the jury returned a verdict of guilty as to both counts. On July 13, 1983, Judge James L. Cannella sentenced the defendant to a term of six years imprisonment in the custody of the Department of Corrections on each count. The sentences were ordered served consecutively with each other and with a previous sentence imposed as a result of an armed robbery conviction. From his conviction and sentence the defendant now appeals.

On the evening of November 27, 1982, Whaland M. Shepherd was visiting with his brother-in-law, Michael Chaisson, at Chais-son’s father’s residence. Later, Shepherd left the house accompanied by Chaisson who drove to a nearby lounge. Shortly thereafter, Chaisson left the lounge, informing Shepherd that he was going to Lafayette; however, two or three hours later Chaisson returned to the lounge and asked Shepherd if he wanted to take a ride in a boat. According to Shepherd, Chais-son had the boat attached to his truck at the time. After some discussion as to the destination, the two drove to Lafitte and launched the boat. They decided then to take some nets and trawl boards off the large trawl boats. They broke into two boats and removed a multitude of items, including several weapons. As they were returning to the launch, running the boat at full speed, both Shepherd and Chaisson were thrown from the boat. While swimming towards the bank, Chaisson was struck by the boat and apparently drowned. Shepherd looked briefly for Chaisson. He then became frightened, swam to the bank and hitchhiked to his father-in-law’s house. Several days later, on December 2, 1982, when Chaisson’s body was located, Shepherd told Chaisson’s wife of the events leading to his death. She subsequently notified the police.

On December 3, 1982, five officers of the Jefferson Parish Sheriff’s Office arrested Shepherd at his residence charging him with the two boat burglaries and satisfying two outstanding attachments, one for armed robbery and one for driving while intoxicated.

He was transported to the detective bureau where, after being advised of his Miranda rights, he gave an inculpatory statement.

On appeal defendant asserts the following assignments of error:

(1) The trial judge committed reversible error in failing to grant the defendant’s motion to suppress a written confession, in violation of LSA-C.Cr.P. Article 703.

(2) The trial judge’s sentence, although within statutory limits, was excessive, in violation of Article I Section 20 of the Louisiana Constitution.

On Assignment of Error No. 1, the defense argument is twofold: that (1) á statement made by Detective Dennis Thornton to the defendant to the effect that “it would probably go easier on him in court” if he confessed, constituted an impermissible inducement rendering defendant’s subsequent inculpatory statement involuntary, and that (2) the degree of force used by the officers to effect the arrest constituted impermissible force and coercion, rendering the statement involuntary.

LSA-R.S. 15:451 provides that “[bjefore what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” See also State v. Narcisse, 426 So.2d 118 (La.1983); State v. Serrato, 424 So.2d 214 (La.1982); State v. Taylor, 422 So.2d 109 (La.1982); State v. Petterway, 403 So.2d 1157 (La.1981); and State v. Hall, 434 So.2d 517 (La.App.2d Cir.1983).

It is also incumbent upon the state to establish that the defendant who makes an inculpatory statement during a custodial interrogation has been informed of his Miranda rights. State v. Taylor, supra, at page 116; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

It is a well settled constitutional principle that confessions obtained by any direct or implied promises, however slight or by the exertion of any improper influence, are involuntary and inadmissible as a matter of law. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); State v. Jackson, 414 So.2d 310 (La.1982); State v. Hall, supra.

Once a defendant maintains that his confession was obtained in such a. manner, the state must specifically rebut the allegations to carry its burden of proving the confession voluntary. The state may not rely on general disclaimers of inducements or promises. State v. Serrato, supra; State v. Petterway, supra.

No serious contention has been made by the defense that Shepherd did not receive his Miranda rights; rather, the focus of inquiry is whether the statement of Detective Thornton constituted an implied promise of leniency so as to render the subsequent statement inadmissible.

The following statements are excerpted from the testimony at the suppression hearing:

Q. At any time during the course of this statement, did you threaten him or offer him any inducements to make the statement?
A. No, sir. The only thing I recall advising him was that if he did — under this investigation it would probably go easier on him in court the fact that making that we have to prove his guilt. Other than that, I didn’t promise him any material or any type of amnesty or anything like that.

On cross-examination, the following testimony was elicited:

Q. You testified during direct examination that it would go easier on him in court if he signed this statement; is that correct?
A. Yes, sir_
Q. So, you obtained his confession by telling him whatever evidence you had against him, telling it would be easier with him in court if he confessed to it?
A. No, sir, not condensed like that, no. I implicated to him during the time that he was questioned that it would be a lot easier on him if he did go — you know, if he came forward like he did, and give a confession.
Q. Didn’t you testify that no offers were made to him?
A. No, sir. Right. I didn’t.
Q. But you did say it would go easier on him?
A. Yes, sir, I did.
Q. Were you any more specific than that?
A. No, sir.
Q. Did the defendant appear willing to take you up on your offer of leniency if he confessed?
A. No, sir. He just basically understood. It wasn’t no offer of leniency; it was just a term I used to explain to the gentlemen casually what would happen to him. I wasn’t going to offer anything like that at all.

In State v. Petterway, supra, at page 1160, a similar statement was made by a deputy to the effect that the accused would be better off if he cooperated with the authorities. In holding the subsequently-given statement admissible, the Louisiana Supreme Court stated: “Statements of this type, rather than being promises or inducements designed to extract a confession, are more likely musings not much beyond what this defendant might well have concluded for himself.” See also State v. Jackson, supra; State v. Dison, 396 So.2d 1254 (La.1981); State v. Vernon, 385 So.2d 200 (La.1980).

As the Second Circuit Court, in State v. Hall, supra, held:

“A confession is not rendered inadmissible by the fact that law enforcement officers exhort or adjure a defendant to tell the truth provided that the exhortation is not accompanied by an inducement in the nature of a threat or one which implies a promise of reward....
“The comment of the police officer ... that it would be better or things would be easier if the defendant cooperated and made a statement did not amount to a prohibited promise or inducement designed to extract a confession. The comment amounted to no more than a mild exhortation to tell the truth.” At page 519.

Similarly, we find that the comment by the police officer in this case did not contain an implied promise of leniency so as to render the inculpatory statement involuntary, but was merely a mild exhortation to tell the truth as in Hall and Petterway.

The defendant next asserts that the degree of force utilized to effect his arrest constituted duress designed to extract a confession, and that again, under LSA-R.S. 15:451, the statement must be suppressed.

The defendant, by brief, asserts two specific instances of intimidation: (1) The presence of five officers at the scene of the arrest and in and out of the interrogation area during the taking of his statement, and (2) an injury to his wrist allegedly caused by the handcuffs during interrogation.

The question of voluntariness of a confession must be resolved from the facts and circumstances of each case. The trial judge must consider the “totality of circumstances” in deciding whether the confession is admissible. See State v. Serrato, supra; State v. Hernandez, 432 So.2d 350 (La.App.1st Cir.1983).

Pursuant to LSA-R.S. 15:451, the state has the burden of proof concerning the voluntariness of the statement. As noted in State v. Dison, supra, at page 1257, in this regard two principles are pertinent.

“First, the state cannot rely upon general disclaimers that no undue influence was brought to bear upon a defendant who confesses to a crime: the defendant’s specific allegations must be specifically rebutted. See State v. Franklin, 381 So.2d 826 (La.1980), State v. Davis, 380 So.2d 607 (La.1980). Second, when' credibility is at issue, a trial judge’s determination should not be upset unless it is unsupported by the evidence. See State v. Robinson, 384 So.2d 332 (La.1980), State v. Jackson, 381 So.2d 485 (La.1980).”

Detective Thornton testified that five officers were present at the time of the arrest but that no more than two were in the interrogation office at any one time. As noted by the state in argument “at the time of the arrest the defendant was at his home with family members around. The police officers were necessary to provide appropriate security; .... ”

At the time of the arrest, the police officers were aware of certain facts which easily justify that certain precautions be taken with, this defendant. Namely, (1) the defendant had previously pled guilty to an armed robbery but failed to show up for sentencing; (2) he was believed to have been involved in two burglaries in which numerous weapons were stolen; and (3) he was at least a witness to an unsolved homicide.

As to the presence of additional officers in the interrogation office, the trial court found that there was not “anything unusual ... relative to the physical circumstances in the police state.” The interlocking nature of the homicide and burglary investigations would justify an officer from each department being present. However, Thornton testified that the other officers neither participated in the interrogation (apart from Detective Rooney speaking briefly to the defendant before the questioning was begun and afterward to obtain booking information for the armed robbery attachment), nor were there more than two officers at a time in the interrogation room.

The testimony in this regard is a question of credibility, and the trial court’s rejection of defendant’s claim of intimidation must be upheld since the evidence supports the conclusion. State v. Dison, supra.

Finally, the defendant argues that the discomfort of the handcuffs constituted impermissible force. At trial, the wife of the defendant testified that he developed a problem with his right hand as a result of being handcuffed. Medical records were introduced at trial which indicated that during March, 1988 (three and a half months after the arrest) Shepherd was diagnosed as suffering from “R. Carpal Tunnel Syndrome”, a peripheral nerve injury.

Detective Thornton testified at the suppression hearing as follows:

Q. For security measures, was the defendant handcuffed during this interview?
A. Yes, sir, I believe he was, sir.
Q. Did he ever ask you to remove the handcuffs?
A. No, sir, not that I can recall.
Q. Did he ever indicate to you that the handcuffs were too tight and cutting off circulation to his hands?
A. He may have. I believe at one point I might have taken one of the cuffs off and handcuffed him to the chair he was sitting in. I’m not really too sure about that.
Q. The defendant did complain to you of physical discomfort during this interview?
A. If it was, which I really don’t recall, it was very, very minor.
Q. Did you — when the. defendant complained to you about his physical discomfort, did you in any way — did you simply continue asking him questions?
A. No, sir.
Q. At what point in this interview did you stop to handcuff one of his hands to the chair?
A. It may have been, I believe, between the beginning and the middle of the interview.
Q. So, you continue asking the questions and you didn’t inspect his hands to see if circulation was cut off?
A. Yes, sir, I believe I had to, because I believe the defendant was right handed and he had to sign the form. He couldn’t sign it with handcuffs on.

The state’s exhibits corroborate the testimony of Detective Thornton. The two items, the “Rights of Arrestee or Suspects” and the “Voluntary Statement” forms contain Whaland Shepherd’s signature no less than seven times and his initials no less than six, all apparently made without discernable difficulty.

As noted previously, “when credibility is at issue, a trial judge’s determination should not be upset unless it is unsupported by the evidence.” State v. Dison, supra, at page 1257. See also State v. Hernandez, supra.

Considering the “totality of the circumstances” presented by the facts of this case, it is our opinion that the conduct of the arresting/interrogating officers did not affect the voluntariness of the defendant’s confession; thus we find that the inculpato-ry statement was properly admitted into evidence.

On the second Assignment of Error, the defense concedes that the trial judge properly delineated his reasons for sentencing in compliance with LSA-C.Cr.P. Article 894.1; however argues that:

“The trial judge failed to take into consideration the seriousness of the defendant’s wife’s condition, and the resulting effect on his family’s welfare if in fact he were incarcerated for a long period of time. Placing the two six year burglary sentences consecutive to each other and to an armed robbery sentence can only have the effect of depriving his family of the care and support he could provide for a long period of time.”

The defendant was found guilty of two violations of LSA-R.S. 14:62 (simple burglary). The aggregate penalty which could have been imposed was twenty-four years at hard labor. See LSA-R.S. 14:62.

In evaluating a claim that a sentence is unconstitutionally excessive, a reviewing court will examine the articulated reasons of the trial judge to determine whether he has abused his considerable sentencing discretion.

Prom a plethora of cases on this issue, a rather standardized definition of excessiveness has emerged. The following is excerpted from State v. Tompkins, 429 So.2d 1385, 1388 (La.1982).

“We have determined that a sentence constitutes excessive punishment if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime, [citations omitted] A sentence may be deemed unconstitutionally excessive even though it falls within statutory limits.”

The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentences imposed by him should not be set aside in the absence of a manifest abuse of discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982).

In setting forth his reasons for imposing two consecutive six-year sentences, the trial judge carefully examined the character and propensities of the offender and the circumstances surrounding the offense. He noted that Shepherd, only months previously, had pled guilty to an armed robbery but had failed to show up for sentencing. Because of that fact, the trial judge concluded that there was an undue risk that the defendant’s course of criminal conduct would continue. Additionally, the trial court found that the offense did cause serious harm, both to the victim in the loss of unreplaced property and to the co-perpetrator who lost his life during the course of the offense. Because of the severe consequences, the judge felt that any lesser sentence would deprecate the seriousness of the crime. Although not expressed by the trial court, the theft herein of a large number of weapons would indicate the conclusion of the court was not in error.

Following the designation of the aggravating circumstances, Judge Cannella also considered the mitigating circumstances presented within the pre-sentence investigation and by defense counsel at the time of sentencing. Contrary to the allegation of defense counsel on appeal, Judge Can-nella specifically noted that because of the serious illness of Shepherd’s wife, the jail term would be a particular hardship on his family. But in balancing that fact, the judge noted that Shepherd’s accomplice (his brother-in-law) was killed as a result of their criminal activities and, despite that fact, Shepherd had not shown remorse or repentance for his behavior.

A reviewing court will not substitute its judgment for that of the trial court unless the sentence imposed is grossly out of proportion to the offense. State v. Davenport, 445 So.2d 1190, 1197 (La.1984). See also State v. Roussel, 424 So.2d 226 (La.1983); State v. Lems, 414 So.2d 703 (La.1982). In our opinion, defendant’s aggregate sentence of twelve years is not grossly out of proportion to the offenses which involved a death and theft of weapons. Thus, the sentences imposed by the trial court will not be disturbed.

Therefore, after a review of the law and the evidence, the convictions and sentences of defendant, Whaland Shepherd, are hereby affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    Keith RONQUILLE v. Dale M. MARTIN, et al. Walter G. SMITH, et al. v. Dale MARTIN, Farm Bureau Insurance Company, et al. Linda CREPPEL v. Dale MARTIN, et al.
    Nos. 83-CA-684, 83-CA-685 and 83-CA-686.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      Jesse S. Guillot, New Orleans, for defendant-appellant.
    Deutsch, Kerrigan, & Stiles, Charles P. Seemann, New Orleans, for third-party defendant and appellee.
    Before CURRAULT, BOWES and DU-PRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal from an order of the trial court granting a Motion for Summary Judgment and sustaining an Exception Of No Cause Of Action brought by the defendant, Williams-McWilliams Co., Inc., dismissing the corporation as a third-party defendant. The appeal before this court comes from a judgment in three consolidated cases.

The plaintiffs in this consolidated matter sued multiple defendants for personal injuries and wrongful death, allegedly caused by a vehicular collision on May 27, 1979, under the following circumstances.

On April 6, 1979, the barge Diesel Dredge, owned by defendant, Williams-McWilliams, struck and damaged the Wagner Bridge on Louisiana Highway 3134 over Bayou Barataría in Jefferson Parish. On that same date, the defendant, Louisiana Department of Transportation and Development placed barricades and barrels on the bridge, diverting and affecting southbound traffic. On the date of the accident, defendant, Dale Martin was crossing the crest of the Wagner Bridge, and allegedly was forced into another lane by the barricades. When Mr. Martin was across the center line of the bridge, his vehicle struck an automobile being driven by Gloria Ronq-uille. Gloria and Peter Ronquille were killed instantly, as was Mr. Martin. The survivors of this terrible accident and their representatives have brought these various suits, all of which have been consolidated for trial.

The plaintiffs contend the immediate cause of the accident was Dale Martin’s illegal and negligent crossing of the center line into the opposing lane of traffic. Among the many defendants whose negligence is cited as contributing to the accident, the plaintiffs named Williams-McWil-liams Co., Inc. As an original defendant, Williams-McWilliams’ only nexus with the automobile collision was that on the 6th day of April, 1979, seven weeks prior to the subject accident, the barge owned by them struck and damaged the Wagner Bridge, located on Louisiana Highway 3134. The plaintiffs assert liability against Williams-McWilliams based on the theory that they “breached their duty in their failure to adequately warn vehicular traffic on said highway after the collision of April 6,1979, and thereby creating an unusually hazardous condition on a Louisiana highway, or, if necessary, to close said bridge until repairs were made.” Plaintiffs further alleged that the automobile collision of May 27, 1979, was caused by the joint negligence of various defendants, specifying the alleged negligence of Williams-McWilliams to be the following:

“1.) In failing to adequately warn traffic on the Wagner Bridge after the damage caused by the barge ‘Diesel Dredge’ on April 6, 1979;
“2.) In causing damage to the Wagner Bridge which resulted in a diversion of traffic for their intended lane of travel which condition existed on May 27, 1979;
“3.) Any and all other acts of negligence in construction and design which may be proved at the trial of this matter.

In short, original plaintiffs’ alleged cause of action against Williams-McWilliams rests entirely upon two facts: that Williams-McWilliams damaged the bridge on April 6; that this damage created a hazardous condition of which Williams-McWil-liams failed adequately to warn the bridge traffic after the accident; and that this failure caused the collision of May 27th.

The original petition also alleged that the Louisiana Department of Transportation and Development (Department) had been notified of the bridge damage immediately and had, during the seven weeks before the auto accident, taken various steps to barricade the damaged bridge and divert traffic.

The original plaintiffs assert in their Petition For Damages that the State of Louisiana, Department of Transportation and Development (Office of Highways) was notified of the damage on April 6, 1979, very shortly after the alleged collision between the barge and the bridge, and that the Department that day “dispatched ... a crew to place barricades and barrels at the Wagner Bridge.”

The petitions further allege that the Department dispatched the crew “for the express purpose of altering the course of traffic and installing warning devices, indicating there was road construction ahead and diverting traffic”.

Contained in the Ronquille and Smith petitions, the plaintiffs affirmatively alleged “that the diversion of traffic created by the ... Department ... created a hazardous condition for traffic on ... [the] Wagner Bridge and detoured traffic “was caused by the damage which the Wagner Bridge sustained when it was struck by the barge ‘Diesel Dredge’ ”. Creppel’s petition alleged that “due to the barrels and barricades being placed on the bridge, a condition of confusion and danger was created which contributed to or caused traffic on the bridge and especially southbound traffic to be endangered” on May 27th.

In response to requests for admission, the Department has admitted the bridge roadway is a state highway, owned and maintained by the State.

Williams-McWilliams filed an exception of no cause of action to plaintiffs’ Petition for Damages contending that the alleged intervening negligence of an intervening party, i.e., the State of Louisiana through the Department of Transportation and Development, supersedes the alleged negligence of defendant, Williams-McWilliams and thus destroys any proximate causal relationship to the May 27, 1979, accident.

By judgment of November 25, 1980, that exception was maintained, and Williams-McWilliams was dismissed from the consolidated litigation. Plaintiffs did not perfect an appeal from this judgment.

The trial court, in maintaining the exception, held that the. intervening alleged negligence of the Department made Williams-McWilliams a remote cause and not a proximate cause of the accident. The trial court concluded that negligence is actionable only when it is a proximate cause of the damage claimed.

Consequently, in January, 1983, the Department, also an original defendant, filed a third-party demand against Williams-McWilliams, alleging essentially the same cause of action as the plaintiffs had. Williams-McWilliams filed an identical exception, urging dismissal on the same grounds.

The State, in its original third-party demand and in its amended third-party demand blames Williams-McWilliams Co., Inc. for the following:

1. Causing damage to the bridge which created a hazardous situation which set in motion necessity for the diversion of traffic.
2. Negligently striking the outside of the bridge causing an unsafe condition to exist on the bridge level, commencing a chain reaction and/or the necessity for the diversion of traffic, which allegedly caused the accident on a subsequent date.
3. But for the negligence of Williams-McWilliams Co., Inc., the diversion of traffic and the resulting accident would not have occurred.
4. That the placement of barrels and the diversion of traffic was a direct relationship to the negligence of Williams-McWilliams Co., Inc.

Additionally, Williams-McWilliams also filed a motion for summary judgment, affirmatively showing that the Department had immediate notice of the bridge damage from the April 6th accident. The affidavit attached to the motion for summary judgment shows that within a week of the April 6th accident, the Department had notice of the bridge damage and was working on repairs. The Department has not denied it received the notice, or that it had undertaken diversion of traffic and bridge repairs long before the auto accident. There is, therefore, no material issue of fact. The Department received immediate notice of the bridge damage of April 6th, and had begun to repair it before the accident of May 27th.

The trial court, reiterating and adopting its earlier reasons for dismissing original plaintiffs’ Petition For Damages against Williams-McWilliams, dismissed the third party demand of the Department. The Department has perfected this appeal.

The Department assigns the following specifications of errors:

1. The trial court committed error when it granted a summary judgment dismissing Williams-McWilliams Co., Inc. as a third party defendant.
2. The trial court committed error when it concluded that there were no material issues of fact and of law.
3. The trial court committed error when it sustained the no cause of action filed by Williams-McWilliams Co., Inc.

We agree with the decision of the trial court and thus affirm its decision.

There is no dispute of fact as to the essential elements of this case, as they bear on Williams-McWilliams’ motion for summary judgment. The accident in which Williams-McWilliams allegedly damaged the Wagner Bridge occurred on April 6, 1979, and the fatal auto accident happened on May 27, 1979. These facts have been established through the pleadings. Nor is there any dispute that the Department had almost immediate notice of the nature and extent of the damages to the bridge after the April 6th accident.

The Department’s third-party demand against Williams-McWilliams is for indemnity or contribution for any judgment in favor of the plaintiffs against the Department. Thus, the allegations that the Department had notice and had begun repairs must be taken as true; if they are pot, the Department would have no liability and thus, no judgment on which to be indemnified. More important, the Department has not filed an affidavit in response to the motion for summary judgment attempting to negate that it had ample notice of the bridge damage, or that it had begun repairs long before the automobile accident.

When a motion for summary judgment is filed and it is established both that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, the adverse party (as here, the Department) cannot rest on the allegations of its pleadings, but must set out in evidence with depositions or opposing affidavits, giving specific facts that show a genuine issue of fact exists for trial. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Mashburn v. Collin, 355 So.2d 879 (La.1977) and Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743 (La.1977).

The trial court concluded and we likewise agree that there is no genuine issue of material fact for trial and that the defendant-mover is entitled to judgment on the facts before this court, the motion for summary judgment is affirmed.

We agree with the trial court that there is absent any conduct on part of the defendant, Williams-McWilliams which could legally be construed as the proximate cause of the May 27th accident.

It may be true that one who creates an obstruction or other dangerous condition on a state highway has a duty to post adequate emergency warning, Page v. Green, 306 So.2d 847 (La.App. 2nd Cir. 1975).

But this duty lasts only until the Department is notified.

Once the Department is notified of the condition, it has a mandatory duty, imposed by statute, to “maintain, repair and regulate the use of public transportation systems, and to perform such other functions with regard to public highways, [and] roads ... as may be conferred on the Department by applicable law,” LSA-R.S. 48:21. This duty includes the repair of any damage or obstruction of which the Department has notice, whether the hazard was created by Department action or not, Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir.1978) “as quickly and expeditiously as possible under the prevailing circumstances,” Porta v. State, State Board, 242 So.2d 64 (La.App. 1st Cir.1970).

The law gives the Department all the authority necessary to fulfill this duty, including mandatory authority to supervise and regulate all traffic on highways, LSA-R.S. 32:2 and to promulgate uniform regulations for traffic, LSA-R.S. 32:21. Further, the law requires all motorists to obey all traffic control devices placed by the Department, LSA-R.S. 32:56(B), under penalty of criminal sanctions, LSA-R.S. 32:57.

More important here, once the Department acted, only the Department or its contractor had authority to close the highway or reroute or control traffic to cope with the hazard, LSA-R.S. 48:346 and LSA-R.S. 32:261.

Once the Department was notified and assumed control, the law strictly prohibited anyone, including Williams-McWil-liams, from attempting to exercise any control over traffic on the highway, either by erecting any warning signs or devices, or by changing or interfering with remedial measures taken by the Department, LSA-R.S. 32:236, 237.

Thus, from the moment the Department took over the marking and repair of the damage caused by the maritime collision of April 6, 1979, the Department alone had the duty and the authority to mark the danger area adequately and to make repairs. Williams-McWilliams not only had no duty to warn the traveling public or make repairs, but was actually prohibited, under threat of criminal sanctions, from doing so.

The alleged negligence of the Department in failing to fulfill its responsibility of “properly detouring traffic or closing the roadway,” and by so doing “creating a confusing route”, is an efficient intervening cause, so that any possible negligence of Williams-McWilliams, seven weeks before the accident, was only a remote cause. And “negligence is actionable only when it is a proximate cause of the damage claimed”, Fabre v. B.F. Goodrich Company, 218 So.2d 617 (La.App. 4th Cir., 1969).

In Fabre, the court stated:

“Proximate cause has been defined as that cause which, in a material and continuous sequence, unbroken by any new and independent cause, produces injury. If, in the sequence of events between the original negligence and the injury, an entirely independent cause intervenes which is of itself sufficient to stand as the cause of the accident, the second cause is the proximate cause of the accident and the original negligence is not the proximate cause.” Fabre v. B.F. Goodrich Co., supra.

It is important to note that the fatal accident which is the subject of this appeal occurred seven weeks subsequent to the maritime collision involving the Williams-McWilliams barge. During this time, the Department involved itself on the scene of the accident and instituted the necessary measures to insure the safety of the motoring public.

We conclude that the Department’s conduct, its acts of commission and omission, was an intervening and superceding cause of the May 27th accident, which would preclude liability on the part of the defendant, Williams-McWilliams. If there was any negligence on the part of Williams-McWil-liams, it would at most, be but a remote cause.

For the above reasons, the judgment of the trial court dismissing the third-party demand is affirmed and these matters are remanded to the trial court for further proceedings.

AFFIRMED AND REMANDED.


text:
    RIVERLAND FOOD CORPORATION v. CARRIAGE MEAT CO., INC.
    No. 83-CA-731.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      Warren J. Pickle, New Orleans, for defendant-appellant.
    Baldwin & Haspel, Jeannie M. Randazzo, Maryann M. Swaim, New Orleans, for plaintiff-appellee.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Carriage Meat Co., Inc., defendant-appellant, from a judgment on open account in the amount of $2,103.72, and attorney fees of $500, in favor of Riv-erland Food Corporation, plaintiff-appellee. Because we find that Riverland’s own evidence proves an indebtedness of only $448.20, the judgment of $2,103.72 is amended to that amount. Because we also find that plaintiff failed to comply with the requisites of La.R.S. 9:2781, the award of attorney fees is vacated. .

The facts of the case are these: River-land is a meat slaughter and conveying operation, and Carriage is a meat wholesaler to restaurants and hotels. From October, 1978, until June, 1979, Riverland regularly sold and delivered meat to Carriage. Records of these transactions were kept by Riverland on a running account basis. Its ledger card on the account consists basically of three columns: debit, credit and balance.

When the business association of the parties ended in October, 1978, Riverland’s ledger showed a balance owing of $2,103.72, but Carriage disputed that figure, claiming instead that its account was paid up. After unsuccessful attempts to resolve this matter, Riverland made demand on Carriage, and filed the present action.

To its original petition, Riverland attached a ledger card in support of its claim, but through apparent clerical error, this card was not the account of Carriage, but that of one of Riverland’s other creditors. On receipt of this petition, Carriage sought production of the correct ledger card, as well as all invoices in support of the alleged balance due. It also sought to know what documentary evidence Riverland intended to produce at trial. In response, Riverland provided the proper ledger card, but not the invoices. It also asserted that the ledger and miscellaneous correspondence would be used as evidence, but made no mention of invoices.

At trial, Riverland attempted to introduce these invoices, but Carriage prevailed in its objection to these documents on grounds that they had not been produced or listed as proposed evidence before trial. The result was that Riverland’s case in chief consisted basically of the ledger card and testimony by the president of the corporation that the balance was outstanding.

When plaintiff rested, Carriage moved for a directed verdict on the grounds that a ledger card without supporting invoices does not constitute a prima facia case in a suit on open account. This motion was denied by the court “in the interest of justice”. Carriage then presented its case, which was simply that the account was paid and that it had in its possession, but not in court, cancelled checks to so prove.

The court thereupon left the case open and gave both parties reasonable time to submit the invoices and checks into evidence. Riverland produced all pertinent invoices, but Carriage chose to stand on its position at trial that as no prima facie case had been made by plaintiff, defendant was not required to go forward with rebuttal evidence.- Judgment was thereupon entered in favor of Riverland for the full amount of its demand and attorney fees, and Carriage now appeals.

Carriage raises basically two issues before this court:

1.) The motion of a directed verdict should have been granted because plaintiff failed to present a prima facie case at trial.

2.) Plaintiff should not have been awarded attorney fees because its demand on open account did not comply with the requirements of La.R.S. 9:2781.

The basis of Carriage’s first argument is that a ledger card without supporting invoices is not sufficient proof to make out a prima facie case in a suit on open account, and therefore it had no need to rebut the claim by presenting the cancelled cheeks. This is an incorrect statement of the law. Proof of a suit on open account for individual items exceeding $500 is governed by La. Civ. Code 2277, which requires testimony by one credible witness and other corroborating circumstances Shear v. Castrinos, 327 So.2d 558 (La.App. 4th Cir. 1976). Our inquiry here is not, therefore, simply a mechanical one based on the introduction or not, of invoices, but rather on a reasonable assessment of testimony and corroborating evidence.

We further note in regard to the invoices, that implicit in Carriage’s argument is the proposition that it was error to permit introduction of the invoices because during discovery Riverland failed to produce the invoices and did not list them as evidence to be used at trial. Again, the law is otherwise.

One purpose of discovery is to protect a party from prejudicial surprise at trial by the introduction of evidence not previously known by him to exist, and against which he could not therefore have prepared a rebuttal, Cf. Cousins v. State Farm Mutual Auto Ins. Co., 258 So.2d 629, 634 (La.App. 1st Cir.1972). On the present facts, we find no prejudice to Carriage. Carriage’s president, Anthony Faso-la, testified unequivocably that he had in his files cancelled checks which showed that payments had been made on all invoices. The trial court thus ordered that Riverland turn over to Carriage all invoices in their possession so that they might be compared with the checks. The invoices were duly presented, but Carriage chose not to produce the checks. Under these circumstances, we fail to discern any surprise, much less prejudice, to Carriage by the admission of the invoices into evidence, Recherche, Inc. v. Jewelry Jungle Inc., 377 So.2d 1329 (La.App. 1st Cir.1979).

We next turn to the amount of the judgment. In this regard, we agree with Carriage that Riverland failed to make a prima facie ease for the entire indebtedness claimed to be owed. The invoices support all entries in the debit column of the ledger. We further accept as stipulated by Riverland, that all credits shown in that column of the ledger represent either actual payments made by Carriage, or credits given for returned or defective merchandise. When the total of credits is subtracted from the total of debits, an outstanding balance of $448.20 is found still to be owing.

As to the $2,103.72 balance claimed to be owed, the ledger discloses that this figure resulted from three unexplained, unsupported or simply erroneous adjustments in the balance column. The first was a $60.00 mathematical debit error on December 5, 1978. The second, and most significant debit adjustment, was that of January 11, 1978, in the amount of $1,893.12. There is no invoice to support this item, and River-land’s president admitted in testimony, that he did not know where this figure came from. On these facts, this item cannot be taken as prima facie evidence because there was neither testimony nor other corroboration. The third adjustment was a credit of $297.60, made on February 26, 1978. There is again no explanation as to this credit, but it appears to have been a repetition of a similar credit made on January 11, 1978. The results of these errors were responsible for the final figure of $2,103.72, which Riverland claims was owed as follows:

Debits minus credits $448.20
Debit error in balance column 60.00
Unsupported Debit adjustment to balance column 1893.12
$2401.32
Unsupported Credit adjustment to balance column -297.60
$2103.72

Because these items were neither explained by Riverland, nor corroborated in any other manner, we hold that no prima facie case was made therefor, and that Carriage was not required to rebut these adjustments to the balance. As to the balance of $448.20, because Carriage failed to come forward with evidence claimed by it to exist and showing payment of this amount, we presume that this evidence was detrimental to its case, Tubesales v. Champion Machine Works, Inc., 281 So.2d 459 (La.App. 4th Cir.1983). We therefore amend the judgment of the trial court in favor of Riverland to $448.20.

As to attorney fees, La.R.S. 9:2781, specifically states that such fees are recoverable only when demand is made correctly setting forth the amount owed and all invoices in support thereof. This statute is strictly construed, Roberts v. Paciera, 411 So.2d 650 (La.App. 4th Cir.1982). Here, the demand did not include the invoices, nor did it correctly state the amount owed, and attorney fees are therefore not recoverable.

For the foregoing reasons, the judgment appealed from is amended to the amount of $448.20 in favor of Riverland and against Carriage. The award of attorney fees is vacated. All costs of this appeal are to be paid by both plaintiff and defendant.

AMENDED IN PART, REVERSED IN PART AND RENDERED.


author: CULPEPPER, Judge.

text:
    Lillian JOHNSON, Plaintiff-Appellee, v. BELLEFONTE INSURANCE COMPANY, Defendant-Appellant.
    No. 83-595.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Woodley, Barnett, Cox, Williams, Fenet & Palmer, Robert W. Fenet, Lake Charles, for defendant-appellant.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellee.
    Before GUIDRY, FORET and CULPEP-PER, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries sustained by the plaintiff, Lillian Johnson, when she slipped and fell on an icy sidewalk outside of her leased apartment. The defendant, Bellefonte Insurance Company, is the insurer of Palme Chalet Apartment Complex, hereinafter referred to collectively as “Defendant.” Plaintiff seeks recovery on the grounds of the negligence and/or strict liability of defendant. The defendant pleaded contributory negligence and/or assumption of the risk. A jury of 12 held: (1) That the apartment operator was negligent; (2) that plaintiff was contributorily negligent; (3) that 50% of the fault which caused the damages was attributable to defendant and 50% to plaintiff; (4) that the icy sidewalk was “defective”; (5) that plaintiff did not assume the risk; and (6) that the amount of plaintiff's damages are $20,000 for pain, suffering and disability, $40,000 for past medical expenses and $20,000 for future medical care, a total of $80,000. The district court judgment did not reduce the jury’s award of damages in proportion to the percentage of fault attributable to plaintiff. The defendant appealed. Plaintiff answered the appeal, seeking an increase in the award.

After the trial during March of 1983 and the appeal, the plaintiff died on December 29, 1983. Her brother and sister, Edward Nunez and Bessie Nunez Welch, were substituted as parties plaintiff.

Defendant's first specification of error is that the district court erred in failing to grant its exception of no cause of action and motion for summary judgment directed against plaintiff’s claim based on strict liability. Defendant argues the sidewalk itself had no defect, that the ice was an act of God and that therefore there is no strict liability under LSA-C.C. art. 2695 which holds the lessor liable to the lessee for damages caused by a vice or. defect in the thing leased. We pretermit this issue because we find no manifest error in the jury’s verdict that the defendant was negligent, and because it is our view that the result would be the same whether defendant’s liability is based on negligence or strict liability. We conclude, for reasons set forth hereinafter, that contributory negligence is a defense to both strict liability and negligence in a case of this type.

The issues which we must address are: (1) Was the jury manifestly erroneous in finding as a fact that the defendant was negligent? (2) Was the jury manifestly erroneous in finding as a fact that the plaintiff was contributorily negligent? (3) Was the jury manifestly erroneous in finding as a fact that 50% of the fault which caused the damages was attributable to defendant and 50% to plaintiff? (4) Was the jury manifestly erroneous in finding as a fact that plaintiff did not assume the risk? (5) Did the district court err in admitting into evidence hospital records and medical bills without expert medical expert testimony to connect those documents to the accident on January 14, 1982? (6) Did the jury abuse its discretion in finding the amount of damages, as itemized above? (7) Is contributory negligence a defense to strict liability in a case of this type? (8) Did the district judge err in failing to reduce the jury award in proportion to the percentage of fault attributed to the plaintiff?

GENERAL FACTS

Lillian Johnson, 83 years of age, had lived alone in the Palme Chalet Apartments in Lake Charles for about nine years at the time of the accident in question on January 14, 1982. In this apartment complex, each building has four units, two below and two above, with a metal stairway which descends outside from an upper balcony in the middle of the building to the ground floor where the front entrances are located. There are 112 apartments in the complex.

The evidence shows that before this accident Lillian was active and in good health for her age. She walked where she wanted, drove her own car without glasses and did all of her own housework.

On the day before the accident, it had rained, and that night the weather turned cold causing a hard freeze. On the morning of January 14, 1982, the weather was clear and sunny, but there was ice on the outside steps and on the outside sidewalks.

Plaintiff’s brother, Ed Nunez, had telephoned and arranged for them to go to the Picadilly Cafeteria for lunch at 11:30 A.M. Ed arrived, parked his car in back of the apartment, and came in the back way, gaining access to the stairway by use of stepping stones which were on the opposite side of the stairway from the sidewalk in question where Lillian slipped. Ed went up the stairs to Lillian’s apartment, which is on the left facing the front. He saw ice on the edges of the steps on his way up. Ed testified that when he greeted his sister at her front door, she warned him that they must be careful because of the ice. According to Ed’s testimony, he preceded Lillian down the metal steps, which go out from the upper balcony to a landing and then back toward the front entrances of the downstairs apartments. There was no ice on the steps, except possibly on the outer edges, because they had been exposed to the bright sunlight since early morning. Also, there was no ice on the sidewalk at the foot of the stairs near the front entrances, because this portion of the sidewalk was covered by the upper balcony. Mr. Ed testified that when they reached the bottom of the stairs and started walking on the sidewalk which leads out from the front entrances, he saw a solid sheet of ice across the sidewalk a few feet from the front of the building. To avoid walking on this ice, Ed walked on the grass at the edge of the sidewalk. Lillian came behind him and she walked onto the ice on the sidewalk. Her feet slipped out from under her, and she fell backwards striking her elbow and the back of her head on the concrete. Pictures filed in evidence show that the spot where she fell was five or six feet from the front of the building. The evidence indicates that although the sun had melted the ice on most of the sidewalks by that time, this particular spot where Lillian slipped was shaded, apparently by the stairway landing, and the ice had not melted there.

The complex maintenance man, Dallas Fontenot, happened to be in the upstairs apartment opposite Ms. Lillian’s changing filters for the tenants. Fontenot testified that although he had been in the area ‘that morning and seen the ice and had warned some of the tenants to be careful, he did not warn the plaintiff or Ed of the ice when they came out of Lillian’s apartment, because he had seen Lillian out visiting another tenant that morning and thought that she knew about the ice and that it was unnecessary to warn her.

After Lillian fell, Fontenot immediately came down the stairs and assisted in lifting her up and calling an ambulance which took Lillian to St. Patrick’s Hospital in Lake Charles. The injuries and medical expenses will be discussed in more detail later.

DEFENDANT’S NEGLIGENCE

The first issue is whether the jury was manifestly erroneous in finding the defendant apartment complex negligent. At the outset, we will explain why we decide this case on the basis of negligence rather than strict liability. In the recent case Entrevia v. Hood, 427 So.2d 1146 (La.1983), the question was whether the owner of a remote, unoccupied farm house, which was surrounded by a fence and posted with “No Trespassing” signs, was strictly liable for damages occasioned when a trespasser was injured by the collapse of the building’s rear steps. Our Supreme Court explained that the judicial process for deciding strict liability by the owner for maintaining a hazard which presents an unreasonable risk of injury to others is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem. The court explained further, that a difference between the two theories is that under strict liability the custodian of the thing is presumed to have knowledge of its dangerous condition before plaintiff’s injury, but under a negligence theory knowledge by the defendant of the hazard is not presumed and must be proved. A major distinction between the two theories is that the inability of the defendant to know or prevent the risk is not a defense in strict liability but precludes the finding of negligence.

Using this explanation in Entrevia, we find the evidence in the present case clearly shows that the defendant’s maintenance man, Fontenot, knew that there was still ice on shaded portions of the outside sidewalks, and he knew that this presented a risk of harm to the tenants, most of whom were elderly and retired. The question of whether the defendant was able to prevent the risk, by either remedying it or warning of it, is not as clear from the evidence, but we conclude there was sufficient evidence to support the jury’s verdict that defendant was negligent. Plaintiff introduced the testimony of an expert safety consultant that the ice could have been removed from the sidewalk by using sand, salt or water. Of course, Dallas Fontenot, the maintenance man, could have warned plaintiff of the presence of the ice which the jury could have reasonably found that he saw or should have seen on the sidewalk as he entered the building.

Since we can decide this case on the basis of negligence, we choose to base our decision on that theory rather than strict liability, because the result is the same, in view of our conclusion explained hereinafter that contributory negligence is a defense in this type of case to either negligence or strict liability. Moreover, by using negligence instead of strict liability, we need not decide whether ice on an outside sidewalk in an apartment complex presents an unreasonable risk of injury to the tenants, making the owner strictly liable regardless of whether the owner knew of the hazard or was able to remedy it or warn of it. Counsel stated during oral argument that they had found no Louisiana case deciding this question. We have found none, and we are reluctant to set a precedent which could have far reaching consequences in similar cases involving ice on sidewalks, roadways, bridges, etc.

For the reasons which we have already mentioned above, we conclude that the defendant was negligent. The icy sidewalk clearly presented an unreasonable risk of injury to the tenants, the defendant knew about the hazard, and there was sufficient evidence for the jury to find as a fact that the defendant could have remedied the hazard or warned against it.

CONTRIBUTORY NEGLIGENCE

The next issue is whether the jury was manifestly erroneous in finding as a fact that the plaintiff was contributorily negligent. Two witnesses testified they had seen Lillian outside earlier that morning on the sidewalks. Dallas Fontenot, the maintenance man, said he saw plaintiff walking down the sidewalk towards her apartment at about 11 o’clock a.m. Lavo-nia Dews, a tenant, testified plaintiff had visited the Dews’ apartment earlier that morning. As stated above, plaintiff’s brother, Ed Nunez, testified that when he greeted his sister at her front door, she warned him to be careful of the ice. Clearly there was sufficient evidence to support a finding by the jury that plaintiff knew about the ice on the sidewalk.

As stated above, Ed Nunez also testified that after they reached the bottom of the stairs and started walking out from the front of the building, he walked on the grass to avoid the solid sheet of ice in the shade across the sidewalk. Lillian did not follow Ed onto the grass. Instead, she walked onto the ice and slipped.

The above evidence was clearly sufficient to support the jury’s finding of fact that Lillian was contributorily negligent. The district judge correctly charged the jury that contributory negligence is a question of fact to be determined under the circumstances of each case, and that the critical inquiry is whether the plaintiff exercised ordinary care for her own safety at the time of the accident. The jury found she had not.

APPORTIONMENT OF FAULT

The next question is whether the jury was manifestly erroneous in attributing to defendant 50% and to plaintiff 50% of the fault which caused the injury. The parties have not argued error in this regard. We find none.

ASSUMPTION OF THE RISK

The next issue is whether the jury-erred in failing to find that plaintiff assumed the risk. In Dofflemyer v. Gilley, 384 So.2d 435 (La.1980), our Supreme Court defined assumption of the risk as follows:

“It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk.”

In the present case, defendant argues that plaintiff had prior knowledge of the ice on the sidewalk at the spot where she fell, and that she nevertheless deliberately walked on the ice and accepted the risk of injury. Although, as stated above, we agree plaintiff had prior knowledge that there was ice on the sidewalks outside and that it was dangerous, we cannot agree that the jury was manifestly erroneous in finding that plaintiff did not assume a risk, i.e., that she did not deliberately walk on the ice in this particular spot and assume the risk that she might slip. The jury could have reasonably found that she was simply negligent, i.e., that she failed to use reasonable care to see the ice and to avoid walking on it.

We find no manifest error by the jury verdict that plaintiff did not assume the risk.

HOSPITAL RECORDS AND MEDICAL BILLS

The next issue is whether the trial judge erred in admitting into evidence certain hospital records and medical bills without expert medical testimony to connect those documents to the accident on January 14,1982. The hospital records in question are plaintiff’s exhibits P-3 through P-9. Each of these exhibits contains copies of hospital records of plaintiffs hospitalization for a certain period of time. Each set of records is properly certified by an official of the respective hospital in accordance with the provisions of LSA-R.S. 13:3714 which reads as follows:

“Sec. 3714. Charts or records of hospitals; admissibility of certified copy “Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination. As amended Acts 1952, No. 519, Sec. 1; Acts 1966, No. 161 Sec. 1”

No physician testified for plaintiff in this case. During the trial, defendant objected to the admission of each set of hospital records on the grounds that the records alone do not connect the plaintiffs subsequent hospitalization and treatment to the fall on the ice in January of 1982. The trial judge overruled defendant’s objections and admitted the records in evidence on the basis that the discharge summaries and other statements by physicians in the hospital records themselves sufficiently connect these subsequent periods of hospitalization to the fall in January of 1982. We have carefully examined all of these hospital records and agree with the trial judge’s ruling.

Defendant states in its brief that it does not seriously object to P-3, which is the hospital record of St. Patrick Hospital for the period January 14,1982 ending January 20, 1982, nor to P-4, which is the hospital record of St. Patrick Hospital for the period January 23, 1982 ending January 30, 1982. However, defendant argues that P-5, the records for the period March 19, 1982 ending April 9, 1982 and all of the subsequent records of hospitalizations are inadmissible.

Our examination of all of these subsequent hospital records shows that they contain statements by the physicians sufficient to connect these subsequent periods of hospitalization to the injury in January of 1982. For instance, the discharge summary signed by the treating physician, Dr. Paraguya, for the period of hospitalization March 19, 1982 ending April 9, 1982 states that plaintiff was admitted because of persistent pain in the left thigh and knee area, and that she was previously recently hospitalized following a fall where she suffered a cerebral concussion. This physician states that she complained of pain and weakness in the left knee to the extent that she had fallen backwards at her apartment several times when the left knee would give out on her and she would fall. Although the doctor could not find definite neurological abnormality, he did find evidence of prior existing osteoarthritis of the cervical spine and the left hip.

P-6 is the record of St. Patrick Hospital for the period July 8, 1982 ending July 23, 1982. P-7 is the record of St. Patrick Hospital for the period July 26,1982 ending August 25, 1982. The discharge summaries in P-6 and P-7 signed by the physician state that she continued to have general pain and weakness in both legs and inability to walk alone.

After these two periods of hospitalization in St. Patrick Hospital, plaintiff and her family decided they would change doctors and hospitals. She went to Lake Charles Memorial Hospital where she was treated by Dr. Hutchinson, who associated Dr. Raggio. P-8, the hospital records of Memorial for the period September 25, 1982 ending October 19, 1982, contain the statement by Dr. Hutchison that this 84-year-old female was admitted for complaints of dizziness and loss of the use of her legs and arms and that “because of the history, it was felt that it was likely that this resulted or was aggravated by the fall that she experienced in January since this is when she began having symptoms.” In P-9, the records of Memorial for the period December 3, 1982 through January 4, 1983, the physician states that she was diagnosed as having cervical myelopathy, and that “this was felt to be secondary to degenerative disease of the spine and probably aggravated or precipitated by a fall which she experienced earlier in the year when she slipped on a sidewalk.”

LSA-R.S. 13:3714, quoted above, clearly states that properly certified hospital records “shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.” In the present case, the records were properly certified and were received in evidence as prima facie proof of their contents. The records themselves contained statements by physicians such as those mentioned above which clearly connect these subsequent periods of hospitalization to the injury in January of 1982. Under the statute, the defendant had the right to summon under cross-examination the physicians or other persons who made the originals of the records. This was defendant’s relief if it desired to cross-examine the physicians who made the records. We conclude the hospital records were correctly admitted into evidence.

Regarding the medical bills, Ed Nunez testified that after his sister's fall he took care of all of her business and paid all of her bills. The hospital bills in question are identified by Ed as being those for the different periods of hospitalization as well as bills for sitters both in the hospital and at home and for other medical expenses. Ed identified P-12, P-13 and P-14 as being all of the medical bills through the date of trial, totaling $50,253. P-15 and P-16 are the bills for nursing homes to which plaintiff was admitted a month or two before trial. According to Mr. Ed’s testimony, these records show that the monthly expense of nursing home care which would be required for the indefinite future was $3,996. The total for medical expense and nursing homes to the date of trial is $55,-087.

Defendant objects to the introduction of the medical bills essentially for the same reason that it objected to the hospital records, i.e., that no physician was called by the plaintiff to connect these expenses with the fall in January of 1982. We conclude the trial judge correctly overruled defendant’s objections to these bills and admitted them into evidence. The hospital records along with the testimony of Mr. Ed and the bills themselves clearly connect all of these expenses to the fall in 1982.

AMOUNT OF DAMAGES

The next issue is whether the jury abused its discretion in finding the amounts of damages as itemized above. Plaintiff argues the award for pain, suffering and disability should be increased from $20,000 to $300,000, that the award for past medical should be increased from $40,-000 to $55,087, and that the award for future medical expenses should be increased from $20,000 to $316,483.

As regards the award of $20,000 for pain, suffering and disability, plaintiff emphasizes that before the accident in January of 1982, plaintiff was active and in good health for her age, that she walked without help, drove her own car and did her own housekeeping. She also testified, by deposition, that she had never previously been hospitalized. After the accident she never fully recovered. On those occasions when she was allowed to go back to her apartment, she had to use a walker and have sitters around the clock. Her chief complaint was weakness and pain in her legs which caused her to fall at home several times. She was in and out of the two hospitals for about a year after the accident and then was in a nursing home for about three months up to the date of trial.

Although we agree with the plaintiff that the jury could have reasonably made a greater award for general damages, we do not find that the jury abused its much discretion as to the quantum for this item.

Plaintiff next complains of the award of $40,000 for past medical expenses, arguing that the evidence clearly shows the expenses for hospitals, physicians, drugs and nursing homes, etc. totaled $55,087 to the date of trial. We do not know how the jury reached an award of $40,000 for this item. It could be they thought some of the medical expenses were not sufficiently connected with the accident, as defense counsel argued in his objections during the trial and in his argument to the jury at the conclusion of the trial. $40,000 was apparently an estimate by the jury of the amount of medical expense which they thought was sufficiently connected to the accident. Using this rationalization, we conclude the jury did not abuse its discretion as to past medical expense.

As to the award of $20,000 for future medical expense, plaintiff argues that the evidence shows it cost $3,996 per month to keep Lillian in a nursing home and her life expectancy was 6.6 years, which would be $314,483 for nursing home care alone.

Again, we have difficulty rationalizing how the jury arrived at an award of $20,-000 for future medical expense. Defendant did introduce the testimony of Dr. Gerald Litel, a neurosurgeon, who had seen plaintiff in February of 1979 for cervical arthritis and spondylolisthesis. This physician expressed the opinion that plaintiff would have probably deteriorated' over the next three years without any aggravation of her condition by injury. Based on some such reasoning, the jury may have concluded plaintiff was entitled to only a portion of the future medical expenses claimed by plaintiff. We are unable to find that the jury abused its much discretion in this regard.

In summary, we .find no abuse of discretion by the jury as to any of the items of damages.

CONTRIBUTORY NEGLIGENCE DEFENSE TO STRICT LIABILITY

We have stated above that regardless of whether we decide liability in this case on the basis of negligence or strict liability, plaintiffs contributory negligence is a defense. We base this statement on several decisions from our Louisiana Courts of Appeal, including this Court, which hold that contributory negligence in a negligence case has the same effect as victim fault in a strict liability case. Sumner v. Foremost Insurance Company, 417 So.2d 1327 (La.App. 3rd Cir.1982); Hebert v. United Services Automobile Association, 355 So.2d 575 (La.App. 3rd Cir.1978); Parker v. Hanks, 345 So.2d 194, 195 (La. App. 3rd Cir.1977); Edwards v. State Department of Transportation & Development, 403 So.2d 109 (La.App. 3rd Cir.1981); Godwin v. Government Employees Insurance Company, 394 So.2d 751 (La.App. 3rd Cir.1981); Sullivan v. Gulf States Utilities, 382 So.2d 184 (La.App. 1st Cir.1980), writ denied 384 So.2d 447 (La.1980). Several recent Law Review articles approve the use of contributory negligence as a defense to strict liability, except in certain types of cases such as those involving ultra-hazardous activities. Contributory Negligence— When Should It Be A Defense In A Strict Liability Action?, 43 La.Law Rev. 801 (1983); Comparative Negligence And Strict Liability, 40 La.Law Rev. 403 (1980); Note, Victim Fault, Who Are You Really And What Were You Before?, 42 La.Law Rev. 1393 (1982).

In Dorry v. LaFleur, 399 So.2d 559 (La.1981), plaintiff slipped and fell on a wet spot at a skating rink. Dicta in a plurality opinion states that contributory negligence should be a defense for strictly liable defendants where defendant’s activity is “apparently innocuous” and produces no income. Since the skating rink was income-producing, the court did not allow contributory negligence as a defense. Thus, the court left a question as to the types of strict liability cases in which it may allow contributory negligence as a defense. We do not consider that Dorry controls our decision in the present case.

We are aware of the recent decision in Bell v. Jet Wheel Blast, 709 F.2d 6 (5th Cir.1983) in which this Federal Court takes the contrary position that under Louisiana law contributory negligence does not defeat a strict liability claim. The Federal Court states that although several decisions by Louisiana intermediate Courts of Appeal have equated contributory negligence with victim fault, the Louisiana Supreme Court has never squarely ruled on this issue.

Although we respect the views expressed by the Federal Court, and we are aware that our Louisiana Supreme Court has never squarely decided the issue, we conclude that the above cited cases correctly hold that contributory negligence is a defense in a strict liability case of this type.

REDUCTION OF AWARD IN PROPORTION TO CONTRIBUTORY NEGLIGENCE

The next issue is whether the district judge erred in failing to reduce the jury award in proportion to the percentage of fault attributed to the plaintiff by the jury. LSA-C.C. art. 2323, which became effective August 1, 1980, before the accident in the present case, provides that when contributory negligence is applicable to a claim for damages “the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury.”

Having chosen for the reasons set out above to decide liability in this case on the basis of negligence, it is clear that contributory negligence is applicable to the claim for damages. Under the clear language of Article 2323, quoted above, the amount of damages awarded by the jury must be reduced by the percentage of negligence attributable to the plaintiff, i.e., 50%. This results in an award of $40,000.

DECREE

For the reasons assigned, the judgment appealed is amended by reducing the amount of the award from $80,000 to $40,-000. Otherwise, the judgment is affirmed. The costs of this appeal are assessed one-half to plaintiff and one-half to defendant.

AFFIRMED, AS AMENDED.

       Judge William A. Culpepper, retired Third Circuit Court of Appeal Judge, participated in this decision as an assigned judge pro tempore.


author: STOKER, Judge.

text:
    Randy K. FAGAN, Plaintiff-Appellant, v. DELTA STEEL & CONSTRUCTION COMPANY, et al., Defendant-Appellee.
    No. 83-600.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 7, 1984.
    William Henry Sanders, Jena, for plaintiff-appellant.
    O.P. Barnes, III of Snelling & Barnes, Monroe, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

Plaintiff, Randy Fagan, appeals from a judgment of the trial court dismissing his claim for workers’ compensation benefits from his employer, Delta Steel & Construetion Company (Delta Steel), and its workers’ compensation insurer, Aetna Life & Casualty Company (Aetna). On appeal Fa-gan seeks benefits for total and permanent disability, medical expenses, and penalties and attorney’s fees. For reasons set out below, we reverse the judgment of the trial court and award benefits for total and permanent disability and medical expenses, but we deny plaintiffs claim for penalties and attorney’s fees.

ISSUES

Defendants agree that plaintiff is disabled but contend that he became disabled in a prior employment. Plaintiff agrees that he was hurt in prior employment but contends that he became disabled subsequently in the employ of Delta Steel. The issue in this case is whether an accident (as the term is construed within the context of our workers’ compensation law) occurred while plaintiff was employed by Delta Steel and which aggravated plaintiffs condition so as to disable him.

FACTS

The dismissal of Mr. Fagan’s claim against Delta Steel was based on a finding of the trial court that his disability resulted solely from an accident which occurred on January 9, 1981, while he was employed by J.A. Jones Construction Company. Mr. Fa-gan suffered injuries to his head and back on that date when he was struck by a 300-pound gate. He was hospitalized from January 13 to January 30, 1981, and was ultimately released to return to work on March 1 of that same year. He did not in fact return to work for J.A. Jones at that time because he was laid off due to a lack of work. Even though Mr. Fagan had been released to return to work, he continued to take painkillers and muscle relaxers as prescribed.

Mr. Fagan remained unemployed until he went to work for Delta Steel on August 21, 1981. He testified that he had continued to suffer low back pain which increased after he returned to work. He also testified that he began having what he described as a catch in his neck. On October 28, 1981, while reaching for a brick in a bucket of water, Mr. Fagan experienced pain in his right hand and arm. He reported this occurrence to his boss, Mr. Charles Stanford, who, as a matter of company policy, gave him a letter of introduction authorizing medical treatment. The letter was not directed to any particular doctor.

Apparently Mr. Fagan did not seek treatment for the injury of October 28, 1981 until November 10, at which time he saw a neurologist in Houston, Texas. Mr. Fagan testified that he continued to take the medication available to him from his January injury before seeking further help. Extensive tests were conducted in Houston and it was determined that Mr. Fagan had some nerve root irritation. From November 18 to December 9, Mr. Fagan was treated through outpatient therapy as recommended, and further hospitalization for diagnosis and treatment has been recommended.

As a result of Aetna’s refusal to pay benefits or medical expenses on behalf of Delta Steel, Mr. Fagan filed suit.

SOURCE OF DISABILITY

The trial court found that plaintiff was suffering from a debilitating condition, but found that the condition resulted solely from the accident which occurred January 9, 1981, when Mr. Fagan was working for J.A. Jones. We agree with the finding of disability, but find that Mr. Fagan’s condition was aggravated by his employment with Delta Steel. Thus, he is entitled to workers’ compensation benefits from Aet-na as Delta Steel’s insurer. In their brief on appeal, defendants do not argue that Mr. Fagan is not disabled, but urge only that the trial court was correct in determining that the disability resulted from the January accident.

At trial, Mr. Fagan testified that his lower back pain from the January accident began to increase when he went to work for Delta Steel and he also began having neck pain. The medical reports and depositions in evidence corroborate this testimony. The reports of Dr. Passman, who treated Mr. Fagan after his January accident, show continuing low back pain, and the report of Dr. Davidson dated October 19,1981, shows that he was complaining of the neck problem after his employment with Delta Steel.

We find that there is sufficient evidence in the record proving that an accident occurred on October 28, 1981. At least there was an event which must be considered as an accident under the broadened interpretation which has been jurisprudentially given to the term accident within the context of the Workers’ Compensation law of this State. See Malone and Johnson, Louisiana Law Treatise, Workers’ Compensation (Vol. 13), Sections 214 and 215. In written reasons for judgment the trial court stated:

“Plaintiff seeks Workmen’s Compensation benefits on the basis of an alleged work related injury on October 28, 1981. “Although the Court appreciates the fact that plaintiff is suffering from a debilitating condition, even under the most liberal application of the Workmen’s Compensation Law, he has simply failed to prove, by a preponderance (sic) of the evidence, that he is disabled from a work related injury on or about October 28, 1981.
“The Court is lead to the abiding conclusion that plaintiff’s condition is attributable to the accident he incurred on January 9, 1981, while employed with J.A. Jones Construction Company, which is not a party to this suit.
“Therefore, plaintiff’s demands are rejected at his costs.”

It is apparently conceded that what happened to plaintiff on October 28, 1981 was causally related to the accident which occurred on January 9, 1981. As held by our Supreme Court in Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972) we do not focus on accident cause but rather on accident result. It appears to us that the trial court focused on the cause, rather than the result.

Mr. Fagan’s testimony is that while reaching for a brick he suffered a sharp pain in his right hand which radiated up into his arm and neck. He immediately reported this event to his supervisor, Mr. Stanford, who gave him a letter authorizing medical treatment. Mr. Stanford and another company employee remember the event, but apparently believed that the consequences were not serious. Both testified that Mr. Fagan could straighten out his hand, although he claimed to be unable to do so.

The uncontradicted testimony of the plaintiff as to the occurrence of an accident should be accepted as true. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Here the only contradictory evidence as to Mr. Fagan’s accident concerns whether or not he could straighten out his hand. There is no apparent reason to believe that Mr. Fagan lacks credibility. He immediately reported the accident and was seen by a co-worker to be holding his hand by the wrist.

We also note that when injury is the result of the performance of usual and customary duties, an accident in terms of workers’ compensation has occurred. Ferguson v. HDE, Inc., supra, and Bertrand v. Coal Operators Cas. Co., 253 La. 1115, 221 So.2d 816 (La.1969).

Defendants point out that Mr. Fa-gan’s present problems are expectable complications of his January injury. Even if that be the case, Mr. Fagan is still entitled to benefits. It is well established that a disability is compensable if a work-related accident aggravates or accelerates a pre-ex-isting condition to cause disability. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973); and Cadiere v. West Gibson Products Company, 364 So.2d 998 (La.1978). As recently stated by the Louisiana Supreme Court in Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982):

“The fact that a condition is preexisting does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee’s disability is compensable if a preexisting disease or condition is activated or precipitated into disabling manifestations as a result of a work accident.”

Dr. John McCutchen, a neurologist in Houston, Texas, determined that Mr. Pagan has nerve root irritation and he recommends further hospitalization for a myelo-gram, a discogram, and a possible lumbar laminectomy. His reports document Mr. Pagan’s new complaints of pain in his hand and arm. Dí\ I.C. Turnley, a general practitioner, who saw Mr. Pagan on May 28, 1982 and August 3, 1982, agrees that a myelogram is indicated.

Considering the above facts and expressions of law, we find that Mr. Fagan is totally and permanently disabled, that such disability resulted from an aggravation or acceleration of his prior condition, and that the disability occurred as a result of a work-related accident while he was employed at Delta Steel.

PENALTIES AND ATTORNEY’S PEES

Plaintiff seeks penalties and attorney’s fees under LSA-R.S. 23:1201.2 on the basis that defendants’ refusal to pay benefits and medical expenses was arbitrary and capricious and without probable cause. We do not find that this was the case. In view of the seriousness of Mr. Pagan’s prior accident and the absence of an event of significant violence in connection with his accident while at Delta Steel, we find that an award of penalties and attorney’s fees is not appropriate in this case. The question of the source of Mr. Fagan’s disability is a substantial one and the defendants should not be penalized for seeking judicial resolution of this close factual question. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir.1976), writ denied 338 So.2d 298 (La.1976).

BENEFITS

As a result of being totally and permanently disabled, Mr. Pagan is entitled to weekly compensation of 66% per centum of wages. His wages are determined under LSA-R.S. 23:1021(7) as it provided prior to July 1, 1983. Under that provision Mr. Pagan’s wages are determined by multiplying his hourly wage rate times the average actual hours worked in the four full weeks preceding his disabling injury on October 28, 1981. His maximum compensation rate is $183.

The evidence indicates that Mr. Fagan was paid $4 per hour for the first forty hours per week and $6 for every hour after that. In response to questions by plaintiff’s counsel, Mr. Stanford testified that for the four full weeks prior to Mr. Fagan’s injury he worked twenty hours, fifty-five and one-half hours, forty-one and one-half hours, and forty-nine and one-half hours, for an average of forty-one and 625/1000 hours. Thus, Mr. Fagan’s average weekly wage at a rate of $4 for the first forty hours and $6 for each hour after that is $169.75. His rate of compensation is 66% percent of that amount or $113.17.

On "appeal, plaintiff requests payment of the following medical expenses:

Medical Service Laboratories - 11/10/81 $ 178.00 (Services by Dr. McCutchen)
Catahoula Parish Hospital 645.00 (Physical Therapy 11/18/81 - 12/9/81)
Jena Pharmacy 17.07 (Medication on 5/28/82)
Jena Pharmacy 22.02 (Medication on 8/3/82)
Houston Internationa] Clinic 3,042.06 (Services by Dr. McCutchen)
Dr. Turnley - 8/3/82 15,00
$3,919.15

We find that there was sufficient evidence presented at trial to show that these expenses are reasonably related to Mr. Fagan’s injury on October 28, 1981, and he is entitled to payment for them. We do note, however, that at trial Mr. Pagan’s attorney stated that the bill from the Houston International Clinic should be reduced by $100 charged for medical reports, and we will accordingly reduce the award by that amount.

DECREE

For the above reasons, judgment in favor of defendants dismissing plaintiff’s suit is reversed.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Randy K. Fagan, and against defendants for weekly benefits for total and permanent disability in the amount of $113.13 per week during the period of such disability, with legal interest on each weekly installment from due date until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Randy K. Fagan, and against defendants for medical expenses in the amount of $3,819.15, with legal interest thereon from date of judicial demand until paid.

Costs at trial and on appeal are assessed to defendants.

REVERSED AND RENDERED.