text:
    STATE of Louisiana v. Leo STEWART.
    No. K-2165.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 1984.
    Harry F. Connick, Dist. Atty., Patricia Head, Asst. Dist. Atty., New Orleans, for relator.
    Walter L. Sentenn, Jr., Orleans Indigent Defender Program, New Orleans, for respondent.

      Before KLEES, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

Upon application of the State of Louisiana we granted certiorari to review the ruling of the trial judge granting defendant’s motion to suppress evidence. Our review of the record and the transcript of the hearing on the motion to suppress the evidence has convinced us that the ruling of the trial court was erroneous. We, therefore, reverse the ruling of the trial court and render judgment denying defendant’s motion to suppress the evidence.

New Orleans police detectives Robert McNeil and Michael Glasser arrested defendant on December 19, 1983, at approximately 2:00 p.m. The arrest resulted from the detectives’ response to information received by Detective McNeil from a confidential informant. The two detectives were the only witnesses to testify at the hearing on the motion to suppress evidence. Their testimony was similar concerning the events surrounding the arrest.

Detective McNeil testified as to the information he received as follows:

Approximately five minutes before the actual arrest of Mr. Stewart I received information from a reliable confidential informant to the effect that he had just purchased a retail quantity of heroin from a Leo Stewart, Negro male, approximately 48 years old, from inside Rose’s Tavern, described as 3901 Thalia Street. The informant stated that Stewart was dressed in a brown cap, black shirt, blue pants, brown shoes. The informant stated that the heroin purchased or procured from Mr. Stewart was secreted in the area of Mr. Stewart’s right sock, and the funds received in exchange for the heroin was [sic] placed by Mr. Stewart in his right front pants pocket.

Detective McNeil further testified that the informant indicated that his purchase of heroin from defendant had occurred immediately prior to the conversation with Detective McNeil.

The informant contacted Detective McNeil by telephone. Detective McNeil testified that this informant had supplied reliable information in the past which had led to arrests and convictions — three convictions which the detective could bring to mind.

After receiving the information, Detective McNeil secured the assistance of Detective Glasser, and the two went to Rose’s Tavern at 3901 Thalia Street. The detectives entered Rose’s Tavern through its front entrance and immediately “observed and recognized Mr. Stewart standing near the bar, dressed exactly as described by the informant.” Detective McNeil was personally acquainted with Stewart as a result of previous encounters.

The detectives confronted Stewart, advised him of his rights (presumably as per Miranda), and informed him that he was under investigation for possession of heroin. Detective McNeil then conducted a “pat-down” search of Stewart and discovered “a bulge in the subject’s right front pants pocket” and “a small bulge in the area of Mr. Stewart’s right sock.” Stewart was then formally placed under arrest and the detectives removed $255.00 in currency from his right front pants pocket and 13 tinfoil packets of heroin from his right sock.

The police procedure employed in this case is identical to that employed in previously reported cases wherein the Supreme Court approved of the procedure. See: State v. Jernigan, 377 So.2d 1222 (La.1979); State v. Bolden, 380 So.2d 40 (La.1980), and State v. Davis, 383 So.2d 1005 (La.1980). There are, however, important legal distinctions between those cases and this case which policemen, not trained as lawyers and required to act quickly and under pressure, might not be expected to recognize.

All of the cases cited above involved an anonymous tip concerning an individual in possession of a concealed firearm. After police received the information they located the suspect as described by the informant and detained him for investigatory purposes. La.C.Cr.P. Art. 215.1. Having reasonable and articulable suspicion that the suspect was in possession of a dangerous weapon, the investigating officers searched the suspect as authorized by La.C.Cr.P. Art. 215.1 B.

The officers in this case followed this procedure. After receiving information from a confidential informant concerning an individual in possession of heroin, they located the suspect as described by the informant and detained him for investigatory purposes. La.C.Cr.P. Art. 215.1. Lacking any articulable reasonable suspicion that the suspect possessed a weapon, however, the police were not authorized to conduct a weapons frisk as was authorized in the other cases.

The “pat-down” conducted by Detective McNeil in this case, while certainly less intrusive than a full blown search, was, nevertheless, a search. This limited search, conducted without a warrant, must come within one of the exceptions to the warrant requirement or the evidence seized must be suppressed. The State suggests that the search was incident to a lawful arrest — one of the exceptions to the warrant requirement. To sustain the search as incident to a lawful arrest the police must have had probable cause to make an arrest at the time they confronted Stewart and searched him.

To determine whether the police had probable cause to arrest, we must review the totality of the circumstances surrounding the arrest. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Ruffin, 448 So.2d 1274 (La.1984).

Probable cause to arrest without a warrant exists when the facts and circumstances within the officer’s knowledge, or of which he had reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Edwards, 406 So.2d 1331 (La.1982); State v. Marks, 337 So.2d 1177 (La.1976). Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Commodore, 418 So.2d 1330 (La.1982); State v. Edwards, supra; State v. Marks, supra.

A confidential informant may provide adequate information to establish probable cause for a warrantless arrest, so long as the basis for the information and the informant’s reliability, when examined under the totality of the circumstances, are established. Illinois v. Gates, supra; State v. Ruffin, supra; State v. Burton, 416 So.2d 73 (La.1983).

Detective McNeil testified that this informant had proven reliable and credible in the past by providing information which had led to arrests and convictions. The detective could bring to mind three convictions resulting from information provided by this informant. The detective was, therefore, justified in his belief that this confidential informant was of proven credibility. State v. Burton, supra; State v. Paciera, 290 So.2d 681 (La.1974).

The informant indicated to Detective McNeil that personal knowledge formed the basis of his information, i.e., the informant personally purchased heroin from Stewart and observed the storage locations of both the heroin and the money. The basis of the informant’s knowledge was credible since he personally observed the heroin. State v. Morris, 444 So.2d 1200 (La.1984); compare State v. Ruffin, supra, note the dissenting opinion by Justice Lemmon, footnote 2; see also State v. Roubique, 421 So.2d 859 (La.1982) and State v. Duncan, 420 So.2d 1105 (La.1982).

Additionally, much of the information supplied by the informant was corroborated by the detectives. State v. Buckley, 426 So.2d 103 (La.1982).

Under the totality of the circumstances we find that the detectives had probable cause to arrest defendant at the time of the “pat-down” based upon the information as supplied by this informant.

For a search to be incident to a lawful arrest, there must be an arrest. An arrest occurs when the circumstances indicate an intent to effect an extended restraint on the liberty of an accused, rather than at the precise time an officer tells an accused he is under arrest. State v. Ruffin, supra; State v. Commodore, supra; State v. Wickers, 392 So.2d 419 (La.1980). We find that at the time the detectives confronted Stewart and restrained him to conduct the “pat-down” he was effectively and legally arrested.

Because the officers had probable cause to make the arrest, the arrest was lawful. La.C.Cr.P. Art. 213. A search incident to an arrest founded on probable cause is a recognized exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Buckley, supra. The evidence in this case was seized incident to the lawful arrest of defendant, and should not have been suppressed.

Accordingly, the ruling of the district court suppressing the evidence is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

SUPPRESSION OF EVIDENCE REVERSED; case remanded for Further PROCEEDINGS.


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    Carol DUCOTE v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. CA-0551.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 1984.

      Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
    Kent Breard, Sr., Snellings, Breard, Sartor, Inabnett & Trascher, Monroe, for defendant-appellee.
    Before REDMANN, GULOTTA and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Elton Ducote was electrocuted on May 4, 1977 while using a portable electric tool known as a “Skilsaw”. His widow filed this action for wrongful death against several defendants, including the manufacturer of the saw, the Skil Corporation. As to this defendant, Mrs. Ducote alleged that her husband’s death was caused by the saw’s defects in manufacture and design, and by Skil Corporation’s failure to adequately warn of the hazards which accompany the normal use of portable electric tools. Following lengthy trial of these issues, the lower court entered judgment for the defendant, finding no fault on the part of Skilsaw. The plaintiff now brings this appeal.

At trial, Skil Corporation irrefutably proved that the decedent's saw was defective neither in manufacture nor in design, and the plaintiff concedes as much here. Her sole contention now is that the warnings published by Skil in the user’s instruction manual were inadequate to alert her husband to the risk of electrocution if the saw were used without proper grounding.

The facts of this case are, for the most part, not in dispute:

Elton Ducote was an experienced twenty one year old carpenter. He was killed on May 4, 1977 while working at a construction site in New Orleans East, where a row of new houses was being built. Although the immediate cause of his death was electrical shock, this was, in turn, the result of an unusual combination of events.

Ducote arrived at work before 7:00 a.m. on the day of the accident. Despite the puddles and wet mud from the rain of the night before, he set up an outdoor workplace in front of the third house in the row. Since very few of the other carpenters, plumbers, or electricians had arrived, Du-cote did not, as yet, have to compete with them for the electricity which was supplied by the temporary service pole located between the second and third houses. The pole had only two 120-volt receptacles, one above the other. Ducote plugged his Skil-saw’s long extension into the bottom outlet and began to work, sawing the fascia and soffits which were to be used in the construction of the second house.

After working for a number of hours, Ducote set his saw down on the unfinished boards and walked to the workers’ “chuck wagon” for a cup of coffee. Other men had arrived at the site by this time, some of whom would need electricity from the temporary pole to power their own tools. One of the plumbers working in the second house went to the pole to connect his drill and, apparently seeing that both receptacles were occupied, he unplugged Ducote’s extension. In its place, he inserted a short extension with a four-outlet junction box attached to the other end. The plumber then plugged both his own cord and Du-cote’s into the box and returned to work inside the second house.

When Ducote returned from his coffee break, he picked up his saw by its metal casing and suffered immediate electrocution. A police investigation into the cause of the mishap revealed that the cord which the plumber had used to replace connect the junction box to the power pole was dangerously defective: although it was a three-wire cord, someone had attached a two-prong plug to the end of it, leaving the third wire — the ground wire exposed by almost four inches. When the plumber plugged this cord into the pole, the ground wire made contact with the plug’s “hot” prong, thus transmitting ungrounded electricity through the ground wire to the junction box, then to decedent’s Skilsaw and, ultimately, into Ducote himself.

Concerning the legal principles applicable to this case, Louisiana’s law of products liability interprets La.C.C. arts. 2315 and 2545 as, together, imposing an affirmative duty upon a manufacturer to warn the consumer of any dangerous propensities which may foreseeably accompany normal use of the product. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). Such warnings, to be adequate, must be expressed with an intensity that is proportionate to the risk. Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958); Hubbard—Hall Chem. Co. v. Silverman, 340 So.2d 402 (1st Cir.1965); see also, W. Kimble & R. Lescher, Products Liability, § 198, at 209 (1979). The manufacturer is under no duty, however, to warn of those dangers which are matters of common knowledge, Lovell v. Earl Grissmer Co., Inc., 422 So.2d 1344 (La.App. 1st Cir.1982); TriState Insurance Co. v. Fidelity & Casualty Insurance Co., 364 So.2d 657 (La.App. 1st Cir.1978), or of those dangers which are obvious to an ordinary user. Lovell, supra; Butler v. Atwood, 420 So.2d 742 (La.App. 4th Cir.1982); Albert v. J. & L. Engineering, 214 So.2d 212 (La.App. 4th Cir.1968). Moreover, to be relieved of the duty to warn, a manufacturer need not prove plaintiff’s actual knowledge of the danger — it is sufficient that the manufacturer prove that the plaintiff should have known of the danger. Chappuis, supra, at 930; American Insurance Co. v. Duo Fast Dixie, Inc., 367 So.2d 415 (La.App. 4th Cir.1979); Foster v. Marshall, 341 So.2d 1354 (La.App.2d Cir.1977). It follows that the manufacturer is under no duty to warn a “sophisticated user” of those dangers which he may be presumed to know through his familiarity with the product. Walter v. Valley, 363 So.2d 1266 (La.App. 4th Cir.1978); Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44 (5th Cir.1981).

The warnings at issue in this case provide as follows:

GENERAL SAFETY PRECAUTIONS
2. AVOID DANGEROUS ENVIRONMENT. Don’t use power tools in damp or wet locations. Keep work area well lit. Do not expose power tool in rain.
OUTDOOR USE EXTENSION CORDS. When tool is used outdoors, use only extension cords suitable for use outdoors and so marked.

With specific reference to the need for proper grounding, the operator’s manual provides:

GROUNDING INSTRUCTIONS: This tool should be grounded while in use to protect the operator from electric shock. The tool is equipped with an approved three-conductor cord and three-prong grounding-type plug to fit the proper grounding-type receptacle. The green (or green and yellow) conductor in the cord is the grounding wire. Never connect the green (or green and yellow) wire to a live terminal...
EXTENSION CORDS. Use only three-wire extension cords which have three-prong grounding-type plugs and three-pole receptacles which accept the tool’s plug. Replace or repair damaged or worn cord immediately. ...

Plaintiff-appellant contends, first, that the above instructions are too general and too casual to sufficiently warn the consumer of the risk of electrocution if the saw is used in a damp environment without proper grounding. Plaintiff insists that the words “This tool should be grounded ..are not sufficiently commanding and that their intensity is not proportionate to the risk. She argues, further, that the phrase, “ ... to protect the operator from electrical shock ...” (emphasis hers) does not apprise the user of the risk of electrocution. Appellant contends that such expressions render the Skilsaw manual merely instructive, and that mere instructions, as distinguished from warnings, are regarded by the law as inadequate to protect the consumer. Boyl v. California Chem. Corp., 221 F.Supp. 669 (D.Oregon 1963) and cases collected at 72 Corpus Juris Secundum, § 25 et seq.

In support of these arguments, plaintiff presented the expert testimony of Mr. Joseph Loninger, an electrical engineer, who stated that it is common for construction workers to use power tools in wet areas and for grounding errors to cause ground wires to become energized, as happened in this case. Given the gravity of the risk posed by such occurrences, Loninger said, the instructions contained in the Skilsaw manual were inadequate as warnings, since they did not put the user on notice that failure to ground could lead to electrocution. Loninger also found special fault with the manual’s failure to advise the user of the hazardous consequences of operating the saw in a wet or damp area. Mr. George Flache, also an electrical engineer, similarly condemned Skilsaw’s instructions for using the word “shock” rather than “electrocution”, because, in his opinion, the first term does not sufficiently convey the risk of death.

In opposition to these experts, the defendant presented the testimony of Mr. Frank K. Kaman, an expert in electrical and mechanical engineering, with special expertise in the design, development, and safety of electric saws and tools. He stated that, in his opinion, the instructions which accompany the Skilsaw are sufficient to warn the average consumer that using an ungrounded Skilsaw in a damp or wet environment poses a risk of electrocution. Kaman emphasized that the language of Skil’s warning was taken nearly verbatim from the warnings recommended for such tools by Underwriters Laboratory (U.L.) and that U.L. sets the standards of the industry. These standards are adopted by various federal and local agencies, including O.S.H.A., whose chief task is to monitor safety in the workplace.

Defendant Skil also takes issue with plaintiff’s characterizing the operator’s manual as merely “instructive”. Skil notes that the manual does inform the consumer that a specific risk — electrick • shock — accompanies use of an ungrounded tool. Thus, defendant argues, the manual contains not merely an instruction, but a warning.

After considering these arguments, the trial court held for the defendant, reasoning that

The warning given is held to be adequate. The fact that the possible death by electrocution is not spelled out as a consequence of failure to adhere to instructions does not negate the warning of electrical shock. Electrical shock is a universally avoided occurrence, not only because of the possibility of serious injuries, but also possible ensuing death.
The testimony revealed that the decedent was engaged as a carpenter for several years, and because of such should have been aware of the proclivities of electric hand tools.

We find no reason to dispute the trial court’s determination that the warnings were adequate. Such a finding, being in large part a factual one, must not be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973).

The decedent was indeed warned of the danger of electrical shock resulting from use of an ungrounded tool, and we find no manifest error in the trial court’s conclusion that “Electrical shock is a universally avoided occurrence, because of the possibility of ... ensuing death.” That is indeed a truism, and because it is, Skil was under no legal duty to express in any greater detail than it actually did the consequences of using an ungrounded tool. As we noted earlier, a manufacturer has no duty to warn against commonly known danger, and as the plaintiff herself has pointed out, “electrocution” is, by common definition, death caused by electric shock.

More compelling still is the trial court’s finding that Ducote was not an average consumer, but an experienced carpenter who knew or should have known the foreseeable hazards of a principal tool of his trade, the electric saw. Finding no manifest error in that factual determination, we agree that Skilsaw owed no duty to warn Ducote of dangers which he, as a “sophisticated user,” already knew or should have known to exist, and it necessarily follows that the warnings which Skil did in fact provide met the requirements of the law.

Having determined that the trial court did not clearly err in finding that Skil Corporation’s warnings to the decedent were adequate, we must affirm the judgment.

AFFIRMED.

      . The plaintiff settled her claims against eight other defendants prior to trial. Skil is the only remaining defendant in this action.

      . La.C.C. art. 2545 provides:
      The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.

      . For example, U.L. Standard No. Underwriters Laboratories 45, the publication which addresses the safety of portable electric tools, states:
      28.1(A). For All Grounded Tools
      1. Grounding Instructions
      This tool should be grounded while in use to protect the operator from electric shock. The tool is equipped with a three-conductor cord and three-prong grounding type receptacle. The green (or green and yellow) conductor in the cord is the grounding wire. Never connect the green (or green and yellow) wire to a live terminal.
      2. Extension Cords
      Use only three-wire extension cords that have three-prong grounding-type plugs and three-pole receptacles that accept the tool’s plug. Replace or repair damaged cords.

      C. For All Tools:
      2. Consider Work Area Environment
      Don’t expose power tools to rain.
      Don’t use power tools in damp or wet locations.


text:
    In re BRUCE BUTTERWORTH TRUST.
    No. CA-1544.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 1984.

      Monroe & Lemann, John Wogan, New Orleans, for appellants.
    J. Broocks Greer, III, Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, New Orleans, for petitioner-appellant.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

The central issue in this case is whether it is within the authority of a district court, acting on its own motion, to order that the assets of a trust may be invested only in securities issued or guaranteed by the United States of America. We find that a district court is without such authority, and accordingly, such order as rendered by the district court in this case is hereby set aside and vacated.

The facts which give rise to this litigation are as follows:

On May 10, 1954, Alfred Butterworth created an inter vivos trust for the benefit of himself, his wife, and his three children. That same day, Alfred executed his last will and testament, which created a trust identical to the first, and which provided that all of the testator’s Louisiana property should, upon his death, be held in trust for the benefit of his wife and children. The will expressly provided that the inter vivos and testamentary trusts should be consolidated.

Alfred died on December 21, 1954. His wife, Marne Fourmy Butterworth, and his daughter Eve Camille Hammet, are also deceased, and thus his children, Harry Bruce Butterworth and Barbara Ann But-terworth, are the sole remaining beneficiaries of the trusts.

The present controversy arose out of those trust provisions whereby control over investment and reinvestment of the corpus of the trust is placed in the hands of so-called “investment counsel”. The trust instruments originally named Max Schaum-berger and Edgar M. Brown, Jr. as investment counsel, and provided, further, that in the case of the death or inability of either investment counsel, the survivor was required to appoint a successor. Mr. Brown died on February 8, 1976, and on March 18, 1976, Mr. Sehaumburger, the surviving in-testment counsel, executed a written instrument appointing Noel K. Mickelsen as successor to Mr. Brown. Mr. Schaumbur-ger died on May 4, 1979.

Mr. Mickelsen, having determined to resign, has appointed John D. Wogan and Thomas P. Gillis as the successor investment counsel. The trust instruments, however, do not expressly authorize the appointment of successor counsel by anyone other than the original investment counsel, Sehaumburger and Brown. The petitioners named in this action — the trustee, Whitney; the remaining beneficiaries, Harry Bruce Butterworth and Barbara Ann Butterworth Vockner; prior investment counsel, Noel K. Mickelsen; and the appointed successor counsel, John D. Wogan and Thomas P. Gillis — instituted these proceedings in Civil District Court to have the appointment of Wogan and Gillis judicially confirmed.

The trial court not only confirmed the appointments, but on its own motion and over the objection of the trustee and remaining beneficiaries, ordered that non-real estate assets of the trust be invested only in securities issued or guaranteed by the United States of America unless otherwise authorized by order of the court. The foregoing order was based upon the trial court’s finding that

“[t]he investment counselors in this matter seek unbridled discretion to make any investments with the trust property as they desire ... Granting such unlimited discretion to the investment counselors would grant them the power and ability to exceed the “prudent man rule”. Trust property must be reasonably maintained and protected for the continuation of the trust and for the trust beneficiaries and consequently conservative investments are warranted and mandated under this standard”. Reasons for Judgment. (Emphasis added).

The trustee, Whitney, and the trust beneficiaries, Harry Bruce Butterworth and Barbara Ann Butterworth Vockner, now prosecute this appeal, contending that the trial court’s order is in contravention of Louisiana law, specifically, those provisions of the Louisiana Trust Code which define the “prudent man rule” with regard to permissible investment by a trustee.

La.R.S. 9:2090 provides that

A trustee in administering a trust shall exercise such skill and care as a man of ordinary prudence would exercise in dealing with his own property.

La.R.S. 9:2127 provides that

Unless the trust instrument provides otherwise, in acquiring, investing, reinvesting, exchanging, retaining, selling, and managing trust property a trustee shall exercise such skill and care as a man of ordinary prudence, discretion, and intelligence would exercise in the management of his own affairs, not in regard to speculation but in regard to the permanent disposition of his funds, considering the probable income as well as the probable safety of his capital. Within the limitations of the foregoing standard, a trustee is authorized to retain and acquire every kind of property and every kind of investment'. Unless the trust instrument provides otherwise, the trustee may retain its own stock together with any rights pertaining thereto but it may not acquire its own stock except as an incident of ownership at the beginning of the trust. (Emphasis added).

The above section is based upon La. R.S. 9:2061 of the 1938 Trust Estates Law as amended by Act 44 of 1962, which abolished the legal list of permissible investments by a trustee. In substituting the “prudent man rule” for the legal list, it was undoubtedly the legislature’s intent to remove per se restrictions on investment such as those imposed by the trial court in this case. Commenting on the repeal of the list, Leonard Oppenheim, Reporter, Louisiana State Law Institute Trust Revisions Project, wrote:

This change was made because of pressures to add many types of illustrations of permissible investment and thereby make the provision [the “prudent man” rule] broad enough to encompass all possible types of investments. Oppenheim, The 1968 Amendments to the Trust Code of 1964, 43 Tul.L.Rev. 34, at 38.

In an earlier comment on the subject, Oppenheim stated that “[t]he virtue of the ‘prudent man’ rule lies in the fact that it does not embrace a particular form of investment as an absolutely safe repository for capital.” Oppenheim, A New Trust Code for Louisiana — Some Steps Toward Its Achievement, 37 Tul.L.Rev. 169, at 183.

The trust instruments which are the subject of this litigation empower the trustee to exercise “the fullest measure of authority conferred upon or recognized in trustees by applicable Louisiana law.” As we have seen, La.R.S. 9:2127 authorizes a trustee to acquire “every kind of property and every kind of investment”, his sole limitation being the duty to act as a “prudent man”. The trial court’s order, by limiting permissible investments to those securities which are issued or guaranteed by the federal government, imposes restrictions that are more conservative than those contained in the list of R.S. 9:2061 (see n. 1, supra), which allowed a trustee a wider array of investment choices. It necessarily follows that the order usurps the function of the “prudent man” rule, and thus, does violence to the legislative will expressed in R.S. 9:2127.

On the basis of the foregoing, we find that the trial court was without authority to issue the order in question, and accordingly, that order is hereby set aside and vacated. In all other respects, the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART.

      . As originally enacted, former R.S. 9:2061 read as follows:
      "Unless otherwise provided in the terms of the trust, and except as stated in R.S. 9:2062 and 9:2063 the trustee shall invest the trust funds only in the following classes of securities, which shall be known as the ‘legal list’:
      "(1) Obligations of the United States;
      "(2) Obligations to which the faith of the United States is pledged for the payment of interest and principal;
      "(3) Obligations of the State of Louisiana;
      "(4) Obligations of any parish or municipal subdivision of the State of Louisiana, or school or levee or drainage or road district of the state of Louisiana, provided, that at the time of such investment the interest on all obligations of the issuer shall have been regularly paid for at least two years prior to such investment; provided, further, that at the time of purchase the assessed valuation of such parish or subdivision or district shall be not less than five million dollars, and provided, further, that the population of such parish or subdivision or district exceeds 5,000; and obligations of any housing authority created under the Housing Authorities Law, as amended.
      "(5) Obligations of any of the states of the United States;
      "(6) Legally authorized bonds of any political or municipal subdivision situated in any state of the United States other than the State of Louisiana, which has not within five years next preceding the making of such investment repudiated or defaulted in the payment of any part of either principal or interest of any bond, provided, that such political or municipal subdivision has a population, as shown by the federal census next preceding such investments, of not less than 20,000 inhabitants, and provided further, that the net indebtedness of such political or municipal subdivision does not exceed ten per-centum of the assessed value of its taxable property;
      "(7) Bonds and negotiable notes directly secured by a first lien or mortgage on improved real estate in the State of Louisiana, not to exceed sixty per cent of the fair market value of said improved real estate at the time of making such investment, as ascertained by an appraisal thereof made by two competent and disinterested appraisers;
      "(8) Full paid shares of building and loan and homestead associations, domiciled in Louisiana, to the extent to which such shares are fully insured by the Federal Savings and Loan Insurance Corporation;
      "(9) For a non-corporate trustee only: interest-bearing savings accounts and certificates of deposit of state and national banks, domiciled in Louisiana, to the extent to which such accounts and certificates are fully insured by the Federal Deposit Insurance Corporation.”


author: SEXTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Rhonda Kay BARMORE, Defendant-Appellant. STATE of Louisiana, Plaintiff-Appellee, v. David A. DARNELL, Defendant-Appellant.
    Nos. 15954-KA, 15955-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Sept. 14, 1984.

      Lee E. Ineichen, Monroe, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The defendants Rhonda Kay Barmore and David A. Darnell were jointly charged in the Fourth Judicial District, Parish of Ouachita, with the offense of possession of marijuana with intent to distribute. Subsequent to a jury verdict of guilty as charged on May 13, 1983, the defendant Darnell was sentenced on June 6,1983 to pay a fine of $1,000 or serve nine months in default thereof, and was also sentenced to six years at hard labor. On that same date, the defendant Barmore was sentenced to pay a fine of $400 or serve ninety days in default thereof, and also was sentenced to serve two years at hard labor. The two year term was suspended and the defendant Barmore was placed on supervised probation.

The defendants’ appeals were lodged separately here and are now consolidated for our consideration. The assignments of error are identical with respect to each defendant. Assignment of Error No. 3 is not briefed. It is thus considered abandoned. State v. Williams, 338 So.2d 672 (La.1976). Assignment of Error No. 1 asserts that the evidence at trial was insufficient to sustain a conviction of possession with intent to distribute. Assignment of Error No. 2 contends the trial court erred in denying a motion for new trial based on a contention of insufficient evidence. Thus the sole issue in this appeal is whether, upon viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the defendants guilty beyond a reasonable doubt of the offense for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The record reflects that on April 25, 1982, police officers executed a search warrant at the residence where the two defendants were living. Ms. Barmore arrived at the residence at the same time as the officers. Upon gaining the second floor of the apartment, officers observed the defendant Darnell reentering the bedroom through a window. He had just gone out of that window and had been seen by an officer who had remained outside. This officer instructed Mr. Darnell to return to the interior of the premises.

In the execution of the warrant, the officers located paraphernalia for use in smoking marijuana including pipes, rolling papers, a rolling stone, hemostats and clips. Additionally, on the floor of the relatively small bedroom officers found an ashtray containing loose marijuana in a plastic bag, a set of scales apparently capable of weighing up to 600 grams, and a couple of boxes of ziplock sandwieh bags. Found in the bathroom immediately adjacent to the bedroom were nine baggies of marijuana, along with some large stems and leaves, which were all wrapped in a newspaper. The newspaper had been placed in the commode and the commode lid was down. The nine baggies of marijuana weighed approximately four to five ounces. Expert testimony indicated this quantity was capable of yielding approximately 280 cigarettes.

Viewing these facts in the light most favorable to the prosecution, it appears that when the officers arrived Mr. Darnell was in the process of trimming and packaging marijuana for sale. The number of plastic bags, their location in proximity to the scale and the marijuana, the fact that only four to five ounces of the substance were packaged in nine separate bags, when considered with the defendant Darnell’s actions in attempting to dispose of the substance and flee upon the arrival of the officers, all strongly indicate that the defendant was interrupted in the process of packaging the marijuana for sale. We therefore affirm the conviction of the defendant Darnell. Jackson v. Virginia, supra; State v. Chism, 486 So.2d 464 (La.1983).

However, the defendant Barmore presents a different circumstance. The evidence with respect to her is that the marijuana scales and baggies were out on the floor of her bedroom and the man with whom she lived was in the process of bagging this marijuana while she was not at home. During her testimony Ms. Barmore conceded that she used marijuana for personal consumption. She stated that some of the marijuana was kept in the house and some of it was kept outside.

The most damaging evidence to the defendant Barmore’s position is her testimony concerning the plastic bags. She initially stated that they were used to store vegetables and they were normally kept in the kitchen. During cross-examination, she testified that she had taken these bags upstairs for use in storing make-up, hairpins and the like. Considering the circumstances which the officers found in the bedroom when they arrived, this testimony seems suspect. It can be argued that it implies knowledge of the “bagging” operation on the part of this defendant. However, there are other explanations for this testimony to include the possibility that she was simply attempting to protect the man with whom she was living.

Therefore, we determine that under the circumstances of this case, i.e., the fact that the person with whom she was residing was cleaning and bagging marijuana in multiple bags in half-ounce quantities while she was not at home, even when coupled with her questionable testimony, are not sufficient even when viewed in the light most favorable to the prosecution to preclude the reasonable possibility that this defendant’s only connection with this marijuana was for personal use. Jackson v. Virginia, supra; State v. Chism, supra. However, it is obvious that the evidence with respect to her is sufficient to meet all of the elements of the offense of simple possession of marijuana. Accordingly, as to the defendant Barmore, we reduce the conviction of possession of marijuana with intent to distribute to a conviction for the offense of simple possession of marijuana and remand to the trial court for the purpose of resentencing that defendant. LSA-C.Cr.P. Art. 821 E.

Accordingly, the conviction of the defendant Darnell is affirmed, and the conviction of the defendant Barmore is reduced to that of simple possession of marijuana and her cause is remanded to the trial court for resentencing.


author: JASPER E. JONES, Judge.

text:
    STATE of Louisiana, Appellee, v. William B. DOWNING, Appellant.
    No. 16022-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Rehearing Denied July 6, 1984.

      Ford E. Stinson, Jr., Indigent Defender Bd., Benton, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., James M. Bullers, Asst. Dist. Atty., Benton, for appellee.
    Before PRICE, C.J., and MARVIN, JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, William B. Downing, was charged by bill of information with two counts of distribution of marijuana in violation of LSA-R.S. 40:966. In a trial by jury, he was found guilty as charged on both counts. The trial court sentenced defendant to five years at hard labor on each count with the sentences to run concurrently. Defendant appeals his convictions and sentences relying on three assignments of error.

FACTS

On May 27, 1982 undercover narcotics agent Mark Holley purchased a bag of marijuana from defendant at defendant’s home. Holley was backed up by agent Steve Rambo who was stationed in a parked automobile a short distance from defendant’s house. After the purchase the two agents met at the Bossier City Police Department where they both initialed and dated the bag of marijuana. The bag was placed in the evidence locker at the police department. The next day Holley purchased another bag of marijuana from defendant under similar circumstances. The agents again met at the police department where they initialed and dated this bag. Rambo subsequently carried both bags in a sealed envelope to the Northwest Louisiana Crime Lab for analysis. The contents of the bags were analyzed as marijuana. The defendant did not contend the substance contained in the bags was not marijuana nor did he make any attempt to have it analyzed.

Assignment of Error # 1

Defendant contends the trial court erred in allowing a crime lab employee, Steven McKinney, to testify as to his analysis of the suspected marijuana.

When the bags of marijuana arrived at the crime lab the contents were initially analyzed by Emmett Jones. His analysis proved positive for marijuana. Pursuant to a discovery motion, a copy of Jones’ analysis was supplied to defendant. Jones subsequently left the employ of the crime lab prior to trial and the contents of the bags were reanalyzed by McKinney. His analysis also proved positive for marijuana. The state did not inform defendant of McKinney’s analysis and did not supply him with a copy of that analysis.

When the case was called to trial, Jones was unavailable to testify. When McKinney was called to the witness stand defense counsel objected to his testimony on the basis that the state failed to perform its continuing duty to disclose relevant information under the discovery motion. The trial court admitted McKinney’s testimony after finding the state’s failure to disclose did not prejudice defendant since both analyses reached the same conclusion.

On motion of defendant, the court shall order the district attorney to permit defendant to inspect and copy any results or reports of scientific tests or experiments, made in connection with the particular case, that are in the possession of the district attorney. LSA-C.Cr.P. art. 719. The duty to disclose is a continuing one. If the state, subsequent to the ordered disclosure, discovers additional evidence or decides to use a particular item as evidence it must notify the defendant of the existence of the additional evidence or its intended use at trial. LSA-C.Cr.P. art. 729.3; State v. Ray, 423 So.2d 1116 (La.1982).

Where the defendant has been lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. However, the failure of the state to comply with discovery procedures will not automatically command reversal. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Ray, supra. The defendant must show prejudice before the reviewing court will reverse his conviction. State v. Sweeney, supra; State v. James, 396 So.2d 1281 (La.1981).

Defendant argues he was prejudiced by McKinney’s testimony because without it, there would have been nothing to show that the substance contained in the bags he sold to Holley was marijuana. This argument ignores the fact that defendant knew that Jones’ analysis proved the substance to be marijuana. He had no misapprehension of the strength of the state’s case. McKinney’s analysis merely reaffirmed the earlier one. The failure of the defendant to contend or try to prove the substance contained in the bags was not marijuana further establishes that the state’s failure to comply with the discovery procedure was not prejudicial. See State v. James, supra. The trial judge correctly decided defendant was not prejudiced by the state’s failure to disclose.

This assignment of error lacks merit.

Assignment of Error # 2

Defendant contends the trial court erred in allowing the bags of marijuana to be admitted into evidence because the state failed to lay a proper foundation in that no continuous chain of custody, was shown. He argues a continuous chain of custody was not shown because the state failed to prove adequate supervision and control of the bags after Rambo left them at the crime lab.

In order to introduce demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the case; lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than to the admissibility. State v. Taylor, 422 So.2d 109 (La.1982); State v. Sam, 412 So.2d 1082 (La.1982); State v. Davis, 411 So.2d 434 (La.1982).

Rambo testified he delivered the sealed envelope containing the bags of marijuana to Emmett Jones at the crime lab. Although Jones did not testify, McKinney testified that prior to his analysis he took the envelope containing the bags out of a locker at the crime lab. The envelope was sealed and McKinney resealed it when he finished his analysis. At trial, Holley and Rambo positively identified the bags from their initials and the dates placed on the bags after they were purchased. There was sufficient evidence for the jury to conclude that more probably than not the bags of marijuana introduced into evidence were the ones Holley bought from defendant.

This assignment of error lacks merit.

Assignment of Error # 3

Defendant contends that the five year sentences on each count are excessive.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La. App. 2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983). A sentence is excessive if it is grossly out of proportion to the severity of the offense or is nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

At the sentencing hearing the trial judge reviewed for the record defendant’s presentence investigation report and he followed the sentencing guidelines contained in LSA-C.Cr.P. art. 894.1 in determining the sentences imposed upon defendant. The presentence report indicates defendant has a poor educational and occupational history and is considered to be dangerous and a longtime drug dealer. The report also shows that defendant has a history of criminal behavior. While he has only been convicted on one prior misdemeanor offense, the trial court properly considered his entire record in selecting a sentence for defendant. See State v. Brown, 410 So.2d 1043 (La.1982); State v. Washington, 414 So.2d 313 (La.1982). The defendant could have received a maximum sentence of 10 years on each count, LSA-R.S. 40:966B(2), and the sentences could have been imposed consecutively. LSA-C.Cr.P. art. 883. The actual time defendant was sentenced to serve is only one-fourth the maximum he could have received. We find no abuse of discretion in the sentences imposed.

The convictions and sentences appealed from are AFFIRMED.

      . On May 27, Holley went to defendant’s home accompanied by a confidential informant. The next day he returned without the informant.


author: GULOTTA, Judge. BARRY, Judge,

text:
    Lee PEYTON v. NEW ORLEANS POLICE DEPARTMENT.
    No. CA-1439.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Joseph J. Desalvo, Jr., New Orleans, for appellee.
    Salvador Anzelmo, City Atty., Bernette J. Johnson, Deputy City Atty., New Orleans, for appellant.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   GULOTTA, Judge.

Defendant appeals from the Civil Service Commission’s judgment setting aside Lee Peyton’s departmental termination and imposing a thirty day suspension. We affirm.

The basis for Officer Lee Peyton’s suspension and subsequent dismissal from the police department by the appointing authority was his role, while not in uniform and on sick leave, in striking Gregory Ko-gos on August 14, 1982.

On that date, Officer Peyton and his brother Timothy Peyton, while in a bar, became involved in a fight with two intoxicated individuals, Brian Donahue and Gregory Kogos, after Donahue made obscene and lewd comments to a female patron. Donahue’s conduct led to a scuffle outside the bar. The Peytons, who were not intoxicated, left and were followed by Donahue and Kogos.

The bar’s manager, Mark Woolridge testified that he had Donahue pinned against the wall of the restaurant when Kogos ran towards the Peytons with his arms raised and fists semi-clenched. Ko-gos came within one foot of Officer Peyton, who struck Kogos, knocking him unconscious. Contrary to the report filed by the Office of Municipal Investigation (OMI), the Commission found that Timothy Pey-ton, not Officer Peyton, kicked Kogos while he was lying unconscious on the ground, and that someone threw a bottle at Officer Peyton. The Peytons then left the scene without calling medical assistance.

Officer Lee Peyton was terminated from his employment with NOPD effective December 20, 1982. NOPD’s December 16, 1982 letter notifying Peyton of his termination stated that while “sick”, he had “no authorization to be away from” his “place of confinement”, that Peyton’s actions were unjustified because Kogos made no threatening move towards him, and that Peyton failed to seek medical assistance for Kogos, all in violation of NOPD rules and also in violation of LSA-R.S. 14:35, the offense of simple battery.

The Civil Service Commission on August 1, 1983, reversed the appointing authority’s dismissal, and reinstated plaintiff after imposing a thirty day suspension from December 20, 1982 to January 20, 1983 for violation of sick leave, with back pay from January 20, 1983 to his reinstatement date.

The Commission concluded the appointing authority erred in finding Officer Pey-ton was not justified in striking Kogos whether in “self-defense or in defense of his brother”. Further, the Commission concluded that Officer Peyton had not inflicted further .injury on Kogos after striking the initial blow, and had been justified in leaving “a tense scene” because of the volatile atmosphere surrounding the incident and because he “knew or had a reasonable belief that someone in a crowded bar ... would call medical assistance”.

Lastly, the Commission held that Officer Peyton had “negligently” violated NOPD’s rule governing sick leave because he had failed to “notify” his unit that he was leaving his home. The Commission further noted that while some disciplinary sanction was necessary, termination was too severe after giving much weight to the positive testimony of Officer Peyton’s superiors that he was an excellent officer and would be welcomed back on the force.

Appealing, the appointing authority argues the Commission’s decision, if allowed to stand, will set a “dangerous precedent” because the City Civil Service Commission has “recognized a lesser standard of conduct” for plain-clothed, commissioned officers. The appointing authority also claims no evidence exists that Officer Peyton was in fear of a personal attack from Kogos; and therefore, the blow was not in self defense. The appointing authority further points out that Officer Peyton failed to indicate that he was a police officer and, by his conduct, exacerbated the situation by failing to act as a peace maker. According to the appointing authority, there is no situation where the status of a commissioned police officer reverts back to that of a “private citizen”, and to hold otherwise would impair the efficiency of the Police Department.

The standard of review in Civil Service cases is the same as that of trial court judgments, with great weight accorded to the factual conclusions of the trier of fact. Arnold v. New Orleans Police Dept., 383 So.2d 810 (La.App. 4th Cir.1980), writ denied 385 So.2d 274 (La.1980) and Herbert v. Dept. of Police, 362 So.2d 1190 (La.App. 4th Cir.1978). Considering the evidence that Kogos, while intoxicated, approached the Peytons with-raised arms and clenched fists, we cannot say that the Commission erred in finding that Officer Pey-ton’s conduct was justified, whether in “self-defense or in defense of his brother”. We also agree that Officer Peyton’s actions and abuse of sick leave warranted a thirty day suspension, not termination. Accordingly, we find no error in the Commission’s reduction of the penalty in this case. See Arnold v. New Orleans Police Dept., supra.

In his brief and oral argument to this court, Officer Peyton has requested that NOPD’s rule governing sick leave be declared unconstitutional, and that the thirty day suspension imposed by the Commission for his violation of this rule be thereby removed. Because Peyton has neither independently appealed nor answered the City’s appeal of the Commission’s judgment, however, we cannot consider the merits of the constitutionality issue or his request for amendment of the decision. LSA-C.C.P. Art. 2133; Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir.1981); Stafford v. Division of Administration, 407 So.2d 87 (La.App. 1st Cir.1981).

Accordingly, we affirm the judgment of the Civil Service Commission reinstating Officer Peyton with back pay after a thirty day suspension.

AFFIRMED.

BARRY, Judge,

Dissenting in Part.

New Orleans Police Department ASOP Rule 75.0(7) pertaining to sick leave infringes on constitutional rights and is patently unconstitutional. Pienta v. Village of Schaumburg, 710 F.2d 1258 (7th Cir.1983).

As such, Officer Peyton’s 30 day suspension should be set aside and his personnel jacket cleared.

      . Woolridge was the only witness with first hand knowledge of the fight between Officer Peyton and Kogos which led to Peyton’s dismissal.


author: GULOTTA, Judge.

text:
    The PARTNERSHIP OF MEYERS & MORRIS and Arthur J. Morris, M.D. v. Phillip H. MEYERS, M.D. Philip H. MEYERS, M.D. v. Arthur MORRIS, M.D., and Philip H. Meyers, M.D. and Arthur Morris, M.D., A Medical Partnership.
    Nos. CA-1541, CA-1555.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Donald A. Meyer, Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for appellee.
    A.D. Freeman and Charlotte A. Hayes, Satterlee, Mestayer & Freeman, New Orleans, for appellant.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   GULOTTA, Judge.

In these consolidated cases involving dissolution of a medical partnership, Arthur J. Morris, M.D. appeals from a judgment terminating the partnership and appointing a judicial liquidator. According to ■ Morris, the trial judge erred in rendering the judgment after a summary proceeding instead of an ordinary trial on the merits. We agree. Accordingly, we reverse and remand the matter to the trial court.

After practicing radiological medicine together for approximately ten years, Morris and his partner, Phillip H. Meyers, M.D., developed irreconcilable professional differences. On April 15, 1981, Meyers filed a “Petition for Dissolution, Liquidation, Accounting and Partition of the Medical Partnership” and a rule to show cause why the books and records of the partnership should not be examined by an auditor. Only minutes later, Morris filed a petition for injunctive relief, seeking to enjoin Meyers from disposing or encumbering partnership assets until the partnership could be judicially terminated and liquidated.

Both actions were allotted to the same division of the Civil District Court. Meyers amended his petition to likewise include a claim for injunctive relief. The trial judge issued temporary restraining orders in favor of both physicians.

The rule on the preliminary injunction claims was tried on May 12, May 20, and June 5, 1981. In two separate judgments rendered on June 29, 1981, the trial judge dismissed each doctor’s petition for injunc-tive relief. In a separate order, on Meyers’ motion for appointment of himself as judicial liquidator of the partnership, the trial court “deferred” appointment of a liquidator “until such time as the parties submit to the court qualified liquidators other than the parties themselves.... ”

In extensive • “Reasons for Judgment”, the trial judge stated that neither physician had proven “irreparable harm” entitling him to injunctive relief. Although he did not render a judgment dissolving the partnership, the judge further noted in his reasons that Meyers had given Morris “bona fide and seasonable” notification of renunciation of the partnership prior to January 1, 1981, that the pre-1981 partnership articles of the Civil Code therefore applied, and that the partnership had been “dissolved” during 1980, “except for liquidation purposes”.

Morris appealed the denial of the preliminary injunction, and amended his petition to seek damages against Meyers. Morris alleged that Meyers had “usurped and converted the partnership business” on or after January 1, 1981, or, alternatively, that Meyers’ withdrawal from the partnership, even if prior to January 1, 1981, was “of no effect being not bona fide and unseasonable”. In both his amended petition and his answer to Meyers’ original petition for dissolution, Morris prayed for a jury trial on the merits.

On September 29, 1981, while Morris’ appeal from the refusal of the preliminary injunction was pending, Meyers filed a rule to show cause why a judicial liquidator should not be appointed. Morris opposed the summary appointment of a liquidator on the grounds that the only matter that had theretofore been heard and adjudicated was the claim for a preliminary injunction, and that no trial had taken place on the merits of the claim for dissolution of the partnership.

Meyers’ rule for appointment of a judicial liquidator was allotted to a trial judge different from the one who had tried the rule for a preliminary injunction. On November 29,1982, after reviewing the record of the earlier injunctive proceeding, particularly the first judge’s comments concerning termination of partnership, the new trial judge decreed that the partnership had been terminated and dissolved effective December 31, 1980. He rendered a judgment liquidating the partnership and appointing a judicial liquidator. It is from this judgment that Dr. Morris now appeals.

We find merit to Morris’ argument that the trial court erroneously dissolved the partnership and appointed the judicial liquidator on a summary rule.

LSA-C.C. Art. 2834, concerning liquidation of a partnership, provides in pertinent part:

“In the absence of contrary agreement, a partnership is liquidated in the same manner and according to the same rules that govern the liquidation of corporations. ...”

In Bunn v. O.L. Bunn, Inc., 341 So.2d 629 (La.App. 4th Cir.1977), we held that a suit for dissolution and liquidation of a corporation must be commenced through ordinary procedure, and that summary process is proper only to expedite the corporate liquidation after the initial question of dissolution has been determined via ordi-naria. Reading LSA-C.C. Art. 2834 together with our decision in Bunn, we conclude that dissolution of the medical partnership in the instant case can only be accomplished after an ordinary trial on the merits.

It is apparent from the pleadings and the record in the instant consolidated cases that only summary hearings have taken place on the questions of a preliminary injunction and appointment of a liquidator. We therefore conclude the trial judge erred in dissolving the partnership and appointing a liquidator without trial on the merits under ordinary procedure.

Although it is true that the first trial judge, in his written reasons for denying injunctiye relief, gratuitously commented that the partnership had been dissolved as of the end of 1980, his comments are only dicta. Indeed, in the course of trial on the rules for preliminary injunctive relief, the judge made it abundantly clear that he was not partitioning the partnership or trying the case on the merits but was only deciding whether or not to continue the partnership under the temporary restraining order. The first judge’s observations concerning the termination of the partnership cannot, therefore, form a basis for a judgment of dissolution and liquidation absent a trial on the merits.

We recognize that much of the testimony adduced at the preliminary injunction hearings, concerning the time and circumstances of the partners’ dealings in late 1980 and early 1981, is pertinent and germane to a decision on the merits dissolving the partnership. Nonetheless, even though such evidence has been presented on the rule for a preliminary injunction, the case must be determined on its merits only after a full trial under ordinary process, unless the parties have agreed otherwise. Williams v. Board of Sup ’rs., Etc., 388 So.2d 438 (La.App. 2nd Cir.1980). There are serious questions concerning the nature and circumstances of the partners’ differences that have an impact on the law to be applied and the relief, if any, to be granted. These issues are not properly resolved in summary proceedings.

Accordingly, the judgment of November 29, 1982, decreeing the dissolution of the medical partnership between Arthur J. Morris, M.D. and Phillip H. Meyers, M.D. and appointing a judicial liquidator, is reversed and set aside. The matter is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND SET ASIDE; REMANDED.

      . Dr. Morris later abandoned his appeal from the denial of injunctive relief.

      . Although LSA-C.C. Art. 2834, effective January 1, 1981, is part of the 1980 revision of the Louisiana partnership law, an earlier case, Dunlap v. Ramsey & Dunlap, 191 La. 158, 184 So. 710 (1938), construing the earlier codal partnership articles, likewise held that an action for dissolution of a partnership (not terminated by the death of a partner) is by ordinary process.


text:
    REAL ESTATE SERVICES, INC. v. Charlie BARNES.
    No. CA-1600.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Steven J. Koehler, Stephen J. Simone, Metairie, for appellee.
    Vince A. Bartholomew, New Orleans Legal Assistance Corp., New Orleans, for appellant.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   GULOTTA, Judge.

In this appeal by a lessee from a judgment of eviction, the sole issue is whether the landlord’s rule for possession was filed in retaliation for the' lessee’s resort to legal counsel to obtain necessary repairs to the leased premises. We affirm.

One month after moving into her apartment in January, 1983, Charlie Barnes, the lessee, experienced problems with the premises, including flooding, rodent infestation, defective doors, floors and ceilings, and inadequate electrical outlets. After lessor’s agent, Real Estate Services, Inc. (RESI), failed to repair the deficiencies to her satisfaction, Barnes consulted an attorney who sent a certified letter to RESI on September 23, 1983, specifying the defects and demanding that all repairs be made or else plaintiff would deduct their cost from her rent. On September 30, 1983, RESI served Barnes with a notice to vacate, and subsequently filed a rule for possession.

On November 3, 1983, the trial judge ordered Barnes to vacate the premises. In well written reasons for judgment, the trial judge concluded that the property was in need of a “multitude” of “immediate and necessary major repairs” and that it was necessary for Barnes to vacate because “there could be safety factors, security and property damage problems” if she continued to live in the apartment during the repair.

Appealing, Barnes contends the trial court erred in finding that the eviction was not in retaliation for a request for substantial repairs. Alternatively, the lessee contends no necessity exists to vacate the premises since the repairs can be made during her daily absence from the apartment between 7 a.m. and midnight. Lessee claims also she is willing to suffer the inconvenience. We disagree.

Barnes’ argument that the eviction constitutes an “abuse of rights” by the lessor in retaliation for her resort to legal counsel is without merit. The main criteria for applying the abuse of rights doctrine are: 1) exercise of rights exclusively for the purpose of harming another or with the predominant motive to cause harm; 2) the non-existence of a serious and legitimate interest that is worthy of judicial protection; 3) use of the right in violation of moral rules, good faith or elementary fairness; or 4) exercise of the right for a purpose other than for which it was granted. Illinois Cent. R. Co. v. International Harvester, 368 So.2d 1009 (La.1979); Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977); Housing Auth. of City of Abbeville v. Hebert, 387 So.2d 693 (La.App. 3rd Cir.1980). The record supports the trial judge’s conclusion that Barnes retaliatory eviction argument is “unfounded”. *

Raymond Eberhardt, agent and area maintenance supervisor for RESI, testified that the electrical system of the leased residence is “falling off” the exterior, and that power would have to be turned off to make the repairs. His testimony that the house was “not fit for anyone to live in” is supported by the plaintiff’s own testimony and her attorney’s letter of complaint listing numerous other major defects in the apartment. Further evidence of the severity of the problems was Eberhardt’s statement that even before the complaints by Barnes’ attorney, RESI had received correspondence from the City indicating an intention to condemn the property if repairs were not made.

Like the trial judge, we recognize that the tenant may have interpreted the notice to vacate as “retaliatory” because it so closely followed her attorney’s demand letter. Nonetheless, when we consider the seriousness of the defects in the property, together with the landlord’s eviction of another tenant in the building in addition to defendant, we cannot say the landlord filed the rule for possession solely to harass defendant. The possible “safety factors, security and property damage problems” recognized by the trial judge serve as substantial grounds for the landlord to evict the tenants prior to making the extensive repairs to further his serious and legitimate interests of preserving his property and the safety of his tenants. Under these circumstances, the “abuse of rights” doctrine does not apply.

Similarly, again considering the extent of the defects and the magnitude of the repairs to be undertaken, we find no error in the trial judge’s conclusion that the tenant cannot continue to live in the apartment during the repair work. Eberhardt testified that the repairs cannot be made with a tenant residing in the building. Barnes’ absence from the apartment for most of the day does not entitle her to live for any length of time in an uninhabitable residence undergoing major work that may endanger her safety.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.


text:
    Cassandra DOBARD v. SKATE COUNTRY, INC. and Empire Fire & Marine Insurance Company.
    No. CA-1659.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Louis A. Gerdes, Jr., New Orleans, for appellee.
    Bernard, Cassisa, Babst & Saporito, Robert A. McMahon, Jr., Joseph S. Palermo, Jr., Metairie, for appellant.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   GULOTTA, Judge.

Defendant Skate Country, Inc. and its insurer appeal from a $37,600.00 jury award in favor of a plaintiff for injuries sustained in a fall while roller skating. Both liability and quantum are at issue. We affirm.

Plaintiff, Cassandra Dobard, fractured her left forearm in a fall caused by two horseplaying skaters who collided in proximity to her as she was skating at defendant’s rink. The jury unanimously found that plaintiff had not knowingly and voluntarily assumed the risk of her injury, and that the defendant rink or its employees had been entirely at fault.

Appealing, defendants contend the jury abused its discretion in finding them negligent. According to defendants, their efforts in controlling the offending skaters were reasonable under the circumstances, and the skaters’ “sudden and precipitous” behavior causing plaintiff’s fall was totally unexpected and unavoidable. Alternatively, they contend the jury award is excessive. Defendants lastly claim evidentiary error was committed by the trial judge when he allowed introduction of plaintiff’s medical bills without a proper foundation.

LIABILITY

Plaintiff testified that she had noticed two teenaged boys “weaving in” through the skating traffic and “trying to catch each other” for about an hour before the accident. She heard the boys warned over a loudspeaker by a rink employee to stop or be expelled from the floor. However, she did not recall seeing them leave the rink before they collided and caused her fall.

Plaintiff’s version of the incident was substantially corroborated by the testimony of her skating companions. Brenda Collins had seen the two boys skating “real fast”, “cutting in front”, and “clowning” for thirty to forty-five minutes before plaintiff’s fall. 'She did not recall any warnings by rink employees.

Similarly, Deborah Davis, one of plaintiff’s skating companions, testified that the wildly skating boys had almost hit her, and that she had complained to the rink “referee”. Davis did not remember any reprimand or expulsion of the boys by defendant’s employees.

Plaintiff’s third friend, Ava Saunders, had also observed a “wild skater” who almost knocked her down. Saunders asked a rink employee to remove the boy from the floor, but he merely asked the offending skater over the loud speaker to slow down and identified him by name. When she did not observe the skater desist, Saunders removed herself from the floor out of fear for her own safety.

In contrast to plaintiff’s version, Jose Santana, floor guard of the rink on the night of the accident, testified that he had removed the wild skaters from the floor for a twenty minute period prior to the accident.

According to Santana, when the teenaged boys failed to heed his initial warning in response to a patron’s complaint about their skating, and continued “playing tag, weaving in and out and more or less trying to push each other down”, he ordered them to leave the floor. Twenty minutes later, after they promised to skate properly, he allowed them to skate again, in accordance with his normal procedure in handling unruly skaters. Santana testified that the boys had only been on the floor about 30 seconds when the accident happened. Although the young men had a history of being disciplined on earlier occasions, they were not listed in defendant’s index of regular patrons with serious disciplinary problems.

It is well settled that an operator of an amusement facility, though not an insurer of a patron’s safety, is liable for its negligence. Hills v. Skate Country East, Inc., 430 So.2d 1035 (La.App. 4th Cir.1983); Hyland v. Durr, 212 So.2d 158 (La.App. 4th Cir.1968). It is also true that some bumping or jostling is an ordinary risk of participation in roller skating. Hills v. Skate Country East, Inc., supra; Katz v. Insurance Company of North America, 150 So.2d 879 (La.App. 4th Cir.1963), writ refused 244 La. 476, 152 So.2d 565 (1963). Nonetheless, a patron of a skating rink only assumes the ordinary risks of a recreational activity, and may reasonably conclude that the danger presented by wildly skating fellow patrons is within the control of floor guards of the skating rink who have a duty to prevent such behavior. Phillips v. Skate Country East, 420 So.2d 730 (La.App. 4th Cir.1982), writ denied 423 So.2d 1162 (La.1982).

The facts of the instant case are similar to those in Phillips v. Skate Country East, supra, where we held a skating rink liable to a plaintiff injured in a fall caused by two wildly skating young boys who had collided in front of her. In Phillips, the offending skaters had skated past plaintiff before the accident without any restraint by the rink’s employees. We concluded in Phillips that the danger created by the offensive skating was within the control of the floor guards, and that the plaintiff had not assumed the risk of her injury.

In the instant- case, as in Phillips, the testimony of plaintiff and her witnesses establishes that the offending youths had skated wildly for some time prior to the accident, posing a danger to plaintiff and other patrons. Although defendant’s floor manager testified that he had removed the two young men from the floor for twenty minutes prior to plaintiff’s injury, plaintiff's witnesses recalled only oral warnings that were disregarded.

Under these circumstances, we find no error in the jury’s conclusions that plaintiff was free from fault, that plaintiff had not knowingly and voluntarily assumed the risk of injury, and that defendant was negligent by breaching its duty to supervise more closely the horseplaying skaters to prevent this accident.

In so holding, we distinguish Hills v. Skate Country East, Inc., 430 So.2d 1035 (La.App. 4th Cir.1983), relied on by defendants. In Hills, the defendant rink was exonerated from liability to a plaintiff bumped by an unidentified skating couple who had “dashed” onto the floor from a snack bar area. The evidence in Hills indicated that the rowdiness of the unidentified couple 30 minutes before the accident was not connected in time or place with the injury, and that they had not engaged in any conduct immediately prior to the accident to place a duty on the operator to take action against them. We noted in Hills that the couple’s “sudden and precipitous conduct” was the “antithesis of the ongoing, observable misconduct which supports liability to a patron who is bumped and falls.”

In the instant case, unlike Hills, the evidence supports the jury’s finding, based on credibility, that the offending skaters’ misconduct was ongoing for quite some time prior to plaintiffs injury, rather than sudden and unexpected. A reasonable conclusion can be reached that the jury believed plaintiff's version of the ongoing wild behavior of the offending skaters.

QUANTUM

Turning now to the issue of quantum, we further find no error in the jury’s lump sum award of $37,600.00.

Plaintiff sustained a comminuted fracture of the ulnar bone of her left forearm. On the day of the February 2, 1981 accident, her arm was X-rayed and immobilized in a cast. She was seen by Thomas Duncan, M.D., an orthopedic surgeon, on February 6, 1981, who recommended an operation to realign displacement of the fracture site.

On February 10, while plaintiff was under general anesthesia, Dr. Duncan realigned the fragments, and positioned and stabilized the bone by drilling four holes in it and bracing it with a plate and screws. Plaintiff's arm was then placed in a plaster cast extending from below her armpit to her hand.

After the cast was removed nearly four months later on June 4, 1981, plaintiff continued to wear her arm in a sling during the second phase of treatment, which included exercises and soaking of the arm in hot water. Dobard was last seen by Dr. Duncan on October 1, 1981, after prior follow-up visits on February 26, March 12, April 9, May 7, June 4, and June 25.

Dr. Duncan testified that the surgery was successful, and he did not feel that plaintiff had any significant impairment of function of the extremity. He assessed her residual disability as 1% of the entire left arm, and testified that plaintiff can resume all her regular sports and work activities.

The 22 year old unmarried plaintiff testified at length concerning her post-injury recovery. She stated that the cast interfered with her normal activity and curtailed her social activities. She encountered problems dressing and eating, and had to buy a new wardrobe. She also experienced considerable pain during therapy.

At the time of trial, she did not have “full confidence” in her arm, and refrained from her strenuous pre-accident activities such as lifting heavy objects and gymnastics. The plate and screws, discernable under plaintiff’s skin in the left arm, were viewed by the jury.

The record establishes that plaintiff has experienced prolonged pain and inconvenience as a result of the fracture of her arm. The evidence considered, we cannot say the $37,600.00 total damage award constitutes an abuse of the jury’s much discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

In so holding, we reject defendant’s argument that the amount of the judgment should be reduced by the sum of $1,998.95, representing the total of medical bills admitted into evidence. According to defendants, the documents were inadmissible because they lacked any independent verification as to their authenticity or reasonableness by proper medical personnel.

The medical bills were introduced after being identified by plaintiff as charges incurred because of her injury. Plaintiff’s testimony and that of her treating physician, concerning the nature of her treatment, establishes an adequate foundation for the introduction of these documents. Moreover, the trial record contains a complete copy of plaintiff’s medical record including a signed statement of a medical records official certifying that the attached record is true and accurate. Under these circumstances, we find no error in the introduction of the bills and charges corresponding to this medical treatment.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Plaintiff introduced into evidence, over defendant’s objection, medical bills totaling $1,998.95. Plaintiffs lost wages amounted to $604.89, based on a stipulation at trial that she earned $67.21 per day as a school teacher and had missed nine working days as a result of the accident. If these amounts are attributed to special damages, the jury’s lump sum verdict would include $35,000.00 in general damages.


author: SCHOTT, Judge.

text:
    Mrs. Marie Lopez OLLER and Haydee Oller v. SHARP ELECTRIC, INC., ABC Insurance Company, Frischhertz Electric Company, Inc., Def Insurance Company, Edward M. Alba & Associates, Inc., JKL Insurance Company, et al.
    No. CA 1597.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Gregory J. Avery, R. Ray Orrill, Jr., Or-rill & Avery, New Orleans, for plaintiffs-appellants.
    James P. Farwell, Charles L. Chassaig-nac, Chaffe, McCall, Phillips, Toler & Sar-py, New Orleans, for defendants-appellees.
    Before SCHOTT, LOBRANO, and WARD, JJ.
   SCHOTT, Judge.

On September 5, 1979, Oscar Oiler, an employee of the University of New Orleans, was cleaning weeds and brush on an athletic field at the university when he fell from the front loader of a tractor onto a rod protruding from a light standard foundation. He was fatally injured, and suit was filed by his survivors against the university and several contractors, including Sharp Electric, Inc. In June, 1978, Sharp had contracted with the university to construct several light standard foundations on the field. This work was to be followed up with subsequent contracts between the university and others to install the light standards on the foundations built by Sharp. Sometime after Sharp .completed its work the Sharp contract was accepted by the university in June, 1979. The case is before us on plaintiffs’ appeal from a summary judgment dismissing their suit against Sharp. The issue is whether or not, as a matter of law, a contractor may be liable to a third person because of a hazard built by the contractor, even though the work was done in accordance with the owner’s specifications, the work was accepted by the owner, and the third person was injured some time thereafter.

In support of the summary judgment, Sharp relies principally on Norman v. Sorrel, 391 So.2d 496 (La.App. 3rd Cir.1980) writs refused, 396 So.2d 1325. There plaintiff fell from a scaffold when one of the scaffold’s legs fell into an unguarded drain hole in the work site floor. The hole was in a concrete floor poured by the defendant a year before the accident. In granting defendant’s summary judgment the court held that even assuming defendant owed a duty to plaintiff to cover the drain hole, “it hardly seems reasonable to hold that such a duty persisted for over a year afterward.” Noting that some hazards will necessarily exist on a construction site, the court felt it was the owner’s ultimate responsibility to protect third parties from such hazards. The court observed:

“... We simply hold that if defendant ever owed a duty, the breach of which caused plaintiff’s accident and injury, the duty came to an end before the accident occurred.” 391 So.2d at page 498.

We have resolved that the Norman case does not control the result in this case. Instead, we regard Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958) as authority for a reversal of the trial court’s judgment under the circumstances of this case. There, a gas explosion occurred on January 27, 1955, as a result of a defect in a sewerage collection system constructed by defendant for the Town of Jena. The work had begun in November, 1953, and was accepted by the town as completed on December 14, 1954. Imposing liability upon the contractor under LSA C.C. Arts. 2315 and 2316, the court held:

“By these articles plaintiff is entitled to be indemnified by Mason for damages sustained as the result of his negligent and imprudent acts committed in the performance of his contract. The obligation imposed thereby is unconditional and unequivocal. Whatever damages one may cause or occasion to another obliges the actor to repair it. This duty is not contingent upon the condition that the injury be inflicted or damage be done prior to completion of the work undertaken or its acceptance by the owner.
Manifestly, these codal articles do not contemplate conditional responsibility, and to so hold, as Mason seeks to have us do, without supporting authority, would be violative of the positive and all inclusive language employed in these ar-ticles_” 90 So.2d at page 113.

In Marine Insurance Company v. Strecker, 234 La. 522, 100 So.2d 493 (1958) the court considered the question whether the tenant of a building owner can maintain a tort action against a contractor to recover damages caused to the tenant by the fall of a cabinet installed by the contractor for the building owner. The court answered this question affirmatively, observing:

“... If the act of the contractor causes damage and he is at fault, he is under an obligation to the injured party to repair the damage under Article 2315 of our Civil Code, and the injured party has a right of action to enforce the obligation imposed by this article ...” (100 So.2d at page 496)

On rehearing the court reaffirmed its holding citing the Kendrick case and the language quoted above from that case.

The present case is before us on a summary judgment which was properly granted only if there is no genuine issue of material fact considering the pleadings and other documents of record. C.C.P. Art. 966. In their pleadings plaintiffs allege that the foundation with the vertically protruding rod was a trap which should have been flagged and/or covered over by Sharp. Whether Sharp had any such duty may depend on other undisclosed facts such as the knowledge Sharp may have had as to how long the foundations would remain in the condition it was leaving them before the light standards would be placed on them. Because it is conceivable that the facts may support a valid legal theory of liability on Sharp and because such facts have not been foreclosed on we have concluded that the summary judgment was erroneously granted. This conclusion is bolstered by the principle that the court in considering a motion for summary judgment should resolve every reasonable doubt against the mover. Burke v. Occidental Life Ins. Co. of Cal., 416 So. 177 (La.App. 4th Cir.1982).

We do not suggest that plaintiffs can or should prevail on the merits of the case. But a summary judgment is not to be used as a substitute for a trial on the merits. The court should not seek to determine whether it is likely the mover will prevail on the merits but rather whether there is an issue of material fact. Frye v. Texas Brine Corp., 425 So.2d 310 (La.App. 3rd Cir.1980). Our conclusion is that the question of Sharp’s liability is factual. The record, including the deposition of the university’s Vice-Chancellor, leaves for resolution genuine issues of fact pertaining to whether Sharp’s leaving the foundation exposed constituted negligence under all the circumstances of the case.

Accordingly, the summary judgment in favor of Sharp Electric Company, Inc. dismissing plaintiffs’ suit is reversed and set aside. The case is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Sharp Electric Company, Inc. with the assessment of other costs to await the case’s outcome.

REVERSED AND REMANDED.


text:
    Gregory VAN ALTON v. FISK ELECTRIC, INC., General Electric Company, Sam P. Wallace Company, Inc., Simpson Manufacturing Company, Inc., Steven Gendusa, Arthur De Laup, Percy Naquin, and John Orr.
    No. CA 1634.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.

      Lawrence D. Wiedemann, W. Lloyd Bowers, Wiedemann & Fransen, New Orleans, for plaintiff-appellant.
    Craig R. Nelson, Hulse, Nelson & Wan-ek, New Orleans, for defendants-appellees (Steven Gendusa, Percy Naquin and John Orr).
    Before SCHOTT, LOBRANO and WARD, JJ.
   SCHOTT, Judge.

This is a suit for personal injuries sustained by plaintiff in an industrial accident on March 28, 1982. Plaintiff bases his claim against his employer’s executive officers on their alleged intentional act pursuant to LSA-R.S. 23:1032. The case is before us on plaintiffs appeal from a judgment which sustained an exception of no cause of action filed by three executive officers of plaintiff’s employer, the Hyatt Regency Hotel.

Plaintiff alleged the following: He was employed as a maintenance engineer at the hotel on the day of the accident when a power outage occurred. After attempting to restart two air conditioning chillers he called the chief engineer, Steve Gendusa, one of the defendants, for assistance. After Gendusa unsuccessfully tried to start the chiller he secured a voltage meter and, accompanied by plaintiff he opened the door of the electrical panel next to the chiller. He handed the meter to plaintiff and placed the meter leads on each side of a fuse in the panel box; whereupon the voltage meter plaintiff was holding exploded and plaintiff was severely burned. The petition continued as follows:

"XV.
At all times pertinent, Steven Gendusa, Arthur DeLaup, Percy Naquin, and John Orr were executive officers of the Hyatt Corporation and, as such, they had a personal duty, obligation and responsibility, delegated to them by the corporation, to. Gregory Van Alton to provide him with a safe place to work, safe and sound tools and equipment, and to enact and enforce safety rules and regulations pertaining to the operation and maintenance of hotel machinery and equipment.”
“XXVII.
The aforesaid executive officers knew that the aforesaid equipment was defective and with that knowledge knowingly required plaintiff to work with same with the knowledge, or belief, that the consequence of the use thereof was certainly, or substantially certain, to result in injury to plaintiff.”

In sustaining the exception the trial court cited LSA-R.S. 23:1032 and Bazley v. Tortorich, 397 So.2d 475 (La.1981).

R.S. 23:1032 provides that the benefits of the worker’s compensation statute are exclusive as to traditional tort remedies except in the case of an intentional act committed by a superior or co-worker. In the Bazley case the court defined an intentional act as one where the actor consciously desires the physical result of his act whatever the likelihood of that result following or one where the actor knows that the result is substantially certain to follow whatever his desire may be as to that result.

While Article XXVII of plaintiff’s petition alleges an intentional act under Baz-ley ⅛ second definition defendants correctly point out that the courts in Maddie v. Plas tic Supply & Fabrication, Inc., 434 So.2d 158 (La.App. 5th Cir.1983) writs refused 435 So.2d 445 and Reed v. Yor-Wil, Inc., 406 So.2d 236 (La.App. 1st Cir.1981) writs refused 410 So.2d 1135, considered similar allegations to be insufficient to state a cause of action. These courts reasoned that such allegations were conclusory and failed to allege facts to support such conclusions.

On the other hand this court in Hurst v. Massey, 411 So.2d 622 (La.App. 4th Cir.1982) concluded otherwise. Faced with allegations similar to those in this case the court recognized the difficulty of making factual allegations to support one’s frame of mind and concluded that such allegations were sufficient to state a cause of action.

Finally, in Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984) the Supreme Court resolved the conflict among these cases and put the problem to rest. The court held that it was permissible for the employee to plead the intent element of his intentional tort cause of action generally and without particularity. A comparison between the Valentine allegations found in this court’s opinion, 430 So.2d 1068 (La. App. 4th Cir.1983) and the allegations in the instant case compels a conclusion that the latter are sufficient to state a cause of action.

Accordingly, the judgment of the .trial court is reversed and set aside and there is judgment in favor of plaintiff,. Gregory Van Alton, and against defendants, John Orr, Percy Naquin, and Steven Gendusa, overruling their exception of no cause of action. The case is remanded to the trial court for further proceedings. The costs of this appeal are assessed against defendants with the assessment of other costs to await the outcome of the case.

REVERSED AND REMANDED.